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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
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(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 1, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________ .
COMMISSION FILE NUMBER: 1-12203
INGRAM MICRO INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 62-1644402
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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1600 E. ST. ANDREW PLACE, SANTA ANA, CALIFORNIA 92799-5125
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
(714) 566-1000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant at March 27, 2000 was $687,098,684 based on the closing sale
price on such date of $14.6875 per share.
The Registrant had 71,597,655 shares of Class A Common Stock, par value
$.01 per share, and 73,142,787 shares of Class B Common Stock, par value $.01
per share, outstanding at March 27, 2000.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Annual Report to Shareowners for the fiscal year ended
January 1, 2000 are incorporated by reference into Parts I and II of this Annual
Report on Form 10-K. Portions of the Proxy Statement for the Registrant's Annual
Meeting of Shareowners to be held May 17, 2000 are incorporated by reference
into Part III of this Annual Report on Form 10-K.
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PART I
ITEM 1. BUSINESS
In evaluating the business of Ingram Micro Inc., readers should carefully
consider the important factors discussed under Exhibit 99.01 hereto and under
"-- Safe Harbor for Forward-Looking Statements."
OVERVIEW
Ingram Micro Inc. ("Ingram Micro" or the "Company") is the leading
distributor of information technology products and services worldwide. The
Company markets computer hardware, networking equipment, and software products
to more than 175,000 reseller customers in more than 100 countries. The company
also provides logistics and fulfillment services to vendor and reseller
customers. As a distributor, the Company markets its products and services to
resellers and vendors as opposed to marketing directly to end-user customers.
Ingram Micro offers one-stop shopping to its customers by providing a
comprehensive inventory which, on a global basis, consists of more than 280,000
products (as measured by distinct part numbers assigned by manufacturers and
suppliers) from over 1,700 suppliers, including most of the computer industry's
leading hardware manufacturers, networking equipment suppliers, and software
publishers. The Company's broad product offerings include: desktop and notebook
personal computers, servers, and workstations; mass storage devices; CD-ROM
drives; monitors; printers; scanners; modems; networking hubs, routers, and
switches; network interface cards; business application software; entertainment
software; and computer supplies. In addition, to enhance sales and to support
its suppliers and reseller customers, the Company provides a wide range of
outsourcing and value-added programs, such as order fulfillment, tailored
financing programs, channel assembly, systems configuration and marketing
programs. The Company also provides outsourced warehouse and distribution
services for a number of resellers, including Internet-based resellers.
The Company is focused on providing a broad range of products and services,
quick and efficient order fulfillment, and consistent on-time and accurate
delivery to its customers around the world. The Company believes that IMpulse,
the Company's on-line information system, provides a competitive advantage
through real-time worldwide information access and processing capabilities.
IMpulse is a single, standardized, real-time information system and operating
environment, used across substantially all of the Company's worldwide
operations. These on-line information systems, coupled with the Company's
exacting operating procedures in telesales, credit support, customer service,
purchasing, technical support, and warehouse operations, enable the Company to
provide its customers with superior service in an efficient and low cost manner.
The Company's earliest predecessor began business in 1979 as a California
corporation named Micro D, Inc. This company and its parent, Ingram Micro
Holdings Inc. ("Holdings"), grew through a series of acquisitions, mergers, and
internal growth to encompass the Company's current operations. Ingram Micro Inc.
was incorporated in Delaware on April 29, 1996, in order to effect the
reincorporation of the Company in Delaware. Holdings and the successor to Micro
D, Inc. were merged into Ingram Micro Inc. in October 1996.
The Company completed an initial public offering and was split-off, in a
tax-free reorganization (the "Split-Off"), from its former parent, Ingram
Industries Inc.("Ingram Industries"), in November 1996.
THE INDUSTRY
The worldwide information technology products and services distribution
industry generally consists of suppliers and manufacturers ("suppliers"), which
sell directly to distributors, resellers, and end-users; distributors, which
sell to resellers; and resellers, which sell to other resellers and directly to
end-users. A variety of reseller categories exists, including corporate
resellers, value-added resellers or "VARs," systems integrators, original
equipment manufacturers, direct marketers, independent dealers, owner-operated
chains, franchise chains, and computer retailers. Relatively new to this list
are Internet resellers, whose virtual storefronts offer a wide variety of
products and services. Many of these companies are heavily dependent on
distribution partners with the necessary systems and infrastructure in place to
provide fulfillment and other
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services. Different types of resellers are defined and distinguished by the
end-user market they serve, such as large corporate accounts, small and
medium-sized businesses, or home users, and by the level of value they add to
the basic products they sell. Distributors generally sell only to resellers and
purchase a wide range of products in bulk directly from manufacturers.
Characteristics of the local reseller environment, as well as other factors
specific to a particular country or region, have shaped the evolution of
distribution models in different countries.
Based on a June 1999 report by market researcher International Data Corp.,
the growth of the information technology products and services distribution
industry continues to exceed the growth of the computer industry as a whole.
Suppliers are seeking to outsource an increasing portion of certain functions
such as distribution, service, and technical support to the distribution channel
to minimize costs and focus on their core capabilities in manufacturing, product
development, and marketing. Resellers are depending on distributors for more of
their product, marketing, and technical support needs. This is due to growing
product complexity, shorter product life cycles and an increasing number of
information technology products fueled by the emergence of open systems
architecture and the recognition of certain industry standards. In addition,
resellers are relying to an increasing extent on distributors for inventory
management and credit to avoid stocking large inventories and to reduce credit
lines necessary to finance their working capital needs.
Markets outside the United States, which represent over half of the
information technology industry's sales, are characterized by a more fragmented
distribution channel. Increasingly, suppliers and resellers pursuing global
growth are seeking distributors with international sales and support
capabilities.
A number of emerging industry trends provide new opportunities and
challenges for distributors of information technology products and services. For
example, the continued growth of the Internet provides distributors with an
additional means to serve both suppliers and reseller customers through the
development and use of effective electronic commerce tools. The growing presence
and importance of such electronic commerce capabilities also provides
distributors with new business opportunities as new categories of products,
customers, and suppliers develop.
Another example involves a reevaluation of the traditional roles played by
supply chain partners. The Company believes that the chain of relationships
between suppliers, distributors, resellers and end-users is transforming from a
manufacturer-push business model to one that is governed by end-user demand. In
the traditional industry model, distributors simply move product from
manufacturers to resellers who in turn service end-user businesses or customers.
In contrast, the "demand chain" management model would reverse these steps as
follows: (1) the reseller would start by listening to the needs of the end-user
business or consumer, (2) with a clear understanding of these needs, the
reseller would work with a distribution partner to design, sell and support
solutions that address the needs of the end-user business or consumer, and (3)
the distribution partner would then work closely with suppliers and
manufacturers to ensure that these solutions can be delivered through or on
behalf of the resellers in a cost effective and timely manner.
The challenges for this model include the speed and extent to which
distributors and their reseller and supplier partners embrace the model and make
changes to their traditional way of doing business. The benefits of the demand
chain model are increased efficiency and a reduced cost of doing business
resulting from reduced channel inventory and associated costs, shortened channel
response time, and improved value for each channel partner.
The drive to increase efficiency in the delivery of products and services
has resulted in consolidation pressure within the information technology
products distribution industry. This industry trend is evidenced by Compaq's
Distributor Alliance Program announced in May 1999, which decreased the number
of Compaq distribution partners in the U.S. from 39 to 4. Ingram Micro was
selected as one of those partners. The Company believes that it has the largest
global distribution network for information technology products and services and
that for the long term it is well positioned to assume a leadership role for
other manufacturing partners, should this consolidation trend continue.
Another industry trend is manufacturer-direct sales initiatives, developed
in an effort to duplicate the success of the direct sales business model.
Although this model removes distributors from their traditional
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role, the Company believes that this direct sales model presents new partnership
opportunities, such as providing logistics and fulfillment services to suppliers
and reseller customers.
The Company further believes that the dynamics of the information
technology products and services distribution business favor the largest
distributors, which have access to financing and are able to achieve economies
of scale, breadth of geographic coverage, and have the strongest vendor
relationships. Consequently, the distributors with these characteristics tend to
take share from smaller distributors as the industry undergoes a process of
consolidation. However, smaller, high value-added niche distributors may
continue to compete successfully in the consolidated market. The Company also
believes that distributors need to implement high volume/low cost operations on
a worldwide basis as ongoing price competition grows and the demand for
value-added services, the utilization of electronic commerce, as well as the
globalization of the information technology products and services industry
increases. In summary, the information technology products and services
distribution industry is growing rapidly while simultaneously consolidating,
creating an industry environment in which market share leadership and cost
efficiency are of paramount importance.
BUSINESS STRATEGY
The Company's strategic decisions and activities are guided by the
following Vision and Mission statements:
OUR VISION. We will always exceed expectations . . . with every partner,
every day.
OUR MISSION. To maximize shareowner value by being the best provider of
technology products and services for the world.
In addition, the Company's values encourage teamwork, respect,
accountability, integrity, and innovation.
The Company believes that it is the leading worldwide distributor of
information technology products and services and that it has developed the
capabilities and scale of operations critical for long-term success in the
information technology products and services distribution industry.
The Company's strategy of offering a broad line of products and services
provides customers with one-stop shopping. The Company generally is able to
purchase products in large quantities and to avail itself of special purchase
opportunities from a broad range of suppliers. This allows the Company to take
advantage of various discounts from its suppliers, which in turn enables the
Company to provide competitive pricing to its customers. The Company's global
market presence provides suppliers with access to a broad base of geographically
dispersed resellers, serviced by the Company's extensive network of systems,
distribution centers and support offices. Also, the Company benefits from being
able to make large investments in information systems, warehousing systems, and
infrastructure. Further, the Company is able to spread the costs of these
investments across its worldwide operations.
The Company is pursuing a number of strategies to further enhance its
leadership position within the information technology products and services
marketplace, including the following:
EXPAND WORLDWIDE MARKET AND PRODUCT COVERAGE. Ingram Micro is committed to
expanding its already extensive worldwide market coverage through internal
growth in all markets in which it currently participates. In addition, the
Company intends to pursue acquisitions, joint ventures, and strategic
relationships in order to take advantage of growth opportunities and to leverage
its strong systems, infrastructure, and global management skills.
By providing greater worldwide market coverage, Ingram Micro increases the
scale of its business, which results in greater cost economies. In addition, as
it increases its global reach, the Company can better diversify its business
across different markets, reducing its exposure to individual market downturns.
In 1999, the Company continued expansion of its global presence. For example,
the Company increased its reach in Europe, establishing IMICRO Lda., its
Portugal subsidiary, and increased its interest in Walton Networking KFT in
Hungary, giving Ingram Micro its first majority-owned subsidiary in Eastern
Europe. In Asia, the Company increased its ownership of Electronic Resources
Ltd. ("ERL"), a leading distributor of electronic
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components and computer peripherals, from 21% in 1998 to 100% in 1999. ERL was
renamed Ingram Micro Asia Ltd.
The Company has grown its operations outside the United States principally
through acquisitions, and currently has subsidiaries or offices in 30 countries
and sales representatives in another four countries, including Argentina,
Australia, Brazil, Canada, China, Colombia, Costa Rica, Chile, Ecuador, Hungary,
India, Indonesia, Malaysia, Mexico, New Zealand, Norway, Panama, Peru,
Singapore, Switzerland, Thailand, Venezuela, and 12 countries of the European
Union: Austria, Belgium, Denmark, Finland, France, Germany, Italy, The
Netherlands, Portugal, Spain, Sweden and The United Kingdom. The Company
believes that it is the market share leader in the United States, Canada,
Mexico, Brazil, Chile, Germany, and a number of other countries in Europe and
Asia. Ingram Micro believes it is the largest full-line distributor in Europe,
the largest distributor in Asia (excluding Japan), and the largest Pan-Latin
America distributor, based on publicly available data and management's knowledge
of the industry.
The Company continues to pursue initiatives to expand its global product
and service offerings in various categories, such as high-end storage, computer
telephony integration ("CTI"), and networking products. The recently formed
High-End Storage Group provides a dedicated and focused approach to the growing
storage area networks and network attached storage markets. The Company
continues to expand its CTI offering with solutions and products made possible
by the convergence of voice and data applications through its Converging
Technologies Group. Examples of such products include PC-based phone systems,
unified messaging applications, and a variety of Internet telephony and
voice-over Internet protocol products. Expansion areas for networking include
Internet appliances, wide area networking, and wireless networking solutions.
LEAD IN STREAMLINING THE DEMAND CHAIN. The information technology products
and services distribution industry is changing at a rapid pace. The chain of
relationships that spans across component suppliers, manufacturers,
distributors, resellers and end-users is transforming from a manufacturer-push
business model to one that is governed by end-user demand. The Company uses the
term "demand chain" to describe the build-to-demand model to which the channel
is evolving. In this industry model, the role of distributors is expanded from
the traditional movement of products from manufacturers to resellers, to one
that encompasses assembly, configuration, inventory management, order
management, and end-user fulfillment. Ingram Micro believes that as a
distributor with strong execution and broad product offerings, it will be best
able to lead the movement to the demand chain model.
The Company's commitment to streamlining the demand chain is evident in its
investment in infrastructure and programs that enable the most efficient flow of
products, services, and information up and down the demand chain. Frameworks(TM)
Total Integration Services(TM) ("Frameworks") is the Company's vehicle to
deliver world-class channel assembly, reconfiguration, contract manufacturing,
and the procurement of private label/unbranded solutions. Ingram Micro
management within each region is responsible for their respective region's
Frameworks program, allowing regional customer buying patterns to determine the
most appropriate mix among the four services. Another example of demand chain
streamlining in the U.S. is vendor co-location, where the distributor
establishes a site adjacent to the OEM assembly operation. Systems
reconfiguration and customer shipping occur at the vendor site, resulting in
cost and time-to-market efficiencies.
The Company's demand chain focus is also evident in two divisions that
support its business partners: Affiniti(TM) ("Affiniti") for resellers and
Global Partner Services ("GPS") for suppliers, each offer comprehensive suites
of value-added services matched to each partner's individual needs. Affiniti and
GPS are discussed further under the sections entitled "Deliver World-Class
Outsourcing And Value-Added Programs To Suppliers And Resellers" and "Services."
Equally important to streamlining the demand chain is better information
management through the development of industry-wide performance metrics and
standards that enable close collaboration among demand chain partners. Ingram
Micro has spearheaded this effort through its key role in the formation and
continuous support of RosettaNet(TM), an independent, self-funded, non-profit
organization dedicated to promoting an industry-wide initiative to adopt common
electronic business interfaces worldwide. As a next step, Ingram Micro was
instrumental in the formation of Viacore, Inc. Viacore
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is developing an e-commerce hub that can translate RosettaNet information for
member top-tier demand chain companies. This will allow business partners to
exchange critical business information such as real-time inventory,
transportation schedules, and resource planning opportunities, which can lower
costs and reduce cycle times. In addition, Ingram Micro is rapidly enhancing and
expanding electronic commerce tools that facilitate reseller to end-user
commerce.
EXPLOIT INFORMATION SYSTEMS LEADERSHIP AND ENHANCE ELECTRONIC COMMERCE
CAPABILITIES. Ingram Micro continually invests in its information systems, which
are crucial in supporting the Company's growth and its ability to maintain high
service and performance levels. The Company has a scalable, full-featured
information system, IMpulse, which it believes is critical to its ability to
deliver worldwide, real-time information to both suppliers and reseller
customers. IMpulse is an industry-leading information system and is used across
substantially all of the Company's markets worldwide, customized to suit local
market requirements. The Company believes that it is the only full-line
distributor of information technology products and services in the world with
such a centralized global system that is capable of supporting future growth and
new business ventures.
The Company's information systems provide the infrastructure that allows
the implementation of a demand chain, customer-centric channel model. It
provides the information necessary for Ingram Micro to act as the agent of
commerce among suppliers, resellers, and end-users. In 1999, the Company added
significant enhancements to its Web site, www.ingrammicro.com, creating a
prominent business-to-business tool for the technology solutions industry. The
Web site serves as a Business Center for resellers, providing them access to a
myriad of information, including vendor solutions and technical information.
Many other special features currently available in the U.S. and Canada include
real-time pricing and availability, on-line ordering, order status, and an
extensive product catalog. Plans for 2000 include extending this functionality
to nearly every other country in which Ingram Micro operates. The Company's
seamless, easy-to-use, electronic commerce offering provides resellers the
ability to more easily do business with Ingram Micro and end-users at a lower
cost. The Company's electronic commerce capabilities include: SpeedSource(TM), a
Java-based electronic commerce ordering tool that gives resellers in the U.S.
and Canada quick access to real-time ordering, product allocation, order status,
product search, pricing and availability; and InsideLine(TM), a direct
communication link that furnishes resellers with real-time access to the
Company's mainframe inventory systems. InsideLine is the commerce and
information engine behind many of today's successful Internet retailers. This
tool is currently available in the U.S., Canada, Europe, and Latin America, and
is expected to be available in the Asia Pacific region in 2000.
In 2000, Ingram Micro's e-commerce capabilities in the U.S. will support
the Company's individual programs for specialized resellers. These include
VentureTech Network(TM), which specializes in solutions for small-to-medium
sized businesses, and Partnership America(TM), which is focused on the
government and education market. www.venturetechnetwork.com enables
communication between solutions integrators, manufacturers and small-to-medium
business customers. The site, developed and maintained by Ingram Micro, provides
information and facilitates communication with tools such as electronic
storefronts to customers. The electronic storefront tools allow end-users to buy
product online with the order transparently sent to Ingram Micro for fulfillment
on behalf of the solutions integrator. www.partnershipamerica.com will bring
independent buyers in the public sector together with independent resellers of
technology. Partnershipamerica.com will also contain price-comparison tools,
decision-making content such as product reviews, news, events, on-line
presentations, and interactive communication tools for the entire demand chain.
The success of the Company's online capability is demonstrated by the
November 1999 Inter@ctive Week magazine ranking of the "Internet 500" (the
publication's first ranking of the 500 largest companies by Internet revenue).
The magazine's research placed Ingram Micro's online revenue at number 8
overall, the highest ranking among distributors in all industries. Information
Week published the "E-commerce 100" in its December 13, 1999 issue, identifying
"the most innovative practitioners of electronic applications and solutions" in
the U.S. Ingram Micro, the only broadline information technology products and
services distributor listed, ranked number 33 overall.
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PROVIDE SUPERIOR EXECUTION FOR RESELLER CUSTOMERS. Consistent with its
overall emphasis on "winning customers for life," Ingram Micro continually
refines and integrates its systems and business processes to provide superior
execution and service to resellers. The Company's electronic commerce tools
enable resellers to do business with their end-user customers quickly, easily,
and at a lower cost. To ensure efficient product delivery, the Company continues
to expand and upgrade its distribution network. For example, in 1999 the Company
completed the construction of new distribution centers in Toronto, Canada
(501,000 square feet), Straubing, Germany (400,000 square feet), Lomme, France
(200,000 square feet), and Barcelona, Spain (110,000 square feet). In 2000, the
Company plans to complete the construction of a new distribution center in
Lickdale, Pennsylvania (600,000 square feet) and convert the existing
Harrisburg, Pennsylvania distribution center (200,000 square feet) to a major
eastern returns processing center. Due to a change in business strategy, the
distribution center in Tilburg, The Netherlands, originally anticipated to be a
600,000 square foot facility serving the pan-European market is now planned as a
270,000 square foot facility primarily to serve the Dutch market. European
product flow will continue to be allocated primarily to individual in-country
distribution centers.
In 2000, the Company will begin the implementation of the next generation
of operations and logistics systems, built around a client-server warehouse
management system, allowing all of its North American distribution centers to
increase operating capacity from 20 hours a day to 24 hours a day. In the area
of process improvement, the Company works continuously to advance its formal
systems for evaluating and tracking key performance metrics such as
responsiveness to customers, processing accuracy, and order fill rate. Ingram
Micro uses these metrics as well as customer satisfaction surveys to measure
improvements on all key elements believed to be important to the customer. This
information, when used in conjunction with Ingram Micro's core values, allows
the Company's associates to provide a high level of customer satisfaction. The
Company's commitment to superior service has been widely recognized throughout
the industry. For example, in their 15th annual Preferred Distributor Study,
Computer Reseller News rated Ingram Micro a preferred distributor in more
categories than any other distributor in 1999.
Ingram Micro strives to maximize order fill rates by maintaining optimum
quantities of product in its 70 distribution centers worldwide. The Company's
advanced control systems and processes enable Ingram Micro to provide same-day
shipping for any order in the United States received by 5:00 p.m., with highly
accurate shipping performance. Another indication of the quality of Ingram
Micro's processes is the ISO 9002 certification of all U.S. business units
including customer service, returns, consolidation, operations, configuration,
distribution center, sales and purchasing, as well as a number of comparable
business units located outside the U.S. In addition, the Company has implemented
a number of programs that significantly reduce the time required for resellers
to obtain product. For example, the Company offers co-location services in which
Ingram Micro sets up a permanent location either on site or adjacent to a
supplier's manufacturing facility. Ingram Micro takes possession of product at
the supplier's location and then ships it to the reseller or end-user, depending
on the reseller's specification, cutting out a large portion of costs from the
supply chain.
DELIVER WORLD-CLASS OUTSOURCING AND VALUE-ADDED PROGRAMS TO SUPPLIERS AND
RESELLERS. As a global service-focused organization, Ingram Micro strives to
compete on the basis of total value rather than solely on price. By
understanding and anticipating customer needs, the Company continually develops
innovative business solutions to provide full back-room outsourcing services to
suppliers and resellers. Ingram Micro's GPS division assists suppliers in
outsourcing standard business functions, such as logistics and end-user
fulfillment. The Affiniti division aims to transform the Company's relationships
with its reseller customers from pure transactional relationships to
consultative partnerships where Ingram Micro satisfies not only the customers'
product needs but also their service requirements. Such relationships are
designed to enable the Company to transition from a product-centric commodity
business to a full solution and services provider, with expected benefits in
revenue and margin generation. Under the GPS and Affiniti initiatives, the
Company identifies and deploys value-added services to its supplier and reseller
partners such as warehousing, distribution, order management, product
fulfillment, product reconfiguration, channel assembly, and e-commerce credit
management. Ingram Micro, in conjunction with various strategic partners,
provides additional services in areas such as e-commerce, telemarketing,
transportation and marketing services. Together, these services are intended to
link reseller customers and suppliers to Ingram Micro as a one-stop
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provider of information technology products and related services, while meeting
demand by suppliers and resellers to outsource their non-core business
activities and thereby lower their operating costs.
MAINTAIN LOW COST LEADERSHIP THROUGH CONTINUOUS IMPROVEMENTS IN SYSTEMS AND
PROCESSES. Intense competition and narrow margins characterize the information
technology products and services distribution industry. As a result, achieving
economies of scale and controlling operating expenses are critical to achieving
and maintaining profitable growth. Over the past five years, the Company has
been successful in reducing SG&A expenses (including expenses allocated from
Ingram Industries prior to the Split-Off) as a percentage of net sales, to 4.0%
in 1999 from 4.9% in 1995.
Work is in progress on a number of programs designed to continue reducing
operating expenses as a percentage of net sales. Many U.S.-developed programs
are slated for implementation in the Company's international operations, while
other programs are region-specific. Current productivity improvement programs
include: (i) system enhancements to automatically route orders to the most
cost-efficient warehouse based on customer needs and warehouse capacity; (ii)
increased utilization of most of the Company's existing warehouse locations
resulting from the expansion of operating hours from 20 to 24 hours per day;
(iii) automated proof-of-delivery notifications to improve collection on past
due invoices; (iv) creation of "co-location" programs with key vendors to ship
product directly from the vendor to the end-user; (v) enhancements that allow a
close integration of major systems -- such as logistics and material handling
platforms -- resulting in increased efficiencies, product traceability, and
service offerings; and (vi) the expansion of the Company's electronic commerce
tools, including deployment of Internet ordering capabilities in 17 countries to
date, to increase the number of orders placed without the assistance of a
telesales representative. See "-- Information Systems."
The Company will, on an ongoing basis, examine its business processes and
systems to determine how it can continue to improve, while simultaneously
lowering costs.
DEVELOP HUMAN RESOURCES FOR EXCELLENCE AND TO SUPPORT FUTURE GROWTH. Ingram
Micro's growth to date is a result of the talent, dedication, and teamwork of
its associates. Future growth and success will be substantially dependent upon
the retention and development of existing associates, as well as the recruitment
of additional associates with superior talent.
Transferring functional skills and implementing cross-training programs
across all Ingram Micro locations have proven to be important factors in the
Company's growth and global expansion. A rigorous and systematic process is
being implemented for defining, developing and delivering the highest quality
training solutions in the most cost-effective way. In conjunction with these
training programs, the Company is expanding its human resources systems
worldwide to provide enhanced applicant tracking, hiring screens, career and
succession planning, education assistance, stock ownership participation, and
benefits administration. Also, the Company continues to seek top quality
associates worldwide through local, professional, and college recruiting
programs. Recognizing that hiring and retaining associates hinges, in part, on
providing a competitive salary and benefits package, the Company has developed a
global salary structure based on a comprehensive review of competitive salaries
and benefits by region. Based on feedback from the Company's annual associate
surveys and leadership behavior questionnaires, Ingram Micro has modified many
aspects of its programs and processes.
CUSTOMERS
Ingram Micro sells to more than 175,000 reseller customers in more than 100
countries worldwide. No single customer accounted for more than 4% of Ingram
Micro's net sales in 1999, 1998, or 1997.
The Company conducts business with most of the leading resellers of
information technology products and services around the world including, in the
United States, Best Buy, Buy.com, CDW Computer Centers, CompUSA, Dell Computer,
Insight, MicroAge, Micro Warehouse, Office Max, PC Connection and Staples. The
Company's reseller customers outside the United States include Club Compu Price,
DGS Retail Limited, EDS Innovations, Future Shop, GE Capital, Laboratorios
Magneticos, Micro Warehouse, Nueva Wal Mart and Telenor. In most cases, the
Company has resale contracts with its reseller customers which are generally
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terminable at will after a short notice period, and have no minimum purchase
requirements. The Company's business is not substantially dependent on any such
contracts.
Ingram Micro is well positioned to provide fulfillment and value-added
services to the Internet reseller marketplace. As of January 1, 2000, Ingram
Micro supported 34 Internet resellers (defined as those resellers whose primary
point of sale to their end-users is via the reseller's web site). Ingram Micro's
sales organization has specific resources dedicated to the recruitment,
development and sales support of the Internet reseller.
The Company's GPS Division provides a number of information technology
product manufacturers with supply chain optimization services including: call
center management, customer service, credit management, financial services,
invoicing, technical service, order management, warehouse management, kitting,
customized shipping labels, and reverse logistics services. The Company's
agreements with these manufacturers are generally for a number of years,
although either party may terminate the agreement after a relatively short
notice period.
The Company has specific agreements in place with its Affiniti customers to
provide order management, logistics management, configuration management and
procurement management services. Customers include CompUSA, SARCOM, Software
Spectrum and Unisys in the United States, ABM and Mobile Direct in Canada, and
GE Capital, IMS and Telenor in Europe. These agreements generally have longer
terms than the Company's resale agreements, but, in most cases, can be
terminated on relatively short notice by either party without cause.
SALES AND MARKETING
As of the end of fiscal 1999, Ingram Micro's sales department employed
approximately 3,600 sales representatives worldwide. Of these, approximately
1,300 representatives are located in the United States, 1,350 in Europe, and 900
in other regions. These individuals assist resellers with product
specifications, system configuration, new product/service introductions,
pricing, and availability.
The sales organization is structured to focus on resellers, who comprise
the following market sectors:
- VAR (value-added resellers): Internet service providers, corporate
resellers, direct marketers, independent dealers and owner-operated
chains;
- Consumers: Internet storefronts, consumer electronics stores, computer
superstores, mass merchants, office product superstores, and warehouse
clubs; and
- Telecommunications: telephone companies, telecommunications contractors
and interconnect value-added resellers.
The Company's product management and marketing groups also promote Ingram
Micro's sales growth and facilitate customer contact. For example, Ingram
Micro's marketing programs are tailored to meet specific supplier and reseller
customer needs. These needs are met through a wide offering of services by the
Company's in-house marketing organization, including advertising, direct mail
campaigns, market research, on-line marketing, retail programs, sales
promotions, training, and assistance with trade shows and other events.
SELLING ARRANGEMENTS. The Company offers various credit terms to qualifying
customers as well as prepay, credit card, and cash on delivery terms. The
Company also offers "end-user" financing based upon the end-user's
creditworthiness and collects outstanding accounts receivable on behalf of the
reseller. The Company closely monitors reseller customers' creditworthiness
through IMpulse, which contains detailed information on each customer's payment
history as well as other relevant information. In addition, the Company
participates in a U.S. credit association whose members exchange customer credit
rating information. In most markets, the Company utilizes various levels of
credit insurance to allow sales expansion and control credit risks; for example,
in Europe, approximately 90% of the Company's sales are covered by credit
insurance. The Company establishes reserves for estimated credit losses in the
normal course of business. If the Company's receivables were to experience a
substantial deterioration in their collectibility or if the
9
<PAGE> 10
Company cannot obtain credit insurance at reasonable rates, the Company's
financial condition and results of operations may be adversely impacted.
The Company also sells to certain customers in the United States through
arrangements that involve higher volume sales on limited lines of product. These
sales are generally funded by floor plan financing companies whose fees are
subsidized by the Company's suppliers. Historically, the Company received
payment from these financing institutions within three business days from the
date of the sale, allowing the Company's master reseller business to operate at
much lower relative working capital levels than the Company's distribution
business. Starting in the second half of 1998, certain of the industry's leading
hardware manufacturers reduced their flooring fee subsidies. As a result,
payments from institutions that finance master reseller sales with these reduced
subsidies are now received within 15 days. This delay in payment has increased
the Company's average borrowing levels and interest costs.
PRODUCTS AND SUPPLIERS
Ingram Micro believes that it has the largest inventory of products in the
industry, based on a review of its major competitors' publicly available data.
The Company distributes and markets more than 280,000 products (as measured by
distinct part numbers assigned by manufacturers and other suppliers) from the
industry's premier computer hardware manufacturers, networking equipment
suppliers, and software publishers worldwide. Product assortments vary by
market, and the manufacturers' relative importance to Ingram Micro also varies
from country to country. On a worldwide basis, the Company's sales mix is more
heavily weighted toward hardware products than software products. Net sales of
software products have decreased as a percentage of total net sales in recent
years due to a number of factors, including bundling of software with
microcomputers, increased prevalence of software licensing as compared to sales
of individual software titles and declines in software prices. The Company
believes that this is a trend that applies to the information technology
products distribution industry as a whole, and the Company expects it to
continue.
Ingram Micro's worldwide suppliers include leading computer hardware
manufacturers, networking equipment manufacturers, and software publishers such
as 3Com, Apple Computer, Cisco Systems, Compaq Computer, Corel, Epson,
Hewlett-Packard, IBM, Intel, Iomega, Microsoft, NEC Technologies, Novell,
Quantum, Seagate, Sun Microsystems, Symantec, Toshiba, Viewsonic, and Western
Digital.
The Company's suppliers generally warrant the products distributed by the
Company and allow returns of defective products, including those that have been
returned to the Company by its customers. The Company does not independently
warrant the products it distributes; however, the Company does warrant the
following: (i) its services with regard to products which it configures for its
customers, and (ii) products which it builds to order from components purchased
from other sources.
The Company has written distribution agreements with many of its suppliers;
however, these agreements usually provide for nonexclusive distribution rights
and often include territorial restrictions that limit the countries in which
Ingram Micro is permitted to distribute the products. The agreements are also
generally short term, subject to periodic renewal, and often contain provisions
permitting termination by either party without cause upon relatively short
notice. A supplier who elects to terminate a distribution agreement generally
will repurchase its product carried in the distributor's inventory. The Company
does not believe that its business is substantially dependent on the terms of
any such agreements.
The Company's business, like that of other distributors, is subject to the
risk that the value of its inventory will be affected adversely by suppliers'
price reductions or by technological changes affecting the usefulness or
desirability of the products comprising the inventory. It is the policy of most
technology product suppliers to protect distributors, such as the Company, from
the loss in value of inventory due to technological change or the supplier's
price reductions. Under many such agreements, the distributor has a designated
period of time within which to return for credit or exchange for other products
a portion of those inventory items purchased. In addition, under the terms of
many distribution agreements and if the distributor complies with certain
conditions, suppliers will credit the distributor for declines in inventory
value resulting from the supplier's price reductions. In the last year, however,
major PC suppliers have decreased the availability of price protection for
distributors. It is now more difficult for the Company to match its inventory
levels with
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<PAGE> 11
price protection periods. The time periods within which distributors may receive
rebates or credit from manufacturers for decreases in prices on unsold inventory
are shorter. Consequently, the Company's risk of loss has increased due to
declines in the value of inventory held by the Company after such price
protection periods have passed. The Company is taking various actions, including
closer monitoring of its inventory levels and decreased purchases, to lessen
such risk.
While the industry practices discussed above are sometimes not embodied in
written agreements and do not protect the Company in all cases from declines in
inventory value, management believes that these practices provide a level of
protection from such declines. No assurance can be given, however, that such
practices will continue or that they will adequately protect the Company against
declines in inventory value.
SERVICES
Ingram Micro offers a variety of services to resellers and manufacturers.
The Company's Frameworks offering features reconfiguration to OEMs, and includes
other services in the U.S. and Europe. Through its GPS division, the Company
provides outsourcing services to manufacturers and through its Affiniti
division, it provides outsourcing services to its large reseller customers.
FRAMEWORKS. Ingram Micro introduced Frameworks, a channel assembly and
configuration initiative, in 1997 to improve efficiency and assist in reducing
manufacturers' inventory overhead. Frameworks, currently provides
reconfiguration services within each region Ingram Micro operates.
Reconfiguration consists of opening brand named finished product and upgrading
it with features such as memory, components, accessories, and third party
software. Reconfiguration is provided in the U.S. at two dedicated Frameworks
facilities and under co-location arrangements established adjacent to OEM
assembly operations in Houston, Texas; Raleigh, North Carolina; and Richmond,
Virginia. Outside the U.S., reconfiguration is performed at several of the
Company's distribution facilities around the world. Within the U.S. and European
regions, Frameworks services also include channel assembly (bringing together
individual OEM components into a manufacturer-authorized computer),
manufacturing of private label and unbranded systems, as well as other
manufacturing services.
GLOBAL PARTNER SERVICES. Ingram Micro established the GPS division in 1999
to provide outsourcing services to manufacturers. GPS, currently a U.S. and
Canadian initiative, helps manufacturers seamlessly provide end-users with
product selection, purchasing, delivery and customer service.
Ingram Micro provides a complete logistics and outsourcing solution to
manufacturers through its GPS division. The Company's service offerings include
warehousing, distribution, order management, product fulfillment, and credit
management, among others. Various strategic partners, working with Ingram Micro,
provide services in areas such as e-commerce, telemarketing, transportation, and
marketing services. These relationships include joint engagement with key
customers, as well as the development of value-added solutions to increase
customer satisfaction and expand opportunities.
The Company's agreements with these manufacturers are generally for a
number of years, although either party may terminate the agreement after a
relatively short notice period.
AFFINITI. In order to take advantage of the Company's scale and service
offerings, Ingram Micro also established Affiniti in 1999 within its U.S.,
Canadian, and European operations. Affiniti provides the Company's large
reseller customers with outsourcing and supply chain management services. This
service offering includes order management, product procurement, configuration,
fulfillment, marketing services and certain other outsourcing services.
Resellers benefit by reducing their fixed investments while at the same time
having access to the latest technology and logistics services through Ingram
Micro.
The Company has specific agreements in place with its Affiniti customers to
provide order management, procurement management, configuration management and
logistics management services. Customers include CompUSA, SARCOM, Software
Spectrum and Unisys in the United States, ABM and Mobile Direct in Canada, and
GE Capital, IMS and Telenor in Europe. These agreements generally have longer
terms than the Company's resale agreements, but, in most cases, can be
terminated on relatively short notice by either party without cause.
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<PAGE> 12
INFORMATION SYSTEMS
Ingram Micro's systems are primarily mainframe-based and provide the high
level of scalability and performance required to manage such a large and complex
business operation. IMpulse, Ingram Micro's enterprise wide system, is a single,
standardized, real-time information system and operating environment, used
across substantially all of the Company's worldwide operations. It has been
customized as necessary for use in all countries in which the Company operates
and has the capability to handle multiple languages and currencies. On a daily
basis, the Company's systems typically handle 60 million on-line transactions,
compared to 12 million on-line transactions handled on a daily basis by IMpulse
in 1996. The Company has designed IMpulse as a scalable system that has the
capability to support increased transaction volume. The overall internal
response time for the Company's IMpulse system consisting of over 47,000
terminal sessions (terminals, printers, personal computers, and radio frequency
hand held terminals) is less than one second.
Worldwide, Ingram Micro's centralized processing system supports more than
40 operational functions including customer management, inventory management,
order management, warehouse management, and accounting. At the core of the
IMpulse system is on-line, real-time distribution software to which considerable
enhancements and modifications have been made to support the Company's low cost
business model and its growth. The Company makes extensive use of advanced
telecommunications technologies with customer service-enhancing features, such
as Automatic Call Distribution to route customer calls to the telesales
representatives. The Telesales Department uses its Sales Wizard system for
on-line, real-time tracking of all customer calls, for proactive outbound
calling, and for status reports on sales statistics such as number of customer
calls, customer call intentions, and total sales generated. IMpulse allows the
Company's telesales representatives to deliver real-time information on product
pricing, inventory availability, and order status to reseller customers. The
Sales Adjusted Gross Profit pricing system enables telesales representatives to
make informed pricing decisions through access to specific product and order and
fulfillment-related costs for each sales opportunity.
In the United States, the Company has implemented CTI technology, which
provides the telesales representatives with Automatic Number Identification
capability and advanced telecommunications features such as on-screen call
waiting and automatic call return, thereby reducing the time required to process
customer orders.
In order for Ingram Micro to act as the agent of commerce among suppliers,
resellers, and end-users, the Company greatly improved its web site,
www.ingrammicro.com during 1999. The Company is rapidly enhancing and deploying
seamless, easy-to-use electronic commerce solutions that provide resellers with
the ability to do business with Ingram Micro and with end-users at lower cost.
The Company's electronic commerce capabilities have expanded during 1999 through
two major enhancements to the Ingram Micro web site. The first enhancement
provided 24 hours a day/7 days a week ordering capability, along with a major
re-design of the user interface and product search functionality. The second
enhancement added end-user quote generation and financing options. These
enhancements, bundled with InsideLine, a direct communication link that
furnishes resellers with real-time access to the Company's mainframe inventory
systems, create a strong base from which to roll out additional customer-focused
solutions. VentureTech Network uses these developments to provide customers an
end-user web storefront targeted specifically to the small-to-medium sized
business market segment. The site provides targeted content and promotional
offerings to end-users, and allows Ingram Micro customers to conduct business
transactions via the Internet with their end-users.
To complement Ingram Micro's telesales, customer service, and technical
support capabilities, IMpulse offers a number of different electronic products
and services through which customers can conduct business with the Company.
These products and services include the Customer Automated Purchasing System,
Electronic Data Interchange, the Bulletin Board Service, internet-based
Electronic Catalog, TechNotes, and Auction Block. The Electronic Catalog
provides reseller customers with access to product pricing and availability,
with the capability to search by product category, name, or manufacturer.
TechNotes is a comprehensive multi-manufacturer database which customers can
deploy on their own web sites and contains timely and accurate product, sales,
and technical information. TechNotes information is updated regularly by the
manufacturers. Auction Block is a real-time, on-line bidding service that allows
reseller customers to
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<PAGE> 13
competitively bid on unopened products that are not returnable to suppliers
(e.g., discontinued products, products with cosmetic damage to their packaging,
returned products not conforming to the supplier's return policies).
The Company's warehouse operations use extensive bar-coding technology and
radio frequency technology for receiving and shipping, and real-time links to
United Parcel Service and Federal Express for freight processing and shipment
tracking. The customer service department uses the POWER System for on-line
documentation and faster processing of customer product returns. To ensure that
adequate inventory levels are maintained, the Company's buyers depend on the
purchasing system to track inventory on a continual basis. Many other features
of IMpulse help to expedite the order processing cycle and reduce operating
costs for the Company as well as its reseller customers and suppliers.
The Company employs various security measures and backup systems designed
to protect against unauthorized use or failure of its information systems.
Access to the Company's information systems is controlled through the use of
passwords and additional security measures are taken with respect to sensitive
information. The Company has a contract with Sungard Recovery Services for
disaster recovery. In addition, the Company has backup power sources for
emergency power. The Company has not in the past experienced significant
failures or downtime of IMpulse or any of its other information systems, but any
such failure or significant downtime could prevent it from taking customer
orders, printing product pick-lists and/or shipping product, and could also
prevent the Company's customers from accessing price and product availability
information.
The Company believes that in order to remain competitive, it will be
necessary to continuously upgrade its information systems. The Company's
mainframe computer systems were upgraded during 1999 to allow for continued
growth and to allow further and faster integration of new web-based technology
with the legacy systems. The Company has also begun to migrate its IMpulse
system from a mainframe-based system using Cobol language to a client-server
based system using Oracle database management systems. The Company believes that
this new information system architecture will address the Company's need for a
distributed computing environment. Doing so will provide for improved and
simpler connectivity to vendors and customers 24 hours a day/7 days a week and
will increase system scalability and fault tolerance.
EURO CONVERSION
On January 1, 1999, a single currency called the euro was introduced in
Europe. Eleven of the 15 member countries of the European Union adopted the euro
as their common legal currency on that date. Fixed conversion rates between
these participating countries' existing currencies (the "legacy currencies") and
the euro were established as of that date. The legacy currencies are scheduled
to remain legal tender as denominations of the euro until at least January 1,
2002 (but not later than July 1, 2002). During this transition period, parties
may settle transactions using either the euro or a participating country's
legacy currency. Beginning in January 2002, new euro-denominated bills and coins
will be issued and legacy currencies will be withdrawn from circulation. The
Company has implemented plans to address the issues raised by the euro currency
conversion. These plans include, among others, the need to adapt computer
information systems and business processes and equipment to accommodate
euro-denominated transactions; the need to analyze the legal and contractual
implications on contracts; and the ability of the Company's customers and
vendors to accommodate euro-denominated transactions on a timely basis. Since
the implementation of the euro on January 1, 1999, the Company has experienced
improved efficiencies in its cash management program in Europe as all
intra-company transactions within participating countries are conducted in
euros. In addition, the Company has reduced hedging activities in Europe for
transactions conducted between euro participating countries. Since the Company's
information systems and processes generally accommodate multiple currencies, the
Company anticipates that modifications to its information systems, equipment and
processes will be made on a timely basis and does not expect any failures which
would have a material adverse effect on the Company's financial position or
results of operations or that the costs of such modifications will have a
material effect on the Company's financial position or results of operations.
The Company has not experienced any material adverse effects on its financial
position or results of operations in connection with the January 1, 1999 first
stage conversion.
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NON-U.S. OPERATIONS AND EXPORT SALES
OPERATIONS OUTSIDE THE UNITED STATES. The Company has subsidiaries or
offices outside the U.S. in 30 countries and sales representatives in another
four countries, including Argentina, Australia, Brazil, Canada, China, Colombia,
Costa Rica, Chile, Ecuador, Hungary, India, Indonesia, Malaysia, Mexico, New
Zealand, Norway, Panama, Peru, Singapore, Switzerland, Thailand, Venezuela, and
12 countries of the European Union: Austria, Belgium, Denmark, Finland, France,
Germany, Italy, The Netherlands, Portugal, Spain, Sweden and The United Kingdom.
In 1999, 1998, and 1997, 40.1%, 34.7%, and 30.4%, respectively, of the Company's
net sales were derived from operations outside of the United States. The Company
expects its net sales from operations outside the United States to increase as a
percentage of total net sales in the future due primarily to organic growth and,
to a lesser extent, acquisitions.
The Company's net sales from operations outside the United States are
primarily denominated in currencies other than the U.S. dollar. Accordingly, the
Company's operations outside the United States impose risks upon its business as
a result of exchange rate fluctuations. Additionally, the Company's net sales
from operations outside the United States expose the business to financial risks
from interest rate fluctuations in foreign markets. The Company mitigates most
of this risk primarily through matching the currencies of its non-U.S. costs and
revenues, borrowing in foreign currencies, and utilizing derivative financial
instruments such as forward exchange contracts and interest rate swaps. See
"Item 7. -- Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Item 7A. -- Quantitative and Qualitative Disclosures
About Market Risk."
EXPORT MARKETS. The Company continues to serve markets where it does not
have a stand-alone, in-country presence through its general telesales operations
in Santa Ana, California and Buffalo, New York and in Export offices in Miami,
Florida; and Heerlen, The Netherlands. In addition, the Export branch in Latin
America has field sales representatives based in Bogota, Colombia; San Jose,
Costa Rica; Caracas, Venezuela; Quito, Ecuador; San Juan, Puerto Rico; and Sao
Paulo, Brazil.
For segment information regarding the Company's United States and non-U.S.
operations, see Note 10 of Notes to Consolidated Financial Statements.
COMPETITION
The Company operates in a highly competitive environment, both in the
United States and internationally. The information technology products and
services distribution industry is characterized by intense competition, based
primarily on price, product availability, speed and accuracy of delivery,
effectiveness of sales and marketing programs, credit availability, ability to
tailor specific solutions to customer needs, quality and breadth of product
lines and service, and availability of technical and product information. The
Company believes it competes favorably with respect to each of these factors.
Ingram Micro competes in the U.S. against full-line distributors such as
Tech Data, Merisel and Pinacor (MicroAge's distribution arm), as well as
specialty distributors such as Gates/Arrow (desktop and enterprise products),
Daisytek (consumables), Access Graphics (enterprise products) and Avnet
(industrial and enterprise products). Ingram Micro competes internationally with
a variety of national and regional distributors. In the European market,
competitors include international distributors such as Tech Data (which acquired
Computer 2000, a European competitor). During 1999, CHS Electronics, a large
international competitor, began divesting the majority of its operations in
Europe and in Latin America to the respective management groups. European
regional and local competitors include the divested European operations of CHS,
Actebis, Raab Karcher and Scribona. In Canada, Ingram Micro competes with
Merisel, Beamscope and Tech Data (which acquired Globelle in 1999). In Latin
America, Ingram Micro competes with international distributors such as Tech
Data, and several regional and local distributors including the divested Latin
American operations of CHS, MPS Mayorista, Alvimer and Sonda-Beamscope S.A. In
the Asia Pacific market, Ingram Micro faces both regional and local competitors,
of whom the largest are Tech Pacific, a broadline distributor and SiS
Distribution Ltd., a Hong Kong-based distributor of microcomputer products.
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The Company is constantly seeking to expand its business into areas closely
related to its core information technology products and services distribution
business. As the Company enters new business areas, including value-added
services, it may encounter increased competition from current competitors and/or
from new competitors, some of which may be current customers of the Company. As
electronic purchases of software become more prevalent in the industry,
electronic software distributors may become significant competitors of the
Company. In addition, the Company will continue to seek new opportunities to
provide warehousing and distribution support to Internet storefronts. Electronic
commerce companies could potentially compete with the Company by purchasing
product directly from manufacturers and selling to reseller or end-user
customers.
The Company believes that as customers move their back-room operations to
distribution partners, outsourcing and value-added capabilities will become more
important competitive factors. Examples of value-added capabilities include
channel assembly, configuration, innovative financing programs, and order
fulfillment programs. Many of the Company's manufacturers and reseller customers
are looking to outsourcing partners to perform back-room operations. There are
many potential competitors that provide outsourcing services including other
distributors, freight companies such as United Parcel Service and Federal
Express, and logistics outsourcing companies such as Excel Logistics.
Ingram Micro also competes with hardware manufacturers and software
publishers that sell directly to reseller customers and end-users.
ASSET MANAGEMENT
The Company seeks to maintain sufficient quantities of product inventories
to achieve high order fill rates. The Company believes that the risks associated
with slow moving and obsolete inventory are mitigated by price protection and
stock return privileges provided by suppliers and also by establishing and
continuing to accrue for excess and obsolete inventory reserves based upon
current requirements. In the event of a supplier price reduction, the Company
generally receives a credit for products based upon the terms and conditions
with that supplier. In addition, the Company has the right to return a certain
percentage of purchases, subject to certain limitations.
Historically, price protection, stock return privileges, and inventory
management procedures have helped to reduce the risk of decline in the value of
inventory. However, major PC suppliers have stated that it is their intention to
control the amount of inventory in the channel, particularly in light of the
growth of vendor direct and channel assembly strategies. In the last year, many
suppliers have changed the terms and conditions of their price protection plans
from "full coverage" to "past shipment coverage." This results in an exposure
for the distribution partner. The shorter time periods during which distributors
may receive credit for decreases in manufacturer prices on unsold inventory have
made it more difficult for the Company to match its inventory levels with the
price protection periods. Consequently, the Company's risk of loss due to
declines in value of inventory held by the Company after such price protection
periods have passed has increased.
Inventory levels may vary from period to period, due in part to the
addition of new suppliers or new lines with current suppliers and large cash
purchases of inventory due to advantageous terms offered by suppliers. In
addition, payment terms with inventory suppliers may vary from time to time, and
could result in less inventory being financed by vendors and a greater amount of
inventory being financed by the Company's capital.
EMPLOYEES
As of January 1, 2000, the Company employed 15,363 associates located in
the following regions: United States -- 8,003, Europe -- 4,466, and all other
regions -- 2,894. Ingram Micro's success depends on the skill and dedication of
its associates. The Company strives to attract, develop, and retain outstanding
personnel. Certain of the Company's operations in Europe, Latin America and
Canada are subject to collective bargaining or similar arrangements. The Company
has a process for continuously measuring the status of associate relations and
responding to associate priorities.
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<PAGE> 16
In February 1999, the Company initiated a plan principally in the United
States, but also in Europe, to streamline operations and reorganize resources to
increase flexibility and service and maximize cost savings and operational
efficiencies. This reorganization plan included several organizational and
structural changes, including the closing of the Company's California-based
consolidation center and certain other redundant locations, realignment of the
Company's sales force and the creation of a product management organization that
integrates purchasing, vendor services, and product marketing functions, as well
as a realignment of administrative functions and processes. Outside the U.S.,
the Company increased its cost effectiveness with process improvement efforts
directed at increasing productivity in its distribution centers. In addition,
during the fourth quarter of 1999, further organizational and strategic changes
were implemented in the Company's Frameworks organization including the
selection of an outsource partner to produce unbranded systems and the
reallocation of resources to the Company's custom-configuration services
capabilities.
On March 6, 2000, the Company named Kent B. Foster chief executive officer
and president. He was also elected to Ingram Micro's board of directors. Jerre
L. Stead will remain chairman of the board until his retirement at the Company's
annual meeting of shareowners in May 2000, at which time Mr. Foster will succeed
him as chairman.
EXECUTIVE OFFICERS AND/OR REGIONAL PRESIDENTS OF THE COMPANY
The following table sets forth certain information with respect to each
person who is an executive officer and/or regional president of the Company as
of March 6, 2000:
<TABLE>
<CAPTION>
PRESENT AND PRIOR POSITIONS HELD WITHIN
NAME AGE THE PAST FIVE YEARS(1) YEARS POSITIONS HELD
---- --- --------------------------------------- --------------------
<S> <C> <C> <C>
Kent B. Foster(2)...... 56 Chief Executive Officer and President 03/00 to current
President, GTE, a telecommunications services 06/95 to 12/99
company
Vice Chairman and President, GTE Telephone 01/93 to 06/95
Operations
Michael J. Grainger.... 47 Executive Vice President and Worldwide Chief 10/96 to current
Financial Officer
Chief Financial Officer 05/96 to 10/96
Vice President and Controller, Ingram 07/90 to 10/96
Industries
Kevin M. Murai......... 36 Executive Vice President and President, 03/00 to current
Ingram Micro U.S.
Senior Vice President, Chief Operating 01/00 to 03/00
Officer and Acting President, Ingram
Micro U.S.
Senior Vice President and President, Ingram 12/97 to 01/00
Micro Canada
Vice President, Operations, Ingram Micro 01/93 to 12/97
Canada
Gregory M.E. 43 Executive Vice President and President, 06/99 to current
Spierkel............. Ingram Micro Europe
Senior Vice President and President, Ingram 07/97 to 06/99
Micro Asia-Pacific
Vice President, Global Sales & Marketing, 03/96 to 06/97
Mitel Inc., a manufacturer of
telecommunications and semiconductor
products
President, North America, Mitel Inc. 04/92 to 03/96
</TABLE>
16
<PAGE> 17
<TABLE>
<CAPTION>
PRESENT AND PRIOR POSITIONS HELD WITHIN
NAME AGE THE PAST FIVE YEARS(1) YEARS POSITIONS HELD
---- --- --------------------------------------- --------------------
<S> <C> <C> <C>
Guy P. Abramo.......... 38 Senior Vice President and Chief Information 01/00 to current
Officer
Senior Vice President and Acting Chief 11/99 to 01/00
Information Officer
Senior Vice President, Marketing, Worldwide 09/98 to 11/99
Partner, Yankelovich Partners, a marketing 05/98 to 10/98
professional services company
Managing Director, Marketing Intelligence, 02/95 to 05/98
Peat Marwick, LLP, an accounting and
professional services company
Manager, Marketing, Mobil Corporation, an 06/87 to 02/95
international oil company
James E. Anderson, Jr.. 52 Senior Vice President, Secretary and General 01/96 to current
Counsel
Vice President, Secretary and General 09/91 to 11/96
Counsel, Ingram Industries
Asger Falstrup......... 50 Senior Vice President and President Ingram 01/00 to current
Micro Canada
Vice President Northern Europe 11/96 to 01/00
Managing Director, Denmark 08/94 to 11/96
David M. Finley........ 59 Senior Vice President, Human Resources, 07/96 to current
Worldwide
Senior Vice President, Human Resources, 05/95 to 07/96
Budget Rent a Car, a car rental company
Vice President, Human Resources, The 01/77 to 05/95
Southland Corporation, a convenience
retail company
Henri T. Koppen........ 57 Senior Vice President and President, Ingram 03/00 to current
Micro Asia-Pacific
Senior Vice President and President, Ingram 01/98 to 02/00
Micro Latin America
President, Latin America, General Electric 07/96 to 12/97
Capital Information Technology Solutions,
a systems integrator/reseller company
Vice President, Latin America, Ameridata 05/95 to 07/96
Global Inc., a systems integrator/reseller
company
General Manager, Mexico, Control Data 05/94 to 05/95
Systems, a systems manufacturer and
integrator
Donald R. Lyman........ 54 Senior Vice President and President, Ingram 03/00 to current
Micro Latin America
Senior Director, Latin America Export 08/99 to 02/00
Channel Sales Manager, Latin America, 01/99 to 07/99
IBM Personal Systems Group, a systems
manufacturer
Netfinitiy Business Unit Manager, IBM 02/98 to 12/98
Personal Systems Group
Channel Manager, IBM Personal Systems Group 10/95 to 01/98
Brand Manager, Commercial Desktop, 09/92 to 10/95
IBM Personal Systems Group
</TABLE>
17
<PAGE> 18
<TABLE>
<CAPTION>
PRESENT AND PRIOR POSITIONS HELD WITHIN
NAME AGE THE PAST FIVE YEARS(1) YEARS POSITIONS HELD
---- --- --------------------------------------- --------------------
<S> <C> <C> <C>
James F. Ricketts...... 53 Corporate Vice President and Worldwide 04/99 to current
Treasurer
Vice President and Worldwide Treasurer 09/96 to 04/99
Treasurer, Sundstrand Corporation, a 02/92 to 09/96
manufacturer of aerospace and related
technology
</TABLE>
- ---------------
(1) The first position and any other positions not given a separate corporate
identification are with the Company.
(2) Mr. Foster is a director of Campbell Soup Co., J.C. Penney Co. Inc., and New
York Life Insurance Co.
TRADEMARKS AND SERVICE MARKS
The Company owns or is the licensee of various trademarks and service
marks, including, among others, "Ingram Micro," "IMpulse," the Ingram Micro
logo, "Partnership America," "Leading the Way in Worldwide Distribution,"
"Frameworks Total Integration Services," "Affiniti," "VentureTech Network" and
"eSolutions." Certain of these marks are registered, or are in the process of
being registered, in the United States and various other countries. Even though
the Company's marks may not be registered in every country where the Company
conducts business, in many cases the Company has acquired rights in those marks
because of its continued use of them. Management believes that the value of the
Company's marks is increasing with the development of its business, but that the
business of the Company as a whole is not materially dependent on such marks.
SAFE HARBOR FOR FORWARD-LOOKING INFORMATION
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
"safe harbor" for "forward-looking statements" to encourage companies to provide
prospective information, so long as such information is identified as
forward-looking and is accompanied by meaningful cautionary statements
identifying important factors that could cause actual results to differ
materially from those discussed in the statement. Except for historical
information, certain statements contained in this Annual Report on Form 10-K may
be "forward-looking statements" within the meaning of the Act. In order to take
advantage of the "safe harbor" provisions of the Act, the Company identifies the
following important factors which could affect the Company's actual results and
cause such results to differ materially from those projected, forecasted,
estimated, budgeted or otherwise expressed by the Company in forward-looking
statements made by or on behalf of the Company:
(1) Intense competition may lead to reduced prices, lower sales or
reduced sales growth, and lower gross margins. This includes competition
from alternative business models, such as direct manufacturer to end-user
selling.
(2) The Company's narrow margins magnify the impact on operating
results of variations in operating costs. A number of factors may reduce
the Company's margins. For example, if PC manufacturers substantially
reduce or terminate price protection programs, if PC manufacturers
substantially raise the threshold on sales volume before distributors may
qualify for discounts and/or rebates or reduce the overall amount of
incentives available, if the Company's receivables experience a substantial
deterioration in their collectibility or if the Company cannot obtain
credit insurance at reasonable rates, the Company's financial condition and
results of operations may be adversely impacted.
(3) Seasonal variations in the demand for products and services, as
well as the introduction of new products, may cause variations in the
Company's quarterly results.
(4) The availability (or lack thereof) of capital on acceptable terms
may hamper the Company in its efforts to fund its increasing working
capital needs.
(5) The failure of the Company to adequately manage its growth may
adversely impact the Company's results of operations.
18
<PAGE> 19
(6) A failure of the Company's information systems may adversely
impact the Company's results of operations.
(7) Devaluation of a foreign currency, or other disruption of a
foreign market, may adversely impact the Company's operations in that
country or globally.
(8) The loss of a key executive officer or other key employee may
adversely impact the Company's operations.
(9) The inability of the Company to obtain products on favorable terms
may adversely impact the Company's results of operations.
(10) The Company's operations may be adversely impacted by an
acquisition that (i) is not suited for the Company, (ii) is improperly
executed, or (iii) substantially increases the Company's debt.
(11) The Company's financial condition may be adversely impacted by a
decline in value of a portion of the Company's inventory.
(12) The Company may experience an increased risk of credit loss as a
result of reseller customers' businesses being negatively impacted by
dramatic changes in the information technology products and services
industry as well as intense competition among resellers.
(13) The failure of certain shipping companies to deliver product to
the Company, or from the Company to its customers, may adversely impact the
Company's results of operations.
(14) If the Company's inventory suppliers terminate or substantially
reduce the subsidies relating to floor planning financing for the Company's
master reseller business, such change in policy may adversely impact the
Company's financial condition and results of operations.
Reference is made to Exhibit 99.01 hereto for additional discussion of the
foregoing factors, as well as additional factors which may affect the Company's
actual results and cause such results to differ materially from those projected,
forecasted, estimated, budgeted or otherwise expressed in forward-looking
statements.
ITEM 2. PROPERTIES
Ingram Micro's worldwide executive headquarters, as well as its West Coast
sales and support offices, are located in a three-building office complex in
Santa Ana, California. The Company also maintains an East Coast operations
center in Williamsville (Buffalo), New York. In October, 1999, the Company
established an office site in Mississauga (Toronto), Ontario, Canada.
As of March 6, 2000, the Company operates seven distribution centers
throughout the continental United States. The Company also operates 63
distribution centers outside of the U.S. -- in Argentina, Australia, Brazil,
Canada, Chile, China, India, Indonesia, Hong Kong, Malaysia, Mexico, New
Zealand, Norway, Peru, Singapore, Switzerland, Thailand, and most countries of
the European Union.
As of March 6, 2000, the Company operates two integration centers located
in Memphis, Tennessee and 's-Hertogenbosch, The Netherlands. As of the same
date, the Company operates three returns centers, two in Santa Ana, California
and one in Toronto, Canada.
As of March 6, 2000, all of the Company's facilities are leased, with the
exception of the office in Buenos Aires, Argentina and the combination office
and distribution facility in Santiago, Chile. These leases have varying terms.
The Company does not anticipate any material difficulty in renewing any of its
leases as they expire or securing replacement facilities, in each case on
commercially reasonable terms. In addition, the Company owns two undeveloped
properties in Santa Ana, California totaling approximately 16.27 acres, and has
options on approximately 60 acres in Millington, Tennessee.
ITEM 3. LEGAL PROCEEDINGS
There are no material pending legal proceedings to which the Company is a
party or to which any of its property is subject.
19
<PAGE> 20
As a result of an internal review by the Company of export shipments made
from its United States distribution facilities, the Company has determined that
certain of these shipments and related documentation were not in compliance with
U.S. export regulations. The Company has notified the appropriate federal
government agencies pursuant to applicable voluntary self-disclosure procedures
(the "Disclosure"). The reported shipments consisted of modems and other
telecommunications products and shrink-wrapped, commercial software readily
available through normal retail outlets that contained encryption features
controlled under export regulations. These shipments had a total value of
approximately $673,240. Violations of export laws and regulations are subject to
both civil and criminal penalties, including in appropriate circumstances
suspension or loss of export privileges. Since the Disclosure, a representative
of the Department of Commerce has requested additional documents relating to the
Disclosure, which the Company provided in January 1999. The Department has not
communicated with the Company since then. The Company does not know what
position the Department will take upon further review of the Disclosure. The
Company is not able to estimate at this time the amount or nature of penalties,
if any, that might be sought against the Company as a result of the reported
violations; however, penalties to which the Company potentially may be subject
could be material.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of the fiscal year covered by this report, through the solicitation of
proxies or otherwise.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
As of March 27, 2000, there were 636 holders of record of the Class A
Common Stock and 134 holders of record of the Class B Common Stock. The Company
believes that there are approximately 35,000 beneficial holders of the Class A
Common Stock.
Information as to the Company's quarterly stock prices is included on the
inside back cover of the Company's 1999 Annual Report to Shareowners, which is
included as part of Exhibit 13.01 and is incorporated in this Annual Report on
Form 10-K.
Information as to the principal market on which the Class A Common Stock is
traded is included on the inside back cover of the Company's 1999 Annual Report
to Shareowners, which is included as part of Exhibit 13.01 and is incorporated
in this Annual Report on Form 10-K.
DIVIDEND POLICY. The Company has not declared or paid any dividends on its
Class A or Class B Common Stock in the preceding two fiscal years. The Company
currently intends to retain its future earnings to finance the growth and
development of its business and, therefore, does not anticipate declaring or
paying cash dividends on its Class A or Class B Common Stock for the foreseeable
future. Any future decision to declare or pay dividends will be at the
discretion of the Board of Directors and will be dependent upon the Company's
financial condition, results of operations, capital requirements, and such other
factors as the Board of Directors deems relevant. In addition, certain of the
Company's debt facilities contain restrictions on the declaration and payment of
dividends.
ITEM 6. SELECTED FINANCIAL DATA
The selected financial information of Ingram Micro for the five year period
ended January 1, 2000 is included on page 18 of the Company's 1999 Annual Report
to Shareowners, which is included as part of Exhibit 13.01 and is incorporated
in this Annual Report on Form 10-K. It should be read in conjunction with the
consolidated financial statements included on pages 30 through 50 of the
Company's 1999 Annual Report to Shareowners which are also included as part of
Exhibit 13.01 and incorporated in this Annual Report on Form 10-K and the
financial statement schedule below in Item 14 of this Annual Report on Form
10-K.
20
<PAGE> 21
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations is included on pages 19 through 29 of the Company's 1999 Annual
Report to Shareowners, which are also included as part of Exhibit 13.01 and are
incorporated in this Annual Report on Form 10-K.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The required disclosure is included on pages 28 through 29 of the Company's
1999 Annual Report to Shareowners, which is also included as part of Exhibit
13.01 and incorporated in this Annual Report on Form 10-K.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's consolidated financial statements are included on pages 30
through 50 of the Company's 1999 Annual Report to Shareowners, which are also
included as part of Exhibit 13.01 and incorporated in this Annual Report on Form
10-K. Reference is made to the Index to the Financial Statements in Item 14
below.
A financial statement schedule for the Company, and report thereon, are
included on pages 27 and 28, respectively, of this Annual Report on Form 10-K.
Reference is made to the Index to Financial Statements in Item 14 below.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There have been no changes in the Company's independent accountants or
disagreements with such accountants on accounting principles or practices or
financial statement disclosures.
PART III
Information regarding executive officers required by Item 401 of Regulation
S-K is furnished in a separate disclosure in Part I of this report because the
Company will not furnish such information in its definitive Proxy Statement
prepared in accordance with Schedule 14A.
The Notice and Proxy Statement for the 2000 Annual Meeting of Shareowners,
to be filed pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, which is incorporated by reference in this Annual Report on
Form 10-K pursuant to General Instruction G(3) of Form 10-K, will provide the
remaining information required under Part III (Items 10, 11, 12, and 13).
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) 1. FINANCIAL STATEMENTS:
The consolidated financial statements, together with the report thereon of
PricewaterhouseCoopers LLP dated February 17, 2000, except as to the second
paragraph of Note 5, which is as of March 8, 2000, all appearing on pages 30
through 51 in the 1999 Annual Report to Shareowners, are incorporated in this
Annual Report on Form 10-K. With the exception of the aforementioned information
and the information incorpo-
21
<PAGE> 22
rated in Items 5, 6, 7, 7A and 8, the 1999 Annual Report to Shareowners is not
deemed filed as part of this Annual Report on Form 10-K.
<TABLE>
<CAPTION>
PAGE NO. IN
ANNUAL REPORT
TO SHAREOWNERS
--------------
<S> <C>
Index to Financial Information.............................. 17
Consolidated Balance Sheet at January 1, 2000 and January 2,
1999...................................................... 30
Consolidated Statement of Income for the years ended January
1, 2000, January 2, 1999, and January 3, 1998............. 31
Consolidated Statement of Stockholders' Equity for the years
ended January 1, 2000, January 2, 1999, and January 3,
1998...................................................... 32
Consolidated Statement of Cash Flows for the years ended
January 1, 2000, January 2, 1999, and January 3, 1998..... 33
Notes to Consolidated Financial Statements.................. 34
Report of Independent Accountants........................... 51
</TABLE>
Pages 18 through 52 and the inside back cover page of the 1999 Annual
Report to Shareowners of Ingram Micro Inc. include the Selected Financial Data,
Management's Discussion and Analysis of Financial Condition and Results of
Operations, the Consolidated Financial Statements and related notes thereto, the
Independent Accountants' Report, Shareholder Information and Quarterly Stock
Prices. These pages are filed with the Securities and Exchange Commission as
Exhibit 13.01 to this Annual Report on Form 10-K.
2. FINANCIAL STATEMENT SCHEDULES:
Schedule II -- Valuation and Qualifying Accounts.
3. LIST OF EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
3.01 Form of Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.01 to the Company's
Registration Statement on Form S-1 (File No. 333-08453) (the
"IPO S-1"))
3.02 Amended and Restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3.02 to the Company's Annual Report
on Form 10-K for the fiscal year ended January 3, 1998)
10.01 Ingram Micro Inc. 2000 Executive Incentive Bonus Plan
10.02 Reserved
10.03 Reserved
10.04 Reserved
10.05 Reserved
10.06 Amendment No. 1 to the Ingram Micro Inc. Amended and
Restated 1996 Equity Incentive Plan (incorporated by
reference to Exhibit 10.06 to the Company's Annual Report on
Form 10-K for the fiscal year ended January 3, 1998)
10.07 Ingram Micro Inc. Rollover Stock Option Plan (incorporated
by reference to Exhibit 10.07 to the IPO S-1)
10.08 Ingram Micro Inc. Key Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.08 to the IPO S-1)
10.09 Ingram Micro Inc. 1996 Equity Incentive Plan (incorporated
by reference to Exhibit 10.09 to the IPO S-1)
10.10 Ingram Micro Inc. Amended and Restated 1996 Equity Incentive
Plan (incorporated by reference to Exhibit 10.10 to the IPO
S-1)
</TABLE>
22
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.11 Reserved
10.12 Credit Agreement dated as of October 30, 1996 among the
Company and Ingram European Coordination Center N.V., Ingram
Micro Singapore Pte Ltd., and Ingram Micro Inc., as
Borrowers and Guarantors, certain financial institutions, as
the Lenders, NationsBank of Texas, N.A., as Administrative
Agent for the Lenders and The Bank of Nova Scotia as
Documentation Agent for the Lenders (incorporated by
reference to Exhibit 10.12 to the Company's Registration
Statement on Form S-1 (File No. 333-16667) (the "Thrift Plan
S-1"))
10.13 Amended and Restated Reorganization Agreement dated as of
October 17, 1996 among the Company, Ingram Industries, and
Ingram Entertainment (incorporated by reference to Exhibit
10.13 to the Thrift Plan S-1)
10.14 Registration Rights Agreement dated as of November 6, 1996
among the Company and the persons listed on the signature
pages thereof (incorporated by reference to Exhibit 10.14 to
the Thrift Plan S-1)
10.15 Board Representation Agreement dated as of November 6, 1996
(incorporated by reference to Exhibit 10.15 to the Thrift
Plan S-1)
10.16 Thrift Plan Liquidity Agreement dated as of November 6, 1996
among the Company and the Ingram Thrift Plan (incorporated
by reference to Exhibit 10.16 to the Thrift Plan S-1)
10.17 Tax Sharing and Tax Services Agreement dated as of November
6, 1996 among the Company, Ingram Industries, and Ingram
Entertainment (incorporated by reference to Exhibit 10.17 to
The Thrift Plan S-1)
10.18 Reserved
10.19 Employee Benefits Transfer and Assumption Agreement dated as
of November 6, 1996 among the Company, Ingram Industries,
and Ingram Entertainment (incorporated by reference to
Exhibit 10.19 to the Thrift Plan S-1)
10.20 Reserved
10.21 Amended and Restated Exchange Agreement dated as of November
6, 1996 among the Company, Ingram Industries, Ingram
Entertainment and the other parties thereto (incorporated by
reference to Exhibit 10.21 to the Thrift Plan S-1)
10.22 Agreement dated as of August 26, 1996 between the Company
and Jerre L. Stead (incorporated by reference to Exhibit
10.22 to the IPO S-1)
10.23 Definitions for Ingram Funding Master Trust Agreements
(incorporated by reference to Exhibit 10.23 to the IPO S-1)
10.24 Asset Purchase and Sale Agreement dated as of February 10,
1993 between Ingram Industries and Ingram Funding Inc.
(incorporated by reference to Exhibit 10.24 to the IPO S-1)
10.25 Pooling and Servicing Agreement dated as of February 10,
1993 among Ingram Funding, Ingram Industries and Chemical
Bank (incorporated by reference to Exhibit 10.25 to the IPO
S-1)
10.26 Amendment No. 1 to the Pooling and Servicing Agreement dated
as of February 12, 1993, the Asset Purchase and Sale
Agreement dated as of February 12, 1993, and the Liquidity
Agreement dated as of February 12, 1993 (incorporated by
reference to Exhibit 10.26 to the IPO S-1)
10.27 Certificate Purchase Agreement dated as of July 23, 1993
(incorporated by reference to Exhibit 10.27 to the IPO S-1)
</TABLE>
23
<PAGE> 24
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.28 Schedule of Certificate Purchase Agreements (incorporated by
reference to Exhibit 10.28 to the IPO S-1)
10.29 Series 1993-1 Supplement to Ingram Funding Master Trust
Pooling and Servicing Agreement dated as of July 23, 1993
(incorporated by reference to Exhibit 10.29 to the IPO S-1)
10.30 Schedule of Supplements to Ingram Funding Master Trust
Pooling and Servicing Agreement dated as of July 23, 1993
(incorporated by reference to Exhibit 10.30 to the IPO S-1)
10.31 Letter of Credit Reimbursement Agreement dated as of
February 10, 1993 (incorporated by reference to Exhibit
10.31 to the IPO S-1)
10.32 Liquidity Agreement dated as of February 10, 1993
(incorporated by reference to Exhibit 10.32 to the IPO S-1)
10.33 Amendment No. 2 to the Pooling and Servicing Agreement dated
as of February 12, 1993, the Asset Purchase and Sale
Agreement dated as of February 12, 1993, and the Liquidity
Agreement dated as of February 12, 1993 (incorporated by
reference to Exhibit 10.33 to the IPO S-1)
10.34 Reserved
10.35 Form of Repurchase Agreement (incorporated by reference to
Exhibit 10.35 to the IPO S-1)
10.36 First Amendment to the Credit Agreement dated as of October
28, 1997 (incorporated by reference to Exhibit 10.36 to the
Company's Registration Statement on Form S-3 (File No.
333-39457) (the "Rollover/Thrift Plan S-3"))
10.37 European Credit Agreement dated as of October 28, 1997 among
the Company and Ingram European Coordination Center N.V., as
Borrowers and Guarantors, certain financial institutions, as
the Lenders, The Bank of Nova Scotia, as Administrative
Agent for the Lenders and NationsBank of Texas, N.A. as
Documentation Agent for the Lenders, as arranged by The Bank
of Nova Scotia and NationsBanc Capital Markets, Inc., as the
Arrangers (incorporated by reference to Exhibit 10.37 to the
Rollover/Thrift Plan S-3)
10.38 Canadian Credit Agreement dated as of October 28, 1997 among
the Company and Ingram Micro Inc. (Canada), as Borrowers and
Guarantors, certain financial institutions, as the Lenders,
The Bank of Nova Scotia., as Administrative Agent for the
Lenders, Royal Bank of Canada as the Syndication Agent for
the Lenders, and Bank of Tokyo-Mitsubishi (Canada) as the
Co-Agent (incorporated by reference to Exhibit 10.38 to the
Rollover/ Thrift Plan S-3)
10.39 Reserved
10.40 Second Amendment to Credit Agreement dated as of September
25, 1998, among the Company, Ingram European Coordination
Center N.V. ("IECC"), and Ingram Micro Inc. (Canada), as
Borrowers and Guarantors, and certain financial institutions
as the Relevant Required Lenders, amending the
US$1,000,000,000 Credit Agreement dated as of October 30,
1996, also among certain financial institutions, as the
Lenders, NationsBank, N.A (successor in interest by merger
with NationsBank of Texas, N.A.), as Administrative Agent
for the Lenders, and The Bank of Nova Scotia, as
Documentation Agent for the Lenders and certain named
Co-Agents (incorporated by reference to Exhibit 10.40 to the
Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended October 3, 1998 ("the Q3 98 10-Q"))
</TABLE>
24
<PAGE> 25
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.41 First Amendment to European Credit Agreement dated as of
September 25, 1998, among the Company and IECC as the
Primary Borrowers and Guarantors, and certain financial
institutions as the Relevant Required Lenders, amending the
US$500,000,000 European Credit Agreement dated as of October
28, 1997, also among the Company and IECC, as the Primary
Borrowers and Guarantors, certain financial institutions as
the Lenders, The Bank of Nova Scotia, as Administrative
Agent for the Lenders and NationsBank, N.A. (successor in
interest by merger to NationsBank of Texas, N.A.), as
Documentation Agent for the Lenders, as arranged by The Bank
of Nova Scotia and NationsBanc Capital Markets, Inc., as the
Arrangers (incorporated by reference to Exhibit 10.41 to the
Q3 98 10-Q)
10.42 First Amendment to Canadian Credit Agreement dated as of
September 25, 1998, among the Company and Ingram Micro Inc.
(Canada) as the Borrowers and Guarantors, and certain
financial institutions as the Relevant Required Lenders,
amending the US$150,000,000 Canadian Credit Agreement dated
as of October 28, 1997, also among the Company, Ingram Micro
Inc. (Canada) as the Borrowers and Guarantors, certain
financial institutions as the Lenders, The Bank of Nova
Scotia, as Administrative Agent for the Lenders, Royal Bank
of Canada, as Syndication Agent for the Lenders, and Bank of
Tokyo-Mitsubishi (Canada) as the Co-Agent (incorporated by
reference to Exhibit 10.42 to the Q3 98 10-Q)
10.43 Ingram Micro Supplemental Investment Savings Plan
(incorporated by reference to Exhibit 10.45 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
July 3, 1999)
10.44 Ingram Micro Inc. 1998 Equity Incentive Plan (incorporated
by reference to Exhibit 10.43 to the 1998 10K)
10.45 Registration Agreement dated as of December 3, 1999 between
the Company and Softbank Corp. (incorporated by reference to
Exhibit 4.01 to the Company's Registration Statement on Form
S-3 (File No. 333-93783) (the "1999 S-3"))
10.46 Warrant Agreement dated as of December 3, 1999 between the
Company and Softbank Corp. (incorporated by reference to
Exhibit 4.02 to the 1999 S-3)
10.47 Agreement with Jeffrey R. Rodek, dated October 31, 1999
10.48 Executive Retention Agreement with Michael J. Grainger,
dated January 31, 2000
10.49 Executive Retention Agreement with Kevin M. Murai, dated
January 31, 2000
10.50 Executive Retention Agreement with Gregory M.E. Spierkel,
dated January 31, 2000
10.51 Executive Retention Agreement with Henri T. Koppen, dated
January 31, 2000
10.52 Executive Retention Agreement with Guy P. Abramo, dated
January 31, 2000
10.53 Executive Retention Agreement with James E. Anderson, Jr.,
dated January 31, 2000
10.54 Executive Retention Agreement with David M. Finley, dated
January 31, 2000
10.55 Employment Agreement with Kent B. Foster, dated March 6,
2000
10.56 Amended and Restated Pooling Agreement dated as of March 8,
2000 among Ingram Funding Inc. ("Funding"), the Company and
The Chase Manhattan Bank ("Chase"), as trustee (the "Amended
Pooling Agreement")
10.57 Amended and Restated Receivables Sale Agreement dated as of
March 8, 2000 between Funding, as Purchaser, and the
Company, as Seller and Servicer
10.58 Amended and Restated Servicing Agreement dated as of March
8, 2000 among Funding, the Company as Master Servicer and
Servicer, and Chase
</TABLE>
25
<PAGE> 26
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.59 Series 2000-1 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.60 Series 1994-2 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.61 Series 1994-3 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.62 Series 1993-2 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.63 Agreement dated March 8, 2000 among the Company, Funding and
General Electric Capital Corporation
13.01 Portions of Annual Report to Shareowners for the year ended
January 1, 2000
21.01 Subsidiaries of the Registrant
23.01 Consent of Independent Accountants regarding certain
Registration Statements on Form S-8
23.02 Consent of Independent Accountants regarding Registration
Statements on Form S-3
27.01 Financial Data Schedule (included in electronic version
only)
99.01 Cautionary Statements for Purposes of the "Safe Harbor"
Provisions of the Private Securities Litigation Reform Act
of 1995
</TABLE>
(b) REPORTS ON FORM 8-K
No reports on Form 8-K were filed during the fiscal quarter ended January
1, 2000.
26
<PAGE> 27
INGRAM MICRO INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT CHARGED TO
BEGINNING COSTS AND BALANCE AT
DESCRIPTION OF YEAR EXPENSES DEDUCTIONS OTHER(*) END OF YEAR
----------- ---------- ---------- ---------- -------- -----------
<S> <C> <C> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS
RECEIVABLE AND SALES RETURNS:
1999............................... $55,904 $75,835 $(42,788) $11,803 $100,754
1998............................... 48,541 32,534 (31,200) 6,029 55,904
1997............................... 38,622 31,652 (27,102) 5,369 48,541
INVENTORY OBSOLESCENCE:
1999............................... $18,394 $94,756 $(54,370) $ 6,493 $ 65,273
1998............................... 18,886 26,129 (27,554) 933 18,394
1997............................... 13,326 21,524 (20,201) 4,237 18,886
</TABLE>
- ---------------
* Other includes recoveries, acquisitions and the effect of fluctuation in
foreign currency.
27
<PAGE> 28
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors of Ingram Micro Inc.
Our audits of the consolidated financial statements referred to in our report
dated February 17, 2000, except as to the second paragraph of Note 5, which is
as of March 8, 2000, appearing in the 1999 Annual Report to Shareowners of
Ingram Micro Inc. (which report and consolidated financial statements are
incorporated by reference in this Annual Report on Form 10-K) also included an
audit of the financial statement schedule listed in Item 14(a)(2) of this Form
10-K. In our opinion, this financial statement schedule presents fairly, in all
material respects, the information set forth therein when read in conjunction
with the related consolidated financial statements.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Costa Mesa, California
February 17, 2000, except as to
the second paragraph of Note 5,
which is as of March 8, 2000
28
<PAGE> 29
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
INGRAM MICRO INC.
By: /s/ JAMES E. ANDERSON, JR.
------------------------------------
James E. Anderson, Jr.,
Senior Vice President,
Secretary and General Counsel
March 31, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ KENT B. FOSTER Chief Executive Officer and March 31, 2000
- ----------------------------------------------------- President (Principal Executive
Kent B. Foster Officer) and Director
/s/ MICHAEL J. GRAINGER Executive Vice President and March 31, 2000
- ----------------------------------------------------- Worldwide Chief Financial
Michael J. Grainger Officer (Principal Financial
Officer and Principal
Accounting Officer)
/s/ JERRE L. STEAD Chairman of the Board March 31, 2000
- -----------------------------------------------------
Jerre L. Stead
/s/ DON H. DAVIS, JR. Director March 31, 2000
- -----------------------------------------------------
Don H. Davis, Jr.
/s/ JOHN R. INGRAM Director March 31, 2000
- -----------------------------------------------------
John R. Ingram
/s/ MARTHA R. INGRAM Director March 31, 2000
- -----------------------------------------------------
Martha R. Ingram
/s/ ORRIN H. INGRAM II Director March 31, 2000
- -----------------------------------------------------
Orrin H. Ingram II
/s/ PHILIP M. PFEFFER Director March 31, 2000
- -----------------------------------------------------
Philip M. Pfeffer
/s/ GERHARD SCHULMEYER Director March 31, 2000
- -----------------------------------------------------
Gerhard Schulmeyer
/s/ JOE B. WYATT Director March 31, 2000
- -----------------------------------------------------
Joe B. Wyatt
</TABLE>
29
<PAGE> 30
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
3.01 Form of Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.01 to the Company's
Registration Statement on Form S-1 (File No. 333-08453) (the
"IPO S-1"))
3.02 Amended and Restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3.02 to the Company's Annual Report
on Form 10-K for the fiscal year ended January 3, 1998)
10.01 Ingram Micro Inc. 2000 Executive Incentive Bonus Plan
10.02 Reserved
10.03 Reserved
10.04 Reserved
10.05 Reserved
10.06 Amendment No. 1 to the Ingram Micro Inc. Amended and
Restated 1996 Equity Incentive Plan (incorporated by
reference to Exhibit 10.06 to the Company's Annual Report on
Form 10-K for the fiscal year ended January 3, 1998)
10.07 Ingram Micro Inc. Rollover Stock Option Plan (incorporated
by reference to Exhibit 10.07 to the IPO S-1)
10.08 Ingram Micro Inc. Key Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.08 to the IPO S-1)
10.09 Ingram Micro Inc. 1996 Equity Incentive Plan (incorporated
by reference to Exhibit 10.09 to the IPO S-1)
10.10 Ingram Micro Inc. Amended and Restated 1996 Equity Incentive
Plan (incorporated by reference to Exhibit 10.10 to the IPO
S-1)
10.11 Reserved
10.12 Credit Agreement dated as of October 30, 1996 among the
Company and Ingram European Coordination Center N.V., Ingram
Micro Singapore Pte Ltd., and Ingram Micro Inc., as
Borrowers and Guarantors, certain financial institutions, as
the Lenders, NationsBank of Texas, N.A., as Administrative
Agent for the Lenders and The Bank of Nova Scotia as
Documentation Agent for the Lenders (incorporated by
reference to Exhibit 10.12 to the Company's Registration
Statement on Form S-1 (File No. 333-16667) (the "Thrift Plan
S-1"))
10.13 Amended and Restated Reorganization Agreement dated as of
October 17, 1996 among the Company, Ingram Industries, and
Ingram Entertainment (incorporated by reference to Exhibit
10.13 to the Thrift Plan S-1)
10.14 Registration Rights Agreement dated as of November 6, 1996
among the Company and the persons listed on the signature
pages thereof (incorporated by reference to Exhibit 10.14 to
the Thrift Plan S-1)
10.15 Board Representation Agreement dated as of November 6, 1996
(incorporated by reference to Exhibit 10.15 to the Thrift
Plan S-1)
10.16 Thrift Plan Liquidity Agreement dated as of November 6, 1996
among the Company and the Ingram Thrift Plan (incorporated
by reference to Exhibit 10.16 to the Thrift Plan S-1)
10.17 Tax Sharing and Tax Services Agreement dated as of November
6, 1996 among the Company, Ingram Industries, and Ingram
Entertainment (incorporated by reference to Exhibit 10.17 to
The Thrift Plan S-1)
10.18 Reserved
</TABLE>
30
<PAGE> 31
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.19 Employee Benefits Transfer and Assumption Agreement dated as
of November 6, 1996 among the Company, Ingram Industries,
and Ingram Entertainment (incorporated by reference to
Exhibit 10.19 to the Thrift Plan S-1)
10.20 Reserved
10.21 Amended and Restated Exchange Agreement dated as of November
6, 1996 among the Company, Ingram Industries, Ingram
Entertainment and the other parties thereto (incorporated by
reference to Exhibit 10.21 to the Thrift Plan S-1)
10.22 Agreement dated as of August 26, 1996 between the Company
and Jerre L. Stead (incorporated by reference to Exhibit
10.22 to the IPO S-1)
10.23 Definitions for Ingram Funding Master Trust Agreements
(incorporated by reference to Exhibit 10.23 to the IPO S-1)
10.24 Asset Purchase and Sale Agreement dated as of February 10,
1993 between Ingram Industries and Ingram Funding Inc.
(incorporated by reference to Exhibit 10.24 to the IPO S-1)
10.25 Pooling and Servicing Agreement dated as of February 10,
1993 among Ingram Funding, Ingram Industries and Chemical
Bank (incorporated by reference to Exhibit 10.25 to the IPO
S-1)
10.26 Amendment No. 1 to the Pooling and Servicing Agreement dated
as of February 12, 1993, the Asset Purchase and Sale
Agreement dated as of February 12, 1993, and the Liquidity
Agreement dated as of February 12, 1993 (incorporated by
reference to Exhibit 10.26 to the IPO S-1)
10.27 Certificate Purchase Agreement dated as of July 23, 1993
(incorporated by reference to Exhibit 10.27 to the IPO S-1)
10.28 Schedule of Certificate Purchase Agreements (incorporated by
reference to Exhibit 10.28 to the IPO S-1)
10.29 Series 1993-1 Supplement to Ingram Funding Master Trust
Pooling and Servicing Agreement dated as of July 23, 1993
(incorporated by reference to Exhibit 10.29 to the IPO S-1)
10.30 Schedule of Supplements to Ingram Funding Master Trust
Pooling and Servicing Agreement dated as of July 23, 1993
(incorporated by reference to Exhibit 10.30 to the IPO S-1)
10.31 Letter of Credit Reimbursement Agreement dated as of
February 10, 1993 (incorporated by reference to Exhibit
10.31 to the IPO S-1)
10.32 Liquidity Agreement dated as of February 10, 1993
(incorporated by reference to Exhibit 10.32 to the IPO S-1)
10.33 Amendment No. 2 to the Pooling and Servicing Agreement dated
as of February 12, 1993, the Asset Purchase and Sale
Agreement dated as of February 12, 1993, and the Liquidity
Agreement dated as of February 12, 1993 (incorporated by
reference to Exhibit 10.33 to the IPO S-1)
10.34 Reserved
10.35 Form of Repurchase Agreement (incorporated by reference to
Exhibit 10.35 to the IPO S-1)
10.36 First Amendment to the Credit Agreement dated as of
October28, 1997 (incorporated by reference to Exhibit 10.36
to the Company's Registration Statement on Form S-3 (File
No. 333-39457) (the "Rollover/Thrift Plan S-3"))
</TABLE>
31
<PAGE> 32
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.37 European Credit Agreement dated as of October 28, 1997 among
the Company and Ingram European Coordination Center N.V., as
Borrowers and Guarantors, certain financial institutions, as
the Lenders, The Bank of Nova Scotia, as Administrative
Agent for the Lenders and NationsBank of Texas, N.A. as
Documentation Agent for the Lenders, as arranged by The Bank
of Nova Scotia and NationsBanc Capital Markets, Inc., as the
Arrangers (incorporated by reference to Exhibit 10.37 to the
Rollover/Thrift Plan S-3)
10.38 Canadian Credit Agreement dated as of October 28, 1997 among
the Company and Ingram Micro Inc. (Canada), as Borrowers and
Guarantors, certain financial institutions, as the Lenders,
The Bank of Nova Scotia., as Administrative Agent for the
Lenders, Royal Bank of Canada as the Syndication Agent for
the Lenders, and Bank of Tokyo-Mitsubishi (Canada) as the
Co-Agent (incorporated by reference to Exhibit 10.38 to the
Rollover/ Thrift Plan S-3)
10.39 Reserved
10.40 Second Amendment to Credit Agreement dated as of September
25, 1998, among the Company, Ingram European Coordination
Center N.V. ("IECC"), and Ingram Micro Inc. (Canada), as
Borrowers and Guarantors, and certain financial institutions
as the Relevant Required Lenders, amending the
US$1,000,000,000 Credit Agreement dated as of October 30,
1996, also among certain financial institutions, as the
Lenders, NationsBank, N.A (successor in interest by merger
with NationsBank of Texas, N.A.), as Administrative Agent
for the Lenders, and The Bank of Nova Scotia, as
Documentation Agent for the Lenders and certain named
Co-Agents (incorporated by reference to Exhibit 10.40 to the
Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended October 3, 1998 ("the Q3 98 10-Q"))
10.41 First Amendment to European Credit Agreement dated as of
September 25, 1998, among the Company and IECC as the
Primary Borrowers and Guarantors, and certain financial
institutions as the Relevant Required Lenders, amending the
US$500,000,000 European Credit Agreement dated as of October
28, 1997, also among the Company and IECC, as the Primary
Borrowers and Guarantors, certain financial institutions as
the Lenders, The Bank of Nova Scotia, as Administrative
Agent for the Lenders and NationsBank, N.A. (successor in
interest by merger to NationsBank of Texas, N.A.), as
Documentation Agent for the Lenders, as arranged by The Bank
of Nova Scotia and NationsBanc Capital Markets, Inc., as the
Arrangers (incorporated by reference to Exhibit 10.41 to the
Q3 98 10-Q)
10.42 First Amendment to Canadian Credit Agreement dated as of
September 25, 1998, among the Company and Ingram Micro Inc.
(Canada) as the Borrowers and Guarantors, and certain
financial institutions as the Relevant Required Lenders,
amending the US$150,000,000 Canadian Credit Agreement dated
as of October 28, 1997, also among the Company, Ingram Micro
Inc. (Canada) as the Borrowers and Guarantors, certain
financial institutions as the Lenders, The Bank of Nova
Scotia, as Administrative Agent for the Lenders, Royal Bank
of Canada, as Syndication Agent for the Lenders, and Bank of
Tokyo-Mitsubishi (Canada) as the Co-Agent (incorporated by
reference to Exhibit 10.42 to the Q3 98 10-Q)
10.43 Ingram Micro Supplemental Investment Savings Plan
(incorporated by reference to Exhibit 10.45 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended
July 3, 1999)
10.44 Ingram Micro Inc. 1998 Equity Incentive Plan (incorporated
by reference to Exhibit 10.43 to the 1998 10K)
</TABLE>
32
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
10.45 Registration Agreement dated as of December 3, 1999 between
the Company and Softbank Corp. (incorporated by reference to
Exhibit 4.01 to the Company's Registration Statement on Form
S-3 (File No. 333-93783) (the "1999 S-3"))
10.46 Warrant Agreement dated as of December 3, 1999 between the
Company and Softbank Corp. (incorporated by reference to
Exhibit 4.02 to the 1999 S-3)
10.47 Agreement with Jeffrey R. Rodek, dated October 31, 1999
10.48 Executive Retention Agreement with Michael J. Grainger,
dated January 31, 2000
10.49 Executive Retention Agreement with Kevin M. Murai, dated
January 31, 2000
10.50 Executive Retention Agreement with Gregory M.E. Spierkel,
dated January 31, 2000
10.51 Executive Retention Agreement with Henri T. Koppen, dated
January 31, 2000
10.52 Executive Retention Agreement with Guy P. Abramo, dated
January 31, 2000
10.53 Executive Retention Agreement with James E. Anderson, Jr.,
dated January 31, 2000
10.54 Executive Retention Agreement with David M. Finley, dated
January 31, 2000
10.55 Employment Agreement with Kent B. Foster, dated March 6,
2000
10.56 Amended and Restated Pooling Agreement dated as of March 8,
2000 among Ingram Funding Inc. ("Funding"), the Company and
The Chase Manhattan Bank ("Chase"), as trustee (the "Amended
Pooling Agreement")
10.57 Amended and Restated Receivables Sale Agreement dated as of
March 8, 2000 between Funding, as Purchaser, and the
Company, as Seller and Servicer
10.58 Amended and Restated Servicing Agreement dated as of March
8, 2000 among Funding, the Company as Master Servicer and
Servicer, and Chase, as trustee
10.59 Series 2000-1 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.60 Series 1994-2 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.61 Series 1994-3 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.62 Series 1993-2 Supplement to the Amended Pooling Agreement
dated as of March 8, 2000 among Funding, the Company and
Chase
10.63 Agreement dated March 8, 2000 among the Company, Funding and
General Electric Capital Corporation
13.01 Portions of Annual Report to Shareowners for the year ended
January 1, 2000
21.01 Subsidiaries of the Registrant
23.01 Consent of Independent Accountants regarding certain
Registration Statements on Form S-8
23.02 Consent of Independent Accountants regarding Registration
Statements on Form S-3
27.01 Financial Data Schedule (included in electronic version
only)
99.01 Cautionary Statements for Purposes of the "Safe Harbor"
Provisions of the Private Securities Litigation Reform Act
of 1995
</TABLE>
33
<PAGE> 1
EXHIBIT 10.01
YEAR 2000
EXECUTIVE INCENTIVE AWARD PLAN
OVERVIEW
o The year 2000 Plan is an evolution of prior year plans.
o Eligible executives may earn from 50% to 150% of their "target" incentive
award based on their operating unit's (Worldwide, Region, sub-region or
country) pre-tax, pre-bonus profit (PTPB) and their performance against
personal goals and objectives.
o Based on the operating unit's profit achievement for the year, 70% of the
earned incentive award is paid to the eligible executives. The remaining
30% is earned by achieving pre-determined personal business related
objectives.
o The operating unit's profit achievement may be negatively adjusted by
up to -100% for ROIC results below Plan
o There will be three personal business objectives, each weighted 10%.
The three personal business objectives will be developed around:
1. Associate Satisfaction/Success (ASI)
2. Customer Satisfaction/Value Add (CSI/CVA)
3. Specific business objective related to key functional
responsibilities*
*With the approval of the Chairman & CEO, the entire 30% could be
assigned to a critical business objective, as noted in #3 above.
o Regional Presidents have the authority to use either a six-month or a
twelve-month target plan.
o If Worldwide PTPB profits exceed the 150% Award level, 80% of the
profits above this level will be retained by the corporation and 20%
will be distributed to all eligible participants.
<PAGE> 2
YEAR 2000
EXECUTIVE INCENTIVE AWARD PLAN
Seventy percent (70%) of your Award will be based upon the Corporation's PTPB
profit performance against the Year 2000 "Plan", subject to achieving Planned
Return on Invested Capital (ROIC) based upon the Year 2000 Plan. Thirty percent
(30%) will be based on the attainment of three personal business objectives
(subject to PTPB and ROIC achievement).
FINANCIAL OBJECTIVES: (70%)
ROIC achievement below the planned level will result in a percentage reduction
in the Target Award. For example, if your Operating Unit achieves its PTPB
Profit Target, but ROIC achievement is 10% below the Target ROIC, then the
Target Award will be reduced by 10%. Following is an example of the bonus
calculation:
Assumptions:
o Total salary paid in 2000 is $100,000.
o Target Award percentage is 40% of base salary paid in 2000.
Based upon the following PTPB profit and ROIC assumptions, your bonus
would be calculated as follows (subject to your performance against
your personal objectives):
Target Actual Variance
------ ------ --------
PTPB Profit $1,000,000 $1,000,000 -0-%
ROIC 10% 9% (10%)
Target Award Percentage 40% 36% (10%)
Bonus $40,000 $36,000 ($4,000) or (10%)
The Target ROIC remains fixed at the Planned amount for bonus calculations
regardless of whether PTPB profit exceeds or falls short of its target. This
methodology helps drive PTPB profits in a capital effective manner. The goal is
to maximize PTPB profit while maintaining acceptable capital management. This
will provide Operating Unit flexibility to invest additional capital to drive
PTPB profits above the Target. For example, if the PTPB profit exceeds the PTPB
profit target by 10%, the Operating Unit doesn't need to meet a higher Target
ROIC.
Listed below are additional examples for further clarification:
o If your Operating Unit achieves the 120% PTPB Award level and meets or
exceeds the ROIC Target, then your bonus would be $48,000, ($40,000 X
120%)*
<PAGE> 3
o If your Operating Unit achieves the 120% PTPB Award level but realizes
a 10% shortfall in ROIC, then your bonus would be $43,200, ($40,000 X
120%=$48,000 less $4,800 (10% ROIC reduction))*
o If your Operating Unit achieves the 90% PTPB Award level and realizes a
10% shortfall in ROIC, then your bonus would be $32,400, ($40,000 X
90%=$36,000 less $3,600 (10% ROIC reduction))*
o subject to your performance against your personal objectives.
PERSONAL OBJECTIVES: (30%)
Participants will develop personal business objectives around the following (3)
themes, each weighted 10%.
1. Associate Satisfaction/Success (ASI)
2. Customer Satisfaction/Value Add (CSI/CVA)
3. Specific business objective related to key functional
responsibilities
* With the approval of the Chairman & CEO, theme #3 may receive the
full 30% weighting for achievement of a critical business objective.
WORLDWIDE PROFIT AWARD POOL
If the Worldwide PTPB profits exceed the 150% Incentive Award level, then PTPB
profits above this point will be shared with participants on a four to one ratio
(i.e., 80% retained by the Corporation and 20% distributed to eligible
participants).
The 20% of Worldwide PTPB profits above the 150% Award level will fund a bonus
pool that will be shared proportionately by all eligible participants regardless
of the participants' achievement against their financial or personal objectives.
The Award pool will be allocated proportionately by all participants based upon
each participant's original Target Award (calculated at 100% PTPB profit and
attainment of 100% on personal objectives) with no modification for ROIC
results.
<PAGE> 1
EXHIBIT 10.47
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") is entered into by and between JEFFREY
R. RODEK ("Associate") and INGRAM MICRO INC., a Delaware corporation ("IMI"), in
order to establish the basis for certain payments and benefits to be provided to
Associate in connection with the termination of Associate's employment with IMI.
In consideration of the mutual promises and agreements contained in this
document, intending to be legally bound, Associate and IMI contract and agree as
follows:
1. Resignation. Associate has resigned as an officer and employee of IMI
effective as of October 11, 1999 (the "Resignation Date"). Associate
acknowledges that after the Resignation Date he no longer will be an
agent of IMI or any entity affiliated with IMI, and will have no
authority to bind IMI or any such affiliate or act on behalf of IMI or
any such affiliate as an officer or employee.
2. Salary Continuation. In consideration of Associate's continuing
obligations under this Agreement, IMI will continue to pay Associate
his current base salary for a period of 24 months from the Resignation
Date (the "Salary Continuation Period"). Such payments will be made
through IMI's normal payroll procedures and will be subject to
applicable withholding requirements.
3. IMI Benefits/COBRA Coverage. Associate acknowledges that on the
Resignation Date, he will cease to be qualified for the employee
benefit plans to which he was entitled as an associate or employee of
IMI. Associate will, however, have the rights of a terminated employee
to convert and/or continue certain benefit coverages as provided in the
respective benefit plans, including COBRA continuation rights for
medical, dental and vision coverages. IMI will provide under separate
cover further information to Associate regarding COBRA continuation
coverage and other conversion and/or continuation rights.
Notwithstanding the foregoing, IMI will pay directly or reimburse
Associate for the cost of Associate's COBRA continuation coverage for a
period of 18 months from the Resignation Date. However, coverage for
long-term and short-term disability, and other benefits, including,
without limitation, basic life insurance, AD&D insurance, supplemental
life insurance, spouse/dependent insurance, dependent care spending
account, employee stock purchase plan(s) and the IMI Thrift Plan, will
end on the Resignation Date.
4. Key Employee Stock Purchase Plan.
a. Notwithstanding the provisions of Section 6(b)(i) of the Acquisition
Agreement dated June 29, 1996 between IMI and Associate relating to
Associate's purchase of shares of IMI Class B Common Stock under the
IMI Key Employee Stock Purchase Plan (the "Purchased Shares Acquisition
Agreement"), IMI shall not exercise its right to repurchase any of the
Shares (as such term is defined in the Purchased Shares Acquisition
Agreement) and will be permitted to exercise its repurchase rights only
with respect to the Restricted Shares (as such
1
<PAGE> 2
term is defined in the Purchased Shares Acquisition Agreement) owned by
Associate, if any, as of the date of the any failure by Associate to
perform such obligations. Except as modified hereby, the Purchased
Shares Acquisition Agreement shall continue in full force and effect in
accordance with its terms.
b. Notwithstanding the provisions of Section 5(b)(i) of the Acquisition
Agreement dated July 15, 1996 between IMI and Associate relating to the
award by IMI to Associate of shares of IMI Class B Common Stock under
the IMI Key Employee Stock Purchase Plan (the "Restricted Shares
Acquisition Agreement"), the Restricted Stock (as such term is defined
in the Restricted Shares Acquisition Agreement) shall not be forfeited
to IMI for so long as Associate performs his obligations under this
Agreement. Only such shares as constitute Restricted Stock as of the
date of any failure by Associate to perform such obligations shall be
forfeited. Except as modified hereby, the Restricted Shares Acquisition
Agreement shall continue in full force and effect in accordance with
its terms.
5. Stock Options. Notwithstanding the termination of Associate's
employment with IMI or any contrary provisions in any plan or relevant
agreement, Associate's currently existing unvested stock options and
grants which are scheduled to vest at any time on or after the
Resignation Date and prior to April 2, 2000, shall be deemed vested as
of the Resignation Date. Associate shall have the right to exercise all
such stock options and grants, as well as all of his presently vested
stock options and grants, through the end of the Salary Continuation
Period or such earlier date as any such options or grants would have
expired per the terms of the underlying agreements for such options and
grants if Associate had continued to be an employee of IMI throughout
such period.
6. Non-disclosure. Associate acknowledges his obligation not to disclose,
during or after employment, any trade secrets or proprietary and/or
confidential data or records of IMI or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees
that such party will not release, publish, announce or otherwise make
available to the public in any manner whatsoever any information or
announcement regarding this Agreement or the transactions contemplated
hereby without the prior written consent of the other party hereto,
except as required by law or legal process, including, in the case of
IMI, filings with the Securities and Exchange Commission. Associate
agrees not to communicate with, including responding to questions or
inquiries presented by, the media, employees or investors of IMI, its
affiliates or any third party relating to the terms of this Agreement,
without first obtaining the prior written consent of IMI.
Notwithstanding the foregoing, Associate may make disclosure to his
attorneys and financial advisors of the existence and terms of this
Agreement provided that they agree to be bound by the provisions of
this Paragraph 6. Each party agrees not to make statements or take any
action to disparage, dissipate or negatively affect the reputation of
the other with employees, customers, suppliers, competitors, vendors,
stockholders or lenders of IMI, its affiliates or any third party.
2
<PAGE> 3
7. Financial Planning/Tax Preparation. Through the Resignation Date,
Associate shall continue to be eligible to receive the benefits of the
financial planning program offered to IMI's senior executives. IMI
shall also provide Associate with federal and state income tax return
preparation assistance for the calendar year 1999 on the same terms as
offered to IMI's other senior executives. The costs associated with
both the financial planning program and the tax preparation assistance
shall be considered as imputed income in a manner consistent with the
treatment for other IMI senior executives.
8. Return of Property/Internet Access/Mail Forwarding. Associate
acknowledges his obligation to promptly return to IMI all property of
IMI in his possession including, without limitation, keys, SECUREID
card, credit cards, cell phones, pagers, computers, office equipment,
documents and files and instruction manuals on or before the
Resignation Date, or earlier if so requested by IMI. Notwithstanding
the foregoing, Associate shall be entitled to keep the following items
and their related accessories: Toshiba laptop computer, Palm Pilot
organizer, mobile phone, laser printer (home) and a Compaq personal
computer (home). The fair value of all such equipment shall be
considered imputed income to Associate. Such imputed income shall be
"grossed up" assuming a combined federal and state tax rate of 48.2%.
IMI shall maintain Associate's Internet access for a period of 30 days
after the Resignation Date. After the Resignation Date, IMI shall
forward all mail addressed to Associate to the most recent address
provided by Associate to IMI pursuant to Paragraph 20.
9. Associate's Obligation's. In consideration of the payments, benefits
and stock ownership rights to be received by Associate hereunder,
Associate and IMI have further agreed as follows:
a. Associate will not (i) directly or indirectly make known to any
person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or
maintained by Associate, IMI or any of IMI's affiliates, which contains
information that is confidential to IMI or any of its affiliates about
their customers ("IMI Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the Salary
Continuation Period, call on or solicit, or attempt to call on or
solicit, in either case with the intent to divert business or potential
business from IMI or any of its affiliates, any of the IMI Customers
with whom he has become acquainted during his employment with IMI or
any of its affiliates, either for his own benefit or for the benefit of
any other person, firm, corporation, partnership or other entity;
provided, however, that the provisions of this Paragraph 9.a shall not
apply to any activities by Associate in pursuit of business
opportunities in the third party fulfillment business that do not
violate Paragraph 9.c.
b. Through the end of the Salary Continuation Period, Associate will
not, and will use his best efforts not to permit any person, firm,
corporation, partnership or other entity of which he is an officer or
control person to, (i) knowingly solicit, entice, or persuade any
individual who is an associate of IMI or any of its affiliates
3
<PAGE> 4
at any time during the Salary Continuation Period (each such
individual, an "IMI Associate") to leave the services of IMI or any of
its affiliates for any reason, or (ii) solicit for employment, hire, or
engage any present or future IMI Associate as an employee, independent
contractor or consultant; provided, however, that Associate shall not
be prohibited hereby from hiring, either himself or on behalf of his
employer, Carol Curtis and Mike Sternad or any associate approved in
advance by the Corporation's Chief Executive Officer, Worldwide Chief
Financial Officer or General Counsel.
c. Associate acknowledges that he has unique knowledge of IMI and its
affiliates and unique knowledge of the computer and software sales and
distribution industry. Based on his unique status, he agrees that
through the end of the Salary Continuation Period, he will not be
employed or hired as an employee or consultant by, or otherwise
directly or indirectly provide services for, any of Tech Data, Merisel,
Inacom, Pinacor, Globelle, Gates Arrow, CHS Electronics, Hallmark,
Hamilton Avnet, Daisytek, Azerti, Azlan, Northamber, Tech Pacific,
Synnex, Bell Micro, DSS and/or GE Capital Information Technology
Solutions-North America, Inc., and any subsidiary or affiliate of these
entities in a business or line of business conducted by any such entity
which competes with any line of business conducted by IMI or any of its
affiliates. Notwithstanding the foregoing, should Associate be employed
by an entity that is not a subsidiary or affiliate of one of these
entities at the time he commences such employment, but subsequently
becomes a subsidiary or affiliate of, or becomes merged into, one of
these entities on or before the end of the Salary Continuation Period,
he shall not be deemed to be in breach of the provisions of this
Paragraph 9.c due to such employment, provided that at the time he
commenced his employment there had been no public announcement of an
agreement pursuant to which his employer would become a subsidiary or
affiliate of, or merged into, one of these entities or discussions that
could lead to such an agreement and Associate had no knowledge of the
existence of any such agreement or discussions. Associate further
agrees that he will not own any interest in, provide financing to, be
connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, he may own less than
1% of the outstanding shares of any such entity whose shares are traded
in the public market.
d. Provided that IMI is not in breach of its obligations under
Paragraphs 2, 3, 4, or 5 of this Agreement, and subject to Associate's
other commitments, upon request of IMI or any of its affiliates during
the Salary Continuation Period, Associate will make himself available
to provide reasonable assistance to IMI or any such affiliate and will
use reasonable efforts to arrange his commitments so as to make himself
available for such assistance on a basis which is consistent with the
requests of IMI or any affiliates. Such assistance may include
telephone conversations, correspondence, attendance and participation
in meetings, transfer of knowledge or information regarding operational
or other issues, litigation preparation and trials. During such period,
IMI shall reimburse Associate for any our-of-pocket expense he may
incur in connection with such assistance in accordance with IMI's
reimbursement policies. After the end of the Salary Continuation
Period, Associate shall use reasonable efforts, subject to his other
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commitments, to continue to provide such assistance as requested by IMI
and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning
based on his current base salary immediately prior to the Resignation
Date.
The running of the periods prescribed in this Paragraph 9 shall be
tolled and suspended by the length of time Associate works in
circumstances that a court of competent jurisdiction subsequently finds
to violate the terms of this Agreement.
10. Rights in Event of Breach. In the event of Associate's breach of this
Agreement (excluding breach of this Agreement due to death or total
disability and provided that in the event of a breach of Paragraph 9.c
or 9.d, such breach shall have continued for 15 days after the sooner
of Associate's discovery thereof or receipt of notice from IMI
thereof), in addition to all other rights and remedies to which IMI may
be entitled by law or in equity, IMI shall have no obligation to make
any further payments hereunder or permit any vested stock options to be
exercised, and may purchase any remaining Restricted Shares under the
Purchased Shares Acquisition Agreement and cause any remaining
Restricted Stock under the Restricted Stock Acquisition Agreement to be
forfeited. If Ingram exercises such right, Associate's obligations
under Paragraph 9.c and 9.d shall terminate..
11. Injunctive Relief. Irreparable harm will be presumed if Associate
breaches any covenant in this Agreement and damages may be very
difficult to ascertain. In light of these facts, Associate agrees that
any court of competent jurisdiction should immediately enjoin any
breach of this Agreement upon the request of IMI, and Associate
specifically releases IMI from the requirement of posting any bond in
connection with temporary or interlocutory injunctive relief, to the
extent permitted by law. The granting of injunctive relief by any court
shall not limit IMI's right to recover any amounts previously paid to
Associate under this Agreement or any damages incurred by it due to a
breach of this Agreement by Associate.
12. Release by Associate. Effective immediately, Associate hereby fully,
finally and irrevocably discharges IMI and each of its affiliates, and
each present, former and future director, officer and employee of IMI
and its affiliates and any parent, subsidiary, affiliate or shareholder
thereof (the "IMI Released Parties") from all manner of claims,
actions, causes of action or suits, in law or in equity, which
Associate has or may have, known or unknown, against the IMI Released
Parties, or any of them, by reason of any matter, cause or thing
whatsoever, including any action arising from or during his employment
with IMI and any of its affiliates, resulting from or relating to his
employment or the termination thereof, or relating to his status as an
officer, director, employee or participant in any employee benefit plan
of IMI or any of its affiliates; provided, however, that the foregoing
(a) is not intended to be, and shall not constitute, a release of any
right of Associate to obtain indemnification and reimbursement of
expenses from IMI or any of its affiliates with respect to claims based
upon or arising from alleged or actual acts or omissions of Associate
as an officer, director or employee of IMI or any of its affiliates to
the fullest extent provided by law or in any applicable
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certificate of incorporation, bylaw or contract, and (b) shall not
release IMI from liability for violations of this Agreement after the
date hereof. From and after the date hereof, Associate agrees and
covenants not to sue, or threaten suit against, or make any claim
against, any IMI Released Party for or alleging any of the claims,
actions, causes of action or suits described above. Associate
acknowledges that this release includes, but is not limited to, all
claims arising under federal, state, local or foreign laws prohibiting
employer discrimination and all claims growing out of any legal
restrictions on the right of IMI or any of its affiliates to terminate
its employees. Associate also specifically waives and releases all
claims of employment discrimination and all rights available to him
under Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act (ADEA), as well as all claims or
rights under the California Fair Employment and Housing Act, or any
similar law of any jurisdiction. Associate specifically agrees that he
will not institute litigation in any forum, including any filing with
any regulatory commission or agency, against any IMI Released Party
based on any allegations or circumstances that are in any way connected
with his employment or the termination of his employment with Ingram
and its affiliates.
13. Release by Ingram. Effective immediately, IMI, on behalf of itself and
its affiliates, releases and discharges Associate, his heirs, personal
representatives, successors and assigns from all manner of claims,
actions, causes of action or suits, in law or in equity, which any of
them has or may have against Associate by reason of any matter, cause
or thing whatsoever, including any action arising from or during his
employment with IMI or any of its affiliates, resulting from the
termination from such employment, or related to his status as an
optionholder, officer, director, employee or participant in any
employee benefit plan of IMI or any of its affiliates; provided,
however, that the foregoing shall not include a release of Associate
from liability to IMI or any of its affiliates for any claims based
upon or arising from his violations of law, this Agreement, or his
fiduciary duty of loyalty, as determined under Delaware law, to IMI and
its affiliates. From and after the date hereof, IMI agrees and
covenants not to sue, or threaten suit against, or make any claim
against Associate for or alleging any of the claims, actions, causes of
action or suits as discussed above. From and after the date hereof, IMI
shall not take any action to limit the coverage to which Associate
would otherwise be entitled under any directors or officers liability
insurance policy which Ingram shall elect to maintain; provided,
however, that nothing herein shall require IMI to maintain any such
policy.
14. Waiver. Each of IMI and Associate hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the
California Civil Code which provides:
"Section 1542. General Release--Claim extinguished. A general
release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially
affected his settlement with the debtor."
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Each of IMI and Associate understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the
Civil Code is that even if IMI or Associate, as the case may be, should
eventually suffer damages arising out of Associate's employment
relationship with IMI and its affiliates, or termination of such
employment, such party will not be permitted to make any claim for
those damages except as expressly permitted by this Agreement.
Furthermore, each of IMI and Associate acknowledges that such party
intends these consequences even as to claims for injuries and/or
damages that may exist as of the date of this Agreement but which
Associate or IMI, as the case may be, does not know exist, and which,
if known, would materially affect such party's decision to execute this
Agreement.
15. Sole Remedy. Associate agrees that, in the event IMI breaches any
provision of this Agreement, his sole remedy for such breach shall be
enforcement of the terms of this Agreement, or in the case of a breach
of Paragraph 4, 5 or 6 hereof, at Associate's election, recovery of any
provable damages as a result of such breach.
16. Right to Revoke. Associate acknowledges that he has the right to seek
legal counsel, and was advised to seek such counsel, before entering
into this Agreement. Associate shall have 45 days in which to execute
and return this Agreement to IMI. Associate further understands he has
the right to revoke this Agreement at any time within seven days of
execution of this Agreement by written notice sent by certified mail
and received by IMI prior to expiration of the seventh day, whereupon
this Agreement shall be null and void as of its inception. In the event
that Associate does not execute and return this Agreement within such
45 day period, the offer contained in this Agreement shall be revoked
and IMI shall not be bound by any terms or conditions contained herein.
IMI shall not be obligated to perform any of its obligations hereunder
until such time as this Agreement has been finally accepted by
Associate and his right to revoke his acceptance has lapsed.
17. Attorneys' Fees. In the event that either party hereto files suit to
enforce or interpret the provisions of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees and costs
incurred therewith.
18. Definition of Affiliate. An "affiliate" of IMI for purposes of this
Agreement shall include any corporation or business entity in which IMI
owns, directly or indirectly, at least 15% of the outstanding equity
interest.
19. Enforceability. If any provision of this Agreement shall be held
invalid or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect. If any provision is held
invalid or unenforceable with respect to a particular circumstance, it
shall nevertheless remain in full force and effect in all other
circumstances.
20. Notices. Any notices, requests, demands and other communications
required or permitted to be given or made hereunder shall be in writing
and shall be deemed to have been duly given (a) on the date delivered
if personally delivered, (b) on
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the third day after deposit in the U.S. mail or with a reputable air
courier service, properly addressed with postage or charges prepaid, or
(c) on the date transmitted by telefax if the sender receives
electronic confirmation of receipt of such telefax, to the address or
telefax number of IMI or Associate, as the case may be, set forth on
the signature page of this Agreement, or such other superseding address
as provided by one party to the other in the manner provided in this
Paragraph 20.
21. Governing Law/Venue. This Agreement shall be governed by California law
and applicable Federal law, without regard to the choice or conflict of
law provisions thereof. The venue for any lawsuit arising as a result
of this Agreement shall be Santa Ana, California.
22. No Admission. Associate understands and agrees that the making of the
promises contained in this Agreement is in no way an admission that IMI
violated any Federal or state laws or regulations, or violated any
other obligation it has or may have had to Associate. Rather, IMI is
making these promises solely in exchange for Associate's promises to
IMI.
23. Paragraph Titles. The paragraph titles used in this Agreement are for
convenience only and do not define or limit the contents of any
paragraph.
24. Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, the heirs of Associate and the successors and
assigns of IMI.
25. Entire Agreement. Except as specifically referenced herein, this
instrument contains and accurately recites the complete and entire
agreement among the parties, and it expressly terminates, cancels, and
supersedes any and all prior agreements or understandings, if any,
among the parties. This Agreement may not be modified except in writing
signed by the parties.
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Executed and delivered to Associate by IMI on October ____, 1999, and
executed by Associate on the date set below.
"Associate"
Date:
-------------------------- -----------------------------------
Jeffrey R. Rodek
18 Sunpeak
Irvine, CA 92612
Telephone: (949) 509-1544
Facsimile: (949) 854-6211
"IMI"
INGRAM MICRO INC.
a Delaware corporation
Date:
-------------------------- -----------------------------------
Jerre L. Stead, Chairman and CEO
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
Telephone: (714) 566-1000
Facsimile: (714) 566-7604
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Exhibit 10.48
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and MICHAEL J. GRAINGER ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests
of the Company and its stockholders to encourage Executive's continued
availability to the Company in the event of a change in the Company's Chief
Executive Officer or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
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by the Company on each such scheduled expiration date, the remaining term of
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in
CEO. In the event that any Change in Control or a Change in CEO occurs during
the Initial Term or any Successive Period, upon the effective date of such
Change in Control or Change in CEO the term of this Agreement shall
automatically be extended for a period of 24 months from the effective date of
such Change in Control or Change in CEO, as the case may be (an "Extended
Term"). The 24-month extension described in this Section 1.03 shall take effect
regardless of whether, before or after the effective date of a Change in Control
or Change in CEO, Executive or the Company has given written notice of intent
not to extend the term of the Agreement pursuant to Section 1.02 or there has
occurred a termination of Executive's employment, provided the term of the
Agreement has not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in
Control or a Change in CEO, other than (x) for Cause, or (y) by reason
of Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good
Reason during the 24-month period following either any Change in Control
or a Change in CEO, provided that Executive's termination occurs within
(x) six months after a Qualifying Nonrenewal or (y) 90 days after the
occurrence of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
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(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's voluntary
termination of employment for Good Reason within 90 days after the occurrence of
an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section
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5.07 and Section 5.09, Executive shall be entitled to the following benefits
(the "Severance Benefits") upon a Qualifying Event:
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or
Change in CEO, as the case may be, to which such Qualifying Event
relates, and ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the
year in which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if
any, as in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's
total
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actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by
Executive for "Continuation Coverage" (within the meaning of Section
4980B(f)(2) of the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including
laboratory and test fees, of an annual physical examination in an amount
not to exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive
Deferred Compensation Plan up to the full amount of employee
contributions permitted; provided, however, that the Company will not be
required to make any matching contributions with respect to Executive's
contributions during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base
Salary at its highest annual rate during the one year period prior to
such Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary
plus (B) the product of 1/12 of such Base Salary times Executive's full
and partial years of employment with the Company ("Years of Service")
(such greater amount, the "Basic Termination Benefit"), which such
Benefit shall be payable in cash in equal installments at the times and
in accordance with the applicable Company payroll system over a period
of months equal to the greater of (C) 12 and (D) the sum of 6 plus
Executive's Years of Service (the greater of (C) and (D), the "Payment
Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus
Amount, payable in equal installments at the times and in the manner
provided in Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the
year in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
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(iv) The Tax Preparation Benefit through and in respect of the
year in which death or Disability occur.
(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January
1, 2002 by the Company other than for Cause or by the Executive for Good Reason
or due to Executive's death or Disability, Executive shall be entitled to an
amount equal to the 2002 Retention Bonus multiplied by the greater of (a) a
fraction, the numerator of which is the number of days elapsed from and
including January 1, 2000 and ending on the date of such termination and the
denominator of which is 731, or (b) two-thirds (2/3).
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section
2.05 shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made
under this Article 4, including whether a Gross-Up Payment is required under
Section 3.01, and the assumptions to be used in determining the Gross-Up
Payment, shall be made by PricewaterhouseCoopers LLP, or such other firm as the
Company may designate in writing prior to a Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within twenty business days of the receipt of notice from
Executive that there has been a Qualifying Event, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the Person effecting the Change in Control or is
otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor
(whether by reason of a Change in Control, direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform the
obligations under this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits or Separation Benefits, as the case may be,
and other amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the
contrary, including, without limitation, Section 5.07(a), in the event that
either (i) the Qualifying Event entitling Executive to the payments described in
Section 2.03 of this Agreement is the result of (A) an involuntary termination
of Executive's employment by the Company during the 24-month period following a
Change in CEO or (B) Executive's voluntary termination of employment for Good
Reason during the 24-month period following a Change in CEO, or (ii) Executive
becomes entitled to receive the Separation Benefits described in Section 2.04 of
this Agreement, and if Executive is subsequently employed by any party or
becomes self-employed following such termination of employment, where, in either
case, Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive
(and Executive's legal representatives or other successors) to the fullest
extent permitted by the Certificate of Incorporation and By-Laws of the Company,
as in effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in
Section 2.03.
"Additional Benefits" has the meaning accorded such term in
Section 2.03.
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"Affiliate" and "Associate" have the respective meanings
accorded to such terms in Rule 12b-2 under the Exchange Act as in effect
on the Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate
of pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in
Section 2.03.
"Basic Termination Benefit" has the meaning accorded such term
in Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second
"Whereas" clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section
2.03.
"Cause" means the occurrence of any one or more of the
following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's
duties hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for the reasons set forth in clause (a) or (b) of this
definition unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote (which cannot be delegated)
of not
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less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after
the Effective Date of a Chief Executive Officer of the Company not
serving in such position immediately prior to such appointment or
election.
"Change in Control" means, and shall be deemed to have occurred
upon any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of
the combined voting power of the Voting Stock then outstanding,
unless such Person acquires Beneficial Ownership of 25% or more
of the combined voting power of the Voting Stock then
outstanding solely as a result of an acquisition of Voting Stock
by the Company which, by reducing the Voting Stock outstanding,
increases the proportionate Voting Stock beneficially owned by
such Person (together with all Affiliates and Associates of such
Person) to 25% or more of the combined voting power of the
Voting Stock then outstanding; provided, that if a Person shall
become the Beneficial Owner of 25% or more of the combined
voting power of the Voting Stock then outstanding by reason of
such Voting Stock acquisition by the Company and shall
thereafter become the Beneficial Owner of any additional Voting
Stock which causes the proportionate voting power of Voting
Stock beneficially owned by such Person to increase to 25% or
more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial
Owner of such additional Voting Stock, be deemed to have become
the Beneficial Owner of 25% or more of the combined voting power
of the Voting Stock then outstanding other than solely as a
result of such Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board (and
any new Director, whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in office who
either were
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Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason
to constitute a majority of Directors then constituting the
Board;
(c) A reorganization, merger or consolidation of the
Company is consummated, in each case, unless, immediately
following such reorganization, merger or consolidation, (i) more
than 50% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the Voting Stock outstanding immediately
prior to such reorganization, merger or consolidation, (ii) no
Person (but excluding for this purpose any Excluded Person and
any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly,
25% or more of the voting power of the outstanding Voting Stock)
beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Board at the time of the
execution of the initial agreement providing for such
reorganization, merger or consolidation;
(d) The shareholders of the Company approve (i) a
complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to any corporation with
respect to which, immediately following such sale or other
disposition, (A) more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who
were the beneficial owners of the Voting Stock outstanding
immediately prior to such sale or other disposition of assets,
(B) no Person (but excluding for this purpose any Excluded
Person and any Person beneficially owning, immediately prior to
such sale or other disposition, directly or
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indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of such corporation or the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors and (C) at least
a majority of the members of the board of directors of such
corporation were members of the Board at the time of the
execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the
Company; or
(e) The occurrence of any transaction or event that the
Board, in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in
Section 2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined
in the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
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"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the
Company's Subsidiaries; (iii) any Holding Company; (iv) any employee
benefit plan of the Company, any of its Subsidiaries or a Holding
Company; (v) any Person organized, appointed or established by the
Company, any of its Subsidiaries or a Holding Company for or pursuant to
the terms of any plan described in clause (iv) or (vi) any Family
Stockholder as such term is defined in the Company's amended and
restated by-laws.
"Executive" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section
1.03.
"Good Reason" means, without Executive's express written
consent, the occurrence of any one or more of the following:
(a) Any change in Executive's reporting
responsibilities, the assignment to Executive of duties
inconsistent with Executive's authorities, duties,
responsibilities and status as an officer of the Company, or a
reduction or alteration in the nature thereof, in each case
excluding any designated acting or temporary authorities,
responsibilities and status, from those in effect as of the
Reference Date; provided, however, that any insubstantial and
inadvertent act that is remedied by the Company promptly after
receipt of notice thereof given by Executive shall not
constitute Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date;
except for required travel on the Company's business to an
extent consistent with Executive's business travel obligations
immediately prior to the Reference Date;
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(c) A reduction by the Company of Executive's Base
Salary or total annual target compensation from the highest
level at any time in the year prior to such reduction by more
than 10%;
(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs;
(e) Any material breach by the Company of its
obligations under this Agreement or any failure of a successor
of the Company to assume and agree to perform the Company's
entire obligations under this Agreement, as required by Section
4.01 herein, provided that such successor has received at least
ten days written notice from the Company or Executive of the
requirements of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section
1.02 to the effect that the term of this Agreement will not be
extended (a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company
for the Company or its businesses as a part of any reorganization,
merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined
voting power of the then outstanding voting securities of such entity
entitled to vote generally in the election of directors is, immediately
after such reorganization, merger, consolidation or other transaction,
beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in
substantially the same proportions as their ownership, immediately prior
to such reorganization, merger, consolidation or other transaction, of
such outstanding Voting Stock.
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"Initial Term" has the meaning accorded such term in Section
1.01.
"Later Payment" has the meaning accorded such term in Section
3.03.
"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates,
as in effect immediately prior to the relevant event (subject to changes
in coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in
Section 2.01.
"Payment Period" has the meaning accorded such term in Section
2.04.
"Person" means an individual, corporation, partnership,
association, trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in
clause (f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of the (x) the Effective Date
or (y) the date 60 days prior to the date of the relevant event, if any,
set forth in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established
from time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in
Section 2.04.
"Severance Benefits" has the meaning accorded such term in
Section 2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
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"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in
Section 1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section
3.01.
"2002 Retention Bonus" has the meaning set forth in Section
2.05.
"2003 Retention Bonus" has the meaning set forth in Section
2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ MICHAEL J. GRAINGER By: /s/ JERRE L. STEAD
- ----------------------------------- -----------------------------------
Michael J. Grainger Title: Chairman of the Board
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EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the
"Company") and MICHAEL J. GRAINGER ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this Agreement,
the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of __________,____ (the
"TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable
to Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make
known to any person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or maintained by
Executive, the Company or any of the Company's affiliates, which contains
information that is confidential to the Company or any of its affiliates about
their customers ("the Company's Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the "Continuation Period"
(as defined in the Retention Agreement), call on or solicit, or attempt to call
on or solicit, in either case with the intent to divert business or potential
business from the Company or any of its affiliates, any of the Company's
Customers with whom Executive has become acquainted during his employment with
the Company or any of its
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affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique
knowledge of the Company and its affiliates and unique knowledge of the computer
and software sales and distribution industry. Based on his unique status,
Executive agrees that through the end of the Continuation Period, Executive will
not be employed or hired as an employee or consultant by, or otherwise directly
or indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
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provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of-pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
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Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
-----------------------------------------
Agreed and Accepted Name:
Title:
- -------------------------------------
MICHAEL J. GRAINGER
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<PAGE> 1
Exhibit 10.49
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and KEVIN MURAI ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests
of the Company and its stockholders to encourage Executive's continued
availability to the Company in the event of a change in the Company's Chief
Executive Officer or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
by the Company on each such scheduled expiration date, the remaining term of
<PAGE> 2
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in
CEO. In the event that any Change in Control or a Change in CEO occurs during
the Initial Term or any Successive Period, upon the effective date of such
Change in Control or Change in CEO the term of this Agreement shall
automatically be extended for a period of 24 months from the effective date of
such Change in Control or Change in CEO, as the case may be (an "Extended
Term"). The 24-month extension described in this Section 1.03 shall take effect
regardless of whether, before or after the effective date of a Change in Control
or Change in CEO, Executive or the Company has given written notice of intent
not to extend the term of the Agreement pursuant to Section 1.02 or there has
occurred a termination of Executive's employment, provided the term of the
Agreement has not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in
Control or a Change in CEO, other than (x) for Cause, or (y) by reason
of Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good
Reason during the 24-month period following either any Change in Control
or a Change in CEO, provided that Executive's termination occurs within
(x) six months after a Qualifying Nonrenewal or (y) 90 days after the
occurrence of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's
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voluntary termination of employment for Good Reason within 90 days after the
occurrence of an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section 5.07 and Section 5.09, Executive shall be entitled to the following
benefits (the "Severance Benefits") upon a Qualifying Event:
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<PAGE> 4
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or
Change in CEO, as the case may be, to which such Qualifying Event
relates, and ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the
year in which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if
any, as in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's
total actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by
Executive
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<PAGE> 5
for "Continuation Coverage" (within the meaning of Section 4980B(f)(2)
of the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including
laboratory and test fees, of an annual physical examination in an amount
not to exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive
Deferred Compensation Plan up to the full amount of employee
contributions permitted; provided, however, that the Company will not be
required to make any matching contributions with respect to Executive's
contributions during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base
Salary at its highest annual rate during the one year period prior to
such Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary
plus (B) the product of 1/12 of such Base Salary times Executive's full
and partial years of employment with the Company ("Years of Service")
(such greater amount, the "Basic Termination Benefit"), which such
Benefit shall be payable in cash in equal installments at the times and
in accordance with the applicable Company payroll system over a period
of months equal to the greater of (C) 12 and (D) the sum of 6 plus
Executive's Years of Service (the greater of (C) and (D), the "Payment
Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus
Amount, payable in equal installments at the times and in the manner
provided in Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the
year in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
(iv) The Tax Preparation Benefit through and in respect of the
year in which death or Disability occur.
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(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January
1, 2002 by the Company other than for Cause or by the Executive for Good Reason
or due to Executive's death or Disability, Executive shall be entitled to an
amount equal to the 2002 Retention Bonus multiplied by a fraction, the numerator
of which is the number of days elapsed from and including January 1, 2000 and
ending on the date of such termination and the denominator of which is 731.
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section
2.05 shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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<PAGE> 8
ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made
under this Article 4, including whether a Gross-Up Payment is required under
Section 3.01, and the assumptions to be used in determining the Gross-Up
Payment, shall be made by PricewaterhouseCoopers LLP, or such other firm as the
Company may designate in writing prior to a Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within twenty business days of the receipt of notice from
Executive that there has been a Qualifying Event, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the Person effecting the Change in Control or is
otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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<PAGE> 9
taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor
(whether by reason of a Change in Control, direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform the
obligations under this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits or Separation Benefits, as the case may be,
and other amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the
contrary, including, without limitation, Section 5.07(a), in the event that
either (i) the Qualifying Event entitling Executive to the payments described in
Section 2.03 of this Agreement is the result of (A) an involuntary termination
of Executive's employment by the Company during the 24-month period following a
Change in CEO or (B) Executive's voluntary termination of employment for Good
Reason during the 24-month period following a Change in CEO, or (ii) Executive
becomes entitled to receive the Separation Benefits described in Section 2.04 of
this Agreement, and if Executive is subsequently employed by any party or
becomes self-employed following such termination of employment, where, in either
case, Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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<PAGE> 13
within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive
(and Executive's legal representatives or other successors) to the fullest
extent permitted by the Certificate of Incorporation and By-Laws of the Company,
as in effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in
Section 2.03.
"Additional Benefits" has the meaning accorded such term in
Section 2.03.
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"Affiliate" and "Associate" have the respective meanings
accorded to such terms in Rule 12b-2 under the Exchange Act as in effect
on the Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate
of pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in
Section 2.03.
"Basic Termination Benefit" has the meaning accorded such term
in Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second
"Whereas" clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section
2.03.
"Cause" means the occurrence of any one or more of the
following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's
duties hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for the reasons set forth in clause (a) or (b) of this
definition unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote (which cannot be delegated)
of not
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<PAGE> 15
less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after
the Effective Date of a Chief Executive Officer of the Company not
serving in such position immediately prior to such appointment or
election.
"Change in Control" means, and shall be deemed to have occurred
upon any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of
the combined voting power of the Voting Stock then outstanding,
unless such Person acquires Beneficial Ownership of 25% or more
of the combined voting power of the Voting Stock then
outstanding solely as a result of an acquisition of Voting Stock
by the Company which, by reducing the Voting Stock outstanding,
increases the proportionate Voting Stock beneficially owned by
such Person (together with all Affiliates and Associates of such
Person) to 25% or more of the combined voting power of the
Voting Stock then outstanding; provided, that if a Person shall
become the Beneficial Owner of 25% or more of the combined
voting power of the Voting Stock then outstanding by reason of
such Voting Stock acquisition by the Company and shall
thereafter become the Beneficial Owner of any additional Voting
Stock which causes the proportionate voting power of Voting
Stock beneficially owned by such Person to increase to 25% or
more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial
Owner of such additional Voting Stock, be deemed to have become
the Beneficial Owner of 25% or more of the combined voting power
of the Voting Stock then outstanding other than solely as a
result of such Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board (and
any new Director, whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in office who
either were
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<PAGE> 16
Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason
to constitute a majority of Directors then constituting the
Board;
(c) A reorganization, merger or consolidation of the Company
is consummated, in each case, unless, immediately following such
reorganization, merger or consolidation, (i) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners of
the Voting Stock outstanding immediately prior to such
reorganization, merger or consolidation, (ii) no Person (but
excluding for this purpose any Excluded Person and any Person
beneficially owning, immediately prior to such reorganization,
merger or consolidation, directly or indirectly, 25% or more of
the voting power of the outstanding Voting Stock) beneficially
owns, directly or indirectly, 25% or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were members
of the Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation;
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of
the Company, other than to any corporation with respect to
which, immediately following such sale or other disposition, (A)
more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power
of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or
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<PAGE> 17
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners of the Voting Stock
outstanding immediately prior to such sale or other disposition
of assets, (B) no Person (but excluding for this purpose any
Excluded Person and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or indirectly,
25% or more of the voting power of the outstanding Voting Stock)
beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of
such corporation or the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (C) at least a
majority of the members of the board of directors of such
corporation were members of the Board at the time of the
execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the
Company; or
(e) The occurrence of any transaction or event that the
Board, in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in
Section 2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined
in the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
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<PAGE> 18
"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the
Company's Subsidiaries; (iii) any Holding Company; (iv) any employee
benefit plan of the Company, any of its Subsidiaries or a Holding
Company; (v) any Person organized, appointed or established by the
Company, any of its Subsidiaries or a Holding Company for or pursuant to
the terms of any plan described in clause (iv) or (vi) any Family
Stockholder as such term is defined in the Company's amended and
restated by-laws.
"Executive" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section
1.03.
"Good Reason" means, without Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent with
Executive's authorities, duties, responsibilities and status as
an officer of the Company, or a reduction or alteration thereof,
in each case excluding any designated acting or temporary
authorities, responsibilities and status, from those in effect
as of the Reference Date; provided, however, the appointment of
a Chief Operating Officer of the Company or an insubstantial and
inadvertent act that is remedied by the Company promptly after
receipt of notice thereof given by Executive shall not
constitute Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date;
except for required travel on the Company's business to an
extent consistent with Executive's business travel obligations
immediately prior to the Reference Date;
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(c) A reduction by the Company of Executive's Base Salary or
total annual target compensation from the highest level at any
time in the year prior to such reduction by more than 10%;
(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs;
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the
Company to assume and agree to perform the Company's entire
obligations under this Agreement, as required by Section 4.01
herein, provided that such successor has received at least ten
days written notice from the Company or Executive of the
requirements of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section
1.02 to the effect that the term of this Agreement will not be
extended (a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company
for the Company or its businesses as a part of any reorganization,
merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined
voting power of the then outstanding voting securities of such entity
entitled to vote generally in the election of directors is, immediately
after such reorganization, merger, consolidation or other transaction,
beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in
substantially the same proportions as their ownership, immediately prior
to such reorganization, merger, consolidation or other transaction, of
such outstanding Voting Stock.
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<PAGE> 20
"Initial Term" has the meaning accorded such term in Section
1.01.
"Later Payment" has the meaning accorded such term in Section
3.03.
"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates,
as in effect immediately prior to the relevant event (subject to changes
in coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in
Section 2.01.
"Payment Period" has the meaning accorded such term in Section
2.04.
"Person" means an individual, corporation, partnership,
association, trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in
clause (f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of (x) the Effective Date or
(y) the date 60 days prior to the date of the relevant event, if any,
set forth in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established
from time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in
Section 2.04.
"Severance Benefits" has the meaning accorded such term in
Section 2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
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"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in
Section 1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section
3.01.
"2002 Retention Bonus" has the meaning set forth in Section
2.05.
"2003 Retention Bonus" has the meaning set forth in Section
2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ KEVIN MURAI
- ---------------------------------- By: /s/ JERRE L. STEAD
Kevin Murai ---------------------------------
Title: Chairman of the Board
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EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the
"Company") and KEVIN MURAI ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this Agreement,
the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of __________,____ (the
"TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable
to Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make
known to any person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or maintained by
Executive, the Company or any of the Company's affiliates, which contains
information that is confidential to the Company or any of its affiliates about
their customers ("the Company's Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the "Continuation Period"
(as defined in the Retention Agreement), call on or solicit, or attempt to call
on or solicit, in either case with the intent to divert business or potential
business from the Company or any of its affiliates, any of the Company's
Customers with whom Executive has become acquainted during his employment with
the Company or any of its
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affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique
knowledge of the Company and its affiliates and unique knowledge of the computer
and software sales and distribution industry. Based on his unique status,
Executive agrees that through the end of the Continuation Period, Executive will
not be employed or hired as an employee or consultant by, or otherwise directly
or indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
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provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of-pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
A-5
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Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
-------------------------------
Agreed and Accepted Name:
Title:
- -------------------------------
KEVIN MURAI
A-6
<PAGE> 1
EXHIBIT 10.50
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and GREGORY M. SPIERKEL ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests
of the Company and its stockholders to encourage Executive's continued
availability to the Company in the event of a change in the Company's Chief
Executive Officer or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
<PAGE> 2
by the Company on each such scheduled expiration date, the remaining term of
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in
CEO. In the event that any Change in Control or a Change in CEO occurs during
the Initial Term or any Successive Period, upon the effective date of such
Change in Control or Change in CEO the term of this Agreement shall
automatically be extended for a period of 24 months from the effective date of
such Change in Control or Change in CEO, as the case may be (an "Extended
Term"). The 24-month extension described in this Section 1.03 shall take effect
regardless of whether, before or after the effective date of a Change in Control
or Change in CEO, Executive or the Company has given written notice of intent
not to extend the term of the Agreement pursuant to Section 1.02 or there has
occurred a termination of Executive's employment, provided the term of the
Agreement has not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in
Control or a Change in CEO, other than (x) for Cause, or (y) by reason
of Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good
Reason during the 24-month period following either any Change in Control
or a Change in CEO, provided that Executive's termination occurs within
(x) six months after a Qualifying Nonrenewal or (y) 90 days after the
occurrence of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
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(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's voluntary
termination of employment for Good Reason within 90 days after the occurrence of
an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section
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5.07 and Section 5.09, Executive shall be entitled to the following benefits
(the "Severance Benefits") upon a Qualifying Event:
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or
Change in CEO, as the case may be, to which such Qualifying Event
relates, and ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the
year in which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if
any, as in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's
total
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actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by
Executive for "Continuation Coverage" (within the meaning of Section
4980B(f)(2) of the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including
laboratory and test fees, of an annual physical examination in an amount
not to exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive
Deferred Compensation Plan up to the full amount of employee
contributions permitted; provided, however, that the Company will not be
required to make any matching contributions with respect to Executive's
contributions during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base
Salary at its highest annual rate during the one year period prior to
such Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary
plus (B) the product of 1/12 of such Base Salary times Executive's full
and partial years of employment with the Company ("Years of Service")
(such greater amount, the "Basic Termination Benefit"), which such
Benefit shall be payable in cash in equal installments at the times and
in accordance with the applicable Company payroll system over a period
of months equal to the greater of (C) 12 and (D) the sum of 6 plus
Executive's Years of Service (the greater of (C) and (D), the "Payment
Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus
Amount, payable in equal installments at the times and in the manner
provided in Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the
year in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
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(iv) The Tax Preparation Benefit through and in respect of the
year in which death or Disability occur.
(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January
1, 2002 by the Company other than for Cause or by the Executive for Good Reason
or due to Executive's death or Disability, Executive shall be entitled to an
amount equal to the 2002 Retention Bonus multiplied by a fraction, the numerator
of which is the number of days elapsed from and including January 1, 2000 and
ending on the date of such termination and the denominator of which is 731.
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section
2.05 shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made
under this Article 4, including whether a Gross-Up Payment is required under
Section 3.01, and the assumptions to be used in determining the Gross-Up
Payment, shall be made by PricewaterhouseCoopers LLP, or such other firm as the
Company may designate in writing prior to a Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within twenty business days of the receipt of notice from
Executive that there has been a Qualifying Event, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the Person effecting the Change in Control or is
otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor
(whether by reason of a Change in Control, direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform the
obligations under this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits or Separation Benefits, as the case may be,
and other amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the
contrary, including, without limitation, Section 5.07(a), in the event that
either (i) the Qualifying Event entitling Executive to the payments described in
Section 2.03 of this Agreement is the result of (A) an involuntary termination
of Executive's employment by the Company during the 24-month period following a
Change in CEO or (B) Executive's voluntary termination of employment for Good
Reason during the 24-month period following a Change in CEO, or (ii) Executive
becomes entitled to receive the Separation Benefits described in Section 2.04 of
this Agreement, and if Executive is subsequently employed by any party or
becomes self-employed following such termination of employment, where, in either
case, Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive
(and Executive's legal representatives or other successors) to the fullest
extent permitted by the Certificate of Incorporation and By-Laws of the Company,
as in effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in
Section 2.03.
"Additional Benefits" has the meaning accorded such term in
Section 2.03.
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"Affiliate" and "Associate" have the respective meanings
accorded to such terms in Rule 12b-2 under the Exchange Act as in effect
on the Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate
of pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in
Section 2.03.
"Basic Termination Benefit" has the meaning accorded such term
in Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second
"Whereas" clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section
2.03.
"Cause" means the occurrence of any one or more of the
following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's
duties hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for the reasons set forth in clause (a) or (b) of this
definition unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote (which cannot be delegated)
of not
14
<PAGE> 15
less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after
the Effective Date of a Chief Executive Officer of the Company not
serving in such position immediately prior to such appointment or
election.
"Change in Control" means, and shall be deemed to have occurred
upon any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of
the combined voting power of the Voting Stock then outstanding,
unless such Person acquires Beneficial Ownership of 25% or more
of the combined voting power of the Voting Stock then
outstanding solely as a result of an acquisition of Voting Stock
by the Company which, by reducing the Voting Stock outstanding,
increases the proportionate Voting Stock beneficially owned by
such Person (together with all Affiliates and Associates of such
Person) to 25% or more of the combined voting power of the
Voting Stock then outstanding; provided, that if a Person shall
become the Beneficial Owner of 25% or more of the combined
voting power of the Voting Stock then outstanding by reason of
such Voting Stock acquisition by the Company and shall
thereafter become the Beneficial Owner of any additional Voting
Stock which causes the proportionate voting power of Voting
Stock beneficially owned by such Person to increase to 25% or
more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial
Owner of such additional Voting Stock, be deemed to have become
the Beneficial Owner of 25% or more of the combined voting power
of the Voting Stock then outstanding other than solely as a
result of such Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board (and
any new Director, whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in office who
either were
15
<PAGE> 16
Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason
to constitute a majority of Directors then constituting the
Board;
(c) A reorganization, merger or consolidation of the Company
is consummated, in each case, unless, immediately following such
reorganization, merger or consolidation, (i) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners of
the Voting Stock outstanding immediately prior to such
reorganization, merger or consolidation, (ii) no Person (but
excluding for this purpose any Excluded Person and any Person
beneficially owning, immediately prior to such reorganization,
merger or consolidation, directly or indirectly, 25% or more of
the voting power of the outstanding Voting Stock) beneficially
owns, directly or indirectly, 25% or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were members
of the Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation;
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of
the Company, other than to any corporation with respect to
which, immediately following such sale or other disposition, (A)
more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power
of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the Voting Stock outstanding immediately
prior to such sale or other disposition of assets, (B) no Person
(but excluding for this purpose any Excluded Person and any
Person beneficially owning, immediately prior to such sale or
other disposition, directly or
16
<PAGE> 17
indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of such corporation or the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors and (C) at least
a majority of the members of the board of directors of such
corporation were members of the Board at the time of the
execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the
Company; or
(e) The occurrence of any transaction or event that the
Board, in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in
Section 2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined
in the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
17
<PAGE> 18
"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the
Company's Subsidiaries; (iii) any Holding Company; (iv) any employee
benefit plan of the Company, any of its Subsidiaries or a Holding
Company; (v) any Person organized, appointed or established by the
Company, any of its Subsidiaries or a Holding Company for or pursuant to
the terms of any plan described in clause (iv) or (vi) any Family
Stockholder as such term is defined in the Company's amended and
restated by-laws.
"Executive" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section
1.03.
"Good Reason" means, without Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent with
Executive's authorities, duties, responsibilities and status as
an officer of the Company, or a reduction or alteration thereof,
in each case excluding any designated acting or temporary
authorities, responsibilities and status, from those in effect
as of the Reference Date; provided, however, the appointment of
a Chief Operating Officer of the Company or an insubstantial and
inadvertent act that is remedied by the Company promptly after
receipt of notice thereof given by Executive shall not
constitute Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date;
except for required travel on the Company's business to an
extent consistent with Executive's business travel obligations
immediately prior to the Reference Date;
18
<PAGE> 19
(c) A reduction by the Company of Executive's Base Salary or
total annual target compensation from the highest level at any
time in the year prior to such reduction by more than 10%;
(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs;
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the
Company to assume and agree to perform the Company's entire
obligations under this Agreement, as required by Section 4.01
herein, provided that such successor has received at least ten
days written notice from the Company or Executive of the
requirements of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section
1.02 to the effect that the term of this Agreement will not be
extended (a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company
for the Company or its businesses as a part of any reorganization,
merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined
voting power of the then outstanding voting securities of such entity
entitled to vote generally in the election of directors is, immediately
after such reorganization, merger, consolidation or other transaction,
beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in
substantially the same proportions as their ownership, immediately prior
to such reorganization, merger, consolidation or other transaction, of
such outstanding Voting Stock.
19
<PAGE> 20
"Initial Term" has the meaning accorded such term in Section
1.01.
"Later Payment" has the meaning accorded such term in Section
3.03.
"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates,
as in effect immediately prior to the relevant event (subject to changes
in coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in
Section 2.01.
"Payment Period" has the meaning accorded such term in Section
2.04.
"Person" means an individual, corporation, partnership,
association, trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in
clause (f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of (x) the Effective Date or
(y) the date 60 days prior to the date of the relevant event, if any,
set forth in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established
from time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in
Section 2.04.
"Severance Benefits" has the meaning accorded such term in
Section 2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
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<PAGE> 21
"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in
Section 1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section
3.01.
"2002 Retention Bonus" has the meaning set forth in Section
2.05.
"2003 Retention Bonus" has the meaning set forth in Section
2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ GREGORY M. SPIERKEL
- ---------------------------- By: /s/ JERRE L. STEAD
Gregory M. Spierkel ---------------------------------
Title: Chairman of the Board
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<PAGE> 22
EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the
"Company") and GREGORY M. SPIERKEL ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this Agreement,
the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of __________, ____ (the
"TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable
to Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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<PAGE> 24
Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make
known to any person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or maintained by
Executive, the Company or any of the Company's affiliates, which contains
information that is confidential to the Company or any of its affiliates about
their customers ("the Company's Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the "Continuation Period"
(as defined in the Retention Agreement), call on or solicit, or attempt to call
on or solicit, in either case with the intent to divert business or potential
business from the Company or any of its affiliates, any of the Company's
Customers with whom Executive has become acquainted during his employment with
the Company or any of its
A-3
<PAGE> 25
affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique
knowledge of the Company and its affiliates and unique knowledge of the computer
and software sales and distribution industry. Based on his unique status,
Executive agrees that through the end of the Continuation Period, Executive will
not be employed or hired as an employee or consultant by, or otherwise directly
or indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
A-4
<PAGE> 26
provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of-pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
A-5
<PAGE> 27
Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
-------------------------------
Agreed and Accepted Name:
Title:
- -------------------------------
GREGORY M. SPIERKEL
A-6
<PAGE> 1
Exhibit 10.51
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and HENRI T. KOPPEN ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests
of the Company and its stockholders to encourage Executive's continued
availability to the Company in the event of a change in the Company's Chief
Executive Officer or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
by the Company on each such scheduled expiration date, the remaining term of
<PAGE> 2
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in
CEO. In the event that any Change in Control or a Change in CEO occurs during
the Initial Term or any Successive Period, upon the effective date of such
Change in Control or Change in CEO the term of this Agreement shall
automatically be extended for a period of 24 months from the effective date of
such Change in Control or Change in CEO, as the case may be (an "Extended
Term"). The 24-month extension described in this Section 1.03 shall take effect
regardless of whether, before or after the effective date of a Change in Control
or Change in CEO, Executive or the Company has given written notice of intent
not to extend the term of the Agreement pursuant to Section 1.02 or there has
occurred a termination of Executive's employment, provided the term of the
Agreement has not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in
Control or a Change in CEO, other than (x) for Cause, or (y) by reason
of Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good
Reason during the 24-month period following either any Change in Control
or a Change in CEO, provided that Executive's termination occurs within
(x) six months after a Qualifying Nonrenewal or (y) 90 days after the
occurrence of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's
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voluntary termination of employment for Good Reason within 90 days after the
occurrence of an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section 5.07 and Section 5.09, Executive shall be entitled to the following
benefits (the "Severance Benefits") upon a Qualifying Event:
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(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or
Change in CEO, as the case may be, to which such Qualifying Event
relates, and ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the year
in which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if any,
as in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's
total actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by
Executive
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for "Continuation Coverage" (within the meaning of Section 4980B(f)(2)
of the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including
laboratory and test fees, of an annual physical examination in an amount
not to exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive
Deferred Compensation Plan up to the full amount of employee
contributions permitted; provided, however, that the Company will not be
required to make any matching contributions with respect to Executive's
contributions during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base
Salary at its highest annual rate during the one year period prior to
such Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary
plus (B) the product of 1/12 of such Base Salary times Executive's full
and partial years of employment with the Company ("Years of Service")
(such greater amount, the "Basic Termination Benefit"), which such
Benefit shall be payable in cash in equal installments at the times and
in accordance with the applicable Company payroll system over a period
of months equal to the greater of (C) 12 and (D) the sum of 6 plus
Executive's Years of Service (the greater of (C) and (D), the "Payment
Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus
Amount, payable in equal installments at the times and in the manner
provided in Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the
year in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
(iv) The Tax Preparation Benefit through and in respect of the
year in which death or Disability occur.
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(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January 1,
2002 by the Company other than for Cause or by the Executive for Good Reason or
due to Executive's death or Disability, Executive shall be entitled to an amount
equal to the 2002 Retention Bonus multiplied by a fraction, the numerator of
which is the number of days elapsed from and including January 1, 2000 and
ending on the date of such termination and the denominator of which is 731.
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section
2.05 shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made
under this Article 4, including whether a Gross-Up Payment is required under
Section 3.01, and the assumptions to be used in determining the Gross-Up
Payment, shall be made by PricewaterhouseCoopers LLP, or such other firm as the
Company may designate in writing prior to a Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within twenty business days of the receipt of notice from
Executive that there has been a Qualifying Event, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the Person effecting the Change in Control or is
otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor
(whether by reason of a Change in Control, direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform the
obligations under this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits or Separation Benefits, as the case may be,
and other amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the
contrary, including, without limitation, Section 5.07(a), in the event that
either (i) the Qualifying Event entitling Executive to the payments described in
Section 2.03 of this Agreement is the result of (A) an involuntary termination
of Executive's employment by the Company during the 24-month period following a
Change in CEO or (B) Executive's voluntary termination of employment for Good
Reason during the 24-month period following a Change in CEO, or (ii) Executive
becomes entitled to receive the Separation Benefits described in Section 2.04 of
this Agreement, and if Executive is subsequently employed by any party or
becomes self-employed following such termination of employment, where, in either
case, Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive
(and Executive's legal representatives or other successors) to the fullest
extent permitted by the Certificate of Incorporation and By-Laws of the Company,
as in effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in
Section 2.03.
"Additional Benefits" has the meaning accorded such term in
Section 2.03.
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"Affiliate" and "Associate" have the respective meanings accorded
to such terms in Rule 12b-2 under the Exchange Act as in effect on the
Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate of
pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in
Section 2.03.
"Basic Termination Benefit" has the meaning accorded such term in
Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second
"Whereas" clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section
2.03.
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's
duties hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for the reasons set forth in clause (a) or (b) of this
definition unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote (which cannot be delegated)
of not
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less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after the
Effective Date of a Chief Executive Officer of the Company not serving
in such position immediately prior to such appointment or election.
"Change in Control" means, and shall be deemed to have occurred
upon any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of
the combined voting power of the Voting Stock then outstanding,
unless such Person acquires Beneficial Ownership of 25% or more
of the combined voting power of the Voting Stock then outstanding
solely as a result of an acquisition of Voting Stock by the
Company which, by reducing the Voting Stock outstanding,
increases the proportionate Voting Stock beneficially owned by
such Person (together with all Affiliates and Associates of such
Person) to 25% or more of the combined voting power of the Voting
Stock then outstanding; provided, that if a Person shall become
the Beneficial Owner of 25% or more of the combined voting power
of the Voting Stock then outstanding by reason of such Voting
Stock acquisition by the Company and shall thereafter become the
Beneficial Owner of any additional Voting Stock which causes the
proportionate voting power of Voting Stock beneficially owned by
such Person to increase to 25% or more of the combined voting
power of the Voting Stock then outstanding, such Person shall,
upon becoming the Beneficial Owner of such additional Voting
Stock, be deemed to have become the Beneficial Owner of 25% or
more of the combined voting power of the Voting Stock then
outstanding other than solely as a result of such Voting Stock
acquisition by the Company;
(b) During any period of 24 consecutive months (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board (and any
new Director, whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in office who
either were
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Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason to
constitute a majority of Directors then constituting the Board;
(c) A reorganization, merger or consolidation of the
Company is consummated, in each case, unless, immediately
following such reorganization, merger or consolidation, (i) more
than 50% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners of the
Voting Stock outstanding immediately prior to such
reorganization, merger or consolidation, (ii) no Person (but
excluding for this purpose any Excluded Person and any Person
beneficially owning, immediately prior to such reorganization,
merger or consolidation, directly or indirectly, 25% or more of
the voting power of the outstanding Voting Stock) beneficially
owns, directly or indirectly, 25% or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were members of
the Board at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation;
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of
the Company, other than to any corporation with respect to which,
immediately following such sale or other disposition, (A) more
than 50% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the Voting Stock outstanding immediately
prior to such sale or other disposition of assets, (B) no Person
(but excluding for this purpose any Excluded Person and any
Person beneficially owning, immediately prior to such sale or
other disposition, directly or indirectly, 25% or more of the
voting power of the outstanding Voting Stock) beneficially owns,
directly or
16
<PAGE> 17
indirectly, 25% or more of, respectively, the then outstanding
shares of common stock of such corporation or the combined voting
power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the board
of directors of such corporation were members of the Board at the
time of the execution of the initial agreement or action of the
Board providing for such sale or other disposition of assets of
the Company; or
(e) The occurrence of any transaction or event that the
Board, in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in
Section 2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined
in the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
17
<PAGE> 18
"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the
Company's Subsidiaries; (iii) any Holding Company; (iv) any employee
benefit plan of the Company, any of its Subsidiaries or a Holding
Company; (v) any Person organized, appointed or established by the
Company, any of its Subsidiaries or a Holding Company for or pursuant to
the terms of any plan described in clause (iv) or (vi) any Family
Stockholder as such term is defined in the Company's amended and
restated by-laws.
"Executive" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section
1.03.
"Good Reason" means, without Executive's express written consent,
the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent
with Executive's authorities, duties, responsibilities and status
as an officer of the Company, or a reduction or alteration
thereof, in each case excluding any designated acting or
temporary authorities, responsibilities and status, from those in
effect as of the Reference Date; provided, however, the
appointment of a Chief Operating Officer of the Company or an
insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by Executive shall
not constitute Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date;
except for required travel on the Company's business to an extent
consistent with Executive's business travel obligations
immediately prior to the Reference Date;
18
<PAGE> 19
(c) A reduction by the Company of Executive's Base Salary
or total annual target compensation from the highest level at any
time in the year prior to such reduction by more than 10%;
(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs;
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the Company
to assume and agree to perform the Company's entire obligations
under this Agreement, as required by Section 4.01 herein,
provided that such successor has received at least ten days
written notice from the Company or Executive of the requirements
of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section
1.02 to the effect that the term of this Agreement will not be
extended (a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company
for the Company or its businesses as a part of any reorganization,
merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined
voting power of the then outstanding voting securities of such entity
entitled to vote generally in the election of directors is, immediately
after such reorganization, merger, consolidation or other transaction,
beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in
substantially the same proportions as their ownership, immediately prior
to such reorganization, merger, consolidation or other transaction, of
such outstanding Voting Stock.
19
<PAGE> 20
"Initial Term" has the meaning accorded such term in Section
1.01.
"Later Payment" has the meaning accorded such term in Section
3.03.
"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates,
as in effect immediately prior to the relevant event (subject to changes
in coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in
Section 2.01.
"Payment Period" has the meaning accorded such term in Section
2.04.
"Person" means an individual, corporation, partnership,
association, trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in
clause (f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of (x) the Effective Date or (y)
the date 60 days prior to the date of the relevant event, if any, set
forth in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established
from time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in
Section 2.04.
"Severance Benefits" has the meaning accorded such term in
Section 2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
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<PAGE> 21
"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in Section
1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section
3.01.
"2002 Retention Bonus" has the meaning set forth in Section 2.05.
"2003 Retention Bonus" has the meaning set forth in Section 2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ HENRI T. KOPPEN By: /s/ JERRE L. STEAD
- -------------------------------- -------------------------------
Henri T. Koppen Title: Chairman of the Board
21
<PAGE> 22
EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the
"Company") and HENRI T. KOPPEN ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this Agreement,
the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of __________, ____ (the
"TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable
to Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
A-2
<PAGE> 24
Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make
known to any person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or maintained by
Executive, the Company or any of the Company's affiliates, which contains
information that is confidential to the Company or any of its affiliates about
their customers ("the Company's Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the "Continuation Period"
(as defined in the Retention Agreement), call on or solicit, or attempt to call
on or solicit, in either case with the intent to divert business or potential
business from the Company or any of its affiliates, any of the Company's
Customers with whom Executive has become acquainted during his employment with
the Company or any of its
A-3
<PAGE> 25
affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique
knowledge of the Company and its affiliates and unique knowledge of the computer
and software sales and distribution industry. Based on his unique status,
Executive agrees that through the end of the Continuation Period, Executive will
not be employed or hired as an employee or consultant by, or otherwise directly
or indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
A-4
<PAGE> 26
provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of- pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
A-5
<PAGE> 27
Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
--------------------------------------
Agreed and Accepted Name:
Title:
- ----------------------------------
HENRI T. KOPPEN
A-6
<PAGE> 1
EXHIBIT 10.52
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and GUY P. ABRAMO ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests of
the Company and its stockholders to encourage Executive's continued availability
to the Company in the event of a change in the Company's Chief Executive Officer
or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
by the Company on each such scheduled expiration date, the remaining term of
<PAGE> 2
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in CEO.
In the event that any Change in Control or a Change in CEO occurs during the
Initial Term or any Successive Period, upon the effective date of such Change in
Control or Change in CEO the term of this Agreement shall automatically be
extended for a period of 24 months from the effective date of such Change in
Control or Change in CEO, as the case may be (an "Extended Term"). The 24-month
extension described in this Section 1.03 shall take effect regardless of
whether, before or after the effective date of a Change in Control or Change in
CEO, Executive or the Company has given written notice of intent not to extend
the term of the Agreement pursuant to Section 1.02 or there has occurred a
termination of Executive's employment, provided the term of the Agreement has
not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in Control
or a Change in CEO, other than (x) for Cause, or (y) by reason of
Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good Reason
during the 24-month period following either any Change in Control or a
Change in CEO, provided that Executive's termination occurs within (x) six
months after a Qualifying Nonrenewal or (y) 90 days after the occurrence
of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's
2
<PAGE> 3
voluntary termination of employment for Good Reason within 90 days after the
occurrence of an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section 5.07 and Section 5.09, Executive shall be entitled to the following
benefits (the "Severance Benefits") upon a Qualifying Event:
3
<PAGE> 4
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or Change
in CEO, as the case may be, to which such Qualifying Event relates, and
ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the year in
which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if any, as
in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's total
actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by Executive
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for "Continuation Coverage" (within the meaning of Section 4980B(f)(2) of
the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including laboratory
and test fees, of an annual physical examination in an amount not to
exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive Deferred
Compensation Plan up to the full amount of employee contributions
permitted; provided, however, that the Company will not be required to
make any matching contributions with respect to Executive's contributions
during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base Salary
at its highest annual rate during the one year period prior to such
Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary plus
(B) the product of 1/12 of such Base Salary times Executive's full and
partial years of employment with the Company ("Years of Service") (such
greater amount, the "Basic Termination Benefit"), which such Benefit shall
be payable in cash in equal installments at the times and in accordance
with the applicable Company payroll system over a period of months equal
to the greater of (C) 12 and (D) the sum of 6 plus Executive's Years of
Service (the greater of (C) and (D), the "Payment Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus Amount,
payable in equal installments at the times and in the manner provided in
Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the year
in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
(iv) The Tax Preparation Benefit through and in respect of the year
in which death or Disability occur.
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(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January 1,
2002 by the Company other than for Cause or by the Executive for Good Reason or
due to Executive's death or Disability, Executive shall be entitled to an amount
equal to the 2002 Retention Bonus multiplied by a fraction, the numerator of
which is the number of days elapsed from and including January 1, 2000 and
ending on the date of such termination and the denominator of which is 731.
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section 2.05
shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made under
this Article 4, including whether a Gross-Up Payment is required under Section
3.01, and the assumptions to be used in determining the Gross-Up Payment, shall
be made by PricewaterhouseCoopers LLP, or such other firm as the Company may
designate in writing prior to a Change in Control (the "Accounting Firm"), which
shall provide detailed supporting calculations both to the Company and Executive
within twenty business days of the receipt of notice from Executive that there
has been a Qualifying Event, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or
auditor for the Person effecting the Change in Control or is otherwise
unavailable, Executive may appoint another nationally recognized accounting firm
to make the determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor (whether
by reason of a Change in Control, direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform the obligations
under this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder shall
be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall interfere
with the Company's right to terminate Executive's employment with the Company at
any time, with or without Cause, subject to the Company's obligation to provide
such Severance Benefits or Separation Benefits, as the case may be, and other
amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the contrary,
including, without limitation, Section 5.07(a), in the event that either (i) the
Qualifying Event entitling Executive to the payments described in Section 2.03
of this Agreement is the result of (A) an involuntary termination of Executive's
employment by the Company during the 24-month period following a Change in CEO
or (B) Executive's voluntary termination of employment for Good Reason during
the 24-month period following a Change in CEO, or (ii) Executive becomes
entitled to receive the Separation Benefits described in Section 2.04 of this
Agreement, and if Executive is subsequently employed by any party or becomes
self-employed following such termination of employment, where, in either case,
Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this Agreement
to the contrary, the Company shall withhold from any amounts payable under this
Agreement all federal, state, city, or other taxes as are legally required to be
withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive (and
Executive's legal representatives or other successors) to the fullest extent
permitted by the Certificate of Incorporation and By-Laws of the Company, as in
effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in Section
2.03.
"Additional Benefits" has the meaning accorded such term in Section
2.03.
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"Affiliate" and "Associate" have the respective meanings accorded to
such terms in Rule 12b-2 under the Exchange Act as in effect on the
Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate of
pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in Section
2.03.
"Basic Termination Benefit" has the meaning accorded such term in
Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second "Whereas"
clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section 2.03.
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's duties
hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for the reasons set forth in clause (a) or (b) of this definition
unless and until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote (which cannot be delegated) of
not
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less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after the
Effective Date of a Chief Executive Officer of the Company not serving in
such position immediately prior to such appointment or election.
"Change in Control" means, and shall be deemed to have occurred upon
any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of the
combined voting power of the Voting Stock then outstanding, unless
such Person acquires Beneficial Ownership of 25% or more of the
combined voting power of the Voting Stock then outstanding solely as
a result of an acquisition of Voting Stock by the Company which, by
reducing the Voting Stock outstanding, increases the proportionate
Voting Stock beneficially owned by such Person (together with all
Affiliates and Associates of such Person) to 25% or more of the
combined voting power of the Voting Stock then outstanding;
provided, that if a Person shall become the Beneficial Owner of 25%
or more of the combined voting power of the Voting Stock then
outstanding by reason of such Voting Stock acquisition by the
Company and shall thereafter become the Beneficial Owner of any
additional Voting Stock which causes the proportionate voting power
of Voting Stock beneficially owned by such Person to increase to 25%
or more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial Owner
of such additional Voting Stock, be deemed to have become the
Beneficial Owner of 25% or more of the combined voting power of the
Voting Stock then outstanding other than solely as a result of such
Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not including
any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board (and any new Director,
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds
of the Directors then still in office who either were
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Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason to
constitute a majority of Directors then constituting the Board;
(c) A reorganization, merger or consolidation of the Company
is consummated, in each case, unless, immediately following such
reorganization, merger or consolidation, (i) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners of the Voting Stock
outstanding immediately prior to such reorganization, merger or
consolidation, (ii) no Person (but excluding for this purpose any
Excluded Person and any Person beneficially owning, immediately
prior to such reorganization, merger or consolidation, directly or
indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or more
of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting from
such reorganization, merger or consolidation were members of the
Board at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation;
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the
Company, other than to any corporation with respect to which,
immediately following such sale or other disposition, (A) more than
50% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners of the
Voting Stock outstanding immediately prior to such sale or other
disposition of assets, (B) no Person (but excluding for this purpose
any Excluded Person and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or
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indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or more
of, respectively, the then outstanding shares of common stock of
such corporation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (C) at least a majority
of the members of the board of directors of such corporation were
members of the Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets of the Company; or
(e) The occurrence of any transaction or event that the Board,
in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control" be
deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as in
effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in good
faith in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in Section
2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined in
the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
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"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan of
the Company, any of its Subsidiaries or a Holding Company; (v) any Person
organized, appointed or established by the Company, any of its
Subsidiaries or a Holding Company for or pursuant to the terms of any plan
described in clause (iv) or (vi) any Family Stockholder as such term is
defined in the Company's amended and restated by-laws.
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section 1.03.
"Good Reason" means, without Executive's express written consent,
the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent with
Executive's authorities, duties, responsibilities and status as an
officer of the Company, or a reduction or alteration thereof, in
each case excluding any designated acting or temporary authorities,
responsibilities and status, from those in effect as of the
Reference Date; provided, however, the appointment of a Chief
Operating Officer of the Company or an insubstantial and inadvertent
act that is remedied by the Company promptly after receipt of notice
thereof given by Executive shall not constitute Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date; except
for required travel on the Company's business to an extent
consistent with Executive's business travel obligations immediately
prior to the Reference Date;
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<PAGE> 19
(c) A reduction by the Company of Executive's Base Salary or
total annual target compensation from the highest level at any time
in the year prior to such reduction by more than 10%;
(d) The failure by the Company to keep in effect compensation,
retirement, health and welfare benefits, or perquisite programs
under which Executive receives benefits substantially similar, in
the aggregate, to the benefits under such programs as exist
immediately prior to the Reference Date (other than pursuant to an
equivalent reduction in such benefits of all full-time domestic
employees of the Company who are not subject to a collective
bargaining agreement); or the failure of the Company to meet the
funding requirements, if any, of any of such programs;
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the Company to
assume and agree to perform the Company's entire obligations under
this Agreement, as required by Section 4.01 herein, provided that
such successor has received at least ten days written notice from
the Company or Executive of the requirements of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section 1.02
to the effect that the term of this Agreement will not be extended
(a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company for
the Company or its businesses as a part of any reorganization, merger,
consolidation or other transaction, provided that the outstanding shares
of common stock of such entity and the combined voting power of the then
outstanding voting securities of such entity entitled to vote generally in
the election of directors is, immediately after such reorganization,
merger, consolidation or other transaction, beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Voting Stock
outstanding immediately prior to such reorganization, merger,
consolidation or other transaction in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger,
consolidation or other transaction, of such outstanding Voting Stock.
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<PAGE> 20
"Initial Term" has the meaning accorded such term in Section 1.01.
"Later Payment" has the meaning accorded such term in Section 3.03.
"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates, as
in effect immediately prior to the relevant event (subject to changes in
coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in Section
2.01.
"Payment Period" has the meaning accorded such term in Section 2.04.
"Person" means an individual, corporation, partnership, association,
trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in clause
(f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of (x) the Effective Date or (y)
the date 60 days prior to the date of the relevant event, if any, set
forth in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established from
time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in Section
2.04.
"Severance Benefits" has the meaning accorded such term in Section
2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
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"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in Section
1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section 3.01.
"2002 Retention Bonus" has the meaning set forth in Section 2.05.
"2003 Retention Bonus" has the meaning set forth in Section 2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ GUY P. ABRAMO
- ------------------------------- By: /s/ Jerre L. Stead
Guy P. Abramo ------------------------------------
Title: Chairman of the Board
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EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the "Company")
and GUY P. ABRAMO ("Executive") relating to the termination of Executive's
employment with Company. Subject to the execution of this Agreement, the parties
hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of ___________________, __________
(the "TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable to
Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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<PAGE> 24
Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make known
to any person, firm, corporation, partnership or other entity, any list, listing
or other compilation or document, whether prepared or maintained by Executive,
the Company or any of the Company's affiliates, which contains information that
is confidential to the Company or any of its affiliates about their customers
("the Company's Customers"), including but not limited to names and addresses,
or (ii) at any time through the end of the "Continuation Period" (as defined in
the Retention Agreement), call on or solicit, or attempt to call on or solicit,
in either case with the intent to divert business or potential business from the
Company or any of its affiliates, any of the Company's Customers with whom
Executive has become acquainted during his employment with the Company or any of
its
A-3
<PAGE> 25
affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique knowledge
of the Company and its affiliates and unique knowledge of the computer and
software sales and distribution industry. Based on his unique status, Executive
agrees that through the end of the Continuation Period, Executive will not be
employed or hired as an employee or consultant by, or otherwise directly or
indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
A-4
<PAGE> 26
provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of- pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
A-5
<PAGE> 27
Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
-----------------------------------------
Agreed and Accepted Name:
Title:
- -------------------------------
GUY P. ABRAMO
A-6
<PAGE> 1
EXHIBIT 10.53
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and JAMES E. ANDERSON, JR. ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests of
the Company and its stockholders to encourage Executive's continued availability
to the Company in the event of a change in the Company's Chief Executive Officer
or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
<PAGE> 2
by the Company on each such scheduled expiration date, the remaining term of
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in CEO.
In the event that any Change in Control or a Change in CEO occurs during the
Initial Term or any Successive Period, upon the effective date of such Change in
Control or Change in CEO the term of this Agreement shall automatically be
extended for a period of 24 months from the effective date of such Change in
Control or Change in CEO, as the case may be (an "Extended Term"). The 24-month
extension described in this Section 1.03 shall take effect regardless of
whether, before or after the effective date of a Change in Control or Change in
CEO, Executive or the Company has given written notice of intent not to extend
the term of the Agreement pursuant to Section 1.02 or there has occurred a
termination of Executive's employment, provided the term of the Agreement has
not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in Control
or a Change in CEO, other than (x) for Cause, or (y) by reason of
Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good Reason
during the 24-month period following either any Change in Control or a
Change in CEO, provided that Executive's termination occurs within (x) six
months after a Qualifying Nonrenewal or (y) 90 days after the occurrence
of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
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<PAGE> 3
(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's voluntary
termination of employment for Good Reason within 90 days after the occurrence of
an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section
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<PAGE> 4
5.07 and Section 5.09, Executive shall be entitled to the following benefits
(the "Severance Benefits") upon a Qualifying Event:
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or Change
in CEO, as the case may be, to which such Qualifying Event relates, and
ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the year in
which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if any, as
in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's total
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<PAGE> 5
actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by Executive
for "Continuation Coverage" (within the meaning of Section 4980B(f)(2) of
the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including laboratory
and test fees, of an annual physical examination in an amount not to
exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive Deferred
Compensation Plan up to the full amount of employee contributions
permitted; provided, however, that the Company will not be required to
make any matching contributions with respect to Executive's contributions
during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base Salary
at its highest annual rate during the one year period prior to such
Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary plus
(B) the product of 1/12 of such Base Salary times Executive's full and
partial years of employment with the Company ("Years of Service") (such
greater amount, the "Basic Termination Benefit"), which such Benefit shall
be payable in cash in equal installments at the times and in accordance
with the applicable Company payroll system over a period of months equal
to the greater of (C) 12 and (D) the sum of 6 plus Executive's Years of
Service (the greater of (C) and (D), the "Payment Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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<PAGE> 6
(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus Amount,
payable in equal installments at the times and in the manner provided in
Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the year
in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
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<PAGE> 7
(iv) The Tax Preparation Benefit through and in respect of the year
in which death or Disability occur.
(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January 1,
2002 by the Company other than for Cause or by the Executive for Good Reason or
due to Executive's death or Disability, Executive shall be entitled to an amount
equal to the 2002 Retention Bonus multiplied by a fraction, the numerator of
which is the number of days elapsed from and including January 1, 2000 and
ending on the date of such termination and the denominator of which is 731.
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section
2.05 shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made under
this Article 4, including whether a Gross-Up Payment is required under Section
3.01, and the assumptions to be used in determining the Gross-Up Payment, shall
be made by PricewaterhouseCoopers LLP, or such other firm as the Company may
designate in writing prior to a Change in Control (the "Accounting Firm"), which
shall provide detailed supporting calculations both to the Company and Executive
within twenty business days of the receipt of notice from Executive that there
has been a Qualifying Event, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or
auditor for the Person effecting the Change in Control or is otherwise
unavailable, Executive may appoint another nationally recognized accounting firm
to make the determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor (whether
by reason of a Change in Control, direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform the obligations
under this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder shall
be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall interfere
with the Company's right to terminate Executive's employment with the Company at
any time, with or without Cause, subject to the Company's obligation to provide
such Severance Benefits or Separation Benefits, as the case may be, and other
amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the contrary,
including, without limitation, Section 5.07(a), in the event that either (i) the
Qualifying Event entitling Executive to the payments described in Section 2.03
of this Agreement is the result of (A) an involuntary termination of Executive's
employment by the Company during the 24-month period following a Change in CEO
or (B) Executive's voluntary termination of employment for Good Reason during
the 24-month period following a Change in CEO, or (ii) Executive becomes
entitled to receive the Separation Benefits described in Section 2.04 of this
Agreement, and if Executive is subsequently employed by any party or becomes
self-employed following such termination of employment, where, in either case,
Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this Agreement
to the contrary, the Company shall withhold from any amounts payable under this
Agreement all federal, state, city, or other taxes as are legally required to be
withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive (and
Executive's legal representatives or other successors) to the fullest extent
permitted by the Certificate of Incorporation and By-Laws of the Company, as in
effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in Section
2.03.
"Additional Benefits" has the meaning accorded such term in Section
2.03.
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"Affiliate" and "Associate" have the respective meanings accorded to
such terms in Rule 12b-2 under the Exchange Act as in effect on the
Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate of
pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in Section
2.03.
"Basic Termination Benefit" has the meaning accorded such term in
Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second "Whereas"
clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section 2.03.
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's duties
hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for the reasons set forth in clause (a) or (b) of this definition
unless and until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote (which cannot be delegated) of
not
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less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after the
Effective Date of a Chief Executive Officer of the Company not serving in
such position immediately prior to such appointment or election.
"Change in Control" means, and shall be deemed to have occurred upon
any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of the
combined voting power of the Voting Stock then outstanding, unless
such Person acquires Beneficial Ownership of 25% or more of the
combined voting power of the Voting Stock then outstanding solely as
a result of an acquisition of Voting Stock by the Company which, by
reducing the Voting Stock outstanding, increases the proportionate
Voting Stock beneficially owned by such Person (together with all
Affiliates and Associates of such Person) to 25% or more of the
combined voting power of the Voting Stock then outstanding;
provided, that if a Person shall become the Beneficial Owner of 25%
or more of the combined voting power of the Voting Stock then
outstanding by reason of such Voting Stock acquisition by the
Company and shall thereafter become the Beneficial Owner of any
additional Voting Stock which causes the proportionate voting power
of Voting Stock beneficially owned by such Person to increase to 25%
or more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial Owner
of such additional Voting Stock, be deemed to have become the
Beneficial Owner of 25% or more of the combined voting power of the
Voting Stock then outstanding other than solely as a result of such
Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not including
any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board (and any new Director,
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds
of the Directors then still in office who either were
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Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason to
constitute a majority of Directors then constituting the Board;
(c) A reorganization, merger or consolidation of the Company
is consummated, in each case, unless, immediately following such
reorganization, merger or consolidation, (i) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners of the Voting Stock
outstanding immediately prior to such reorganization, merger or
consolidation, (ii) no Person (but excluding for this purpose any
Excluded Person and any Person beneficially owning, immediately
prior to such reorganization, merger or consolidation, directly or
indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or more
of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting from
such reorganization, merger or consolidation were members of the
Board at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation;
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the
Company, other than to any corporation with respect to which,
immediately following such sale or other disposition, (A) more than
50% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners of the
Voting Stock outstanding immediately prior to such sale or other
disposition of assets, (B) no Person (but excluding for this purpose
any Excluded Person and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or
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indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or more
of, respectively, the then outstanding shares of common stock of
such corporation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (C) at least a majority
of the members of the board of directors of such corporation were
members of the Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets of the Company; or
(e) The occurrence of any transaction or event that the Board,
in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control" be
deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as in
effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in good
faith in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in Section
2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined in
the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
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"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan of
the Company, any of its Subsidiaries or a Holding Company; (v) any Person
organized, appointed or established by the Company, any of its
Subsidiaries or a Holding Company for or pursuant to the terms of any plan
described in clause (iv) or (vi) any Family Stockholder as such term is
defined in the Company's amended and restated by-laws.
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section 1.03.
"Good Reason" means, without Executive's express written consent,
the occurrence of any one or more of the following:
(a) Any change in Executive's reporting responsibilities, the
assignment to Executive of duties inconsistent with Executive's
authorities, duties, responsibilities and status as an officer of
the Company, or a reduction or alteration in the nature thereof, in
each case excluding any designated acting or temporary authorities,
responsibilities and status, from those in effect as of the
Reference Date; provided, however, that any insubstantial and
inadvertent act that is remedied by the Company promptly after
receipt of notice thereof given by Executive shall not constitute
Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date; except
for required travel on the Company's business to an extent
consistent with Executive's business travel obligations immediately
prior to the Reference Date;
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(c) A reduction by the Company of Executive's Base Salary or
total annual target compensation from the highest level at any time
in the year prior to such reduction by more than 10%;
(d) The failure by the Company to keep in effect compensation,
retirement, health and welfare benefits, or perquisite programs
under which Executive receives benefits substantially similar, in
the aggregate, to the benefits under such programs as exist
immediately prior to the Reference Date (other than pursuant to an
equivalent reduction in such benefits of all full-time domestic
employees of the Company who are not subject to a collective
bargaining agreement); or the failure of the Company to meet the
funding requirements, if any, of any of such programs;
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the Company to
assume and agree to perform the Company's entire obligations under
this Agreement, as required by Section 4.01 herein, provided that
such successor has received at least ten days written notice from
the Company or Executive of the requirements of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section 1.02
to the effect that the term of this Agreement will not be extended
(a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company for
the Company or its businesses as a part of any reorganization, merger,
consolidation or other transaction, provided that the outstanding shares
of common stock of such entity and the combined voting power of the then
outstanding voting securities of such entity entitled to vote generally in
the election of directors is, immediately after such reorganization,
merger, consolidation or other transaction, beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Voting Stock
outstanding immediately prior to such reorganization, merger,
consolidation or other transaction in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger,
consolidation or other transaction, of such outstanding Voting Stock.
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"Initial Term" has the meaning accorded such term in Section 1.01.
"Later Payment" has the meaning accorded such term in Section 3.03.
"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates, as
in effect immediately prior to the relevant event (subject to changes in
coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in Section
2.01.
"Payment Period" has the meaning accorded such term in Section 2.04.
"Person" means an individual, corporation, partnership, association,
trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in clause
(f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of the (x) the Effective Date or
(y) the date 60 days prior to the date of the relevant event, if any, set forth
in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established from
time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in Section
2.04.
"Severance Benefits" has the meaning accorded such term in Section
2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
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"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in Section
1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section 3.01.
"2002 Retention Bonus" has the meaning set forth in Section 2.05.
"2003 Retention Bonus" has the meaning set forth in Section 2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ JAMES E. ANDERSON, JR.
- ------------------------------- By: /s/ Jerre L. Stead
JAMES E. ANDERSON, JR. ------------------------------------
Title: Chairman of the Board
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EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the "Company")
and JAMES E. ANDERSON, JR. ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this
Agreement, the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of ___________________, _________
(the "TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECURED card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable to
Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make known
to any person, firm, corporation, partnership or other entity, any list, listing
or other compilation or document, whether prepared or maintained by Executive,
the Company or any of the Company's affiliates, which contains information that
is confidential to the Company or any of its affiliates about their customers
("the Company's Customers"), including but not limited to names and addresses,
or (ii) at any time through the end of the "Continuation Period" (as defined in
the Retention Agreement), call on or solicit, or attempt to call on or solicit,
in either case with the intent to divert business or potential business from the
Company or any of its affiliates, any of the Company's Customers with whom
Executive has become acquainted during his employment with the Company or any of
its
A-3
<PAGE> 25
affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique knowledge
of the Company and its affiliates and unique knowledge of the computer and
software sales and distribution industry. Based on his unique status, Executive
agrees that through the end of the Continuation Period, Executive will not be
employed or hired as an employee or consultant by, or otherwise directly or
indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
A-4
<PAGE> 26
provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of- pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
A-5
<PAGE> 27
Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
-----------------------------------------
Agreed and Accepted Name:
Title:
- -------------------------------
JAMES E. ANDERSON, JR.
A-6
<PAGE> 1
EXHIBIT 10.54
EXECUTIVE RETENTION AGREEMENT
EXECUTIVE RETENTION AGREEMENT ("Agreement") dated as of January 31, 2000
(the "Effective Date") by and between Ingram Micro Inc., a Delaware corporation
(the "Company"), and DAVID M. FINLEY ("Executive").
WHEREAS, Executive is presently employed by the Company in a key
management capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
that appropriate steps be taken to reinforce and encourage the continued
attention of key management personnel, including Executive, to their assigned
duties without the distraction that may arise from personal uncertainties
associated with any potential change in employment status, with any change in
the Company's Chief Executive Officer or with any pending or threatened change
in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests
of the Company and its stockholders to encourage Executive's continued
availability to the Company in the event of a change in the Company's Chief
Executive Officer or a change in control of the Company.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 2001 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 beginning in 2000 and
each later date which is one year prior to the scheduled expiration date of this
Agreement as it may be extended from time to time pursuant to Sections 1.02 and
1.03 (any such date a "Renewal Date"), provided Executive is actively employed
by the Company on each such scheduled expiration date, the remaining term of
<PAGE> 2
this Agreement shall automatically be extended by one year (each such additional
one-year period following the Initial Term or any Extended Term, as the case may
be, a "Successive Period") unless, at least sixty days prior to any such Renewal
Date, the Company has provided Executive with written notice of the Company's
intent that the term of this Agreement not be so extended; provided, however,
that Executive's rights under Section 2.05 shall be unaffected by any
termination of this Agreement prior to January 2, 2003.
SECTION 1.03. Automatic Extension Upon Change in Control or Change in
CEO. In the event that any Change in Control or a Change in CEO occurs during
the Initial Term or any Successive Period, upon the effective date of such
Change in Control or Change in CEO the term of this Agreement shall
automatically be extended for a period of 24 months from the effective date of
such Change in Control or Change in CEO, as the case may be (an "Extended
Term"). The 24-month extension described in this Section 1.03 shall take effect
regardless of whether, before or after the effective date of a Change in Control
or Change in CEO, Executive or the Company has given written notice of intent
not to extend the term of the Agreement pursuant to Section 1.02 or there has
occurred a termination of Executive's employment, provided the term of the
Agreement has not yet expired as of such effective date.
ARTICLE 2
CERTAIN BENEFITS
SECTION 2.01. Certain Events. (a) A "Qualifying Event" means any of the
following events:
(i) The involuntary termination of Executive's employment by the
Company during the 24-month period following either any Change in
Control or a Change in CEO, other than (x) for Cause, or (y) by reason
of Executive's death or Disability; or
(ii) Executive's voluntary termination of employment for Good
Reason during the 24-month period following either any Change in Control
or a Change in CEO, provided that Executive's termination occurs within
(x) six months after a Qualifying Nonrenewal or (y) 90 days after the
occurrence of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following either any Change in Control or a Change in CEO, other than (x) for
Cause, or (y) by reason of Executive's death or Disability.
(c) A "Constructive Event" means, other than during the 24-month period
following either any Change in Control or a Change in CEO, Executive's
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<PAGE> 3
voluntary termination of employment for Good Reason within 90 days after the
occurrence of an event constituting Good Reason.
SECTION 2.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 2.03 or the relevant Separation Benefits as described in
Section 2.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term of
this Agreement all stock options, stock appreciation rights, restricted stock,
or other awards (collectively, "Awards") then held by Executive pursuant to the
provisions of any of the Company's stock or option plans or any successor plans
(each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Change in CEO occurs during the term of
this Agreement all Awards held by Executive, whether granted before or after
such Change in CEO, shall vest pursuant to the terms of each such Award and its
related Stock Plan; provided, however, that each such Award shall continue to
vest through any Continuation Period, and shall terminate on the Termination
Date.
(iii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 2.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section 5.07 and Section 5.09, Executive shall be entitled to the following
benefits (the "Severance Benefits") upon a Qualifying Event:
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(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the second anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 24 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to two (2) times the sum of the
amounts set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in effect
during the period beginning on the date of the Change in Control or
Change in CEO, as the case may be, to which such Qualifying Event
relates, and ending on the date of such Qualifying Event; and
(ii) the Executive's annual target bonus opportunity for the
year in which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the manner
provided above, an amount in cash equal to Executive's target bonus opportunity
for the year in which Executive's employment terminates times a fraction, the
numerator of which is the number of days in such year ending on the date of such
Qualifying Event and the denominator of which is 365 (the "Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if
any, as in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's
total actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by
Executive
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for "Continuation Coverage" (within the meaning of Section 4980B(f)(2)
of the Code) for the last 18 months of such Period;
(iii) Reimbursement for the documented costs, including
laboratory and test fees, of an annual physical examination in an amount
not to exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive
Deferred Compensation Plan up to the full amount of employee
contributions permitted; provided, however, that the Company will not be
required to make any matching contributions with respect to Executive's
contributions during the Continuation Period.
SECTION 2.04. Separation Payments. Subject to Executive's execution of a
Release and except to the extent provided under Section 5.07 and Section 5.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to the greater of (x) Executive's Base
Salary at its highest annual rate during the one year period prior to
such Nonqualifying Event and (y) the sum of (A) 50% of such Base Salary
plus (B) the product of 1/12 of such Base Salary times Executive's full
and partial years of employment with the Company ("Years of Service")
(such greater amount, the "Basic Termination Benefit"), which such
Benefit shall be payable in cash in equal installments at the times and
in accordance with the applicable Company payroll system over a period
of months equal to the greater of (C) 12 and (D) the sum of 6 plus
Executive's Years of Service (the greater of (C) and (D), the "Payment
Period");
(iv) An amount, in cash, payable in equal installments over the
Payment Period and at the times and in accordance with the applicable
Company payroll system, equal to the Basic Bonus Amount; and
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(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus
Amount, payable in equal installments at the times and in the manner
provided in Section 2.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than for
Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of Retirement,
Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of the
year in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
(iv) The Tax Preparation Benefit through and in respect of the
year in which death or Disability occur.
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(f) Upon termination of the Executive's employment for Cause, Executive
shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
SECTION 2.05. Retention Payments. (a) In the event that Executive is
employed by the Company on January 1, 2002, Executive shall be entitled to a
lump sum cash retention payment equal to 150% of the sum of (i) Executive's Base
Salary and (ii) Executive's target annual bonus, each as in effect for the 2001
fiscal year (such sum, the "2002 Retention Bonus").
(b) In the event that Executive is employed by the Company on January 1,
2003, Executive shall be entitled to a lump sum cash retention payment equal to
50% of the sum of (i) Executive's Base Salary and (ii) Executive's target annual
bonus, each as in effect for the 2002 fiscal year (such sum, the "2003 Retention
Bonus").
(c) In the event Executive's employment is terminated prior to January
1, 2002 by the Company other than for Cause or by the Executive for Good Reason
or due to Executive's death or Disability, Executive shall be entitled to an
amount equal to the 2002 Retention Bonus multiplied by a fraction, the numerator
of which is the number of days elapsed from and including January 1, 2000 and
ending on the date of such termination and the denominator of which is 731.
(d) In the event Executive's employment is terminated in 2002 by the
Company other than for Cause or by the Executive for Good Reason or due to
Executive's death or Disability, Executive shall be entitled to an amount equal
to the 2003 Retention Bonus multiplied by a fraction, the numerator of which is
the number of days in 2002 ending on the date of such termination and the
denominator of which is 365.
(e) The payments to be made pursuant to the provisions of this Section
2.05 shall be in addition to any amount payable to Executive with respect to
Executive's target bonus opportunity for such year or any right to receive the
Basic Bonus Amount, as the case may be.
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ARTICLE 3
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 3.01. Gross-Up Payment. If any portion of the Severance Benefits
or any other payment under this Agreement, or under any other agreement with, or
plan of the Company, including but not limited to stock options and other
long-term incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled under this paragraph to an additional amount (the
"Gross-Up Payment") such that after payment by Executive of all of Executive's
applicable Federal, state and local taxes, including any Excise Tax, imposed
upon such additional amount, Executive will retain an amount equal to the Excise
Tax imposed on the Total Payments.
For purposes of this Section 3.01, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 3.02. Determinations. All determinations required to be made
under this Article 4, including whether a Gross-Up Payment is required under
Section 3.01, and the assumptions to be used in determining the Gross-Up
Payment, shall be made by PricewaterhouseCoopers LLP, or such other firm as the
Company may designate in writing prior to a Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within twenty business days of the receipt of notice from
Executive that there has been a Qualifying Event, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the Person effecting the Change in Control or is
otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 3.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 3.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 3, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 3.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 4
SUCCESSORS AND ASSIGNMENTS
SECTION 4.01. Successors. The Company will require any successor
(whether by reason of a Change in Control, direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform the
obligations under this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
SECTION 4.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 5.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts payable in accordance herewith upon
a Nonqualifying Event or a Constructive Event, (ii) the Company's (or any third
party's) contesting the validity, enforceability, or interpretation of the
Agreement, (iii) any conflict between the parties pertaining to this Agreement,
(iv) Executive's contesting any determination by the Internal Revenue Service
pursuant to Section 3.03, or (v) Executive's pursuing any claim under Section
5.15 hereof.
SECTION 5.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company, in accordance with the rules of the American Arbitration Association
then in effect. Executive's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on the Company
and Executive. Judgment may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration, including the fees
and expenses reasonably incurred by Executive, shall be borne by the Company.
SECTION 5.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 5.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 5.06. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits or Separation Benefits, as the case may be,
and other amounts as may be required hereunder.
SECTION 5.07. Mitigation. (a) In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the
contrary, including, without limitation, Section 5.07(a), in the event that
either (i) the Qualifying Event entitling Executive to the payments described in
Section 2.03 of this Agreement is the result of (A) an involuntary termination
of Executive's employment by the Company during the 24-month period following a
Change in CEO or (B) Executive's voluntary termination of employment for Good
Reason during the 24-month period following a Change in CEO, or (ii) Executive
becomes entitled to receive the Separation Benefits described in Section 2.04 of
this Agreement, and if Executive is subsequently employed by any party or
becomes self-employed following such termination of employment, where, in either
case, Executive becomes eligible to receive Base Salary and an annual bonus
opportunity comparable in the aggregate to such compensation Executive received
from the Company immediately prior to such termination, then all cash payments
pursuant to Section 2.03(b), Section 2.04(a)(iii) or Section 2.04(b)(iii)(x) and
(y), as the case may be, shall automatically cease on the first of the month
immediately following the month in which Executive becomes entitled to such
compensation; provided, however, that no other Severance Benefits or Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of
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time during which any of Executive's Awards may vest or be exercised as provided
in Section 2.02(b) be affected or reduced.
SECTION 5.08. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 5.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 5.09. Entire Agreement. This Agreement represents the entire
agreement between the Executive and the Company and its affiliates with respect
to Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights, including, but
not limited to, any prior severance agreement made between Executive and the
Company; provided, however, that any amounts payable to Executive hereunder
shall be reduced by any amounts paid to Executive as required by any applicable
local law in connection with any termination of Executive's employment.
SECTION 5.10. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 5.11. Waiver of Rights. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 5.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 5.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 5.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 5.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
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within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 5.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 5.03.
SECTION 5.16. Indemnification. The Company shall indemnify Executive
(and Executive's legal representatives or other successors) to the fullest
extent permitted by the Certificate of Incorporation and By-Laws of the Company,
as in effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 6
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
3.02.
"Accrued Benefits" has the meaning accorded such term in Section
2.03.
"Accrued Compensation" has the meaning accorded such term in
Section 2.03.
"Additional Benefits" has the meaning accorded such term in
Section 2.03.
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"Affiliate" and "Associate" have the respective meanings
accorded to such terms in Rule 12b-2 under the Exchange Act as in effect
on the Effective Date.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate
of pay which Executive is receiving as annual salary.
"Basic Bonus Amount" has the meaning accorded such term in
Section 2.03.
"Basic Termination Benefit" has the meaning accorded such term
in Section 2.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second
"Whereas" clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section
2.03.
"Cause" means the occurrence of any one or more of the
following:
(a) A demonstrably willful and deliberate material act or failure to act
by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's
duties hereunder; or
(c) Executive's conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for the reasons set forth in clause (a) or (b) of this
definition unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote (which cannot be delegated)
of not
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less than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (and after reasonable notice to
Executive an opportunity for Executive, together with Executive's counsel, to be
heard before the Board), finding that, in the good faith opinion of the Board,
Executive is guilty of conduct set forth above in such clauses (a) or (b) of
this definition and specifying the particulars thereof in detail.
"Change in CEO" means the first appointment or election after
the Effective Date of a Chief Executive Officer of the Company not
serving in such position immediately prior to such appointment or
election.
"Change in Control" means, and shall be deemed to have occurred
upon any occurrence of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 25% or more of
the combined voting power of the Voting Stock then outstanding,
unless such Person acquires Beneficial Ownership of 25% or more
of the combined voting power of the Voting Stock then
outstanding solely as a result of an acquisition of Voting Stock
by the Company which, by reducing the Voting Stock outstanding,
increases the proportionate Voting Stock beneficially owned by
such Person (together with all Affiliates and Associates of such
Person) to 25% or more of the combined voting power of the
Voting Stock then outstanding; provided, that if a Person shall
become the Beneficial Owner of 25% or more of the combined
voting power of the Voting Stock then outstanding by reason of
such Voting Stock acquisition by the Company and shall
thereafter become the Beneficial Owner of any additional Voting
Stock which causes the proportionate voting power of Voting
Stock beneficially owned by such Person to increase to 25% or
more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial
Owner of such additional Voting Stock, be deemed to have become
the Beneficial Owner of 25% or more of the combined voting power
of the Voting Stock then outstanding other than solely as a
result of such Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board (and
any new Director, whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in office who
either were
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Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason
to constitute a majority of Directors then constituting the
Board;
(c) A reorganization, merger or consolidation of the
Company is consummated, in each case, unless, immediately
following such reorganization, merger or consolidation, (i) more
than 50% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the Voting Stock outstanding immediately
prior to such reorganization, merger or consolidation, (ii) no
Person (but excluding for this purpose any Excluded Person and
any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly,
25% or more of the voting power of the outstanding Voting Stock)
beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Board at the time of the
execution of the initial agreement providing for such
reorganization, merger or consolidation;
(d) The shareholders of the Company approve (i) a
complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to any corporation with
respect to which, immediately following such sale or other
disposition, (A) more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who
were the beneficial owners of the Voting Stock outstanding
immediately prior to such sale or other disposition of assets,
(B) no Person (but excluding for this purpose any Excluded
Person and any Person beneficially owning, immediately prior to
such sale or other disposition, directly or
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indirectly, 25% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of such corporation or the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors and (C) at least
a majority of the members of the board of directors of such
corporation were members of the Board at the time of the
execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the
Company; or
(e) The occurrence of any transaction or event that the
Board, in its sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in
Section 2.01.
"Continuation Period" has the meaning accorded to such term in
Section 2.03.
"Disability" means Long-Term Disability, as such term is defined
in the Disability Plan.
"Disability Plan" means the long-term disability plan (or any
successor disability and/or survivorship plan adopted by the Company) in
which Executive participates, as in effect immediately prior to the
relevant event (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
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"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 3.01.
"Excluded Person" means (i) the Company; (ii) any of the
Company's Subsidiaries; (iii) any Holding Company; (iv) any employee
benefit plan of the Company, any of its Subsidiaries or a Holding
Company; (v) any Person organized, appointed or established by the
Company, any of its Subsidiaries or a Holding Company for or pursuant to
the terms of any plan described in clause (iv) or (vi) any Family
Stockholder as such term is defined in the Company's amended and
restated by-laws.
"Executive" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section
1.03.
"Good Reason" means, without Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent
with Executive's authorities, duties, responsibilities and
status as an officer of the Company, or a reduction or
alteration thereof, in each case excluding any designated acting
or temporary authorities, responsibilities and status, from
those in effect as of the Reference Date; provided, however, an
insubstantial and inadvertent act that is remedied by the
Company promptly after receipt of notice thereof given by
Executive shall not constitute Good Reason;
(b) The Company's requiring Executive to be based at a
location in excess of 35 miles from Executive's principal job
location or office immediately prior to the Reference Date;
except for required travel on the Company's business to an
extent consistent with Executive's business travel obligations
immediately prior to the Reference Date;
(c) A reduction by the Company of Executive's Base
Salary or total annual target compensation from the highest
level at any time in the year prior to such reduction by more
than 10%;
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(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs;
(e) Any material breach by the Company of its
obligations under this Agreement or any failure of a successor
of the Company to assume and agree to perform the Company's
entire obligations under this Agreement, as required by Section
4.01 herein, provided that such successor has received at least
ten days written notice from the Company or Executive of the
requirements of Section 4.01; or
(f) The Executive's receipt from the Company at any time
during an Extended Term of written notice pursuant to Section
1.02 to the effect that the term of this Agreement will not be
extended (a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section
3.01.
"Holding Company" means an entity that becomes a holding company
for the Company or its businesses as a part of any reorganization,
merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined
voting power of the then outstanding voting securities of such entity
entitled to vote generally in the election of directors is, immediately
after such reorganization, merger, consolidation or other transaction,
beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in
substantially the same proportions as their ownership, immediately prior
to such reorganization, merger, consolidation or other transaction, of
such outstanding Voting Stock.
"Initial Term" has the meaning accorded such term in Section
1.01.
"Later Payment" has the meaning accorded such term in Section
3.03.
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"Medical Plans" means the medical care plans (or any successor
medical plans adopted by the Company) in which Executive participates,
as in effect immediately prior to the relevant event (subject to changes
in coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualifying Event" has the meaning accorded such term in
Section 2.01.
"Payment Period" has the meaning accorded such term in Section
2.04.
"Person" means an individual, corporation, partnership,
association, trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section
2.01.
"Qualifying Nonrenewal" has the meaning accorded such term in
clause (f) of the definition of Good Reason in this Article 6.
"Reference Date" means the later of (x) the Effective Date or
(y) the date 60 days prior to the date of the relevant event, if any,
set forth in the definition of Good Reason.
"Release" has the meaning accorded such term in Section 2.02.
"Release" has the meaning accorded such term in Section 2.03.
"Retirement" shall be determined under guidelines established
from time to time by the Human Resources Committee of the Board.
"Separation Benefits" has the meaning accorded such term in
Section 2.04.
"Severance Benefits" has the meaning accorded such term in
Section 2.03.
"Stock Plan" has the meaning accorded such term in Section 2.02.
"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
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"Successive Period" has the meaning accorded such term in
Section 1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 2.03.
"Termination Date" has the meaning accorded such term in Section
2.02.
"Total Payments" has the meaning accorded such term in Section
3.01.
"2002 Retention Bonus" has the meaning set forth in Section
2.05.
"2003 Retention Bonus" has the meaning set forth in Section
2.05.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section
2.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ DAVID M. FINLEY By: /s/ Jerre L. Stead
- -------------------------------- ---------------------------------------
DAVID M. FINLEY Title: Chairman of the Board
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EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the
"Company") and DAVID M. FINLEY ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this Agreement,
the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of __________, ____ (the
"TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return to
the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Executive Retention Agreement between the Executive and the
Company dated as of January __, 2000 to which this Agreement is Exhibit A (the
"Retention Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable
to Executive under the Retention Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Retention Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants and
undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto shall
make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make
known to any person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or maintained by
Executive, the Company or any of the Company's affiliates, which contains
information that is confidential to the Company or any of its affiliates about
their customers ("the Company's Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the "Continuation Period"
(as defined in the Retention Agreement), call on or solicit, or attempt to call
on or solicit, in either case with the intent to divert business or potential
business from the Company or any of its affiliates, any of the Company's
Customers with whom Executive has become acquainted during his employment with
the Company or any of its
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affiliates, either for Executive's own benefit or for the benefit of any other
person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will not,
and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique
knowledge of the Company and its affiliates and unique knowledge of the computer
and software sales and distribution industry. Based on his unique status,
Executive agrees that through the end of the Continuation Period, Executive will
not be employed or hired as an employee or consultant by, or otherwise directly
or indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than 1%
of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
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provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of-pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
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Acknowledgment. Executive acknowledges that Executive has carefully read
this Agreement, fully understands and accepts all of its provisions, and signs
it voluntarily of Executive's own free will. Executive further acknowledges that
Executive has been provided a full opportunity to review and reflect on the
terms of this Agreement and to seek the advice of legal counsel of Executive's
choice.
INGRAM MICRO INC.
by
-----------------------------------
Agreed and Accepted Name:
Title:
- ----------------------------------
DAVID M. FINLEY
A-6
<PAGE> 1
EXHIBIT 10.55
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of March 6,
2000 (the "Effective Date") by and between Ingram Micro Inc., a Delaware
corporation (the "Company"), and Kent B. Foster ("Executive").
WHEREAS, the Board of Directors of the Company (the "Board") desires to
employ Executive as Chief Executive Officer of the Company, and Executive
desires to accept such employment; and
WHEREAS, the Company and Executive desire to enter into an agreement
(this "Agreement") embodying the terms of such employment;
NOW THEREFORE, in consideration of the mutual covenants and agreements
of the parties set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows (certain
capitalized terms used herein being defined in Article 8):
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence
on the Effective Date and shall expire December 31, 2002 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of December 31, 2000 and each later date
which is two years prior to the scheduled expiration date of this Agreement as
it may be extended from time to time pursuant to Sections 1.02 and 1.03 (any
such date, a "Renewal Date"), provided Executive is actively employed by the
Company on such scheduled expiration date, the remaining term of this Agreement
shall automatically be extended by one year (each such additional one-year
period, a "Successive Period") unless, at least sixty days prior to any such
Renewal Date, the Company has provided the Executive with written notice of the
Company's intent that the term of this Agreement not be so extended.
SECTION 1.03. Automatic Extension Upon Change in Control. In the event
that any Change in Control occurs during the Initial Term or any Successive
Period, upon the effective date of such Change in Control the term of this
Agreement shall automatically be extended for a period of 24 months from the
effective date of such Change in Control (an "Extended Term"). The 24-month
extension described in this Section 1.03 shall take effect regardless of
whether,
<PAGE> 2
before or after the effective date of a Change in Control, the Company has given
written notice of intent not to extend the term of the Agreement pursuant to
Section 1.02, provided the term of the Agreement has not yet expired as of such
effective date.
ARTICLE 2
POSITION; DUTIES
SECTION 2.01. Position. Commencing as of the Effective Date, the
Company shall employ Executive as Chief Executive Officer of the Company. The
Company shall cause Executive to be elected as President and Chief Executive
Officer of the Company and a member of the Board on the Effective Date and will
include Executive as the "Management Director" (within the meaning of Article
III, Section 3 of the Company's Amended and Restated Bylaws) on the Board's
slate of nominees for election to the Board at the Company's 2000 Annual Meeting
of Shareowners and each annual meeting thereafter during the term of this
Agreement. Executive will be elected as Chairman and Chief Executive Officer of
the Company at the Annual Meeting of the Board to be held immediately following
the conclusion of the Company's 2000 Annual Meeting of Shareowners. Executive
shall have such duties and authority as shall be determined from time to time by
the Board; provided that such duties shall be consistent with the positions
assigned to Executive pursuant to this Section 2.01.
SECTION 2.02. Performance of Duties. While Executive is employed by the
Company hereunder, Executive shall devote substantially all of his business time
and best efforts to the business and affairs of the Company and the performance
of Executive's duties under this Agreement. Subject to the foregoing, Executive
shall not be precluded from (i) continuing to serve on such boards of directors
of business corporations and/or charitable organizations as Executive currently
serves on and serving on such other boards of directors of business corporations
and/or charitable organizations as to which the Board shall have given its prior
written consent, which consent shall not be withheld unreasonably; (ii) engaging
in community affairs or charitable activities (other than serving on the boards
of directors of charitable organizations, as to which clause (i) shall control),
and (iii) managing Executive's personal investments and affairs.
SECTION 2.03. Office Location. Executive's principal office will be
located in the executive office section of the facility operated by the
Company's affiliate Ingram Micro Texas L.P. at 1809 Frankford, Suite 100,
Carrollton, Texas 75007. Executive will be provided sufficient administrative
support to perform his duties to the Company, including an administrative
assistant of his choosing.
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ARTICLE 3
COMPENSATION
SECTION 3.01. Base Salary. While Executive is employed by the Company
hereunder, the Company shall pay Executive a base salary (the "Base Salary") at
the annual rate of not less than $1,000,000, payable in accordance with the
usual payment practices of the Company. Executive's Base Salary shall be subject
to review for increase annually and Executive shall be entitled to such
increases in his Base Salary, if any, as may be determined from time to time in
the sole discretion of the Human Resources Committee of the Board (the
"Committee").
SECTION 3.02. Incentive Compensation Awards. (a) With respect to each
Fiscal Year beginning with the Fiscal Year ending December 30, 2000 during which
Executive is employed hereunder, Executive shall be eligible to receive in
addition to Executive's Base Salary an annual incentive compensation award (the
"Annual Award") for services rendered during such Fiscal Year, subject to the
terms and conditions of the Company's annual Executive Incentive Award Plan as
in effect from time to time. Except as provided below, the amount of the Annual
Award, if any, with respect to any Fiscal Year shall be based upon performance
targets and award levels determined by the Committee in its sole discretion, in
accordance with the Company's annual Executive Incentive Award Plan as in effect
from time to time. The Executive shall be eligible for a target bonus
opportunity of 100% of Base Salary (the "Target Bonus Opportunity"), and a
maximum bonus opportunity of 200% of Base Salary. For the Company's fiscal year
ended December 30, 2000, the Executive shall receive an Annual Award of not less
than 100% of Executive's Base Salary earned during such fiscal year, which shall
be payable in accordance with the Company's practices.
(b) In addition to the Annual Awards described above, Executive shall
be eligible to receive such additional bonuses as may be awarded by the
Committee in its sole discretion.
SECTION 3.03. Employee Benefits. While Executive is employed by the
Company hereunder, Executive (and, to the extent applicable, Executive's
eligible family members, as defined in the applicable plan or policy) shall be
entitled to participate (or to receive benefits equivalent to such
participation), on terms no less favorable than the terms offered to other
senior executives of the Company, in any group and/or executive life,
hospitalization or disability insurance plan, health program, vacation policy,
profit sharing, 401(k) and similar benefit plans (qualified, non-qualified and
supplemental) and other fringe benefits of the Company, and similar programs as
in effect from time to time.
SECTION 3.04. Business Expenses. The Company shall reimburse promptly
such of Executive's travel, entertainment and other business expenses as
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are reasonably and necessarily incurred by Executive in the performance of his
duties while employed hereunder, in accordance with the Company's policies as in
effect from time to time.
SECTION 3.05. Stock Incentive Awards. The Executive shall be granted
options to purchase 1,500,000 shares of the Company's Class A common stock, $.01
par value, with an exercise price equal to the closing price of such stock, as
reported on the New York Stock Exchange, on the trading day prior to Executive's
first day of work for a term of 10 years, which will vest in three equal annual
installments commencing on the first anniversary of the Effective Date.
Executive shall be eligible to receive such additional equity-based incentive
awards, including additional options and restricted stock awards, as may be
granted by the Committee in its sole discretion. Upon Executive's Retirement or
if his employment should terminate by reason of his death, the unexercised
vested portion of all such options and awards shall remain exercisable until the
earlier of the expiration date of such option or award or the third anniversary
of the date of Executive's Retirement or death. If Executive's employment should
terminate by reason of Disability, all such options and awards shall continue to
vest and be or become exercisable, in each case in accordance with the terms of
the governing plan, but in no event shall any such option or award expire prior
to the earlier of the expiration date of such option or award or the third
anniversary of the date of such termination.
ARTICLE 4
CERTAIN TERMINATION BENEFITS
SECTION 4.01. Certain Events. (a) A "Qualifying Event" means any of
the following events:
(i) The involuntary termination of Executive's employment by
the Company during the 24-month period following any Change in Control,
other than (x) for Cause, or (y) by reason of Executive's death or
Disability; or
(ii) Executive's voluntary termination of employment for Good
Reason during the 24-month period following any Change in Control,
provided that Executive's termination occurs within (x) six months
following a Qualifying Nonrenewal or (y) 90 days after the occurrence
of any other event constituting Good Reason.
(b) A "Nonqualifying Event" means the involuntary termination of
Executive's employment by the Company other than during the 24-month period
following any Change in Control, other than (x) for Cause, or (y) by reason of
Executive's death or Disability.
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(c) A "Constructive Event" means, other than during the 24-month
period following any Change in Control, Executive's voluntary termination of
employment for Good Reason within 90 days after the occurrence of an event
constituting Good Reason.
SECTION 4.02. Right to Certain Benefits. (a) In the event that a
Qualifying Event, a Nonqualifying Event, a Constructive Event or other
termination of employment occurs during the term of this Agreement, Executive
shall be entitled to receive from the Company the Severance Benefits as
described in Section 4.03 or the relevant Separation Benefits as described in
Section 4.04, as the case may be.
(b) (i) In the event that a Change in Control occurs during the term
of this Agreement all stock options, stock appreciation rights, restricted
stock, or other awards (collectively, "Awards") then held by Executive pursuant
to the provisions of any of the Company's stock or option plans or any successor
plans (each, a "Stock Plan") shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control and remain exercisable until
the earlier of (x) the expiration date of such Award, any termination of
employment notwithstanding, and (y) if applicable, the first anniversary of the
last day of the Continuation Period (such earlier date, the "Termination Date").
Subject to the provisions above upon a subsequent Change in Control, all Awards
granted after a Change in Control to Executive shall vest pursuant to the terms
of each such Award and its related Stock Plan; provided, however, that each such
Award shall continue to vest through any Continuation Period, and shall
terminate on the Termination Date.
(ii) In the event that a Constructive Event or a Nonqualifying
Event occurs during the term of this Agreement all Awards held by Executive
shall continue to vest through the Payment Period, and shall terminate on the
earlier of (x) the expiration date of such Award, any termination of employment
notwithstanding, and (y) the first anniversary of the last day of the Payment
Period.
SECTION 4.03. Benefits upon a Qualifying Event. Subject to Executive's
execution of an agreement in substantially the form set forth as Exhibit A
hereto, with such changes in the Competitor Companies named therein as the Board
shall reasonably determine (the "Release") and except to the extent provided in
Section 7.07 and Section 7.09, Executive shall be entitled to the following
benefits (the "Severance Benefits") upon a Qualifying Event:
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
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<PAGE> 6
unreimbursed documented business expenses (collectively, "Accrued
Compensation"). In addition, Executive shall be entitled to any other benefits
earned or accrued by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "Accrued
Benefits").
(b) The Company, through the third anniversary of the Qualifying Event
(the "Continuation Period"), shall pay Executive cash compensation in equal
installments over 36 months at the times and in accordance with the applicable
Company payroll system, in an amount equal to three times the sum of the amounts
set forth in Clauses (i) and (ii) below:
(i) Executive's Base Salary at its highest annual rate in
effect during the period beginning on the date of the Change in Control
to which such Qualifying Event relates, and ending on the date of such
Qualifying Event; and
(ii) Executive's Target Bonus Opportunity for the year in
which Executive's employment terminates (the "Bonus Amount").
(c) The Company shall also pay Executive, at the times and in the
manner provided above, an amount in cash equal to Executive's Target Bonus
Opportunity for the year in which Executive's employment terminates times a
fraction, the numerator of which is the number of days in such year ending on
the date of such Qualifying Event and the denominator of which is 365 (the
"Basic Bonus Amount").
(d) In addition, Executive shall be entitled to the benefits set forth
below (collectively, the "Additional Benefits") through and in respect of the
Continuation Period:
(i) Continue to receive Executive's automobile allowance, if
any, as in effect immediately prior to the Qualifying Event;
(ii) Continue to participate in the Company's Medical Plans,
provided that the Company shall reimburse Executive for Executive's
total actual premium costs incurred for such period including, without
limitation, 102% of such total premium costs as are incurred by
Executive for "Continuation Coverage" (within the meaning of Section
4980B(f)(2) of the Code) for the last 18 months of such Period;
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(iii) Reimbursement for the documented costs, including
laboratory and test fees, of an annual physical examination in an
amount not to exceed $1,500;
(iv) Reimbursement for the documented costs of annual gift and
income tax preparation services and advice in an amount not to exceed
$2,000 (the "Tax Preparation Benefits"); and
(v) Participation in the Company's Supplemental Executive
Deferred Compensation Plan up to the full amount of employee
contributions permitted; provided, however, that the Company will not
be required to make any matching contributions with respect to
Executive's contributions during the Continuation Period.
SECTION 4.04. Separation Payments. Subject to Executive's execution of
a Release and except to the extent provided under Section 7.07 and Section 7.09,
Executive shall be entitled to the benefits set forth below (the "Separation
Benefits") upon termination of employment under the following circumstances:
(a) Upon a Nonqualifying Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) An amount equal to two times Executive's Base Salary at
its highest annual rate during the one year period prior to such
Nonqualifying Event (the "Basic Termination Benefit") payable in cash
in equal installments at the times and in accordance with the
applicable Company payroll system over a period of 24 months (the
"Payment Period");
(iv) An amount, in cash, payable in equal installments over
the Payment Period and at the times and in accordance with the
applicable Company payroll system, equal to the Basic Bonus Amount; and
(v) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(b) Upon a Constructive Event, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
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<PAGE> 8
(iii) An amount, in cash, equal to the sum of (x) the Basic
Termination Benefit, (y) the Bonus Amount, and (z) the Basic Bonus
Amount, payable in equal installments at the times and in the manner
provided in Section 4.04(a)(iv); and
(iv) The Additional Benefits, paid over, or in respect of, the
Payment Period, as appropriate.
(c) Upon Executive's voluntary termination of employment other than
for Good Reason or Retirement, Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
(d) Upon termination of Executive's employment by reason of
Retirement, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits; and
(iii) The Tax Preparation Benefit through and in respect of
the year in which Retirement occurs.
(e) Upon termination of Executive's employment by reason of death or
Disability, Executive shall be entitled to:
(i) The Accrued Compensation;
(ii) The Accrued Benefits;
(iii) The Basic Bonus Amount; and
(iv) The Tax Preparation Benefit through and in respect of the
year in which death or Disability occur.
(f) Upon termination of the Executive's employment for Cause,
Executive shall be entitled to:
(i) The Accrued Compensation; and
(ii) The Accrued Benefits.
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ARTICLE 5
CERTAIN TAX REIMBURSEMENT PAYMENTS
SECTION 5.01. Gross-Up Payment. If any portion of the Severance
Benefits or any other payment under this Agreement, or under any other agreement
with, or plan of the Company, including but not limited to stock options and
other long-term incentives (in the aggregate "Total Payments") would be subject
to the excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled under this paragraph to an
additional amount (the "Gross-Up Payment") such that after payment by Executive
of all of Executive's applicable Federal, state and local taxes, including any
Excise Tax, imposed upon such additional amount, Executive will retain an amount
equal to the Excise Tax imposed on the Total Payments.
For purposes of this Section 5.01, Executive's applicable Federal,
state and local taxes shall be computed at the maximum marginal rates, taking
into account the effect of any loss of personal exemptions resulting from
receipt of the Gross-Up Payment.
SECTION 5.02. Determinations. All determinations required to be made
under this Article 4, including whether a Gross-Up Payment is required under
Section 5.01, and the assumptions to be used in determining the Gross-Up
Payment, shall be made by PricewaterhouseCoopers LLP, or such other firm as the
Company may designate in writing prior to a Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within twenty business days of the receipt of notice from
Executive that there has been a Qualifying Event, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the Person effecting the Change in Control or is
otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 5.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 5.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
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taken into account and paid under this Article 5, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes, including any interest and penalties assessed by any
taxing authority, on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes,
including any interest and penalties assessed by any taxing authority, arising
due to the Later Payment. In the case of any repayment of Excise Tax that
Executive is required to make to the Company pursuant to the second sentence of
this Section 5.03, Executive shall also repay to the Company the amount of any
additional payment received by Executive from the Company in respect of
applicable Federal, state and local taxes on such repaid Excise Tax, to the
extent Executive is entitled to a refund of (or has not yet paid) such Federal,
state or local taxes.
ARTICLE 6
SUCCESSORS AND ASSIGNMENTS
SECTION 6.01. Successors. The Company will require any successor
(whether by reason of a Change in Control, direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform the
obligations under this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place.
SECTION 6.02. Assignment by Executive. This Agreement shall inure to
the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If Executive should die or become disabled while any
amount is owed but unpaid to Executive hereunder, all such amounts, unless
otherwise provided herein, shall be paid to Executive's devisee, legatee, legal
guardian or other designee, or if there is no such designee, to Executive's
estate. Executive's rights hereunder shall not otherwise be assignable.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
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if to the Company, to:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on
the books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 7.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits, Separation Benefits or other amounts payable in
accordance herewith, (ii) the Company's (or any third party's) contesting the
validity, enforceability, or interpretation of the Agreement, (iii) any conflict
between the parties pertaining to this Agreement, (iv) Executive's contesting
any determination by the Internal Revenue Service pursuant to Section 5.03, or
(v) Executive's pursuing any claim under Section 7.15 hereof.
SECTION 7.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of Executive's principal place of employment with the
Company in Carrollton, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Executive's election to arbitrate, as
herein provided, and the decision of the arbitrators in that proceeding, shall
be binding on the Company and Executive. Judgment may be entered on the award of
the arbitrator in any court having jurisdiction. All expenses of such
arbitration, including the fees and expenses reasonably incurred by Executive,
shall be borne by the Company.
SECTION 7.04. Unfunded Agreement. The obligations of the Company under
this Agreement represent an unsecured, unfunded promise to pay benefits to
Executive and/or Executive's beneficiaries, and shall not entitle Executive or
such beneficiaries to a preferential claim to any asset of the Company.
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SECTION 7.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
SECTION 7.06. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits or Separation Benefits, as the case may be,
and other amounts as may be required hereunder.
SECTION 7.07. Mitigation. (a) In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
except as provided below, shall the amount of any payment hereunder be reduced
by any compensation earned by Executive as a result of employment by another
employer.
(b) Notwithstanding any other provision of this Agreement to the
contrary, including, without limitation, Section 7.07(a), in the event that
Executive becomes entitled to receive the Severance Benefits described in
Section 4.03 of this Agreement or the Separation Benefits described in Section
4.04 of this Agreement, and if Executive is subsequently employed by any party
or becomes self-employed following such termination of employment, where, in
either case, Executive becomes eligible to receive Base Salary and an annual
bonus opportunity comparable in the aggregate to such compensation Executive
received from the Company immediately prior to such termination, then all cash
payments pursuant to Section 4.03(b), Section 4.04(a)(iii) or Section
4.04(b)(iii)(x) and (y), as the case may be, shall automatically cease on the
first of the month immediately following the month in which Executive becomes
entitled to such compensation; provided, however, that no other Separation
Benefits (including the right to receive any remaining unpaid portion of the
Basic Bonus Amount) shall be affected or reduced nor shall the period of time
during which any of Executive's Awards may vest or be exercised as provided in
Section 4.02(b) be affected or reduced.
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SECTION 7.08. No Set-Off. The Company's obligations to make all
payments and honor all commitments under this Agreement shall be absolute and
unconditional and, except as provided in Section 7.09, shall not be affected by
any circumstances including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against Executive.
SECTION 7.09. Entire Agreement. This Agreement represents the entire
agreement between Executive and the Company and its affiliates with respect to
Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights; provided,
however, that any amounts payable to Executive hereunder shall be reduced by any
amounts paid to Executive as required by any applicable local law in connection
with any termination of Executive's employment.
SECTION 7.10. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 7.11. Waiver of Rights. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 7.12. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 7.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to principles of conflict of laws.
SECTION 7.14. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 7.15. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
within 90 days of receipt of such request. Neither the claim procedure set forth
in this Section 7.15 nor Executive's failure to adhere to such procedure shall
derogate from Executive's right to enforce this Agreement through legal action,
including arbitration as provided in Section 7.03.
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SECTION 7.16. Indemnification. The Company shall indemnify Executive
(and Executive's legal representatives or other successors) to the fullest
extent permitted by the Certificate of Incorporation and By-Laws of the Company,
as in effect at such time or on the Effective Date, or by the terms of any
indemnification agreement between the Company and Executive, whichever affords
or afforded greater protection to Executive, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company,
or any Subsidiary or Executive's serving or having served any other enterprise
as a director, officer, employee or fiduciary at the request of the Company.
ARTICLE 8
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section 5.02.
"Accrued Benefits" has the meaning accorded such term in Section 4.03.
"Accrued Compensation" has the meaning accorded such term in Section
4.03.
"Additional Benefits" has the meaning accorded such term in Section
4.03.
"Affiliate" and "Associate" have the respective meanings accorded to
such terms in Rule 12b-2 under the Exchange Act as in effect on the Effective
Date.
"Annual Award" has the meaning accorded such term in Section 3.02.
"Awards" has the meaning accorded such term in Section 2.02.
"Base Salary" means, at any time, the then-regular annual rate of pay
which Executive is receiving as annual salary.
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"Basic Bonus Amount" has the meaning accorded such term in Section
4.03.
"Basic Termination Benefit" has the meaning accorded such term in
Section 4.04.
"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner"of, and shall be deemed to "beneficially own," securities pursuant to Rule
13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second "Whereas"
clause of this Agreement.
"Bonus Amount" has the meaning accorded such term in Section 4.03.
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate material act or failure to
act by Executive (other than as a result of incapacity due to physical or mental
illness) which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, and which act or
inaction is not remedied within fifteen business days of written notice from the
Company;
(b) Executive's gross negligence in the performance of Executive's
duties hereunder; or
(c) Executive's conviction for committing an act of fraud,
embezzlement, theft, or any other act constituting a felony involving moral
turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for the reasons set forth in clause (a) or (b) of this
definition unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote (which cannot be delegated)
of not less than three-quarters of the entire membership of the Board, other
than Executive, at a meeting of the Board called and held for such purpose (and
after reasonable notice to Executive an opportunity for Executive, together with
Executive's counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, Executive is guilty of conduct set forth above in
such clauses (a) or (b) of this definition and specifying the particulars
thereof in detail.
"Change in Control" means, and shall be deemed to have occurred upon
any occurrence of any of the following events:
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(a) Any Person (other than an Excluded Person) acquires, together with
all Affiliates and Associates of such Person, Beneficial Ownership of securities
representing 25% or more of the combined voting power of the Voting Stock then
outstanding, unless such Person acquires Beneficial Ownership of 25% or more of
the combined voting power of the Voting Stock then outstanding solely as a
result of an acquisition of Voting Stock by the Company which, by reducing the
Voting Stock outstanding, increases the proportionate Voting Stock beneficially
owned by such Person (together with all Affiliates and Associates of such
Person) to 25% or more of the combined voting power of the Voting Stock then
outstanding; provided, that if a Person shall become the Beneficial Owner of 25%
or more of the combined voting power of the Voting Stock then outstanding by
reason of such Voting Stock acquisition by the Company and shall thereafter
become the Beneficial Owner of any additional Voting Stock which causes the
proportionate voting power of Voting Stock beneficially owned by such Person to
increase to 25% or more of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial Owner of such
additional Voting Stock, be deemed to have become the Beneficial Owner of 25% or
more of the combined voting power of the Voting Stock then outstanding other
than solely as a result of such Voting Stock acquisition by the Company;
(b) During any period of 24 consecutive months (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board (and any new Director, whose election by the Board
or nomination for election by the Company's stockholders was approved by a vote
of at least two-thirds of the Directors then still in office who either were
Directors at the beginning of the period or whose election or nomination for
election was so approved), cease for any reason to constitute a majority of
Directors then constituting the Board;
(c) A reorganization, merger or consolidation of the Company is
consummated, in each case, unless, immediately following such reorganization,
merger or consolidation, (i) more than 50% of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners of the Voting Stock outstanding immediately prior to such
reorganization, merger or consolidation, (ii) no Person (but excluding for this
purpose any Excluded Person and any Person beneficially owning, immediately
prior to such reorganization, merger or consolidation, directly or indirectly,
25% or more of the voting power of the outstanding Voting Stock) beneficially
owns, directly or indirectly, 25% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then outstanding
voting securities of such
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<PAGE> 17
corporation entitled to vote generally in the election of directors and (iii) at
least a majority of the members of the board of directors of the corporation
resulting from such reorganization, merger or consolidation were members of the
Board at the time of the execution of the initial agreement providing for such
reorganization, merger or consolidation;
(d) The shareholders of the Company approve (i) a complete liquidation
or dissolution of the Company or (ii) the sale or other disposition of all or
substantially all of the assets of the Company, other than to any corporation
with respect to which, immediately following such sale or other disposition, (A)
more than 50% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial owners
of the Voting Stock outstanding immediately prior to such sale or other
disposition of assets, (B) no Person (but excluding for this purpose any
Excluded Person and any Person beneficially owning, immediately prior to such
sale or other disposition, directly or indirectly, 25% or more of the voting
power of the outstanding Voting Stock) beneficially owns, directly or
indirectly, 25% or more of, respectively, the then outstanding shares of common
stock of such corporation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the election
of directors and (C) at least a majority of the members of the board of
directors of such corporation were members of the Board at the time of the
execution of the initial agreement or action of the Board providing for such
sale or other disposition of assets of the Company; or
(e) The occurrence of any transaction or event that the Board, in its
sole discretion, designates a "Change in Control".
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a "group,"
within the meaning of Section 13(d)(3) of the Exchange Act as in effect on the
Effective Date, which consummates the Change in Control transaction. In
addition, for purposes of the definition of "Change in Control" a Person engaged
in business as an underwriter of securities shall not be deemed to be the
"Beneficial Owner" of, or to "beneficially own," any securities acquired through
such Person's participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" has the meaning accorded such term in Section 3.01.
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"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Constructive Event" has the meaning accorded such term in Section
4.01.
"Continuation Period" has the meaning accorded to such term in Section
4.03.
"Disability" means Long-Term Disability, as such term is defined in the
Disability Plan.
"Disability Plan" means the long-term disability plan (or any successor
disability and/or survivorship plan adopted by the Company) in which Executive
participates, as in effect immediately prior to the relevant event (subject to
changes in coverage levels applicable to all employees generally covered by such
Plan).
"Effective Date" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excise Tax" has the meaning accorded such term in Section 5.01.
"Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan of the
Company, any of its Subsidiaries or a Holding Company; (v) any Person organized,
appointed or established by the Company, any of its Subsidiaries or a Holding
Company for or pursuant to the terms of any plan described in clause (iv) or
(vi) any Family Stockholder as such term is defined in the Company's amended and
restated by-laws.
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Extended Term" has the meaning accorded such term in Section 1.03.
"Good Reason" means, without Executive's express written consent, the
occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent with Executive's
authorities, duties, responsibilities and status as an officer of the Company,
or a reduction or alteration in the nature or status of Executive's authorities,
duties, or responsibilities from those in effect immediately prior to the
Reference Date,
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other than an insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by Executive;
(b) The Company's requiring Executive to be based at a location in
excess of 35 miles from Executive's principal job location or office immediately
prior to the Reference Date (such location on the Effective Date being
Carrollton, Texas); except for required travel on the Company's business to an
extent consistent with Executive's business travel obligations immediately prior
to the Reference Date;
(c) A reduction by the Company of Executive's Base Salary or total
annual target compensation from the highest level at any time in the year prior
to such reduction by more than 10%;
(d) The failure by the Company to keep in effect compensation,
retirement, health and welfare benefits, or perquisite programs under which
Executive receives benefits substantially similar, in the aggregate, to the
benefits under such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits of all
full-time domestic employees of the Company who are not subject to a collective
bargaining agreement); or the failure of the Company to meet the funding
requirements, if any, of any of such programs; or
(e) Any material breach by the Company of its obligations under this
Agreement or any failure of a successor of the Company to assume and agree to
perform the Company's entire obligations under this Agreement, as required by
Section 6.01 herein, provided that such successor has received at least ten days
written notice from the Company or Executive of the requirements of Section
6.01.
(f) The Executive's receipt from the Company at any time during an
Extended Term of written notice pursuant to Section 1.02 to the effect that the
term of this Agreement will not be extended (a "Qualifying Nonrenewal").
"Gross-Up Payment" has the meaning accorded such term in Section 5.01.
"Holding Company" means an entity that becomes a holding company for
the Company or its businesses as a part of any reorganization, merger,
consolidation or other transaction, provided that the outstanding shares of
common stock of such entity and the combined voting power of the then
outstanding voting securities of such entity entitled to vote generally in the
election of directors is, immediately after such reorganization, merger,
consolidation or other transaction, beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Voting Stock outstanding immediately
prior to such reorganization, merger, consolidation or other transaction in
substantially the
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same proportions as their ownership, immediately prior to such reorganization,
merger, consolidation or other transaction, of such outstanding Voting Stock.
"Initial Term" has the meaning accorded such term in Section 1.01.
"Later Payment" has the meaning accorded such term in Section 5.03.
"Medical Plans" means the medical care plans (or any successor medical
plans adopted by the Company) in which Executive participates, as in effect
immediately prior to the relevant event (subject to changes in coverage levels
applicable to all employees generally covered by such Plans).
"Nonqualifying Event" has the meaning accorded such term in Section
4.01.
"Payment Period" has the meaning accorded such term in Section 4.04.
"Person" means an individual, corporation, partnership, association,
trust or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section 4.01.
"Qualifying Nonrenewal" has the meaning accorded such term in clause
(f) of the definition of Good Reason in this Article 8.
"Reference Date" means the later of (x) the Effective Date or (y) the
date 90 days prior to the date of the relevant event, if any, set forth in the
definition of Good Reason.
"Release" has the meaning accorded such term in Section 4.03.
"Retirement" shall be determined under guidelines established from time
to time by the Committee, which in no event shall require more than 3 years of
service.
"Separation Benefits" has the meaning accorded such term in Section
4.04.
"Severance Benefits" has the meaning accorded such term in Section
4.03.
"Stock Plan" has the meaning accorded such term in Section 4.02.
"Subsidiary" of any Person means any other Person of which securities
or other ownership interests having voting power to elect a majority of the
board of
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directors or other Persons performing similar functions are at the time directly
or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in Section 1.02.
"Tax Preparation Benefits" has the meaning accorded such term in
Section 4.03.
"Termination Date" has the meaning accorded such term in Section 4.02.
"Total Payments" has the meaning accorded such term in Section 5.01.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
"Years of Service" has the meaning accorded such term in Section 4.04.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Ingram Micro Inc.
/s/ Kent B. Foster By: /s/ Jerre L. Stead
- ----------------------------------- -----------------------------------
Kent B. Foster Title: Chairman of the Board
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EXHIBIT A
RELEASE AND COVENANT
This letter sets forth the agreement of Ingram Micro Inc. (the
"Company") and Kent B. Foster ("Executive") relating to the termination of
Executive's employment with Company. Subject to the execution of this Agreement,
the parties hereto agree as follows:
Termination of Employment.
(A). Executive agrees and acknowledges that the termination of his
employment with Company shall be effective as of __________________, ______ (the
"TERMINATION DATE").
(B). Executive acknowledges Executive's obligation to promptly return
to the Company all property of the Company in Executive's possession including,
without limitation, keys, SECUREID card, credit cards, cell phones, pagers,
computers, office equipment, documents and files and instruction manuals on or
before the Termination Date, or earlier if so requested by the Company. After
the Termination Date, the Company shall forward all mail addressed to Executive
to the most recent address provided by Executive to the Company pursuant to
Section 5.01 of the Employment Agreement between the Executive and the Company
dated as of March 6, 2000 to which this Agreement is Exhibit A (the "Employment
Agreement").
Mutual Releases.
1. In consideration of the foregoing and the benefits paid and payable
to Executive under the Employment Agreement, Executive hereby waives all claims
against Company, its affiliates and their respective officers, directors and
executives (hereinafter the "RELEASEES"), and releases and discharges the
Releasees from liability for any and all claims and damages that Executive may
have against them as of the date of this Agreement, whether known or unknown,
including, but not limited to, any claims arising out of his employment
relationship with Company or its affiliates or the termination of such
employment, or any violation of any federal, state or local fair employment
practice law, including Title VII of the Civil Rights Act, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act as amended by the Older
Workers' Benefit Protection Act, or any other employee relations statute, rule,
executive order, law or ordinance, tort, express or implied contract, public
policy or other obligations; provided, however, that nothing herein shall be
deemed a waiver or release of Executive's right to enforce the obligations of
Company under this Agreement or
<PAGE> 23
the Employment Agreement or Executive's rights to indemnification to the fullest
extent provided by law or in any applicable certificate of incorporation,
charter or similar document, by-laws or contract.
Executive acknowledges that Executive has had up to 21 days to consider
the terms of this Agreement and is hereby advised by Company to discuss the
terms of this Agreement with an attorney unrelated to Company prior to signing
this Agreement. Executive further acknowledges that Executive is entering into
this Agreement freely, knowingly, and voluntarily, with a full understanding of
its terms. Executive also acknowledges that Executive will have 7 days from the
date he signs this Agreement to revoke the Agreement by notifying the General
Counsel of the Company in writing.
2. In consideration of the performance by Executive of the covenants
and undertakings made herein by Executive, Company on behalf of itself and its
affiliates hereby waives all claims against Executive and releases and
discharges Executive from liability for any and all claims and damages that any
of them may have against Executive as of the date of this Agreement, whether
known or unknown, including Executive's employment relationship with Company or
its affiliates or the termination of such employment; provided, however, that
nothing herein shall be deemed a waiver or release of the right of Company or
its affiliates to enforce the obligations of Executive under this Agreement or
for any claims arising from a breach of Executive's fiduciary duty of loyalty to
the Company or its affiliates.
Waiver. Each of the Company and Executive hereby expressly waives and
relinquishes all rights and benefits under Section 1542 of the California Civil
Code which provides:
"Section 1542. General Release - Claim extinguished. A general release
does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor."
Each of the Company and Executive understands and acknowledges that the
significance and consequences of this waiver of Section 1542 of the Civil Code
is that even if the Company and Executive, as the case may be, should eventually
suffer damages arising out of Executive's employment relationship with the
Company and its affiliates, or termination of such employment, such party will
not be permitted to make any claim for those damages except as expressly
permitted by this Agreement. Furthermore, each of the Company and Executive
acknowledges that such party intends these consequences even as to claims for
injuries and/or damages that may exist as of the date of this Agreement but
which
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Executive or the Company, as the case may be, does not know exist, and which, if
known, would materially affect such party's decision to execute this Agreement.
Cooperation. Executive agrees to cooperate fully with Company and to
provide such information as Company may reasonably request with respect to any
Company-related transaction, investment or other matter in which Executive was
involved in any way while employed by Company.
Confidentiality. Executive acknowledges Executive's obligation not to
disclose, during or after employment, any trade secrets or proprietary and/or
confidential data or records of the Company or its affiliates or to utilize any
such information for private profit. Each of the parties hereto agrees that such
party will not release, publish, announce or otherwise make available to the
public in any manner whatsoever any information or announcement regarding this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party hereto, except as required by law or legal process,
including, in the case of the Company, filings with the Securities and Exchange
Commission. Executive agrees not to communicate with, including responding to
questions or inquiries presented by, the media, employees or investors of the
Company, its affiliates or any third party relating to the terms of this
Agreement, without first obtaining the prior written consent of the Company.
Notwithstanding the foregoing, Executive may make disclosure to his spouse,
attorneys and financial advisors of the existence and terms of this Agreement
provided that they agree to be bound by the provisions of this paragraph.
No Disparagement. Executive and Company agree that no party hereto
shall make disparaging statements or representations, or otherwise communicate
disparagingly, directly or indirectly, in writing, orally, or otherwise, about
either of the parties hereto or the other Releasees or the employees, customers,
suppliers, competitors, vendors, stockholders or lenders of the Company or its
affiliates or any third party, nor take any action which may, directly or
indirectly, disparage or be damaging to either of the parties hereto or the
other Releasees, their businesses, or their reputations.
No Solicitation. Executive will not (i) directly or indirectly make
known to any person, firm, corporation, partnership or other entity, any list,
listing or other compilation or document, whether prepared or maintained by
Executive, the Company or any of the Company's affiliates, which contains
information that is confidential to the Company or any of its affiliates about
their customers ("the Company's Customers"), including but not limited to names
and addresses, or (ii) at any time through the end of the "Continuation Period"
(as defined in the Employment Agreement), call on or solicit, or attempt to call
on or solicit, in either case with the intent to divert business or potential
business from the Company or any of its affiliates, any of the Company's
Customers with whom Executive has become acquainted during his employment with
the Company or
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any of its affiliates, either for Executive's own benefit or for the benefit of
any other person, firm, corporation, partnership or other entity.
No Raid. Through the end of the Continuation Period, Executive will
not, and will use Executive's best efforts not to permit any person, firm,
corporation, partnership or other entity of which Executive is an officer or
control person to, (i) knowingly solicit, entice, or persuade any individual who
is an associate of the Company or any of its affiliates at any time during the
Continuation Period (each such individual, a "Company Associate") to leave the
services of the Company or any of its affiliates for any reason, or (ii) solicit
for employment, hire, or engage any present or future Company Associate as an
employee, independent contractor or consultant.
Noncompetition. Executive acknowledges that Executive has unique
knowledge of the Company and its affiliates and unique knowledge of the computer
and software sales and distribution industry. Based on his unique status,
Executive agrees that through the end of the Continuation Period, Executive will
not be employed or hired as an employee or consultant by, or otherwise directly
or indirectly provide services for, any of Tech Data, Merisel, Inacom, Pinacor,
Globelle, Gates Arrow, CHS Electronics, Hallmark, Hamilton Avnet, Daisytek,
Azerti, Azlan, Northamber, Tech Pacific, Synnex, Bell Micro, DSS and/or GE
Capital Information Technology Solutions-North America, Inc., and any subsidiary
or affiliate of these entities in a business or line of business conducted by
any such entity which competes with any line of business conducted by the
Company or any of its affiliates. Notwithstanding the foregoing, should
Executive be employed by an entity that is not a subsidiary or affiliate of one
of these entities at the time Executive commences such employment, but
subsequently becomes a subsidiary or affiliate of, or becomes merged into, one
of these entities on or before the end of the Continuation Period, he shall not
be deemed to be in breach of the provisions of this paragraph due to such
employment, provided that at the time Executive commenced his employment there
had been no public announcement of an agreement pursuant to which Executive's
employer would become a subsidiary or affiliate of, or merged into, one of these
entities or discussions that could lead to such an agreement and Executive had
no knowledge of the existence of any such agreement or discussions. Executive
further agrees that Executive will not own any interest in, provide financing
to, be connected with, or be a principal, partner or agent of any such
competitive distributor or aggregator; provided, Executive may own less than
1% of the outstanding shares of any such entity whose shares are traded in the
public market.
Availability. Provided that the Company is not in breach of its
obligations under this Agreement, and subject to Executive's other commitments,
upon request of the Company or any of its affiliates during the Continuation
Period, Executive will make himself available for up to 15 hours in any calendar
month to
A-4
<PAGE> 26
provide reasonable assistance to the Company or any such affiliate and will use
reasonable efforts to arrange his commitments so as to make Executive available
for such assistance on a basis which is consistent with the requests of the
Company or any affiliates. Such assistance may include telephone conversations,
correspondence, attendance and participation in meetings, transfer of knowledge
or information regarding operational or other issues, litigation preparation and
trials. During such period, the Company shall reimburse Executive for any
out-of-pocket expense Executive may incur in connection with such assistance in
accordance with the Company's reimbursement policies. After the end of the
Continuation Period, Executive shall use reasonable efforts, subject to his
other commitments, to continue to provide such assistance as may be requested by
the Company and, in such event, shall be compensated at a rate per day (minimum
charge, one-half day) commensurate with the daily rate he was earning based on
his base salary immediately prior to the Termination Date.
The running of the periods prescribed in this Agreement shall be tolled
and suspended by the length of time Executive works in circumstances that a
court of competent jurisdiction subsequently finds to violate the terms of this
Agreement.
No Reliance. The parties hereto represent and acknowledge that, in
executing this Agreement, they do not rely and have not relied upon any
representation or statement, written or oral, made by either of the parties or
by either of the parties' agents, attorneys, or representatives with regard to
the subject matter, basis, or effect of this Agreement or otherwise, other than
those specifically stated in this written Agreement.
Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, administrators,
representatives, executors, successors, and assigns. This Agreement shall also
inure to the benefit of all the Releasees and their respective heirs,
administrators, representatives, executors, successors, and assigns. This
Agreement shall not be assignable by Executive.
No Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach hereof, or as a waiver of a breach of any other provision.
Interpretation: Choice of Law. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against
any of the parties hereto. This Agreement and all provisions hereof shall be
governed by and construed under the laws of the State of California without
regard to the choice of law rules thereof.
A-5
<PAGE> 27
Acknowledgment. Executive acknowledges that Executive has carefully
read this Agreement, fully understands and accepts all of its provisions, and
signs it voluntarily of Executive's own free will. Executive further
acknowledges that Executive has been provided a full opportunity to review and
reflect on the terms of this Agreement and to seek the advice of legal counsel
of Executive's choice.
INGRAM MICRO INC.
by
-------------------------------------
Agreed and Accepted Name: Jerre L. Stead
Title: Chairman of the Board
- -------------------------------------
Kent B. Foster
A-6
<PAGE> 1
EXHIBIT 10.56
EXECUTION COPY
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED
POOLING AGREEMENT
Among
INGRAM FUNDING INC.
INGRAM MICRO INC.,
as Master Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
Dated as of March 8, 2000
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Other Definitional Provisions................................26
ARTICLE II CONVEYANCE OF RECEIVABLES; REPRESENTATIONS,
WARRANTIES AND COVENANTS..........................................27
SECTION 2.01. Conveyance of Receivables....................................27
SECTION 2.02. Acceptance by Trustee........................................30
SECTION 2.03. Representations and Warranties of the Company Relating
to the Company...............................................32
SECTION 2.04. Representations and Warranties of the Company Relating
to the Receivables...........................................35
SECTION 2.05. Adjustment Payment for Ineligible Receivables................36
SECTION 2.06. Purchase of Investor Certificateholders' Interest in Trust
Portfolio....................................................37
SECTION 2.07. Affirmative Covenants of the Company.........................38
SECTION 2.08. Negative Covenants of the Company............................41
ARTICLE III RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS..44
SECTION 3.01. Establishment of Collection Account; Certain Allocations.....45
ARTICLE IV ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO.......................50
ARTICLE V THE INVESTOR CERTIFICATES AND EXCHANGEABLE COMPANY INTEREST........50
SECTION 5.01. The Investor Certificates....................................50
SECTION 5.02. Authentication of Certificates...............................50
SECTION 5.03. Registration of Transfer and Exchange of Investor
Certificates.................................................51
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Investor Certificates...53
SECTION 5.05. Persons Deemed Owners........................................53
SECTION 5.06. Appointment of Paying Agent..................................54
SECTION 5.07. Access to List of Investor Certificateholders' Names and
Addresses....................................................55
SECTION 5.08. Authenticating Agent.........................................55
SECTION 5.09. Tax Treatment................................................57
SECTION 5.10. Exchangeable Company Interest................................57
SECTION 5.11. Book-Entry Certificates......................................60
SECTION 5.12. Notices to Clearing Agency...................................61
SECTION 5.13. Definitive Certificates......................................61
ARTICLE VI OTHER MATTERS RELATING TO THE COMPANY.............................61
SECTION 6.01. Liability of the Company.....................................61
ARTICLE VII EARLY AMORTIZATION EVENTS........................................62
i
<PAGE> 3
SECTION 7.01. Early Amortization Events....................................62
SECTION 7.02. Additional Rights upon the Occurrence of Certain Events......63
ARTICLE VIII THE TRUSTEE.....................................................64
SECTION 8.01. Duties of Trustee............................................64
SECTION 8.02. Rights of the Trustee........................................66
SECTION 8.03. Trustee Not Liable for Recitals..............................68
SECTION 8.04. Trustee May Own Investor Certificates........................69
SECTION 8.05. Trustee's Fees and Expenses..................................69
SECTION 8.06. Eligibility Recitals.........................................71
SECTION 8.07. Resignation or Removal of Trustee............................71
SECTION 8.08. Successor Trustee............................................72
SECTION 8.09. Merger or Consolidation of Trustee...........................72
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................72
SECTION 8.11. Tax Returns..................................................74
SECTION 8.12. Trustee May Enforce Claims Without Possession of Investor
Certificates.................................................75
SECTION 8.13. Suits for Enforcement........................................75
SECTION 8.14. Rights of Investor Certificateholders To Direct Trustee......75
SECTION 8.15. Representations and Warranties of Trustee....................76
SECTION 8.16. Maintenance of Office or Agency..............................76
SECTION 8.17. Limitation of Liability......................................76
ARTICLE IX TERMINATION.......................................................77
SECTION 9.01. Termination of Trust.........................................77
SECTION 9.02. Final Termination Date of Investor Certificates of Any
Series.......................................................77
SECTION 9.03. Final Payment with Respect to Any Series.....................79
SECTION 9.04. Company's Termination Rights.................................80
ARTICLE X MISCELLANEOUS PROVISIONS...........................................80
SECTION 10.01. Amendment....................................................80
SECTION 10.02. Protection of Right, Title and Interest to Trust.............82
SECTION 10.03. Limitation on Rights of Holders..............................82
SECTION 10.04. Governing Law................................................83
SECTION 10.05. Notices......................................................84
SECTION 10.06. Severability of Provisions...................................85
SECTION 10.07. Assignment...................................................85
SECTION 10.08. Investor Certificates Nonassessable and Fully Paid...........85
SECTION 10.09. Further Assurances...........................................85
SECTION 10.10. No Waiver; Cumulative Remedies...............................85
SECTION 10.11. Counterparts.................................................85
SECTION 10.12. Third-Party Beneficiaries....................................85
SECTION 10.13. Actions by Investor Certificateholders.......................86
SECTION 10.14. Merger and Integration.......................................86
SECTION 10.15. Headings.....................................................86
SECTION 10.16. Construction of Agreement....................................86
SECTION 10.17. No Setoff....................................................86
ii
<PAGE> 4
SECTION 10.18. No Bankruptcy Petition.......................................87
SECTION 10.19. Limitation of Liability......................................87
SECTION 10.20. Certain Information..........................................88
iii
<PAGE> 5
EXHIBITS
Exhibit A Form of Lockbox Agreement
Exhibit B Form of Annual Opinion of Counsel
Exhibit C Schedule of Fiscal Months of the Master Servicer
SCHEDULES
Schedule 1 Intentionally Omitted
Schedule 2 Identification of the Trust Accounts
Schedule 3 Location of Chief Executive Office of the Company
iv
<PAGE> 6
AMENDED AND RESTATED POOLING AGREEMENT dated as of March 8, 2000 among
the Company, the Master Servicer and the Trustee.
W I T N E S S E T H:
WHEREAS, as of the date of this Amended and Restated Pooling Agreement,
(i) the Company, the Seller and the Master Servicer have entered into an Amended
and Restated Receivables Sale Agreement (as so amended and restated, the
"Receivables Sale Agreement") and (ii) the Company, the Master Servicer and the
Trustee have entered into a Servicing Agreement (as amended, supplemented or
otherwise modified from time to time, the "Servicing Agreement");
WHEREAS, the parties hereto and Ingram Industries Inc. entered into the
Pooling and Servicing Agreements dated as of February 12, 1993, as amended by
Amendment No. 1 dated as of January 31, 1994, Amendment No. 2 dated as of
November 6, 1996 (as so amended, the "Original Pooling Agreement") in order to
create a master trust to which the Company would transfer all its right, title
and interest in, to and under the Receivables and other Trust Assets then or
thereafter owned by the Company and such master trust has issued, and shall,
from time to time at the direction of the Company, issue one or more Series of
Investor Certificates, representing interests in the Receivables and such other
Trust Assets as specified in the Supplement related to such Series;
WHEREAS, the parties hereto wish to amend and restate the Original
Pooling Agreement so as to amend various provisions of the Original Pooling
Agreement; and
WHEREAS, the Original Pooling Agreement shall be replaced in whole by
this Amended and Restated Pooling Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
"Accounts" shall have the meaning specified in Section 2.01(a)(vi) of
this Agreement.
"Accrual Period" shall mean, except as otherwise set forth in the
applicable Supplement, for any Series, the period from and including a
Distribution Date, or, in the case of the initial Accrual Period for such
Series, the Issuance Date for such Series, to but excluding the succeeding
Distribution Date.
<PAGE> 7
"Adjusted Invested Amount" shall mean, with respect to any Outstanding
Series, the definition assigned to such term in the related Supplement.
"Adjustment Payments" shall mean the collective reference to payments of
Transfer Deposit Amounts and Cash Dilution Payments.
"Affiliate" shall mean, with respect to any specified Person, any other
Person which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person, or in any event, a Person
which has the power to vote 25% or more of the securities having ordinary voting
power for the election of directors of the specified Person. For purposes of
this definition "control" of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person, if any, so
designated in the related Supplement.
"Aggregate Adjusted Invested Amount" shall mean, with respect to any
date of determination, the sum of the Adjusted Invested Amounts with respect to
all Outstanding Series on such date of determination.
"Aggregate Allocated Receivables Amount" shall mean, with respect to any
date of determination, the sum of the Allocated Receivables Amounts with respect
to all Outstanding Series on such date of determination.
"Aggregate Daily Collections" shall mean, with respect to any Business
Day, the aggregate amount of all Collections deposited into the Collection
Account on such day.
"Aggregate Invested Amount" shall mean, at any date of determination,
the sum of the Invested Amounts with respect to all Outstanding Series on such
date of determination.
"Aggregate Overconcentration Amount" shall mean, with respect to any
date of determination, the sum of the Overconcentration Amounts of all Eligible
Obligors at the end of the preceding Business Day plus the amount by which the
aggregate Principal Amounts of Eligible Receivables due from Qualifying DIP
Obligors exceeds 5% of the aggregate Principal Amount of all Eligible
Receivables as of such date of determination.
"Aggregate Receivables Amount" shall mean, with respect to any date of
determination, (i) the aggregate Principal Amount of all Eligible Receivables in
the Trust at the end of the Business Day immediately preceding such date minus
(ii) the Aggregate Overconcentration Amount for such date.
"Aggregate Target Receivables Amount" shall mean, with respect to any
date of determination, the sum of the Target Receivables Amounts with respect to
all Outstanding Series on such date of determination.
2
<PAGE> 8
"Agreement" shall mean this Amended and Restated Pooling Agreement and
all amendments hereof and supplements hereto, and including, unless expressly
stated otherwise, each Supplement.
"Allocable Charged-Off Amount" shall have, with respect to any Series,
the meaning specified in Section 3.01(e).
"Allocable Recoveries Amount" shall have, with respect to any series,
the meaning specified in Section 3.01(e) .
"Allocated Receivables Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Outstanding Series.
"Amortization Period" shall have, with respect to any Outstanding
Series, the definition assigned to such term in the related Supplement.
"Applicable Insolvency Laws" shall have the meaning specified in Section
7.01(a).
"Applicants" shall have the meaning specified in Section 5.07.
"Authorized Newspapers" shall have the meaning specified in Section
7.02.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy Code,
11 U.S.C. Sections 101-1330, as amended.
"Board" shall mean the Board of Governors of the Federal Reserve system
of the United States of America.
"Book-Entry Certificates" shall mean Investor Certificates, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.11; provided, however, that after the occurrence of a
condition whereupon book-entry registration and transfer are no longer permitted
and Definitive Certificates are issued to the Certificate Book-Entry Holder,
such Investors Certificates shall no longer be "Book-Entry Certificates".
"Business Day" shall mean any day other than (i) a Saturday or a Sunday
or (ii) another day on which commercial banking institutions or trust companies
in the state or in the city where the Corporate Trust Office is located, are
authorized or obligated by law, executive order or governmental decree to be
closing; provided that, when used in connection with the calculation of
Certificate Rates which are determined by reference to LIBOR, "Business Day"
shall mean any Business Day banks are open for dealings in dollar deposits in
the London interbank market.
"Business Day Received" shall mean, except as otherwise set forth in the
applicable Supplement, (i) with respect to funds deposited in the Collection
Account (a) if funds are deposited in the Collection Account by 1:00 p.m.,
3
<PAGE> 9
New York City time, such day of deposit and (b) if funds are deposited in the
Collection Account after 1:00 p.m., New York City time, the Business Day
immediately following such day of deposit and (ii) with respect to funds
deposited in any Lockbox Account (a) if funds are deposited in such Lockbox
Account by the cut-off time established by the related Lockbox Processor for
same-day processing of deposits, such day of deposit and (b) if funds are
deposited in such Lockbox Account after such cut-off time, the Business Day
immediately following such day of deposit.
"Cash Dilution Payment" shall have the meaning specified in Section
4.05(a) of the Servicing Agreement.
"Certificate" shall mean any certificate issued pursuant to a
Supplement.
"Certificate Book-Entry Holder" shall mean, with respect to a Book-Entry
Certificate, the Person who is listed on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency, as the
beneficial owner of such Book-Entry Certificate (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Rate" shall mean with respect to any Series and Class of
Investor Certificates, the percentage interest rate (or formula on the basis of
which such interest rate shall be determined) stated in the applicable
Supplement.
"Certificate Register" shall have the meaning specified in Section
5.03(a).
"Charged-Off Receivables" shall mean, with respect to any Settlement
Period, all Receivables which, in accordance with the Policies of the applicable
Seller, have or should have been written off during such Settlement Period as
uncollectible, including without limitation the Receivables of any Obligor other
than a Qualifying DIP Obligor which becomes the subject of any voluntary or
involuntary bankruptcy proceeding.
"Class" shall mean, with respect to any Series, any one of the classes
of Investor Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean each organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
such Clearing Agency.
"CMD" shall refer to the operations categorized as the Consumer Markets
Division from time to time on the internal records of Ingram Micro Inc. or any
Subsidiary, which operations generally include the marketing of products to
certain retailers engaged in mass marketing. The activities so categorized and
the specific obligors included therein may change from time to time in the good
faith determination of Ingram Micro Inc. or any Subsidiary.
4
<PAGE> 10
"Collection Account" shall have the meaning specified in Section
3.01(a).
"Collections" shall mean all collections and all amounts in respect of
the Receivables transferred to the Trust, including Recoveries, Adjustment
Payments, indemnification payments made by the Master Servicer, any Servicer or
the Company and payments in respect of Dilution Adjustments, together with all
collections in respect of the Related Property in the form of cash, checks, wire
transfers or any other form of cash payment, and all proceeds of Receivables and
collections thereof (including, without limitation, collections evidenced by an
account, note, instrument, letter of credit, security, contract, security
agreement, chattel paper, general intangible or other evidence of indebtedness
or security, whatever is received upon the sale, exchange, collection or other
disposition of, or any indemnity, warranty or guaranty payable in respect of,
the foregoing and all "proceeds" as defined in Section 9-306 of the UCC).
"Company" shall mean Ingram Funding Inc., a Delaware corporation and any
successor thereto.
"Company Collection Subaccount" shall have the meaning specified in
Section 3.01(a).
"Company Exchange" shall have the meaning specified in Section 5.10(a).
"Company Material Adverse Effect" shall mean (i) any material impairment
of the Company's ability to perform any of its material obligations or to comply
with or conduct its business in accordance with any of its material
representations, warranties, covenants or agreements under any Transaction
Document or (ii) any material impairment of the interests, rights or remedies of
the Trustee or the Investor Certificateholders against or with respect to the
Company, in the Receivables or under any Transaction Document.
"Company Subordinated Obligation" shall mean any payment obligation or
other liability designated as such in any Pooling and Servicing Agreements, each
of which payment obligations and other liabilities shall (i) be subordinated and
subject to the prior payment in full of all Company Unsubordinated Obligations
then due, (ii) be made solely from funds available to the Company that are not
required to be applied to Company Unsubordinated Obligations then due and (iii)
not constitute a general recourse claim against the Company, but only a claim
against the Company to the extent of funds available to the Company after
satisfying all Company Unsubordinated Obligations then due.
"Company Unsubordinated Obligations" shall mean all payment obligations
and other liabilities of the Company under any Pooling and Servicing Agreements
that are not designated as Company Subordinated Obligations.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
5
<PAGE> 11
"Corporate Trust Office" shall mean the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at The Chase Manhattan Bank 450 West 33rd Street, 14th Floor, New York,
New York 10001, attention: Capital Markets Fiduciary Services.
"Cut-Off Date", shall mean the close of business on February 29, 2000.
"Daily Report" shall have the meaning specified in each Supplement.
"Defaulted Receivable" shall mean any Receivable (a) which is unpaid in
whole or in part for more than 60 days after its original due date or (b) which
is a Charged-Off Receivable.
"Definitive Certificates" shall have the meaning specified in Section
5.11.
"Depository" shall mean, with respect to any Series, the Clearing Agency
designated as the "Depository" in the related Supplement.
"Depository Agreement" shall mean, with respect to any Series an
agreement among the Company, the Trustee and a Clearing Agency, in a form
reasonably satisfactory to the Trustee and the Company.
"Dilution Adjustment" shall mean any payments, rebates, discounts,
refunds or adjustments (including without limitation, as a result of the
application of any special or other discounts or any reconciliations) of any
Receivable, the amount owing for any returns (including, without limitation, as
a result of the return of any defective goods) or cancellations and the amount
of any other reduction of any payment under any Receivable, in each case granted
or made by the Seller to the related Obligor; provided, however, a "Dilution
Adjustment" does not include any Charged-Off Receivable.
"Distribution Date" shall mean, except as otherwise set forth in the
applicable Supplement, the 15th day of the month, or if such 15th day is not a
Business Day, the next succeeding Business Day.
"Dollars", "U.S. Dollars" and "$" shall mean dollars in lawful currency
of the United States of America.
"Early Amortization Event" shall have, with respect to any Series, the
meaning specified in Section 7.01 of this Agreement (without taking into account
any Supplements) and in any Supplement for such Series.
"Early Amortization Period" shall have, with respect to any Series, the
definition assigned to such term in Section 7.01 of this Agreement and in any
Supplement for such Series.
"Effective Date" shall mean March 8, 2000.
6
<PAGE> 12
"Eligible Institution" shall mean a depositary institution or trust
company (which may include the Trustee and its Affiliates) organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia; provided, however, that at all times (i) such depositary
institution or trust company is a member of the Federal Deposit Insurance
Corporation, (ii) the unsecured and uncollateralized debt obligations of such
depositary institution or trust company are rated in one of the two highest
long-term rating categories or the highest short-term rating category by each
Rating Agency and (iii) such depositary institution or trust company has a
combined capital and surplus of at least $100,000,000.
"Eligible Investments" shall mean any book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment by, the United States of America;
(b) Federal funds, demand deposits, time deposits or
certificates of deposit of any depositary institution or trust company
incorporated under the laws of the United States of America or any state
thereof (or any domestic branch of a foreign bank) and subject to
supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall have a
credit rating from each of the Rating Agencies rating such investment in
the highest investment category granted thereby (which in the case of
S&P is A-1+);
(c) commercial paper rated, at the time of the investment or
contractual commitment to invest therein, in the highest rating category
by each Rating Agency rating such commercial paper (which in the case of
S&P is A-1+);
(d) investments in money market funds (including funds for which
the Trustee or any of its Affiliates is investment manager or adviser)
rated in the highest rating category by each Rating Agency rating such
money market fund (provided that, if such Rating Agency is S&P, such
rating shall be AAAm);
(e) bankers acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (b) above; or
7
<PAGE> 13
(g) any other investment upon satisfaction of the Rating Agency
Condition with respect thereto.
"Eligible Letter of Credit" shall mean any irrevocable documentary
credit (a direct-pay letter of credit) or any irrevocable standby letter of
credit supporting a Receivable, or two or more Receivables sold to the Company
by the same Seller, that is (a) either (i) issued in favor of such Seller or the
Company and the right to draw under which is, or the proceeds of which are,
legally transferable and assignable to the Trustee or (ii) issued in favor of
the Trustee, (b) governed by the UCC of a state of the United States of America,
governed by the UCP 500 or governed as to certain terms by the UCP 500 and as to
any remaining terms by the UCC of a state of the United States of America, (c)
issued by a commercial bank that (i) has a combined capital and surplus of at
least $50,000,000 (ii) has (or the holding company parent of which has) either a
long-term or a short-term senior unsecured debt rating in the highest rating
category by each Rating Agency and (iii) is either organized under the laws of
(A) the United States or a State thereof or is a U.S. branch or agency of such
commercial bank, or (B) a country having sovereign rating of "AA" or better, (d)
permits the beneficiary to draw, upon notice to the issuing bank, an amount
equal to the entire Principal Amount of any Receivable supported thereby in U.S.
Dollars payable by the issuing bank to the Trustee, as assignee or as original
beneficiary, in the case of a documentary credit (a direct-pay letter of
credit), on or before the due date of such Receivable and, in the case of a
standby letter of credit, on or before the fifth day following the due date of
such Receivable and (e) with respect to which the Rating Agency Condition has
been satisfied if the Receivables supported by such Letter of Credit are to be
considered "Eligible Receivables".
"Eligible Obligor" shall mean, as of any date of determination, each
Obligor in respect of a Receivable that satisfies the following eligibility
criteria:
(a) it is "located" (within the meaning of Section 9-103(3)(d)
of the UCC) in the United States or if not so located, its Receivables
are supported by an Eligible Letter of Credit and all necessary actions
are taken for the perfection of the transfer of such Eligible Letter of
Credit to the Trust, including the delivery requirement set forth in
Section 2.01(b);
(b) it is not a Seller or an Affiliate of a Seller;
(c) it is either (i) not the subject of any voluntary or
involuntary bankruptcy proceeding, or (ii) a Qualifying DIP Obligor; and
(d) it is not a Governmental Authority;
provided, however, that, if 35% or more of the Principal Amounts of Receivables
of an Obligor are reported as being aged 121 days or more after the respective
original invoice dates of such Receivables as at the end of the Settlement
Period immediately preceding the most recent Settlement Report Date, such
Obligor shall not be deemed an Eligible Obligor until such time as the Master
Servicer furnishes the Rating Agencies and the Agents with a report which may be
part of a Daily Report or a Monthly Settlement
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<PAGE> 14
Statement indicating that less than 35% of the Principal Amounts of Receivables
of such Obligor then in the Trust are aged 121 days or more after the respective
original invoice dates of such Receivables.
"Eligible Receivable" shall mean, as of any date of determination, each
Receivable owing by an Eligible Obligor in existence as of such date that
satisfies the following eligibility criteria:
(a) it constitutes either (i) an account within the meaning of
Section 9-106 of the UCC of the state the law of which governs the
perfection of the interest granted in it, (ii) an instrument within the
meaning of Section 9-105 of such UCC, which shall be subject to
compliance with the delivery requirement set forth in Section 2.01(b),
(iii) chattel paper within the meaning of Section 9-105 of such UCC,
which shall be subject to compliance with the delivery requirement set
forth in Section 2.01(b), or (iv) a general intangible (including to the
extent that such Receivable includes interest, finance charges, returned
check or late charges on sales or similar charges) within the meaning of
Section 9-106 of such UCC;
(b) it is not a Defaulted Receivable;
(c) the goods related to it shall have been shipped (and such
goods are not subject to a bill and hold arrangement) or the services
related to it shall have been performed and such Receivable shall have
been billed to the related Obligor;
(d) it is denominated and payable only in U.S. Dollars in the
United States and Collections on which ultimately are deposited to a
Lockbox, a Lockbox Account or the Collection Account in the United
States;
(e) it arose in the ordinary course of business from the sale of
goods, products or services of a Seller and in accordance with the
Policies of such Seller and, at such date of determination, the
Receivables Sale Agreement has not been terminated as to such Seller;
(f) it does not contravene any applicable law, rule or
regulation and the related Seller is not in violation of any law, rule
or regulation in connection with it, in each case which in any way
renders such Receivable unenforceable or would otherwise impair in any
material respect the collectibility of such Receivable;
(g) if the Trust is not excluded from the definition of
"investment company" pursuant to Rule 3a-7 under the 1940 Act, it is an
account receivable representing all or part of the sales price of
merchandise, insurance or services within the meaning of Section 3(c)(5)
of the 1940 Act;
(h) it is not a Receivable for which the applicable Seller has
established an offsetting specific reserve; provided that a Receivable
subject only in part to the foregoing shall be an Eligible Receivable to
the extent not so subject;
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<PAGE> 15
(i) it is not a Receivable with original payment terms in excess
of 90 days from its original invoice date, or in respect of which the
applicable Seller has (i) entered into an arrangement with the Obligor
pursuant to which payment of any portion of the purchase price has been
extended or deferred, whether by means of a promissory note or by any
other means, to a date more than 90 days from its original invoice date
or (ii) altered the basis of the aging from the initial due date for
payment such that the final due date extends to a date more than 90 days
from its original invoice date or (iii) otherwise made any modification
except in the ordinary course of business and consistent with the
Policies of such Seller;
(j) all required consents, approvals or authorizations necessary
for the creation and enforceability of such Receivable and the effective
assignment and sale thereof by a Seller to the Company and by the
Company to the Trust shall have been obtained with respect to such
Receivable;
(k) the Seller is not in default in any material respect under
the terms of the contract, if any, from which such Receivable arose;
(l) all right, title and interest in it has been validly sold by
a Seller to the Company pursuant to the Receivables Sales Agreement;
(m) the Company or the Trust will have legal and beneficial
ownership therein free and clear of all Liens other than Liens created
pursuant to any Transaction Document in clause (i) of the definition of
Permitted Liens and such Receivable has been the subject of either a
valid transfer from the Company to the Trust or, alternatively, the
grant of a first priority perfected security interest therein to the
Trust free and clear of all Liens other than Liens created pursuant to
any Transaction Document;
(n) it is not subject to any dispute in whole or in part or to
any offset, counterclaim or defense;
(o) it did not arise as a result of a charge-back;
(p) it is at all times the legal, valid and binding obligation
of the Obligor thereon, enforceable against such Obligor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or law);
(q) as of the related Receivables Purchase Date, neither the
Company nor a Seller has (i) taken any action in contravention of the
terms of any Transaction Document or (ii) failed to take any action
required to be taken by the terms of any Transaction Document that, in
either case, would materially impair the rights therein of the Trustee
or Investor Certificateholders with respect to such Receivable;
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<PAGE> 16
(r) as of the related Receivables Purchase Date, each of the
representations and warranties with respect to such Receivable made in
the Receivables Sale Agreement by the Seller is true and correct in all
material respects; and
(s) at the time such Receivable was sold by the Seller to the
Company under the Receivables Sale Agreement, no event described in
Section 7.01(d) of the Receivables Sale Agreement had occurred with
respect to such Seller;
provided, that a Receivable which would otherwise not qualify as an Eligible
Receivable because of a failure to comply with clause (n) above shall constitute
an Eligible Receivable to the extent of the Principal Amount of such Receivable
minus the amount of such Receivable which fails to comply with such clause.
"Eligible Successor Master Servicer" and "Eligible Successor Servicer"
means an entity (which may include the Trustee) which is not a direct competitor
of Ingram Micro Inc., (except for affiliates of GE Capital other than GE's IT
Solutions business) unless Ingram Micro Inc. waives such restriction at the time
of its appointment as Master Servicer (i) is servicing a portfolio of trade
receivables, (ii) is legally qualified and has the capacity to service the
Receivables, (iii) has demonstrated the ability to service professionally and
completely a portfolio of similar accounts in accordance with high standards of
skill and care, (iv) shall have a net worth of at least $100,000,000, (v) is
qualified and, if required, licensed to use the software that the Master
Servicer is then currently using to service the Receivables or obtains the right
to use or has software which is adequate to perform its duties under the Pooling
Agreement and the Servicing Agreement (including pursuant to a license from or
other agreement with Ingram Micro Inc. or any of its Affiliates).
"Enhancement" shall mean, with respect to any Series (i) the funds on
deposit in or credited to any bank account (or subaccount thereof) of the Trust,
(ii) any surety arrangement, any letter of credit, guaranteed rate agreement,
maturity guaranty facility, tax protection agreement, interest rate swap,
currency swap or other contract, agreement or arrangement, in each case for the
benefit of any Investor Certificateholders of such Series or for providers of
liquidity and/or credit enhancement to any Investor Certificateholders of such
Series, in each case as designated in the applicable Supplement and (iii) the
subordination of one Class of Investor Certificates in a Series to another Class
in such Series or the subordination of any Interest to the Investor Certificates
of such Series.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Date" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10(a).
"Exchange Notice" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10(a).
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<PAGE> 17
"Exchange Register" shall have the meaning specified in Section 5.10(a).
"Exchangeable Company Interest" shall have the meaning specified in
Section 3.01(b), may be represented by a Certificate and shall be exchangeable
as provided in Section 5.10.
"Excluded Receivable" shall mean, as of any date of determination, any
indebtedness and payment obligations of any Person to the Seller arising from a
sale of merchandise or services by the Seller that has the attributes set forth
in any of the following paragraphs:
(a) it is owing by an Obligor that is an Affiliate of the Seller;
(b) it is owing by an Obligor that is not "located" (within the
meaning of Section 9-103(3)(d) of the UCC as in effect in the State of
New York) in the United States and it is not supported by an Eligible
Letter of Credit;
(c) it is a Receivable originated by CMD; or
(d) it is owing by a Government Obligor; or
(e) it is a Receivable originated through the Seller's Select
Source Program.
"Federal Government Obligor" shall mean the United States Federal
government or any subdivision thereof or any agency, department or
instrumentality thereof.
"Fitch IBCA" shall mean Fitch IBCA, Inc. and any successor thereto.
"Force Majeure Delay" shall mean any delay caused by an act of God,
public enemy, acts of declared or undeclared war, public disorder, rebellion or
sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes,
floods, telecommunications disruptions, disruptions to the federal wire transfer
system or similar causes but shall not include strikes; provided that no such
cause or event shall be deemed to be a Force Majeure Delay unless the Master
Servicer or the Trustee, as applicable, shall have given the Company and the
Trustee written notice thereof as soon as reasonably possible after the
beginning of such delay.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time.
"General Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that (i) such action has been duly authorized by all
necessary corporate action on the part of the applicable Servicer or the
Company, as the case may be and (ii) any agreement executed in connection with
such action constitutes a legal, valid and binding obligation of such Servicer
or the Company, as the case may be, enforceable in accordance with the terms
thereof, except as enforceability may be limited
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<PAGE> 18
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect, affecting the enforcement of
creditors' rights and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity).
"Government Obligor" shall mean any Federal Government Obligor or any
State/Local Government Obligor.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holders" shall mean any or all of the Investor Certificateholders, the
holders of Subordinated Company Interests and the holders of the Exchangeable
Company Interest.
"Indebtedness" shall mean, with respect to any Person at any date, (a)
all indebtedness of such Person for borrowed money, (b) any obligation owed for
the deferred purchase price of property or services which purchase price is
evidenced by a note or similar written instrument, (c) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money, (d) that portion of obligations of such Person
under capital leases which is properly classified as a liability on a balance
sheet in conformity with GAAP, (e) all liabilities of the type described in the
foregoing clauses (a) through (d) secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become liable
for the payment thereof and (f) guarantees made by such Person with respect to
liabilities of the type described in the foregoing clauses (a) through (e).
"Indemnified Person" shall have the meaning specified in Section 10.19.
"Independent Public Accountants" shall mean, with respect to any Person,
any independent certified public accountants of nationally recognized standing,
or any successor thereto, (who may also render other services to the Company,
any Servicer or any Seller); provided that such firm is independent with respect
to such Person within the meaning of Rule 2-01(b) of Regulation S-X under the
Securities Act.
"Ineligibility Determination Date" shall have the meaning specified in
Section 2.05(a).
"Ineligible Receivable" shall have the meaning specified in Section
2.05(a).
"Ingram Micro Inc." shall mean Ingram Micro Inc., a Delaware
corporation, and any successor thereto.
"Initial Invested Amount" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Insolvency Event" shall mean the occurrence of any one or more of the
Early Amortization Events specified in paragraph (a) of Section 7.01.
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<PAGE> 19
"Insurer" shall mean any Person designated as an "Insurer" in any
Supplement.
"Interest" shall mean any interest in the Trust Assets issued pursuant
to this Agreement or any Supplement.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time.
"Invested Amount" shall have, with respect to any Series, the meaning
specified in the related Supplement for such Series.
"Invested Percentage" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Investment" shall mean the making by the Company or any Seller of any
advance, loan, extension of credit or capital contribution to, the purchase of
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or the making by the Company or any Seller of
any other investment in, any Person.
"Investment Earnings" shall have the meaning specified in Section
3.01(c).
"Investor Certificateholder" shall mean the holder of record of an
Investor Certificate.
"Investor Certificateholders' Interest" shall have the meaning specified
in Section 3.01(b). For purposes of determining whether Holders of Investor
Certificates evidencing a specified percentage of the Investor
Certificateholders' Interest have approved, consented or otherwise agreed to any
action hereunder, such determination shall be made based on the percentage of
the Invested Amount represented by such Investor Certificates.
"Investor Certificates" shall mean the certificates executed by the
Company and authenticated by or on behalf of the Trustee, substantially in the
form attached to the applicable Supplement, but shall not include the
Exchangeable Company Interest, any Subordinated Company Interest or any other
Interest held by the Company.
"Issuance Date" shall mean, with respect to any Series, the date of
issuance of such Series, or the date of any increase to the Invested Amount of
such Series, as specified in the related Supplement.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset;
provided, however, that if a lien is imposed under Section 412(n) of the
Internal Revenue 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
Internal Revenue Code or Section 302(f) of ERISA applies, then such lien shall
not be
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<PAGE> 20
treated as a "Lien" from and after the time (x)(i) any Person who is obligated
to make such payment pays to such plan the amount of such lien determined under
Section 412(n)(3) of the Internal Revenue Code or Section 302(f)(3) of ERISA, as
the case may be, and provides to the Trustee, the Rating Agencies and any Agent
a written statement of the amount of such lien together with written evidence of
payment of such amount, or (ii) such lien expires pursuant to Section 412 (n)
(4) (B) of the Internal Revenue Code or Section 302(f)(4)(B) of ERISA and (y)
the Rating Agency Condition shall have been satisfied.
"Lien Creation" shall mean the creation, incurrence, assumption or
suffering to exist by the Company or a Seller of any Lien upon the Receivables,
Related Property or the proceeds thereof.
"Lockbox" shall mean the post office boxes and accounts listed on
Schedule 3 to the Receivables Sale Agreement to which the Obligors are
instructed to remit payments on the Receivables and/or such other post office
boxes as may be established pursuant to Section 2.03 of the Servicing Agreement.
"Lockbox Account" shall mean the intervening account or accounts used by
a Lockbox Processor for deposit of funds received in a Lockbox prior to their
transfer to the Collection Account.
"Lockbox Agreement" shall mean a lockbox agreement substantially in one
of the forms set forth as Exhibit A, with such differences from such form as are
permitted upon satisfying the Rating Agency Condition and obtaining the Agent's
consent thereto (which consent shall not be unreasonably withheld).
"Lockbox Processor" shall mean the depositary institution or processing
company (which may be the Trustee) that processes payments on the Receivables
sent by the Obligors thereon forwarded to a Lockbox.
"Margin Stock" shall have the meaning given to such term in Regulation U
of the Board.
"Master Servicer" shall mean Ingram Micro Inc., and any successor Master
Servicer under the Transaction Documents.
"Master Servicer Resignation Notice" shall have the meaning specified in
Section 6.02(b) of the Servicing Agreement.
"Master Servicer Termination Notice" shall have the meaning specified in
Section 6.02(b) of the Servicing Agreement.
"Master Servicer Transfer" shall have the meaning specified in Section
6.01 of the Servicing Agreement.
"Material Adverse Effect" shall mean (a) a material impairment of the
legality, validity or enforceability of any of the Transaction Documents against
a Seller, the
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<PAGE> 21
Master Servicer, a Servicer or the Company or (b) a material impairment of the
collectibility of the Receivables taken as a whole or of any significant portion
of the Receivables.
"Monthly Settlement Statement" shall have the meaning specified in
Section 4.02 of the Servicing Agreement.
"Moody's" shall mean Moody's Investors Service, Inc.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"Obligor" shall mean, with respect to any Receivable, the party
obligated to make payments with respect to such Receivable, including any
guarantor thereof.
"Officer's Certificate" shall mean, with respect to any Person, unless
otherwise specified in this Agreement, a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President (however denominated)
or any Treasurer or any Assistant Treasurer of such Person (or an officer
holding an office with equivalent or more senior responsibilities).
"Opinion of Counsel" shall mean a written opinion or opinions of one or
more counsel (who may be internal counsel) to the Company, the Master Servicer
or any Servicer, designated by the Company or any Servicer, as the case may be,
that is reasonably acceptable to the Trustee and not at the expense of the
Trustee.
"Outstanding Series" shall mean, at any time, a Series issued pursuant
to an effective Supplement and for which the Series Termination Date has not
occurred, provided that for purposes of any vote or similar decision process
determined by a vote based on a percentage of the Invested Amount or the
Adjusted Invested Amount of any one or more Series or Classes, any Series or
Class, 50% or more of which is owned either individually or in the aggregate by
Ingram Micro Inc. or any Affiliate or Affiliates thereof, such Persons shall not
be included in any such vote or decision process.
"Overconcentration Amount" shall mean, at any date with respect to an
Eligible Obligor, the Principal Amount of otherwise Eligible Receivables due
from such Obligor which, expressed as a percentage of the Principal Amount of
all Eligible Receivables in the Trust at such date, exceeds the percentage set
forth below for the applicable ratings category of senior debt of that Obligor
(or such larger percentage upon satisfaction of the Rating Agency Condition and
obtaining the Agent's consent thereto (which consent shall not be unreasonably
withheld)):
<TABLE>
Minimum Rating
S&P Fitch IBCA Moody's Percentage
<S> <C> <C> <C>
A-l+ or AA- F-1+ or AA- P-1 or Aa3 15%
A-1 or A+ F-1 or A+ P-1 or A1 15%
A-2 or BBB+ F-2 or BBB+ P-2 or Baa1 7.5%
</TABLE>
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<PAGE> 22
<TABLE>
S&P Fitch IBCA Moody's Percentage
<S> <C> <C> <C>
A-3 or BBB- F-3 or BBB- P-3 or Baa3 5%
Less than A-3 or Less than F-3 or Less than P-3 or 3%
BBB-/Not rated BBB-/Not Rated Baa3/Not Rated
</TABLE>
provided, however that, for purposes of this definition, all Eligible Obligors
that are Affiliates of each other shall be deemed to be a single Eligible
Obligor to the extent the Servicer has actual knowledge of the affiliation and
in that case, the applicable debt rating for such group of Obligors shall be the
debt rating of the ultimate parent of the group.
If the ratings given by S&P, Moody's and Fitch IBCA to the senior debt
of any Obligor (or the ultimate parent of the affiliated group of which such
Obligor is a member, as the case may be) would result in different applicable
percentages under the table above, the applicable percentage shall be the
percentage associated with the lower rating, as between S&P's rating, Moody's
rating and Fitch IBCA's rating, of such Obligor's (or such ultimate parent's, as
the case may be) short-term senior debt; provided that: (i) if such short-term
debt is not rated by Fitch IBCA, the applicable percentage will be the
percentage associated with the rating issued by S&P and Moody's, (ii) if such
short-term debt is not rated by Moody's, the applicable percentage will be the
percentage associated with the rating issued by S&P and Fitch IBCA, and (iii) if
S&P does not issue a short-term rating with respect to such Obligor's (or such
ultimate parent's, as the case may be) debt, then the percentage applicable to
such Obligor (or such ultimate parent's, as the case may be) shall be the
percentage associated with the categories "Less than A-3 or BBB-/Not rated" and
"Less than F-3 or BBB-/Not rated"; provided, further that in the event that both
the long-term debt and short-term debt of any Obligor are rated by S&P, Moody's
or Fitch IBCA, as the case may be, the lower of the long-term or short-term
rating shall be used in determining the applicable percentage. The ratings
specified in the table are minimums for each percentage category, so that a
rating not shown in the table falls in the category associated with the highest
rating shown in the table that is lower than that rating. It is understood that
the rating given by Moody's to the senior debt of any Obligor shall be
considered for purposes of determining the Overconcentration Amount only for any
period during which one or more VFC Certificates issued pursuant to the Series
2000-1 Supplement is outstanding and held by a Purchaser whose holdings of such
VFC and other investments are subject to review by Moody's in connection with
Moody's rating of such Purchaser.
"Paying Agent" shall mean any paying agent and co-paying agent appointed
pursuant to Section 5.06 and, unless otherwise specified in the related
Supplement of any Series and with respect to such Series, shall initially be the
Trustee.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any Person succeeding to the
functions thereof.
"Permitted Liens" shall mean, at any time, for any Person:
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<PAGE> 23
(i) Liens created pursuant to any Transaction Document;
(ii) Liens which are in all respects junior under the applicable
UCC to the Liens created under the Transaction Documents and which
secure the payment of taxes, assessments or other governmental charges
or levies (a) not yet due or (b) that are being contested in good faith
by appropriate legal or administrative proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books
of such Person; and
(iii) Liens for federal taxes not in excess of $100,000 in the
aggregate at any one time outstanding which are being contested in good
faith by appropriate legal or administrative proceedings and as to which
action is being taken with due diligence to resolve or remove.
"Person" shall mean any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
limited liability company, Governmental Authority or other entity of whatever
nature.
"Policies" shall mean, with respect to each Seller, the credit and
collection policies of such Seller, copies of which have been previously
delivered to the Trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the Transaction Documents.
"Pooling and Servicing Agreements" shall have the meaning specified in
Section 10.01(a).
"Potential Early Amortization Event" shall mean an event which, with the
giving of notice and/or the lapse of time, would constitute an Early
Amortization Event hereunder or under any Supplement.
"Potential Servicer Default" shall mean an event which, with the giving
of notice and/or the lapse of time, would constitute a Servicer Default
hereunder or under the Servicing Agreement or any Supplement.
"Principal Amount" shall mean, with respect to any Receivable, the
unpaid principal amount of such Receivable.
"Principal Terms" shall have the meaning, with respect to any Series
issued pursuant to an Exchange, specified in Section 5.10(c).
"Program Costs" shall have, with respect to any Series, the meaning
specified in the related Supplement for such Series.
"Publication Date" shall have the meaning specified in Section 7.02(a).
"Qualifying DIP Obligor" shall mean, as of any date of determination, an
Obligor (i) that is a "debtor in possession", for which no trustee or examiner
has been appointed and no application is pending for the appointment of a
trustee or examiner, in a
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<PAGE> 24
case under Chapter 11 of the Bankruptcy Code in which no motion has been made
for an order liquidating all or any substantial portion of such debtor's assets
and no motion has been made for the conversion of such case to a case under
Chapter 7 of the Bankruptcy Code and no restriction prescribed by the bankruptcy
court is in effect, which would restrict such Obligor's payments under the
Receivables, (ii) in the case of any proposed Qualifying DIP Obligor whose
Receivables would, if included in the Trust Assets, account for 5% or more of
the aggregate Principal Amount of all Receivables included in the Trust, each
Agent has been given notice at least five Business Days prior to any transfer of
Receivables owing by such Obligor to the Trust of the proposed inclusion of such
Obligor as an Eligible Obligor on the basis of being a Qualifying DIP Obligor,
(iii) as to which the bankruptcy court has given its approval to the payment by
such Obligor of the related Receivables and (iv) as to which no Agent has, in
the exercise of its reasonable discretion, given notice to the Company and the
Master Servicer that such Obligor shall not be included as an Eligible Obligor.
"Rating Agency" shall mean, with respect to each Outstanding Series, any
rating agency or agencies designated as such in the related Supplement; provided
that (i) in the event that no Outstanding Series has been rated, then for
purposes of the definitions of "Eligible Institution" and "Eligible
Investments", "Rating Agency" shall mean S & P; (ii) except as provided in the
immediately preceding clause (i), in the event no Outstanding Series has been
rated, any reference to "Rating Agency" or the "Rating Agencies" shall be deemed
to have been deleted herefrom, except that references to the term "Rating Agency
Condition" shall not be deemed deleted, but shall be modified as set forth under
the definition of such term.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified the Company, the Master Servicer, any
Agent and the Trustee in writing that such action will not result in a
reduction, qualification or withdrawal of the rating of any Outstanding Series
or any Class of any such Outstanding Series with respect to which it is a Rating
Agency or with respect to any series of Variable Funding Certificates, the
"shadow" rating of such Series of Variable Funding Certificates (without giving
effect to any Enhancement) and the rating of the commercial paper issued to fund
such Series of Variable Funding Certificates; provided that in the event that no
Outstanding Series has been rated, any reference to a "Rating Agency Condition"
shall be deemed to be a reference to the consent of Investor Certificateholders
representing Investor Certificateholders' Interests aggregating not less than
50% of the Invested Amount of such Series with respect to such action.
"Receivable" shall mean the indebtedness and payment obligations of any
Person to any Seller (without giving effect to the transactions contemplated by
the Receivables Sale Agreement, and including, without limitation, obligations
evidenced by an account, note, instrument, contract, security agreement, chattel
paper, general intangible or other evidence of indebtedness or security) arising
from a sale of merchandise or services by such Seller , including, without
limitation, any right to payment for goods sold or for services rendered, and
including the right to payment of any interest, sales taxes, finance charges,
returned check or late charges and other obligations of such Person with respect
thereto, but not including any Excluded Receivable.
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<PAGE> 25
"Receivables Purchase Date" shall mean, with respect to any Receivable,
the Business Day on which the Company purchases such Receivable from a Seller
and transfers such Receivable to the Trust.
"Receivables Sale Agreement" shall mean the Amended and Restated
Receivables Sale Agreement, dated as of the date hereof, among the Seller, the
Master Servicer and the Company, as amended, supplemented or otherwise modified
from time to time in accordance with the Transaction Documents.
"Record Date", shall mean, with respect to any Series, the date
specified as such in the applicable Supplement.
"Recoveries" shall mean all amounts collected (net of out-of-pocket
costs of collection) in respect of Charged-Off Receivables.
"Regulation U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Related Property" shall mean, with respect to each Receivable:
(a) all of the Seller's and the Company's right, title and interest in
the goods (including returned goods), if any, relating to the sale which gave
rise to such Receivable;
(b) all other security interests or Liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the contract related to such Receivable or otherwise, together with
all financing statements signed by an Obligor describing any collateral securing
such Receivable;
(c) all guarantees, insurance, letters of credit (including any Eligible
Letter of Credit) and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable whether
pursuant to the contract related to such Receivable or otherwise; and
(d) all other instruments and all rights under the contracts and other
documents related to the Receivables and all rights (but not obligations)
relating to such Receivables;
including in the case of clauses (b), (c) and (d), without limitation, pursuant
to any obligations evidenced by an account, note, instrument, contract, security
agreement, chattel paper, general intangible or other evidence of indebtedness
or security.
"Reported Day" shall have the meaning specified in Section 4.01(a) of
the Servicing Agreement.
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"Requirement of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Resignation Notice" shall have the meaning specified in Section 6.02(a)
of the Servicing Agreement.
"Responsible Officer" shall mean (i) when used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee with
direct responsibility for the administration of the Pooling and Servicing
Agreements or, with respect to any particular matter, any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers to whom such matters have been specifically
referred and (ii) when used with respect to any other Person, the Chairman of
the Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President or the Treasurer or
Assistant Treasurer of such Person.
"Restricted Payments" shall have the meaning assigned in Section
2.08(n).
"Revolving Period" shall have, with respect to any Outstanding Series,
the definition assigned to such term in the related Supplement.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or any successor thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Select Source Program" shall refer to the operations categorized as the
Select Source Program from time to time on the internal records of Ingram Micro
Inc. or any Subsidiary, which operations shall include the sale of products by
Ingram Micro Inc. or any Subsidiary of Ingram Micro Inc. to certain
participating resellers and the subsequent sale of such products by such
resellers to end-users, whereby Ingram Micro Inc. or a Subsidiary of Ingram
Micro Inc. ships to end-users the products so sold by resellers, invoices such
end-users and collects the related Receivables, and pays over to resellers the
profits on their respective sales to end-users.
"Seller" shall mean Ingram Micro Inc. and any additional Seller becoming
a party to the Receivables Sale Agreement by execution and delivery of an
Additional Seller/Servicer Supplement substantially in the form of Exhibit B to
the Receivables Sale Agreement.
"Seller Material Adverse Effect" shall mean, with respect to any Seller,
(i) any material impairment of such Seller's ability to perform any of its
material obligations or to comply with or conduct its business in accordance
with any of its material representations, warranties, covenants or agreements
under any Transaction Document or (ii) any material impairment of the interests,
rights or remedies of the Trustee or the
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Investor Certificateholders against or with respect to such Seller, in the
Receivables or under any Transaction Document, including any interests, rights
or remedies of the Trustee or the Investor Certificateholders as an assignee or
assignees of the Company under, or a third-party beneficiary or third-party
beneficiaries of, the Receivables Sale Agreement.
"Seller Note" shall have the meaning specified in Section 8.01 of the
Receivables Sale Agreement.
"Series" shall mean any series of Investor Certificates and any related
Subordinated Company Interest, the terms of which are set forth in a Supplement.
"Series Account" shall mean any deposit, trust, escrow, reserve or
similar account maintained for the benefit of the Investor Certificateholders
and the holders of the related Subordinated Company Interest of any Series or
Class, as specified in any Supplement.
"Series Collection Subaccount" shall have the meaning specified in
Section 3.01(a).
"Series Collection Sub-subaccount" shall have the meaning specified in
Section 3.01(a).
"Series Non-Principal Collection Sub-subaccount" shall have the meaning
specified in Section 3.01(a).
"Series Principal Collection Sub-subaccount" shall have the meaning
specified in Section 3.01(a).
"Series Termination Date" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Serviced Receivable" shall have the meaning specified in Section 2.01
of the Servicing Agreement.
"Service Transfer" shall have the meaning specified in Section 6.01 of
the Servicing Agreement.
"Servicer" shall mean Ingram Micro Inc., any additional Servicer
becoming a party hereto by execution and delivery of an Additional
Seller/Servicer Supplement substantially in the form of Exhibit B to the
Receivables Sale Agreement and any Successor Servicer under the Transaction
Documents.
"Servicer Default" shall have, with respect to any Series, the meaning
specified in Section 6.01 of the Servicing Agreement and, if applicable, as
supplemented by the related Supplement for such Series.
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"Servicer Material Adverse Effect" shall mean, with respect to the
Master Servicer or any Servicer, (i) any material impairment of such Person's
ability to perform any of its material obligations or to comply with or conduct
its business in accordance with any of its material representations, warranties,
covenants or agreements under any Transaction Document, or (ii) any material
impairment of the interests, rights or remedies of the Trustee or the Investor
Certificateholders against or with respect to such Person, in the Receivables or
under any Transaction Document.
"Servicing Agreement" shall have the meaning specified in the recitals
hereto.
"Servicing Fee" shall have the meaning specified in Section 2.05(a) of
the Servicing Agreement.
"Servicing Fee Percentage" shall mean 1.00% per annum.
"Settlement Period" shall mean each fiscal month of the Master Servicer
as set forth in Exhibit C hereto and amendments thereto from time to time.
"Settlement Report Date" shall mean, except as otherwise set forth in
the applicable Supplement, the 10th day of each calendar month or, if such 10th
day is not a Business Day, the next succeeding Business Day.
"Significant Subsidiary" means: (a) with respect to any Subsidiary of
Ingram Micro Inc. as of the date hereof, a Subsidiary of Ingram Micro Inc. that
(as of any date of determination), (i) on an average over the three (3) most
recently preceding fiscal years of Ingram Micro contributed at least five
percent (5%) to consolidated net income of Ingram Micro Inc. or (ii) on an
average at the end of the three (3) most recently preceding fiscal years of
Ingram Micro Inc. owned assets constituting at least five percent (5%) of
consolidated assets.
"Special Allocation Settlement Report Date" shall have the meaning
specified in Section 3.01(e).
"Specified Bankruptcy Opinion Provisions" shall mean the factual
assumptions (including those contained in the factual certificate referred to
therein) and the actions to be taken by the Seller or the Company in each case
in the legal opinion of Davis Polk & Wardwell relating to certain bankruptcy
matters delivered on each Issuance Date.
"State/Local Government Obligor" shall mean any state or local
government or any subdivision thereof or any agency, department or
instrumentality thereof.
"Subordinated Company Interest" shall mean any Interest (which may be in
the form of a Certificate) issued to the Company pursuant to the Supplement for
any Series which represents an interest in the Trust Assets which is
subordinated to the Investor Certificates of such Series.
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"Subordinated Interest Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Outstanding Series.
"Subordinated Interest Register" shall have the meaning specified in
Section 5.10(d).
"Subsequent Cut-Off Date" shall have the meaning specified in the
Supplements related to the VFC Certificates.
"Subsidiary" shall mean, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.
"Successor Master Servicer" shall have the meaning specified in Section
6.02 of the Servicing Agreement.
"Successor Servicer" shall have the meaning specified in Section 6.02 of
the Servicing Agreement.
"Supplement" shall mean, with respect to any Series, a supplement to
this Agreement complying with the terms hereof, executed in conjunction with the
issuance of any Series.
"Supplemental Agreement" shall have the meaning provided in Section
5.01(a) of the Servicing Agreement.
"Target Receivables Amount" shall have, with respect to any Outstanding
Series, the meaning specified in the related Supplement for such Outstanding
Series.
"Tax Opinion" shall mean, unless otherwise specified in the Supplement
for any Series with respect to such Series or any Class within such Series, with
respect to any action, an Opinion of Counsel (a) to the effect that, for United
States federal income tax purposes, (i) such action will not adversely affect
the characterization as debt of any Investor Certificates of any Outstanding
Series or Class not retained by the Company, (ii) in the case of Section 5.10,
the Investor Certificates of the new Series that are not retained by the Company
will be characterized as debt or should be characterized as debt and if not so
treated, will be characterized as equity interests in a partnership between the
Company and one or more Classes of the Investor Certificateholders, which
partnership will not be considered a publicly traded partnership taxable as a
corporation and (iii) following such action, the Trust will not be an
association (or publicly traded partnership) taxable as a corporation and (b)
with respect to state taxation issues regarding the taxation of the Trust, in
substantially the form delivered at the Effective Date.
"Termination Notice" shall have the meaning specified in Section 6.01 of
the Servicing Agreement.
"Transactions" shall have the meaning specified in Section 2.03(b).
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"Transaction Documents" shall mean the collective reference to this
Agreement, the Servicing Agreement, each Supplement with respect to any
Outstanding Series, the Receivables Sale Agreement, the Lockbox Agreements, the
Investor Certificates, and any other documents delivered pursuant to or in
connection therewith.
"Transfer Agent and Registrar" shall have the meaning specified in
Section 5.03 and shall initially be the Trustee.
"Transfer Deposit Amount" shall have the meaning specified in Section
2.05(b).
"Transferred Agreements" shall have the meaning assigned in Section
2.01(a)(v).
"Trust" shall mean the Ingram Funding Master Trust, as amended by this
Agreement.
"Trust Accounts" shall mean the trust accounts established under the
Supplements.
"Trust Assets" shall have the meaning specified in Section 2.01(a).
"Trust Termination Date" shall have the meaning specified in Section
9.01(a).
"Trustee" shall mean the institution executing this Agreement as
trustee, or its successor in interest, or any successor trustee appointed as
herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"UCP 500" shall mean "The Uniform Customs and Practices for Documentary
Credits", 1993 Revision, International Chamber of Commerce Publication No. 500.
"United States" for purposes of geographic description shall mean the
United States of America, its territories and possessions and Puerto Rico.
"Variable Funding Certificates" or "VFC Certificates" shall have the
meaning specified in Section 5.10.
"Voluntary Liquidation Date" shall mean, with respect to any Series of
Investor Certificates, any date during an Early Amortization Period for such
Series on which the Trustee shall have been directed in writing by Investor
Certificateholders representing more than 50% of the Invested Amount of such
Series or, in the case of a Series having more than one Class of Investor
Certificates, Investor Certificateholders representing more than 50% of the
Invested Amount of each Class of such Series, to sell Receivables pursuant to
the terms of Section 9.02 hereof.
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SECTION 1.02. Other Definitional Provisions. All terms defined in this
Agreement, the Servicing Agreement or in any Supplement shall have such defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(a) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partly defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under GAAP. To the
extent that the definitions of accounting terms herein are inconsistent with the
meanings of such terms under GAAP, the definitions contained herein shall
control.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection,
Schedule, Exhibit and Appendix references contained in this Agreement are
references to Sections, subsections, Schedules, Exhibits and Appendices in or to
this Agreement unless otherwise specified.
(c) The definitions contained in Section 1.01 are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(d) Where a definition contained in Section 1.01 specifies that such
term shall have the meaning set forth in the related Supplement, the definition
of such term set forth in the related Supplement may be preceded by a prefix
indicating the specific Series or Class to which such definition shall apply.
(e) Where reference is made in this Agreement or any related Supplement
to the principal amount of Receivables, such reference shall, unless explicitly
stated otherwise, be deemed a reference to the Principal Amount (as such term is
defined in Section 1.01) of such Receivables.
(f) Any reference herein or in any other Transaction Document to a
provision of the Bankruptcy Code, the Internal Revenue Code, ERISA or the 1940
Act shall be deemed a reference to any successor provision thereto.
(g) Any reference herein to a Schedule, Exhibit or Appendix to this
Agreement shall be deemed to be a reference to such Schedule, Exhibit or
Appendix as it may be amended, modified or supplemented from time to time to the
extent that such Schedule, Exhibit or Appendix may be amended, modified or
supplemented (or any term or provision of any Transaction Document may be
amended that would have the effect of amending, modifying or supplementing
information contained in such Schedule, Exhibit or Appendix) in compliance with
the terms of the Transaction Documents.
(h) Any reference herein to any representation, warranty or covenant
"deemed" to have been made is intended to encompass only representations,
warranties or covenants that are expressly stated to be repeated on or as of
dates following the
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execution and delivery of this Agreement, and no such reference shall be
interpreted as a reference to any implicit, inferred, tacit or otherwise
unexpressed representation, warranty or covenant.
(i) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
ARTICLE II
CONVEYANCE OF RECEIVABLES; REPRESENTATIONS, WARRANTIES
AND COVENANTS
SECTION 2.01. Conveyance of Receivables.
(a) By execution and delivery of this Agreement, the Company does hereby
sell, assign, set over and otherwise convey to the Trust from time to time, for
the benefit of the Holders, with the intention of effecting a legal true sale,
without recourse and free and clear of all liens (except as specifically
provided herein), all its present and future right, title and interest in, to
and under:
(i) all Receivables, including those purchased by the Company at
or before the close of business on the Effective Date and all
Receivables thereafter purchased from time to time until but not
including the Trust Termination Date;
(ii) the Related Property;
(iii) all Collections;
(iv) all rights (including rescission, replevin or reclamation)
relating to any Receivable or arising therefrom;
(v) each of the Receivables Sale Agreement, the Servicing
Agreement and the subordination provisions set forth in paragraphs 3 and
6 of the Seller Note, including in respect of each agreement, (A) all
rights of the Company to receive monies due and to become due under or
pursuant to such agreement, whether payable as fees, expenses, costs or
otherwise, (B) all rights of the Company to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to such
agreement, (C) claims of the Company for damages arising out of or for
breach of or default under such agreement, (D) the right of the Company
to amend, waive or terminate such agreement, to perform thereunder and
to compel performance and otherwise exercise all remedies thereunder,
(E) with respect to the Seller Note, the right to enforce the
subordination provisions thereof, and (F) all other rights, remedies,
powers, privileges and claims of the Company under or in connection with
such agreement (whether arising pursuant to such agreement or otherwise
available to the Company at law or in equity), including the rights of
the Company to enforce such agreement and to give or
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withhold any and all consents, requests, notices, directions, approvals,
extensions or waivers under or in connection therewith (all of the
foregoing set forth in subclauses (v) (A) through (F), inclusive, the
"Transferred Agreements");
(vi) the Collection Account, each Lockbox and each Lockbox
Account (collectively, the "Accounts"), including (A) all funds and
other evidences of payment held therein and all certificates and
instruments, if any, from time to time representing or evidencing any of
such Accounts or any funds and other evidences of payment held therein,
(B) all investments of such funds held in such Accounts and all
certificates and instruments from time to time representing or
evidencing such investments, (C) all notes, certificates of deposit and
other instruments from time to time hereafter delivered or transferred
to, or otherwise possessed by, the Trustee for and on behalf of the
Company in substitution for any of the then existing Accounts and (D)
all interest, dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any and all of the then existing Accounts; and
(vii) all proceeds of or payments in respect of any and all of
the foregoing clauses (i) through (vi) (including proceeds that
constitute property of the types described in clause (vi) above and
including Collections).
Such property described in the foregoing clauses (i) through (vii), together
with all investments and all monies on deposit in any other bank account or
accounts maintained for the benefit of any Holders for payment to Holders shall
constitute the assets of the Trust (collectively, the "Trust Assets").
Subject to Section 5.09, although it is the intent of the parties to this
Agreement that the conveyance of the Company's right, title and interest in, to
and under the Receivables and the other Trust Assets pursuant to this Agreement
shall constitute a purchase and sale and not a loan, in the event that such
conveyance is deemed to be a loan, the Company hereby grants to the Trustee for
the benefit of the Holders a perfected first priority security interest in all
of the Company's present and future right, title and interest in, to and under
the Receivables and the other Trust Assets, and that this Agreement shall be
deemed to constitute a security agreement under applicable law in favor of the
Trustee, for the benefit of the Holders.
(b) The assignment, setover and conveyance to the Trust pursuant to
Section 2.01(a) shall be made to the Trustee, on behalf of the Trust, and each
reference in this Agreement to such assignment, setover and conveyance shall be
construed accordingly. In connection with the foregoing assignment, the Company
and the Master Servicer agree to deliver to the Trustee each Trust Asset
evidencing a Receivable or any Related Property with respect thereto (including
any original document or instrument necessary to effect or to perfect such
assignment) in which the transfer of an interest is being perfected under the
UCC or otherwise by possession and not by filing a financing statement or
similar document (although a precautionary filing of a financing statement or
similar document is expected to be made in respect of each such Trust Asset).
Without limiting
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the generality of the foregoing sentence, the Company and the Master Servicer
agree to deliver or cause to be delivered to the Trustee an original of (i) any
promissory note or other instrument evidencing a Receivable sold to the Trust,
(ii) any chattel paper evidencing a Receivable sold to the Trust and (iii) each
Eligible Letter of Credit related to any Person that is to be considered an
Eligible Obligor on the basis of paragraph (a) of the definition of "Eligible
Obligor".
(c) Notwithstanding the assignment of the Transferred Agreements set
forth in Section 2.01(a), the Company does not hereby assign or delegate any of
its duties or obligations under the Receivables Sale Agreement to the Trust or
the Trustee and neither the Trust nor the Trustee accepts such duties or
obligations, and the Company shall continue to have the right and the obligation
to purchase Receivables from the Seller thereunder from time to time and to
consummate the other transactions and take any actions contemplated thereby. The
foregoing assignment, set-over and conveyance does not constitute and is not
intended to result in a creation or an assumption by the Trust, the Trustee, any
Investor Certificateholder or the Company, in its capacity as a Holder, of any
obligation of the Master Servicer, any Servicer, the Company, the Seller or any
other Person in connection with the Receivables or under any agreement or
instrument relating thereto, including, without limitation, any obligation to
any Obligor.
(d) In connection with the foregoing assignment, the Company agrees to
record and file, or cause to be recorded or filed, at its own expense, any
financing statements (and continuation statements with respect to such financing
statements when applicable) or, where applicable, registrations in the
appropriate records, (i) with respect to the Receivables now existing and
hereafter created and (ii) with respect to any other Trust Assets for which a
security interest may be perfected under the relevant UCC, legislation or
similar statute by such filing or registration, as the case may be, in each case
meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect and maintain perfection of the
assignment of the Receivables and such other Trust Assets (excluding returned
merchandise) to the Trust, and to deliver a file-stamped copy or certified
statement of such financing statement or registration or other evidence of such
filing or registration to the Trustee on or prior to the date of issuance of any
Investor Certificates, any Subordinated Company Interest or the Exchangeable
Company Interest. The Trustee shall be under no obligation whatsoever to file
such financing statement, or a continuation statement to such financing
statement, or to make any other filing or other registration under the UCC,
other relevant legislation or similar statute in connection with such transfer.
The Trustee shall be entitled to conclusively rely on the filings or
registrations made by or on behalf of the Company without any independent
investigation and the Company's obligation to make such filings as evidence that
such filings have been made.
(e) In connection with such assignment, the Company further agrees, at
its own expense, (a) on or prior to the Effective Date and thereafter, to
indicate, or to cause to be indicated, in its computer files containing its
master database of Receivables and to cause the Seller to indicate in its
records containing its master database of Receivables that Receivables have been
conveyed to the Company or the Trust, as the case may be,
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pursuant to the Receivables Sale Agreement or this Agreement, respectively, for
the benefit of the Holders and (b) to deliver or transmit or cause to be
delivered or transmitted to the Trustee computer tapes, diskettes or data
transmission containing a true and complete list of all Receivables transferred
to the Trust specifying for each such Receivable, as of the Cut-Off Date or any
Subsequent Cut-Off Date as applicable, at least (i) the name of the Obligor and
(ii) the aggregate Principal Amount of the Receivables owing by such Obligor.
Such tapes, diskettes or data transmission shall constitute Schedule 1 to this
Agreement and are hereby incorporated into and made a part of this Agreement
whether they are delivered together with or separate from this Agreement.
SECTION 2.02. Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance on behalf of the
Trust of all right, title and interest in, to and under the property, now
existing and hereafter created, assigned to the Trust pursuant to Section 2.01
and declares that it shall maintain such right, title and interest, upon the
trust herein set forth, for the benefit of all Holders. The Trustee further
acknowledges that, prior to or simultaneous with the execution and delivery of
this Agreement, the Company delivered to the Trustee the computer tapes
containing a list of the Receivables described in Section 2.01(e). The Trustee
shall maintain a copy of Schedule 1, as delivered from time to time, at the
Corporate Trust Office.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.03. Representations and Warranties of the Company Relating to
the Company. The Company hereby represents and warrants to the Trustee and the
Trust, for the benefit of the Holders, as of the Effective Date, that:
(a) Organization; Powers. The Company (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in, and is in good
standing in, every jurisdiction where the nature of its business so requires,
except where the failure so to qualify could not reasonably be expected to
result in a Company Material Adverse Effect and (iv) has the corporate power and
authority to execute, deliver and perform its obligations under each of the
Transaction Documents and each other agreement or instrument contemplated hereby
to which it is or will be a party.
(b) Authorization. The execution, delivery and performance by the
Company of each of the Transaction Documents and the performance of the
transactions contemplated hereby (collectively, the "Transactions") (i) have
been duly authorized by all requisite corporate and, if required, stockholder
action and (ii) will not (A) violate (1) any Requirement of Law or (2) any
provision of any Transaction Document or any other Contractual Obligation to
which the Company is a party or by which it or any of its property is or may be
bound, (B) be in conflict with, result in a breach of or constitute
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(alone or with notice or lapse of time or both) a default under, or give rise to
any right to accelerate or to require the prepayment, repurchase or redemption
of any obligation under, any Transaction Document or any other Contractual
Obligation or (C) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by the Company
(other than any Lien created hereunder or contemplated or permitted hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by the Company and constitutes, and each other Transaction Document to which the
Company is a party when executed and delivered by the Company will constitute, a
legal, valid and binding obligation of the Company enforceable against it in
accordance with its respective terms, subject (a) to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
enforcement of creditors rights generally, from time to time in effect and (b)
to general principles of equity (whether enforcement is sought by a proceeding
in equity or at law).
(d) Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (i) the
filing of appropriate UCC financing statements and (ii) such as have been made
or obtained and are in full force and effect; provided, however, that the
Company makes no representation or warranty regarding state securities or "blue
sky" laws in connection with the distribution of the Certificates and Interests.
(e) Litigation; Compliance with Laws. (i) There are not any actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the knowledge of the Company, threatened against
the Company.
(ii) The Company is not in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority.
(f) Agreements. (i) The Company has no Contractual Obligations other
than (A) the Transaction Documents to which it is a party (including the Seller
Note) and (B) any other agreements or instruments that the Company is not
prohibited from entering into by Section 2.08(f) and that, in the aggregate,
neither contain payment obligations or other liabilities on the part of the
Company in excess of $100,000 nor would upon default result in a Company
Material Adverse Effect. Other than the restrictions created by the Transaction
Documents, the Company is not subject to any corporate restriction that could
reasonably be expected to have a Company Material Adverse Effect.
(ii) The Company is not in default in any material respect under any
provision of any Transaction Document or any other Contractual Obligation to
which it is a party or by which it or any of its properties or assets are or may
be bound.
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(g) Federal Reserve Regulations. (i) The Company is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of buying or carrying Margin Stock.
(ii) No part of the proceeds from the issuance of any Investor
Certificates will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of
the Board, including Regulation U or Regulation X.
(h) Investment Company Act. Neither the Company nor the Trust is an
"investment company" as defined in, or subject to regulation under, the 1940
Act.
(i) No Early Amortization Event. No Early Amortization Event or
Potential Early Amortization Event has occurred and is continuing.
(j) Tax Returns. The Company has filed or caused to be filed all
material tax returns (Federal, state or local) which it reasonably believes are
required to have been filed by it and has paid or caused to be paid or made
adequate provision for all taxes due and payable by it and all assessments
received by it except to the extent that any failure to file or nonpayment is
being contested in good faith.
(k) Location of Records--Chief Executive Office. The offices at which
the Company keeps its records concerning the Receivables either (x) are located
at the addresses set forth for the Sellers on Schedule 4 of the Receivables Sale
Agreement or (y) the Company has notified the Trustee of the location thereof in
accordance with the provisions of Section 2.08 (i) of this Agreement. The chief
executive office of the Company is located at the address set forth on Schedule
3 and is the place where the Company is "located" for the purposes of Section
9-103(3)(d) of the UCC as in effect in the State of New York. As of the
Effective Date, the state and county where the chief executive office of the
Company is "located" for the purposes of Section 9-103(3) (d) of the UCC as in
effect in the State of New York has not changed in the past four months.
(l) Solvency. No Insolvency Event with respect to the Company has
occurred and the transfer of the Receivables by the Company to the Trust has not
been made in contemplation of the occurrence thereof. Both prior to and after
giving effect to the transactions occurring on each Issuance Date, (i) the fair
value of the assets of the Company at a fair valuation will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Company; (ii) the
present fair salable value of the property of the Company will be greater than
the amount that will be required to pay the probable liability of the Company on
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; (iii) the Company will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the Company
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted. For all purposes of clauses (i) through (iv) above, the amount of
contingent liabilities at any time shall be
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computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability. The Company does not intend to, nor does
it believe that it will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to be
received by it and the timing of and amounts of cash to be payable in respect of
its Indebtedness.
(m) Ownership; Subsidiaries. All of the issued and outstanding capital
stock of the Company is owned, legally and beneficially, by Ingram Micro Inc.
The Company has no Subsidiaries.
(n) Names. The legal name of the Company is as set forth in this
Agreement. The Company has no trade names, fictitious names, assumed names or
"doing business as" names.
(o) Liabilities. Assuming (x) the execution and delivery of each of the
Transaction Documents on or before each Issuance Date and (y) that all
liabilities and obligations of the Company in respect of any previous
transactions or activities are canceled on or before such Issuance Date, then
other than, (i) the liabilities, commitments or obligations (whether absolute,
accrued, contingent or otherwise) arising under or in respect of the Transaction
Documents and (ii) immaterial amounts due and payable in the ordinary course of
business of a special-purpose company, the Company does not have any
liabilities, commitments or obligations (whether absolute, accrued, contingent
or otherwise), whether due or to become due.
(p) Collection Procedures. The Company and the Seller have in place
procedures pursuant to the Transaction Documents which are either necessary or
advisable to ensure the timely collection of Receivables.
(q) Lockbox Agreements; Lockbox Accounts. Except to the extent otherwise
permitted under the terms of this Agreement, (i) each Lockbox Account is the
subject of a Lockbox Agreement, (ii) each Lockbox Agreement to which the Company
is party is in full force and effect and (ii) each Lockbox Account set forth in
Schedule 3 to the Receivables Sales Agreement is free and clear of any Lien. All
Obligors have been instructed to make payments only to Lockbox Accounts and such
instructions are in full force and effect.
(r) Company Material Adverse Effect. Since December 31, 1998, no event
has occurred which has had a Company Material Adverse Effect.
The representations and warranties as of the date made set forth in this Section
2.03 shall survive the transfer and assignment of the Trust Assets to the Trust.
Upon discovery by a Responsible Officer of the Company, the Master Servicer, any
Servicer or by a Responsible Officer of the Trustee of a breach of any of the
foregoing representations and warranties with respect to any Outstanding Series
as of the Issuance Date of such Series, the party discovering such breach shall
give prompt (and in any event within three
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Business Days of such discovery) written notice thereof to the other parties and
to each Agent with respect to all Outstanding Series. The Trustee's obligations
in respect of any breach are limited as provided in Section 8.02(g).
SECTION 2.04. Representations and Warranties of the Company Relating to
the Receivables. The Company hereby represents and warrants to the Trustee and
the Trust, for the benefit of the Holders, with respect to each Receivable
transferred to the Trust as of the related Receivables Purchase Date, unless, in
either case, otherwise stated in the applicable Supplement or unless such
representation or warranty expressly relates only to a prior date, that:
(a) Receivables Description. As of the Cut-Off Date and thereafter as of
each Subsequent Cut-Off Date, the computer tape, disk or data delivered to the
Trustee, or the Agent, as the case may be, sets forth a complete listing of all
Receivables, aggregated by Obligor, transferred to the Trust as of the Cut-Off
Date and thereafter as of each Subsequent Cut-Off Date and the information
contained therein specified in clauses (i) and (ii) of Section 2.01(e) with
respect to each such Receivable is true and correct (except for any errors or
omissions that do not result in material impairment of the interests, rights or
remedies of the Trustee or the Investor Certificateholders with respect to any
Receivable) as of the Cut-Off Date and thereafter as of each Subsequent Cut-Off
Date. As of the Cut-Off Date and thereafter as of each Subsequent Cut-Off Date,
the aggregate amount of Receivables owned by the Company is accurately set forth
in such tape, disk or data.
(b) No Liens. Each Receivable existing on the Effective Date or, in the
case of Receivables transferred to the Trust after the Effective Date, on the
date that each such Receivable shall have been transferred to the Trust, has
been conveyed to the Trust free and clear of any Lien, except for Liens created
pursuant to any Transaction Document.
(c) Eligible Receivable. On the Effective Date, each Receivable
transferred to the Trust that is included in the calculation of the initial
Aggregate Receivables Amount is an Eligible Receivable and, in the case of
Receivables transferred to the Trust after the Effective Date, on the date such
Receivable shall have been transferred to the Trust, each such Receivable that
is included in the calculation of the Aggregate Receivables Amount on such date
is an Eligible Receivable.
(d) Filings. Within ten days of (i) the Effective Date or (ii) in the
case of Receivables transferred to the Trust after the Effective Date, the date
that each such Receivable shall have been transferred to the Trust, all filings
and other acts necessary (including but not limited to all filings and other
acts necessary or advisable under the UCC) shall have been made or performed in
order to grant the Trust on the Effective Date a first priority perfected
ownership or security interest in respect of all Receivables. The
representations and warranties as of the date made set forth in this Section
2.04 shall survive the transfer and assignment of the Trust Assets to the Trust.
Upon discovery by a Responsible Officer of the Company, the Master Servicer or a
Responsible Officer of the Trustee of a breach of any of the representations and
warranties (or of any Receivable
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encompassed by the representation and warranty in Section 2.04(c) not being an
Eligible Receivable as of the relevant Receivables Purchase Date) with respect
to any Outstanding Series as of the Issuance Date of such Series, the party
discovering such breach shall give prompt written notice to the other parties
and to each Agent with respect to all Outstanding Series. The Trustee's
obligations in respect of any breach are limited as provided in Section 8.02(g).
SECTION 2.05. Adjustment Payment for Ineligible Receivables.
(a) Adjustment Payment Obligation. If (i) any representation or warranty
under Sections 2.04(a) or (b) is not true and correct as of the date specified
therein with respect to any Receivable transferred to the Trust or any
Receivable encompassed by the representation and warranty in Section 2.04(c) is
determined not to have been an Eligible Receivable as of the relevant
Receivables Purchase Date, (ii) there is a breach of any covenant under Section
2.08(b) with respect to any Receivable or (iii) the Trust's interest in any
Receivable is not a first priority perfected ownership or security interest at
any time as a result of any action taken by, or the failure to take action by,
the Company (any Receivable as to which the conditions specified in any of
clause (i), (ii) or (iii) of this Section 2.05(a) exists is referred to herein
as an "Ineligible Receivable") then, after the earlier, to occur of (x) the
discovery by the Company of any such event that continues unremedied or (y)
receipt by the Company of written notice given by the Trustee or any Servicer of
any such event that continues unremedied (the date on which such earlier event
occurs, the "Ineligibility Determination Date"), the Company shall make an
adjustment payment with respect to such Ineligible Receivable on the terms and
conditions set forth in Section 2.05(b).
(b) Adjustment Payment Amount. Subject to the last sentence of this
Section 2.05(b), the Company shall make an adjustment payment with respect to
each Ineligible Receivable as required pursuant to Section 2.05(a) by depositing
in the Collection Account in immediately available funds on the Business Day
immediately following the related Ineligibility Determination Date an amount
equal to the lesser of (x) the amount by which the Aggregate Target Receivables
Amount exceeds the Aggregate Receivables Amount (after giving effect to the
reduction thereof by the Principal Amount of all such Ineligible Receivables)
and (y) the aggregate outstanding Principal Amount of all such Ineligible
Receivables (the "Transfer Deposit Amount").
Except as otherwise specified in any Supplement, the obligation of the Company
to pay such Transfer Deposit Amount with respect to any Ineligible Receivables
shall constitute the sole remedy respecting the event giving rise to such
obligation available to Investor Certificateholders (or the Trustee on behalf of
Investor Certificateholders).
SECTION 2.06. Purchase of Investor Certificateholders' Interest in Trust
Portfolio.
(a) In the event of any breach of any of the representations and
warranties set forth in paragraph (a), (b), (c), (d) or (e)(i) of Section 2.03
as of the date made, which
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breach has a Material Adverse Effect, a Seller Material Adverse Effect, a
Company Material Adverse Effect or a Servicer Material Adverse Effect then the
Trustee, at the written direction of Holders evidencing more than 50% of the
Invested Amount of each affected Outstanding Series, shall notify the Company to
purchase such outstanding Series and the Company shall be obligated to make such
purchase on the Distribution Date occurring at least 60 days after receipt of
such notice by the Company on the terms and conditions set forth below;
provided, however, that no such purchase shall be required to be made if, at any
time during such period the Master Servicer shall provide the Trustee with an
Officer's Certificate to the effect that the representations and warranties
contained in paragraph (a), (b), (c), (d) and (e)(i) of Section 2.03 shall then
be true and correct in all material respects.
(b) If required by the provisions of Section 2.06(a), the Company shall
deposit into the Collection Account for credit to the applicable subaccount of
the Collection Account on the Business Day immediately preceding the
Distribution Date referred to in subsection (a) above, an amount equal to the
purchase price (as described in the next succeeding sentence) for the Investor
Certificateholders' Interest for such Outstanding Series on such day. The
purchase price for any such purchase will be equal to the sum of (i) the
Adjusted Invested Amount of such Outstanding Series on the date on which the
purchase is made plus (ii) an amount equal to all interest accrued but unpaid on
such Series up to the Distribution Date on which the distribution of such
deposit is scheduled to be made pursuant to Section 9.02 plus (iii) any other
amount required to be paid in connection therewith pursuant to any Supplement.
Notwithstanding anything to the contrary in this Agreement, the entire amount of
the purchase price deposited in the Collection Account shall be distributed to
the related Investor Certificateholders on the applicable Distribution Date
pursuant to Section 9.02. If the Trustee gives notice directing the Company to
purchase the Investor Certificates of an Outstanding Series as provided above,
except as otherwise specified in any Supplement, the obligation of the Company
to purchase such Investor Certificates pursuant to this Section 2.06 shall
constitute the sole remedy respecting an event of the type specified in the
first sentence of this Section 2.06 available to the applicable Investor
Certificateholders (or the Trustee on behalf of such Investor
Certificateholders).
SECTION 2.07. Affirmative Covenants of the Company. The Company hereby
covenants that, until the Trust Termination Date occurs, the Company shall:
(a) Financial Statements, Reports, etc.
(i) Furnish to the Trustee, each Agent and the Rating Agencies,
within 60 days after the end of each fiscal quarter of the Company and 90 days
after the end of each fiscal year of the Company, the balance sheet and related
statements of income, stockholders' equity and cash flows showing the financial
condition of the Company as of the close of such period and the results of its
operations during such period, certified by an accounting officer, the Treasurer
or an Assistant Treasurer of the Company to the effect that such financial
statements fairly present in all material respects the financial condition and
results of operations of the Company in accordance with GAAP consistently
applied; and
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(ii) Furnish to the Trustee and each Agent, promptly, from time
to time, such other information regarding the operations, business affairs and
financial condition of the Company, or compliance with the terms of any
Transaction Document, in each case as any Agent or the Trustee may reasonably
request.
(b) Annual Opinion. Deliver to the Trustee an Opinion of Counsel
substantially in the form of Exhibit B hereto, by May 30th of each fiscal year
of the Company commencing with the fiscal year ending December 31, 2000.
(c) Payment of Obligations; Compliance with Obligations. Pay, discharge
or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature, except where the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Company . The Company shall defend the right, title
and interest of the Holders in, to and under the Receivables and the other Trust
Assets, whether now existing or hereafter created, against all claims of third
parties claiming through or under the Company, the Seller, the Master Servicer
or the Servicers. The Company will duly fulfill all material obligations on its
part to be fulfilled under or in connection with each Receivable and will do
nothing to impair the rights of the Holders in such Receivable.
(d) Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Trustee upon reasonable advance
notice to visit and inspect, examine and make copies and abstracts from any of
its books and records during normal business hours on any Business Day and as
often as may reasonably be requested, subject to the Company's security and
confidentiality requirements, and to discuss the business, operations and
financial condition of the Company with officers and employees of the Company.
Except as otherwise provided in Section 8.05(b) hereof, any such examination or
visit shall be at the cost and expense of the party or parties making such
examination or visit.
(e) Compliance with Law and Policies. Comply with all Requirements of
Law, the provisions of the Transaction Documents and all other material
Contractual Obligations and Policies applicable to the Company except where the
failure to so comply would not reasonably be expected to have a Company Material
Adverse Effect.
(f) Purchase of Receivables. Purchase Receivables solely in accordance
with the Receivables Sale Agreement or this Agreement.
(g) Delivery of Collections. In the event that the Company receives
Collections directly from Obligors, deliver (which may be by regular mail) or
deposit such Collections into a Lockbox, a Lockbox Account or the Collection
Account within two Business Days after its receipt thereof.
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(h) Notices. Promptly (and, in any event, within five Business Days
after a Responsible Officer of the Company becomes aware of such event) give
written notice to the Trustee, each Rating Agency and each Agent for any
Outstanding Series of:
(i) the occurrence of any Early Amortization Event or Potential
Early Amortization Event, the statement of a Responsible Officer of the Company
setting forth the details of such Early Amortization Event or Potential Early
Amortization Event and the action taken, or which the Company proposes to take,
with respect thereto ; and
(ii) any Lien not permitted by Section 2.04(b) on Receivables
accounting for 10% or more of the aggregate Principal Amount of all Eligible
Receivables in the Trust.
(i) Lockboxes. (i) Maintain, and keep in full force and effect, a
Lockbox Agreement with respect to each Lockbox Account to which the Company is a
party, except to the extent otherwise permitted under the terms of this
Agreement and the other Transaction Documents and (ii) take all reasonable
actions necessary to ensure that each related Lockbox Account shall be free and
clear of, and defend each such Lockbox Account against, any writ, order, stay,
judgment, warrant of attachment or execution or similar process; provided, that
the Company may amend a Lockbox Agreement to add or delete a Servicer in
accordance with the Transaction Documents; provided, further, that upon
satisfaction of the Rating Agency Condition and the consent thereto by the Agent
of any Series of Variable Funding Certificates (which consent shall not be
unreasonably withheld), the Company may enter into any amendments or
modifications of a Lockbox Agreement that the Company reasonably deems necessary
to conform such Lockbox Agreement to the cash management system of the Company,
the Master Servicer or the applicable Servicer.
(j) Separate Corporate Existence.
(i) to the extent the Company's office is located in the offices
of an Affiliate of the Company, maintain separate office space and pay fair
market rent for such office space;
(ii) maintain the Company's books, financial statements and
records separate from those of any Affiliate or other Person;
(iii) maintain its own deposit accounts, separate from those of
any Affiliate or other Person, and not commingle the Company's assets with those
of any Affiliate or other Person;
(iv) act solely in its corporate name and through its own
authorized officers and agents; make investments directly or by brokers engaged
and paid by the Company or its agents (provided that if any such agent is an
Affiliate of the Company, it shall be compensated at a fair market rate for its
services);
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(v) separately manage the Company's liabilities from those of any
Affiliate and pay its own liabilities, including all administrative expenses,
from its own separate assets, except that the Seller may pay the organizational
expenses of the Company;
(vi) to the extent that it shares the officers or other employees
of any Affiliate or other Person, bear its share of the salaries of, and the
expenses related to providing benefits to, such officers and other employees;
(vii) to the extent that it contracts with any Affiliate or other
Person to conduct business with vendors or to share overhead, bear its fair
share of such costs and conduct all transactions between the Company and any
Affiliates on an arms-length basis; and
(viii) pay from the Company's assets all obligations and
indebtedness of any kind incurred by the Company.
The Company shall abide by all corporate formalities, including the maintenance
of current minute books, and cause its financial statements to be prepared not
less frequently than quarterly and in accordance with GAAP in a manner that
indicates the separate existence of the Company and its assets and liabilities.
The Company shall pay all its liabilities, not assume the liabilities of any
Affiliate and not guarantee the liabilities of any Affiliate. The officers and
directors of the Company (as appropriate) shall make decisions with respect to
the business of the Company independent of, and not dictated by, any controlling
entity. The Company shall take or refrain from taking actions necessary in order
to ensure that the assumptions set forth in the Specified Bankruptcy Opinion
Provisions remain correct and shall comply with the procedures described
therein.
(k) Preservation of Corporate Existence. (i) Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation and (ii) qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where such qualification is required
other than any jurisdiction where the failure so to qualify would not have a
Company Material Adverse Effect.
(l) Assessments. Promptly pay and discharge all taxes, assessments,
levies and other governmental charges imposed on it except such taxes,
assessments, levies and other governmental charges that are being contested in
good faith by appropriate proceedings and for which the Company shall have set
aside on its books adequate reserves in conformity with GAAP.
(m) Net Worth. On the Effective Date have a consolidated common
stockholders' equity, and thereafter maintain at all times a net worth, of at
least $126,205,130.00.
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SECTION 2.08. Negative Covenants of the Company. The Company hereby
covenants that after the Effective Date and until the Trust Termination Date
occurs, it shall not directly or indirectly:
(a) Limitation on Liabilities. Except as required by applicable law or
as a result of operation of law, create, incur, assume or suffer to exist any
Indebtedness, except Indebtedness evidenced by the Seller Note and guarantee
obligations (if any) under or in connection with any Pooling and Servicing
Agreements; or incur any liability or obligation other than (i) liabilities or
obligations representing fees, expenses and indemnities payable pursuant to and
in accordance with the Transaction Documents and (ii) liabilities or obligations
for services supplied or furnished to the Company in an amount not to exceed
$100,000 at any time outstanding.
(b) Limitation on Transfers of Receivables, etc. At any time sell,
transfer or otherwise dispose of any of the Receivables, Related Property or the
proceeds thereof except as contemplated in the Pooling and Servicing Agreements.
(c) Limitation on Guarantee Obligations. Except as required by
applicable law or as a result of operation of law, become or remain liable,
directly or contingently, in connection with any Indebtedness or other liability
of any other Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or repurchase, agreement to supply or advance
funds, or otherwise other than under or in connection with any Pooling and
Servicing Agreements.
(d) Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets other than the assignments and transfers contemplated hereby.
(e) Business of the Company. Engage at any time in any business or
business activity other than the acquisition of Receivables pursuant to the
Receivables Sale Agreement, the assignments and transfers hereunder, the other
transactions contemplated by the Transaction Documents or the Pooling and
Servicing Agreements and any activity incidental to the foregoing and necessary
or convenient to accomplish the foregoing, or enter into or be a party to any
agreement or instrument other than in connection with the foregoing.
(f) Agreements. (i) Become a party to any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except the
Transaction Documents, leases of office space, equipment or other facilities for
use by the Company in its ordinary course of business, employment agreements,
service agreements, agreements relating to shared employees and the other
Transaction Documents or the Pooling and Servicing Agreements and agreements
necessary to perform its obligations under the Transaction Documents or the
Pooling and Servicing Agreements, (ii) issue any power of
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attorney (except to the Trustee or the Master Servicer or the Servicer or except
for the purpose of permitting any such Person to perform any ministerial
functions on behalf of the Company that are not prohibited by or inconsistent
with the terms of the Transaction Documents or any Pooling and Servicing
Agreements), or (iii) amend, supplement, modify or waive any of the provisions
of the Receivables Sale Agreement or any Lockbox Agreement or request, consent
or agree to or suffer to exist or permit any such amendment, supplement,
modification or waiver or exercise any consent rights granted to it thereunder
(except to add or delete a Servicer in accordance with the Transaction
Documents) unless such amendment, supplement, modification or waiver or such
exercise of consent rights would not have an adverse effect on the interests,
rights or remedies of the Trustee or the Investor Certificateholders of any
Outstanding Series under or with respect to the Transaction Documents and the
Rating Agency Condition and any other requirements therefor set forth in the
Transaction Documents shall have been satisfied with respect to any such
amendments, supplements, modifications or waivers.
(g) Policies. Make any change or modification (or permit any change or
modification to be made) in any material respect to the Policies, except (i) if
such changes or modifications are necessary under any Requirement of Law (not
including for these purposes the certificate of incorporation and by-laws or
other organizational or governing documents) or (ii) if the Rating Agency
Condition is satisfied with respect thereto and the Agent for each Series of
Variable Funding Certificates has consented thereto; provided, however, that if
any change or modification, other than a change or modification permitted
pursuant to clause (i) above, would be reasonably likely to have a Material
Adverse Effect, a Seller Material Adverse Effect, a Servicer Material Adverse
Effect or a Company Material Adverse Effect with respect to a Series (other than
a Variable Funding Series) which is not rated by a Rating Agency, the consent of
the holders of at least 50% of the outstanding Adjusted Invested Amount of such
Series (or as otherwise specified in the related Supplement) shall be required
to effect such change or modification.
(h) Receivables Not To Be Evidenced by Promissory Notes. Subject to the
delivery requirement set forth in Section 2.01(b), take any action to cause any
Receivable not evidenced by an "instrument" (as defined in the UCC as in effect
in any state in which the Company's, or the applicable Seller's chief executive
offices or books and records relating to such Receivable are located) upon
origination to become evidenced by an instrument, except in connection with its
enforcement or collection of a Defaulted Receivable.
(i) Offices. Move the location of its chief executive office or of any
of the offices where it keeps its records with respect to the Receivables, or
its legal head office to a new location within or outside the state where such
office is now located, without (i) 30 days' prior written notice to the Trustee,
each Rating Agency and each Agent and (ii) taking all actions reasonably
requested by the Trustee (including but not limited to all filings and other
acts necessary or advisable under the UCC or similar statute of each relevant
jurisdiction) in order to continue the Trust's first priority perfected
ownership or
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security interest in all Receivables now owned or hereafter created; provided,
however, that the Company shall not change the location of its chief executive
office to a state which is within the Tenth Circuit unless it delivers an
opinion of counsel reasonably acceptable to the Rating Agencies to the effect
that Octagon Gas Systems, Inc. v. Rimmer, 995 F.2d 948 (10th Cir. 1993) is no
longer controlling precedent in the Tenth Circuit.
(j) Change in Name. Change its name, identity or corporate structure in
any manner that would or is likely (i) to make any financing statement or
continuation statement (or other similar instrument) relating to this Agreement
seriously misleading within the meaning of Section 9-402(7) of the UCC, or (ii)
to impair the perfection of the Trust's interest in any Receivable under any
other similar law, without 30 days' prior written notice to the Trustee and each
Rating Agency and each Agent.
(k) Charter. Amend or make any change or modification to Articles III,
V, IX, XI, XII or XIII of its certificate of incorporation without first
satisfying the Rating Agency Condition and obtaining the consent of each Agent
(which consent shall not be unreasonably withheld) (provided that,
notwithstanding anything to the contrary in this Section 2.08, the Company may
make amendments, changes or modifications pursuant to changes in law of the
state of its incorporation or amendments to change the Company's name (subject
to compliance with subsection (j) above), registered agent or address of
registered office).
(l) Addition of Sellers. Agree to the addition of any additional Seller
pursuant to Section 9.12 of the Receivables Sale Agreement unless such
additional Seller shall have satisfied all conditions of the Receivables Sale
Agreement to become an additional Seller.
(m) Optional Termination of Seller. Designate any Seller as a Seller to
be terminated as a Seller pursuant to Section 9.13(b) of the Receivables Sale
Agreement unless, if such Seller is a Servicer, such Seller shall have been
terminated as a Servicer pursuant to Section 7.04 of the Servicing Agreement.
(n) Limitation on Restricted Payments and Payments on Seller Note.
Declare or pay any dividend on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
capital stock of the Company, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in
cash or property or in obligations of the Company (such declarations, payments,
setting apart, purchases, redemptions, defeasance, retirements, acquisitions and
distributions being herein called "Restricted Payments"), or make, directly or
indirectly, payments in any form in respect of the Seller Note except, in either
case, in accordance with the terms of the Pooling and Servicing Agreements, and
provided that, on the date a Restricted Payment is made, the Company is in
compliance with its payment obligations under Section 2.05 hereof.
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ARTICLE III
RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS
THE FOLLOWING PORTION OF THIS ARTICLE III
IS APPLICABLE TO ALL SERIES.
SECTION 3.01. Establishment of Collection Account; Certain Allocations.
(a) The Trustee, for the benefit of the Holders, as their interests
appear in this Agreement, shall cause to be established and maintained in the
name of the Trust with an Eligible Institution or with the corporate trust
department of the Trustee or an Eligible Institution or with an Affiliate of the
Trustee or an Eligible Institution, a segregated trust account (the "Collection
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Holders. Schedule 2, which is hereby
incorporated into and made a part of this Agreement, identifies the Collection
Account by setting forth the account number of such account, the account
designation of such account and the name of the institution with which such
account has been established. The Collection Account shall be divided into
individual subaccounts for each Outstanding Series (each, respectively, a
"Series Collection Subaccount" and, collectively, the "Series Collection
Subaccounts") and for the Company (the "Company Collection Subaccount"). For
administrative purposes only, the Trustee shall establish or cause to be
established for each Series, so long as such Series is an Outstanding Series,
sub-subaccounts of the Series Collection Subaccounts with respect to such Series
(such accounts, the "Series Principal Collection Sub-subaccount" and "Series
Non-Principal Collection Sub-subaccount" and, collectively, the "Series
Collection Sub-subaccounts").
(b) Authority of the Trustee in Respect of the Collection Account.
(i) The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Collection Account and in all
proceeds thereof. The Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Holders. If, at any time, the
Servicer has actual notice or knowledge that any institution holding the
Collection Account, has ceased to be an Eligible Institution, the Servicer shall
notify the Master Servicer and the Master Servicer shall direct the Trustee to
establish within 30 days a substitute account therefor with an Eligible
Institution, transfer any cash and/or any Eligible Investments to such new
account and from the date any such substitute accounts are established, such
account shall be the Collection Account. Neither the Company, the Servicer nor
any person or entity claiming by, through or under the Company or the Servicer,
shall have any right, title or interest in, except to the extent expressly
provided under the Transaction Documents, or any right to withdraw any amount
from, the Collection Account. Pursuant to the authority granted to the Servicers
in Section 2.02(b) of the Servicing Agreement, each Servicer shall have the
power to instruct the Trustee in writing to make withdrawals from
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and payments to the Collection Account, for the purposes of carrying out the
Master Servicer's, the Servicer's or Trustee's duties hereunder.
(ii) The Master Servicer agrees to give written direction (which
may be included within any Daily Report) in a timely manner to the Trustee to
apply all Collections with respect to the Receivables and to make all other
applications, allocations and distributions described in Article III hereof and
in the Supplement with respect to each Outstanding Series.
(iii) Each Series of Investor Certificates shall represent a
fractional undivided interest in the Trust Assets as indicated in the Supplement
relating to such Series and the right to receive Collections and other amounts
at the times and in the amounts specified in this Article III (as supplemented
by the Supplement related to such Series) to be deposited in the Collection
Account and any other accounts maintained for the benefit of the Investor
Certificateholders or paid to the Investor Certificateholders (with respect to
each outstanding Series, the "Investor Certificateholders' Interest"). The
Exchangeable Company Interest shall represent the interest in the Trust not
represented by any Series of Investor Certificates or Subordinated Company
Interest then outstanding, including the right to receive Collections and other
amounts at the times and in the amounts specified in this Article III to be paid
to the Company (the "Exchangeable Company Interest"), and each Subordinated
Company Interest, if any, shall represent the interests granted to such
Subordinated Company Interest pursuant to the related Supplement; provided,
however, that no such Subordinated Company Interest shall represent any interest
in any Trust Account and any other accounts maintained for the benefit of the
Investor Certificateholders, except as specifically provided in this Article
III.
(c) Administration of the Collection Account. At the written direction
of the Company, funds on deposit in the Collection Account available for
investment, shall be invested by the Trustee in Eligible Investments selected by
the Company. All such Eligible Investments shall be held by the Trustee for the
benefit of the Investor Certificateholders. Amounts on deposit in each Series
Non-Principal Collection Sub-subaccount shall, if applicable, be invested in
Eligible Investments that will mature, or that are payable or redeemable upon
demand of the holder thereof so that such funds will be available on or before
the Business Day immediately preceding the next Distribution Date. All interest
and investment earnings (net of losses and investment expenses) on funds
deposited in a Series Non-Principal Collection Sub-subaccount shall be deposited
in such sub-subaccount. Amounts on deposit in the Series Principal Collection
Sub-subaccount and any other sub-subaccounts as specified in the related
Supplement shall be invested in Eligible Investments that mature, or that are
payable or redeemable upon demand of the holder thereof, so that such funds will
be available not later than the date which is specified in any Supplement. The
Trustee, or its nominee or custodian, shall maintain possession of the
negotiable instruments or securities, if any, evidencing any Eligible
Investments from the time of purchase thereof until the time of sale or
maturity. Any earnings (net of losses and investment expenses) (the "Investment
Earnings") on such invested funds in a Series Principal Collection
Sub-subaccount and
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any other sub-subaccounts as specified in the related Supplement will be
deposited by the Trustee in the related Series Non-Principal Collection
Sub-subaccount.
(d) Daily Collections.
(i) Promptly following its receipt of Collections in the form of
available funds in a Lockbox Account, but in no event later than 10:00 a.m., New
York City time, on the Business Day following the Business Day Received, the
Master Servicer shall transfer, or cause to be transferred, all Collections on
deposit (less the aggregate amount of set-offs permitted to be retained pursuant
to any applicable Lockbox Agreement) in the form of available funds in the
Lockbox Accounts directly to the Collection Account.
(ii) If the Aggregate Daily Collections are deposited into the
Collection Account pursuant to the preceding Section 3.01(d)(i) at or before
10:00 a.m., New York City time, on the Business Day specified in Section
3.01(d)(i), and the Daily Report specified in Section 3.01(b)(ii) is received by
the Trustee at or before 3:30 p.m. New York City time, on such Business Day the
Trustee shall transfer on such Business Day, from such Aggregate Daily
Collections, to the respective Series Collection Subaccount, an amount equal to
the product of (x) the applicable Invested Percentage for such Outstanding
Series and (y) such Aggregate Daily Collections in accordance with the Daily
Report.
(iii) If the Aggregate Daily Collections are deposited into the
Collection Account at or before 10:00 a.m., New York City time, on the Business
Day specified in Section 3.01(d)(i), and the Daily Report is received by the
Trustee at or before 1:30 p.m., New York City time, on such Business Day, as set
forth in the preceding Section 3.01(d)(ii), the Trustee shall allocate on such
Business Day, funds transferred to the Series Collection Subaccount for each
Outstanding Series pursuant to the preceding Section 3.01(d)(ii) to the Series
Non-Principal Collection Sub-subaccount and the Series Principal Collection
Sub-subaccount of each such Series in accordance with the Daily Report and the
related Supplement for such Series.
(iv) Except as otherwise provided in a Supplement, if the
Aggregate Daily Collections are deposited into the Collection Account at or
before 10:00 a.m., New York City time, on the Business Day specified in Section
3.01(d)(i), and the Daily Report is received by the Trustee at or before 1:30
p.m., New York City time, on such Business Day, as set forth in Section
3.01(d)(ii), the Trustee shall, in accordance with the Daily Report, transfer on
such Business Day, to the Company Collection Subaccount the remaining funds, if
any, on deposit in the Collection Account on such day after giving effect to
transfers to be made pursuant to Section 3.01(d)(ii).
(e) Certain Allocations Following an Amortization Period.
(i) If, on any Settlement Report Date, an Amortization Period has
occurred and is continuing with respect to any Outstanding Series and at such
Settlement
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Report Date, a Revolving Period is still in effect with respect to any other
Outstanding Series (a "Special Allocation Settlement Report Date"), then the
Master Servicer shall make the following calculations:
(A) the amount (the "Allocable Charged-Off Amount") equal to the
excess, if any, of (I) the aggregate Principal Amount of Charged-Off
Receivables for the related Settlement Period over (II) the aggregate
Principal Amount of Recoveries received during the related Settlement
Period; and
(B) the amount (the "Allocable Recoveries Amount") equal to the
excess, if any, of (I) the aggregate Principal Amount of Recoveries
received during the related Settlement Period over (II) the aggregate
Principal Amount of Charged-Off Receivables for the related Settlement
Period.
(ii) If, on any Special Allocation Settlement Report Date, either
of the Allocable Charged-off Amount or the Allocable Recoveries Amount is
greater than zero for the related Settlement Period, the Trustee shall (in
accordance with written directions received pursuant to Section (b)(ii) above)
make (A) a pro rata allocation to each Outstanding Series (based on the Invested
Percentage for such Series) of a portion (as determined in clause (iii) below)
of each such positive amount and (B) an allocation to the Exchangeable Company
Interest of the remaining portion of each such positive amount.
(iii) With respect to each portion of the Allocable Charged-off
Amount and the Allocable Recoveries Amount which is allocated to an Outstanding
Series pursuant to Section 3.01(e)(ii), the Trustee shall (in accordance with
the written direction of the Master Servicer) apply each such amount to such
Series in accordance with the related Supplement for such Series.
(f) Allocations for the Exchangeable Company Interest. Until the
occurrence and continuation of an Early Amortization Period, on each Business
Day and, after the occurrence and continuation of an Early Amortization Period
and until the Trust Termination Date, on each Distribution Date, after making
all allocations required pursuant to Section 3.01(d), the Trustee shall (in
accordance with the written direction of the Master Servicer) transfer, using
commercially reasonable efforts to transfer no later than 3:00 p.m., New York
City time, on such Business Day, the amounts on deposit in the Company
Collection Subaccount to the holder of the Exchangeable Company Interest or to
such accounts or such Persons as the holder of the Exchangeable Company Interest
may direct in writing (which direction may consist of standing instructions
provided by the holder of the Exchangeable Company Interest that shall remain in
effect until changed by the holder of the Exchangeable Company Interest in
writing); provided, however, that the Trustee shall remit any such amounts net
of the amount of the Servicing Fee which has not been allocated to an
Outstanding Series pursuant to Section 2.05 of the Servicing Agreement (and the
Trustee shall remit any such portion of the Servicing Fee directly to
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the Master Servicer (less any amount payable out of such Servicing Fee to the
Trustee pursuant to Section 8.05 which shall be paid to the Trustee)) and a
transfer for purposes of this Section 3.01(f) shall be deemed to have occurred
at such time as the Trustee instructs the Federal Reserve Bank of New York of
the outgoing amount; provided, further, that a failure of the Trustee to
transfer funds by 3:00 p.m., New York City time, shall not be a breach of this
Section 3.01(f) if (i) the same bank wire transfer program is not used by both
the Company and the Trustee to make such transfers or (ii) a Trustee Force
Majeure Delay occurs, and in either such event the Trustee shall use
commercially reasonable efforts to transfer funds within a reasonable time.
(g) Setoff. In addition to the provisions of Section 8.05 hereof, (i) if
the Company shall fail to make a payment as provided in this Agreement or any
Supplement, the Master Servicer or the Trustee may set off and apply any amounts
otherwise payable to the Company under any Pooling and Servicing Agreements. The
Company hereby waives demand, notice or declaration of such setoff and
application; provided that notice will promptly be given to the Company of such
setoff and application; provided, further, that failure to give such notice
shall not affect the validity of such setoff; and (ii) in the event the Servicer
shall fail to make a payment as provided in any Pooling and Servicing
Agreements, the Trustee may set off and apply any amounts otherwise payable to
the Servicer in its capacity as Servicer under the Transaction Documents on
account of such obligation. The Servicer hereby waives demand, notice or
declaration of such setoff and application; provided that notice will promptly
be given to the Servicer of such setoff; provided, further, that failure to give
such notice shall not affect the validity of such setoff.
(h) Allocation and Application of Funds. The Master Servicer shall
direct the Trustee in writing (which may be given in the form of the Daily
Reports and the Monthly Settlement Statements) to apply all Collections with
respect to the Receivables as described in this Article III and in the
Supplement with respect to each Outstanding Series. The Master Servicer shall
direct the Trustee in writing to pay Collections to the holder of the
Exchangeable Company Interest to the extent such Collections are allocated to
the Exchangeable Company Interest under Section 3.01(f) and as otherwise
provided in Article III. Unless otherwise provided in one or more Supplements,
if the Trustee receives any Daily Report at or before 1:30 p.m., New York City
time, on any Business Day, the Trustee shall make any applications of funds
required thereby on the same Business Day and otherwise on the next succeeding
Business Day.
THE REMAINDER OF ARTICLE III SHALL BE SPECIFIED
IN THE SUPPLEMENT WITH RESPECT TO EACH SERIES.
SUCH REMAINDER SHALL BE APPLICABLE ONLY TO THE
SERIES RELATING TO THE SUPPLEMENT IN WHICH
SUCH REMAINDER APPEARS.
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ARTICLE IV
ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO.
ARTICLE V
THE INVESTOR CERTIFICATES AND EXCHANGEABLE COMPANY INTEREST
SECTION 5.01. The Investor Certificates. The Investor Certificates of
each Series and any Class thereof shall be in fully registered form and shall be
substantially in the form of the exhibits with respect thereto attached to the
applicable Supplement. The Investor Certificates shall, upon issue, be executed
and delivered by the Company to the Trustee for authentication and redelivery as
provided in Section 5.02 hereof. Except as otherwise set forth as to any Series
or Class in the related Supplement, the Investor Certificates shall be issued in
minimum denominations of $2,000,000 and in integral multiples of $100,000 in
excess thereof. Unless otherwise specified in any Supplement for any Series, the
Investor Certificates shall be issued upon initial issuance as a single global
certificate in an original principal amount equal to the Initial Invested Amount
with respect to such Series. The Company is hereby authorized to execute and
deliver each Investor Certificate and any documents related thereto on behalf of
the Trust. Each Investor Certificate shall be executed by manual or facsimile
signature on behalf of the Company by a Responsible Officer or his designee by
power of attorney or otherwise. Investor Certificates bearing the manual or
facsimile signature of the individual who was, at the time when such signature
was affixed, authorized to sign on behalf of the Company or the Trustee shall
not be rendered invalid, notwithstanding that such individual has ceased to be
so authorized prior to or on the date of the authentication and delivery of such
Investor Certificates or does not hold such office at the date of such Investor
Certificates. No Investor Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Investor Certificate a certificate of authentication substantially in the form
provided for in Section 5.08(f) executed by or on behalf of the Trustee by the
manual signature of a duly authorized signatory, and such certificate of
authentication upon any Investor Certificate shall be conclusive evidence, and
the only evidence, that such Investor Certificate has been duly authenticated
and delivered hereunder. All Investor Certificates shall be dated the date of
their authentication but failure to do so shall not render them invalid.
SECTION 5.02. Authentication of Certificates.
(a) Investor Certificates. The Trustee shall authenticate and deliver
the initial Series of Investor Certificates that is issued upon the written
order of the Company in a form reasonably satisfactory to the Trustee, to the
holders of the initial Series of Investor Certificates, against payment to the
Company of the Initial Invested Amount. The Investor Certificates shall be duly
authenticated by or on behalf of the Trustee in authorized denominations equal
to (in the aggregate) the Initial Invested Amount. Upon a Company Exchange as
provided in Section 5.10 hereof and the satisfaction of certain other conditions
specified therein, the Trustee shall authenticate and deliver the Investor
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Certificates of additional Series (with the designation provided in the
applicable Supplement) (or, if provided in any Supplement, the additional
Investor Certificates of an existing Series), upon the written order of the
Company, to the Persons designated in such Supplement. Upon the written order of
the Company, the Investor Certificates of any Series shall be duly authenticated
by or on behalf of the Trustee, in authorized denominations equal to (in the
aggregate) the Initial Invested Amount of such Series of Investor Certificates
or, in the case of Series of Variable Funding Certificates, the maximum Invested
Amount specified in the Supplement for such Series.
(b) Company Certificates. Upon written request of the Company, the
Trustee shall authenticate and deliver to the Company one or more certificates
representing the Exchangeable Company Interest and/or Subordinated Company
Interests in a form reasonably satisfactory to the Trustee. Such certificates
shall be duly authenticated by or on behalf of the Trustee in denominations as
requested by the Company. The Company shall pay all costs associated with such
issuance of certificates and such payment obligation shall be a Company
Subordinated Obligation.
SECTION 5.03. Registration of Transfer and Exchange of Investor
Certificates.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (which may be the Trustee) (the
"Transfer Agent and Registrar") in accordance with the provisions of Section
8.16 hereof a register (the "Certificate Register") in which, subject to such
reasonable regulations as the Trustee may prescribe, the Transfer Agent and
Registrar shall provide for the registration of the Investor Certificates and of
transfers and exchanges of the Investor Certificates as herein provided. The
Company hereby appoints the Trustee as Transfer Agent and Registrar for the
purpose of registering the Investor Certificates and transfers and exchanges of
the Investor Certificates as herein provided. The Trustee shall be permitted to
resign as Transfer Agent and Registrar upon 30 days' prior written notice to the
Company, the Trustee and the Master Servicer; provided, however, that such
resignation shall not be effective and the Trustee shall continue to perform its
duties as Transfer Agent and Registrar until the Trustee has appointed a
successor Transfer Agent and Registrar reasonably acceptable to the Company and
such successor Transfer Agent and Registrar has accepted such appointment. The
provisions of Sections 8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to any
Person (or the Trustee to the extent it is so acting) in its role as Transfer
Agent or Registrar, as the case may be, for so long as such Person (or the
Trustee to the extent it is so acting) shall act as Transfer Agent or Registrar,
as the case may be.
The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.05 hereof, for the payment of any reasonable compensation payable to
the Transfer Agent and Registrar for its services under this Section 5.03 and
under Section 5.10. The Trustee hereby agrees that, upon the receipt of such
funds from the Company, it shall pay the Transfer Agent and Registrar such
amounts.
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Upon surrender for registration of transfer of any Investor Certificate
at any office or agency of the Transfer Agent and Registrar maintained for such
purpose, the Company shall execute, and the Trustee shall, upon the written
order of the Company, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Investor Certificates in authorized
denominations of the same Series representing like aggregate Investor
Certificateholders' Interests and which bear numbers that are not
contemporaneously outstanding.
At the option of an Investor Certificateholder, Investor Certificates
may be exchanged for other Investor Certificates of the same Series in
authorized denominations of like aggregate Investor Certificateholders'
Interests, bearing numbers that are not contemporaneously outstanding, upon
surrender of the Investor Certificates to be exchanged at any such office or
agency of the Transfer Agent and Registrar maintained for such purpose.
Whenever any Investor Certificates of any Series are so surrendered for
exchange, the Company shall execute, and the Trustee shall, upon the written
order of the Company, authenticate and (unless the Transfer Agent and Registrar
is different from the Trustee, in which case the Transfer Agent and Registrar
shall) deliver, the Investor Certificates of such Series which the Investor
Certificateholder making the exchange is entitled to receive. Every Investor
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer, with sufficient
instructions, duly executed by the Investor Certificateholder thereof or his
attorney-in-fact duly authorized in writing delivered to the Trustee (unless the
Transfer Agent and Registrar is different from the Trustee, in which case to the
Transfer Agent and Registrar) and complying with any requirements set forth in
the applicable Supplement.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar may
require any Investor Certificateholder that is transferring or exchanging one or
more Investor Certificates to pay a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Investor Certificates.
All Investor Certificates surrendered for registration of transfer and
exchange shall be canceled and disposed of in a customary manner satisfactory to
the Trustee.
The Company shall execute and deliver Investor Certificates to the
Trustee or the Transfer Agent and Registrar in such amounts and at such times as
are necessary to enable the Trustee and the Transfer Agent and Registrar to
fulfill their respective responsibilities under this Agreement and the Investor
Certificates.
(b) The Transfer Agent and Registrar will maintain at its expense in the
city of New York and, subject to Section 5.03(a), if specified in the related
Supplement for any Series, any other city designated in such Supplement, an
office or offices or agency or agencies where Investor Certificates may be
surrendered for registration or transfer or exchange.
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(c) Unless otherwise stated in any related Supplement, registration of
transfer of Investor Certificates containing a legend relating to restrictions
on transfer of such Investor Certificates (which legend shall be set forth in
the Supplement relating to such Investor Certificates) shall be effected only if
the conditions set forth in the related Supplement are complied with.
Investor Certificates issued upon registration or transfer of, or in
exchange for, Investor Certificates bearing the legend referred to above shall
also bear such legend unless the Company, the Master Servicer, the Trustee and
the Transfer Agent and Registrar receive an Opinion of Counsel satisfactory to
each of them, to the effect that such legend may be removed.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Investor
Certificates. If (i) any mutilated Investor Certificate is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Investor
Certificate and (ii) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be required by them to save the
Trust, each of them and the Company harmless, then, in the absence of actual
notice to the Trustee or Transfer Agent and Registrar that such Investor
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and, upon the written request of the Company, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Investor Certificate, a new Investor Certificate of
like tenor and aggregate Investor Certificateholders' Interest and bearing a
number that is not contemporaneously outstanding. In connection with the
issuance of any new Investor Certificate under this Section 5.04, the Trustee or
the Transfer Agent and Registrar may require the payment by the Investor
Certificateholder of a sum sufficient to cover any tax or other governmental
expenses (including the fees and expenses of the Trustee and Transfer Agent and
Registrar) related thereto. Any duplicate Investor Certificate issued pursuant
to this Section 5.04 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Investor Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners. At all times prior to due
presentation of an Investor Certificate for registration of transfer, the
Company, the Trustee, the Paying Agent, the Transfer Agent and Registrar, any
Agent and any agent of any of them may treat the Person in whose name any
Investor Certificate is registered as the owner of such Investor Certificate for
the purpose of receiving distributions pursuant to Article IV of the related
Supplement and for all other purposes whatsoever, and neither the Trustee, the
Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary. Notwithstanding the foregoing
provisions of this Section 5.05, in determining whether the Investor
Certificateholders of the requisite Investor Certificateholders' Interests have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Investor Certificates owned by the Company, the Master Servicer or
the Servicer, or any Affiliate thereof, shall be disregarded and deemed not to
be outstanding, except that, in determining whether the
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Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Investor Certificates
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Investor Certificates so owned by the Company, the Master
Servicer or any Servicer, or any Affiliate thereof which have been pledged in
good faith shall not be disregarded and may be regarded as outstanding if the
pledgee provides a certificate to the Trustee certifying as to the pledgee's
right so to act with respect to such Investor Certificates and that the pledgee
is not the Company, the Master Servicer or any Servicer, or any Affiliate
thereof.
SECTION 5.06. Appointment of Paying Agent. The Paying Agent shall make
distributions to Investor Certificateholders from the Collection Account (and/or
any other account or accounts maintained for the benefit of Investor
Certificateholders as specified in the related Supplement for any Series)
pursuant to Articles III and IV of the related Supplement. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in its
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. Unless otherwise
specified in the related Supplement for any Series and with respect to such
Series, the Paying Agent shall initially be the Trustee and any co-paying agent
chosen by the Trustee. Each Paying Agent shall have a combined capital and
surplus of at least $50,000,000. The Paying Agent shall be permitted to resign
upon 30 days' prior written notice to the Company. In the event that the Paying
Agent shall so resign, the Company shall appoint a successor to act as Paying
Agent (which shall be a depositary institution or trust company) which
appointment shall be effective on the date on which the Person so appointed
gives the Trustee written notice that it accepts the appointment. Any
resignation or removal of the Paying Agent and appointment of successor Paying
Agent pursuant to this Section 5.06 shall not become effective until acceptance
of appointment by the successor Paying Agent, as provided in this Section
5.06(a). The Company shall cause such successor Paying Agent or any additional
Paying Agent appointed by the Company to execute and deliver to the Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Investor Certificateholders in trust for the benefit of the Investor
Certificateholders entitled thereto until such sums shall be paid to such
Investor Certificateholders. The Paying Agent shall return all unclaimed funds
to the Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Trustee. The provisions of Sections
8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to any Person (or the Trustee to
the extent it is so acting) in its role as Paying Agent, for so long as such
Person (or the Trustee to the extent it is so acting) shall act as Paying Agent.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
The Company hereby agrees to pay each Paying Agent for its services
under Section 5.06(a); provided, however, that any payments to be made by the
Company pursuant to this Section 5.06(b) shall (i) be Company Subordinated
Obligations, (ii) be made solely from funds available to the Company that are
not required to be applied to Company Unsubordinated Obligations then due and
(iii) not constitute a general recourse
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claim against the Company after satisfying all Company Unsubordinated
Obligations then due.
SECTION 5.07. Access to List of Investor Certificateholders' Names and
Addresses. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Company, the Master Servicer or the Paying Agent,
within 10 Business Days after receipt by the Trustee of a request therefor from
the Company, the Master Servicer or the Paying Agent, respectively, in writing,
a list of the names and addresses of the Investor Certificateholders as then
recorded by or on behalf of the Trustee. The costs and expenses incurred in
connection with the provision of such list shall constitute Program Costs under
the Supplement for the applicable Series. Except as otherwise provided in any
Supplement, if three or more Investor Certificateholders of record or any
Investor Certificateholder of any Series or a group of Investor
Certificateholders of record representing Investor Certificateholders' Interests
aggregating not less than 10% of the Invested Amount of the related Outstanding
Series (the "Applicants") apply in writing to the Trustee, and such application
states that the Applicants desire to communicate with other Investor
Certificateholders of any Series with respect to their rights under this
Agreement or under the Investor Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee, after
having been adequately indemnified by such Applicants for its costs and
expenses, shall transmit or shall cause the Transfer Agent and Registrar to
transmit, such communication to the Investor Certificateholders reasonably
promptly after the receipt of such application.
Every Investor Certificateholder, by receiving and holding an Investor
Certificate, agrees with the Trustee that neither the Trustee, the Transfer
Agent and Registrar, nor any of their respective agents, officers, directors or
employees shall be held accountable by reason of the disclosure or mailing of
any such information as to the names and addresses of the Investor
Certificateholders hereunder, regardless of the sources from which such
information was derived.
As soon as practicable following each Record Date, the Trustee shall
provide to the Paying Agent or its designee, a list of Investor
Certificateholders in such form as the Paying Agent may reasonably request.
SECTION 5.08. Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents with
respect to the Investor Certificates which shall be authorized to act on behalf
of the Trustee in authenticating the Investor Certificates in connection with
the issuance, delivery, registration of transfer, exchange or repayment of the
Investor Certificates. Whenever reference is made in this Agreement to the
authentication of Investor Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent.
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(b) Any institution succeeding to the corporate trust business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Trustee. Upon the receipt by the Trustee of any
such notice of resignation and upon the giving of any such notice of termination
by the Trustee, the Trustee shall immediately give notice of such resignation or
termination to the Company. Any resignation of an authenticating agent shall not
become effective until acceptance of appointment by the successor authenticating
agent as provided in this Section 5.08. The Trustee may at any time terminate
the agency of an authenticating agent by giving notice of termination to such
authenticating agent. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Trustee, the Trustee promptly may appoint a successor
authenticating agent. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent (other than an Affiliate
of the Trustee) shall be appointed unless reasonably acceptable to the Trustee
and the Company.
(d) The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.05 hereof, for the payment of any reasonable compensation payable to
each authenticating agent for its services under this Section 5.08 and such
payment obligation shall be a Company Subordinated Obligation. The Trustee
hereby agrees that, upon the receipt of such funds from the Company it shall pay
each authenticating agent such amounts.
(e) The provisions of Sections 8.01, 8.02, 8.03 and 8.05 hereof shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 5.08, the
Investor Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Investor Certificates
described in the Amended and Restated Pooling Agreement
dated as of March 8, 2000, among Ingram Funding Inc.,
Ingram Micro Inc., as Master Servicer and The Chase Manhattan Bank, as Trustee.
The Chase Manhattan Bank, as Authenticating Agent
for the Trustee
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By:_____________________
Authorized Signatory
SECTION 5.09. Tax Treatment. It is the intent of the Master Servicer,
each Servicer, the Company, the Investor Certificateholders and the Trustee
that, under applicable U.S. Federal, state and local income and franchise tax
laws, the Investor Certificates will qualify as indebtedness of the Company
secured by the Trust Assets and that the Trust will not be characterized as an
association or publicly traded partnership taxable as a corporation. The Company
and the Trustee, by entering into this Agreement, and each Investor
Certificateholder, by its acceptance of its Investor Certificate, agree to treat
the Investor Certificates for applicable U.S. Federal, state and local income
and franchise tax purposes as indebtedness of the Company unless a final
determination that, under applicable law, is not subject to further appeal,
review or modification through proceedings or otherwise, including a
"determination" as defined in Section 1313(a) of the Code, causes such Investor
Certificates not to constitute indebtedness of the Company for Federal tax
purposes. The provisions of this Agreement and all related Transaction Documents
shall be construed to further these intentions of the parties. This Section 5.09
shall survive the termination of this Agreement and shall be binding on all
transferees of any of the foregoing Persons.
SECTION 5.10. Exchangeable Company Interest.
(a) The Company may decrease the amount of the Exchangeable Company
Interest in exchange for (i) an increase in the Invested Amount of a Class of
Investor Certificates of an Outstanding Series and an increase in any related
Subordinated Company Interest in connection with an issuance of additional
Investor Certificates of such Outstanding Series or (ii) one or more newly
issued Series of Investor Certificates and any related newly issued Subordinated
Company Interest (any such decrease a "Company Exchange"). (A Company Exchange
shall not be necessary in connection with an increase in the Invested Amount of
any Investor Certificates issued in a Series with an Invested Amount that may
increase or decrease from time to time. Such Investor Certificates are expected
to be designated as "Variable Funding Certificates" or "VFC Certificates".) The
Company may perform a Company Exchange by notifying the Trustee, in writing at
least five Business Days in advance (an "Exchange Notice") of the date upon
which the Company Exchange is to occur (an "Exchange Date"). Any Exchange Notice
shall state the designation of any Series to be issued on the Exchange Date and,
with respect to each such Series: (a) its additional or Initial Invested Amount,
as the case may be, if any, which in the aggregate at any time may not be
greater than the current principal amount of the Exchangeable Company Interest,
if any, at such time and (b) its Certificate Rate (or the method for allocating
interest payments or other cash flow to such Series), if any. On the Exchange
Date, the Trustee shall only (i) authenticate and deliver any Investor
Certificates evidencing an increase in the Invested Amount of a Class of
Investor Certificates or a newly issued Series and (ii) permit the issuance of
any related Subordinated Company Interest, upon delivery by the Company to the
Trustee of the following (together with the delivery by the Company to the
Trustee of any additional agreements, instruments or other documents as are
specified in the related Supplement):
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(a) a Supplement executed by the Company and specifying the Principal Terms of
such Series (provided that no such Supplement shall be required for any increase
in the Invested Amount of a Class of Investor Certificates, and any related
increase in the related Subordinated Company Interest, unless it is so required
by the related Supplement), (b) a Tax Opinion addressed to the Trustee and the
Trust, (c) a General Opinion addressed to the Trustee and the Trust, which among
other things shall state that such Supplement has been authorized and permitted
pursuant to this Agreement, (d) an Officer's Certificate certifying that all
conditions precedent to the authentication and delivery of such Investor
Certificates have been satisfied and upon which Officer's Certificate the
Trustee may conclusively rely, (e) written confirmation from each Rating Agency
that the Company Exchange will not result in the Rating Agency's reducing or
withdrawing its rating on any then Outstanding Series or any Class of any such
Outstanding Series rated by it, (f) written instructions of an officer of the
Company specifying the amount, Series, Investor Certificates and other Interests
to be issued with respect to such Company Exchange and (g) the applicable
Investor Certificates if necessary. Upon delivery of the items listed in clauses
(a) through (g) above, the Trustee shall cancel the applicable tendered Investor
Certificates and Subordinated Company Interest, as the case may be, and issue,
as provided above, such Series of Investor Certificates and allow the issuance
of such Subordinated Company Interest, if applicable, dated the Exchange Date.
The Trustee shall cause to be kept at the office or agency to be maintained by
the Transfer Agent and Registrar in accordance with the provisions of Section
8.16 hereof a register (the "Exchange Register") in which, subject to such
reasonable regulations as the Trustee may prescribe, the Transfer Agent and
Registrar shall record all Company Exchanges and the amount of the Exchangeable
Company Interest following any such Company Exchange. There is no limit to the
number of Company Exchanges that the Company may perform under this Agreement.
If the Company shall, on any Exchange Date, retain any Investor Certificates
issued on such Exchange Date, it shall, prior to transferring any such Investor
Certificates to another Person, obtain a Tax Opinion. Additional restrictions
relating to a Company Exchange may be set forth in any Supplement.
(b) Upon any Company Exchange, the Trustee, in accordance with the
written directions of the Company, shall issue to the Company under Section
5.01, for execution and redelivery to the Trustee for authentication pursuant to
Section 5.02, (i) one or more Investor Certificates representing an increase in
the Invested Amount of an outstanding Series, or (ii) one or more new Series of
Investor Certificates. Any such Investor Certificates shall be substantially in
the form specified in the applicable Supplement and each shall bear, upon its
face, the designation for such Series to which each such certificate belongs so
selected by the Company.
(c) In conjunction with a Company Exchange, the parties hereto shall,
except as otherwise provided in subsection (a) above, execute a Supplement to
this Agreement, which shall define, with respect to any additional Investor
Certificates or newly issued Series, as the case may be: (i) its name or
designation, (ii) its additional or initial principal amount, as the case may be
(or method for calculating such amount), (iii) its coupon rate (or formula for
the determination thereof), (iv) the interest payment date or
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dates and the date or dates from which interest shall accrue, (v) the method for
allocating Collections to Holders, (vi) the names of any accounts to be used by
such Series and the terms governing the operation of any such accounts, (vii)
the issue and terms of a letter of credit or other form of Enhancement, if any,
with respect thereto, (viii) the terms on which the certificates of such Series
may be repurchased by the Company or may be remarketed to other investors, (ix)
the Series Termination Date, (x) any deposit account maintained for the benefit
of Holders, (xi) the number of classes of such Series, and if more than one
class, the rights and priorities of each such class, (xii) the rights of the
Holder of the Exchangeable Company Interest that have been transferred to the
holders of such Series, (xiii) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts, (xiv) provisions
acceptable to the Trustee concerning the payment of the Trustee's fees, expenses
and indemnities and (xv) other relevant terms (all such terms, the "Principal
Terms" of such Series). The Supplement executed in connection with the Company
Exchange shall contain administrative provisions which are reasonably acceptable
to the Trustee.
(d) The Company shall not transfer, assign, exchange or otherwise
dispose of the Exchangeable Company Interest or any Subordinated Company
Interest without (i) the prior satisfaction of the Rating Agency Condition, (ii)
delivery of a Tax Opinion and (iii) the consent of the Investor
Certificateholders of any Variable Funding Certificates. If the Company shall
transfer, assign, exchange or otherwise dispose of all or any portion of the
Exchangeable Company Interest or any Subordinated Company Interest, in
accordance with the preceding sentence, the Transfer Agent and Registrar shall
record the transfer, assignment, exchange or other disposition of (i) the
Exchangeable Company Interest in the Exchange Register and (ii) any Subordinated
Company Interest in a register maintained by the Transfer Agent and Registrar at
its office or agency (the "Subordinated Interest Register"). Any Holder who
wishes to transfer, assign, exchange or otherwise dispose of all or any portion
of the Exchangeable Company Interest or any Subordinated Company Interest held
by it shall deliver instructions and a written instrument of transfer, with
sufficient instructions, duly executed by the Holder or his attorney-in-fact
duly authorized in a writing delivered to the Trustee (unless the Transfer Agent
and Registrar is different from the Trustee, in which case to the Transfer Agent
and Registrar) and complying with any requirements set forth in the applicable
Supplement. No service charge shall be made for any registration of transfer or
exchange of all or any portion of the Exchangeable Company Interest or any
Subordinated Company Interest, but the Transfer Agent and Registrar may require
any Holder that is transferring or exchanging all or any portion of the
Exchangeable Company Interest or any Subordinated Company Interest to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of all or any portion of the
Exchangeable Company Interest or the Subordinated Company Interest.
(e) Except as specified in any Supplement for a related Series, all
Investor Certificates of any Series shall be equally and ratably entitled as
provided herein to the benefits hereof without preference, priority or
distinction on account of the actual time or
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times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the applicable Supplement.
SECTION 5.11. Book-Entry Certificates. If specified in any related
Supplement, the Investor Certificates, or any portion thereof, upon original
issuance, shall be issued in the form of one or more typewritten Investor
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository specified in such Supplement, which shall be the Clearing Agency,
specified by, or on behalf of, the Company for such Series. The Investor
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of such Clearing Agency, and no Certificate Book-Entry
Holder will receive a definitive certificate representing such Certificate
Book-Entry Holder's interest in the Investor Certificates, except as provided in
Section 5.13 hereof. Unless and until definitive, fully registered Investor
Certificates ("Definitive Certificates") have been issued to Investor
Certificateholders pursuant to Section 5.13 or the related Supplement:
(a) the provisions of this Section 5.11 shall be in full force and
effect;
(b) the Company, the Master Servicer, each Servicer and the Trustee may
deal with each Clearing Agency for all purposes (including the making of
distributions on the Investor Certificates) as the Investor Certificateholder
without respect to whether there has been any actual authorization of such
actions by the Certificate Book-Entry Holders with respect to such actions;
(c) to the extent that the provisions of this Section 5.11 conflict with
any other provisions of this Agreement, the provisions of this Section 5.11
shall control; and
(d) the rights of Certificate Book-Entry Holders shall be exercised only
through the Clearing Agency and the related Clearing Agency Participants and
shall be limited to those established by law and agreements between such related
Certificate Book-Entry Holders and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Depository Agreement, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest on the Investor
Certificates to such Clearing Agency Participants.
Notwithstanding the foregoing, no Class or Series of Investor
Certificates may be issued as Book-Entry Certificates (but, instead, shall be
issued as Definitive Certificates) unless at the time of issuance of such Class
or Series, the Company and the Trustee receive a Tax Opinion.
SECTION 5.12. Notices to Clearing Agency. Whenever notice or other
communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Book-Entry Holders pursuant to Section 5.13, the Trustee shall give
all such notices and
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communications specified herein to be given to the Investor Certificateholders
to the Clearing Agencies.
SECTION 5.13. Definitive Certificates. If (a)(i) the Company advises the
Trustee in writing that any Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the applicable Depository
Agreement, and (ii) the Company is unable to locate a qualified successor, (b)
the Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) after the
occurrence of a Servicer Default, Certificate Book-Entry Holders representing
Investor Certificateholders' Interests aggregating more than 50% of the Invested
Amount held by such Certificate Book-Entry Holders of each affected Series then
issued and outstanding advise the Clearing Agency through the Clearing Agency
Participants in writing, and the Clearing Agency shall so notify the Trustee,
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Book-Entry Holders, the Trustee
shall notify the Clearing Agency, which shall be responsible to notify the
Certificate Book-Entry Holders, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Book-Entry Holders
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall issue the
Definitive Certificates. Neither the Company nor the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
ARTICLE VI
OTHER MATTERS RELATING TO THE COMPANY
SECTION 6.01. Liability of the Company. The Company shall be liable for
all obligations, covenants, representations and warranties of the Company
arising under or related to this Agreement or any Supplement. Except as provided
in the preceding sentence and otherwise herein, the Company shall be liable only
to the extent of the obligations specifically undertaken by it in its capacity
as Company hereunder.
ARTICLE VII
EARLY AMORTIZATION EVENTS
SECTION 7.01. Early Amortization Events. Unless modified with respect to
any Series of Investor Certificates by any related Supplement, if any one of the
following events (each, an "Early Amortization Event") shall occur:
(a) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company or the Master Servicer in an
involuntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect (the Bankruptcy Code
and all other such applicable laws being, collectively, "Applicable Insolvency
Laws"), which decree or order is not stayed or any other similar relief shall be
granted under any applicable federal or state law now or
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hereafter in effect and shall not be stayed; (ii) (A) an involuntary case is
commenced against the Company or the Master Servicer under any Applicable
Insolvency Law now or hereafter in effect, a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Company or the Master Servicer, as the case may be, or over all or a substantial
part of the property of the Company or the Master Servicer, as the case may be,
shall have been entered, an interim receiver, trustee or other custodian of the
Company or the Master Servicer for all or a substantial part of the property of
the Company or the Master Servicer is involuntarily appointed, a warrant of
attachment, execution or similar process is issued against any substantial part
of the property of the Company or the Master Servicer, and (B) any event
referred to in clause (ii)(A) above continues for 60 days unless dismissed,
bonded or discharged; provided, however, that such 60-day period shall be deemed
terminated immediately upon the occurrence of any of the events referred to in
this Section 7.01(a) other than those referred to in clause (ii)(A) above; and
(iii) the Company or the Master Servicer shall at its request have a decree or
an order for relief entered with respect to it or commence a voluntary case
under any Applicable Insolvency Law, consent to the entry of a decree or an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any Applicable Insolvency Law, consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; (iv) the making by the Company or
the Master Servicer of any general assignment for the benefit of creditors; (v)
the inability or failure of the Company generally to pay its debts as such debts
become due; or (vi) the Board of Directors of the Company or the Master Servicer
adopts any resolution or otherwise authorizes action to approve any of the
foregoing;
(b) the Trust or the Company shall become an "investment company" within
the meaning of the 1940 Act; or
(c) the Trustee shall be appointed Successor Servicer pursuant to
Section 6.02(c) of the Servicing Agreement;
then, an "Early Amortization Period" with respect to all Outstanding Series
shall commence without any notice or other action on the part of the Trustee or
any Investor Certificateholder immediately upon the occurrence of such event,
unless otherwise provided in the Supplement with respect to any Series. The
Master Servicer shall notify each Rating Agency and the Trustee in writing of
the occurrence of any Early Amortization Period. Upon the commencement against
the Company of a case, proceeding or other action described in clause (a)(ii)
above, the Company shall cease to purchase Receivables from any Seller and cease
to transfer Receivables to the Trust, until such time, if any, as such case,
proceeding or other action is vacated, discharged, or stayed or bonded pending
appeal. If an Insolvency Event with respect to the Company occurs, the Company
shall immediately cease to transfer Receivables to the Trust (or, if the Company
has previously suspended the transfer of Receivables to the Trust to comply with
the preceding sentence, such suspension shall become a permanent cessation of
the transfer of Receivables to the Trust) and shall promptly give written notice
to the Trustee of such occurrence. Notwithstanding any cessation of the transfer
to the Trust of
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additional Receivables, Receivables transferred to the Trust prior to the
occurrence of such Insolvency Event and Collections in respect of such
Receivables and interest, whenever created, accrued in respect of such
Receivables, shall continue to be a part of the Trust.
Additional Early Amortization Events and the consequences thereof may be
set forth in each Supplement with respect to the Series relating thereto.
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SECTION 7.02. Additional Rights upon the Occurrence of Certain Events.
(a) If after the occurrence of an Insolvency Event, the Aggregate
Invested Amount and all accrued and unpaid interest thereon have not been paid
to the Investor Certificateholders, the Trustee in accordance with the written
direction of the Master Servicer shall (i) publish a notice in a newspaper with
a national circulation (an "Authorized Newspaper") that an Insolvency Event has
occurred and that the Trustee intends to sell, dispose of or otherwise liquidate
the Receivables in a commercially reasonable manner and (ii) send written notice
to the Investor Certificateholders and request instructions from such holders,
which notice shall request each Certificateholder to advise the Trustee in
writing that it elects one of the following options: (A) the Certificateholder
wishes the Trustee not to sell, dispose of or otherwise liquidate the
Receivables; (B) the Certificateholder wishes the Trustee to sell, dispose of or
otherwise liquidate the Receivables; or (C) the Certificateholder refuses to
advise the Trustee as to the specific action the Trustee should take. If the
Trustee has received written instruction selecting option (B) above from
Investor Certificateholders representing more than 50% of the Invested Amount of
each Series or, in the case of a Series having more than one Class of Investor
Certificates, Investor Certificateholders representing more than 50% of the
Invested Amount of each Class of such Series, the Trustee shall be permitted to
engage an investment bank and shall proceed to sell, dispose of, or otherwise
liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation of
competitive bids and the Trustee shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the highest
bidder for the Receivables. The Trustee shall rely and shall be protected in
acting or refraining from acting upon any advice from any investment bank hired
pursuant to the terms of this Section 7.02(b) to the extent provided in Section
8.01. The Company or any of its Affiliates shall be permitted to bid for the
Receivables. In addition, the Company or any of its Affiliates shall have the
right to match any bid by a third person and be granted the right to purchase
the Receivables at such matched bid price. All reasonable costs and expenses
incurred by the Trustee in such sale (including commercially reasonable fees
payable to the investment bank) shall be reimbursable to the Trustee as provided
in Section 8.05. The rights arising under this Section 7.02(a) shall in no way
limit the right of Investor Certificateholders to direct the Trustee to sell
Receivables pursuant to the terms of Section 9.02 after the occurrence of an
Insolvency Event if the Trustee does not receive authorization to sell dispose
or otherwise liquidate the Receivables in accordance with the terms of this
Section 7.02.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables pursuant to subsection (a) above shall be treated as Collections on
the Receivables and such proceeds shall be released to the Trustee in an amount
equal to the amount of any expenses incurred by the Trustee acting in its
capacity either as Trustee or as liquidating agent under this Section 7.02 that
have not otherwise been reimbursed and the remainder, if any, will be
distributed to Investor Certificateholders of each Series after immediately
being deposited in the Collection Account, in accordance with the provisions of
Section 3.01(d) and the related Supplement for such Series. After giving effect
to all such distributions, the remainder, if any, shall be allocated to the
Exchangeable Company
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Interest and shall be released to the Holders of the Exchangeable Company
Interest pro-rata based on the amount of the Exchangeable Company Interest held
by each Holder thereof.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of a Servicer Default or Early
Amortization Event of which a Responsible Officer of the Trustee has actual
knowledge, and after the curing of all Servicer Defaults and Early Amortization
Events which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in the Pooling and Servicing Agreements or
any Supplement and no implied covenants or obligations shall be read into such
Pooling and Servicing Agreements against the Trustee. If a Servicer Default or
Early Amortization Event of which a Responsible Officer of the Trustee has
actual knowledge has occurred (which has not been cured or waived), the Trustee
shall exercise the rights and powers vested in it by any Pooling and Servicing
Agreements or any Supplement and shall use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) The Trustee may conclusively rely as to the truth of the statements
and the correctness of the opinions expressed therein upon resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee; provided, that in the case of any of the
above which are specifically required to be furnished to the Trustee pursuant to
any provision of the Pooling and Servicing Agreements, the Trustee shall,
subject to Section 8.02, examine them to determine whether they appear on their
face to conform to the requirements of this Agreement; provided, however, that
the Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Company hereunder. If any
such instrument is found not to conform in any material respect to the
requirements of this Agreement, the Trustee shall notify the Holders of such
instrument in the event that the Trustee, after so requesting, does not receive
a satisfactorily corrected instrument. Upon the written request of a Rating
Agency, the Trustee shall provide such Rating Agency with a copy of any
certificates, notices, reports, documents or other instruments furnished by the
Master Servicer to the Trustee pursuant to the Transaction Documents.
(c) Subject to Section 8.01(a), no provision of this Agreement or any
Supplement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
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(i) the Trustee shall not be liable for an error of judgment
unless it shall be proved that the Trustee was negligent, or acted in bad faith,
in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the Pooling and Servicing Agreements or the Supplements or as directed by the
Investor Certificateholders pursuant to the terms of this Article VIII, relating
to the times, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising or omitting to exercise any trust or
power conferred upon the Trustee, under the Pooling and Servicing Agreements or
the Supplements;
(iii) the Trustee shall not be charged with knowledge of any
failure by the Master Servicer or any Servicer to comply with any of its
obligations, unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure or the Trustee receives written notice of such failure
from the Master Servicer, any Servicer, any Agent or any Investor
Certificateholder;
(iv) the Trustee shall not be charged with knowledge of a
Servicer Default or Early Amortization Event unless a Responsible Officer of the
Trustee obtains actual knowledge of such event or the Trustee receives written
notice of such default or event from the Servicer, any Agent or any Holder of
Investor Certificates. In the absence of such notice, the Trustee may
conclusively assume that there is no Servicer Default or Early Amortization
Event;
(v) the Trustee shall not be liable for any investment losses
resulting from any investments of funds on deposit in the Accounts or any
subaccounts thereof (provided that such investments are Eligible Investments);
and
(vi) the Trustee shall have no duty to monitor the performance of
the Master Servicer or any Servicer, nor shall it have any liability in
connection with malfeasance or nonfeasance by the Master Servicer or any
Servicer; the Trustee shall have no liability in connection with compliance of
the Master Servicer or any Servicer or the Company with statutory or regulatory
requirements related to the Receivables; and the Trustee shall have no duty to
perform any recalculation or verification of any calculation with respect to
data provided to the Trustee by the Master Servicer or any Servicer.
(d) The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
under any Pooling and Servicing Agreements or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in any Pooling
and Servicing Agreements shall in any event require the Trustee to perform, or
be responsible for the manner of performance of, any obligations of the Servicer
under such Agreement except during such time, if any, as the
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Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer in accordance with the terms of such Agreement.
(e) Except as expressly provided in any Pooling and Servicing
Agreements, the Trustee shall have no power to vary the corpus of the Trust.
(f) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no duty (i)
to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (ii) to see to any insurance, (iii) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Assets other than from funds available in the
Collection Account or (iv) to confirm or verify the contents of any reports or
certificates of the Master Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
SECTION 8.02. Rights of the Trustee. Except as otherwise provided in
Section 8.01 hereof.
(a) The Trustee may conclusively rely on and shall be protected in
acting on, or in refraining from acting in accordance with, any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, appraisal, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented to it pursuant to any Pooling and
Servicing Agreements by the proper party or parties.
(b) The Trustee may consult with counsel, and any Opinion of Counsel and
any advice of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel.
(c) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by any Pooling and Servicing Agreements, or to
institute, conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Holders, pursuant to the
provisions of any Pooling and Servicing Agreements, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligations, upon the occurrence of a Servicer Default or Early Amortization
Event (which has not been cured), to exercise such of the rights and powers
vested in it by any Pooling and Servicing Agreements, and to use the same degree
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. The right
of the Trustee to perform any
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discretionary act enumerated in this Agreement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
(d) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by any Pooling and
Servicing Agreements; provided that the Trustee shall be liable for its
negligence or willful misconduct.
(e) Except as otherwise provided in any Supplement, the Trustee shall
not be bound to make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, direction, order, approval, bond, note or other paper or
document, unless requested in writing so to do by the Holders of Investor
Certificates evidencing Investor Certificateholders' Interests aggregating more
than 50% of the Invested Amount of any Series which could be materially and
adversely affected if the Trustee does not perform such acts; provided, however,
that such Holders of Investor Certificates shall indemnify and reimburse the
Trustee for any liability or expense resulting from any such investigation
requested by them; provided, further, that the Trustee shall be entitled to make
such further inquiry or investigation into such facts or matters as it may
reasonably see fit, and if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books and records
of the Company, personally or by agent or attorney, at the sole cost and expense
of the Company.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through affiliates, agents
or attorneys or a custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of, any
such affiliate, agent, attorney, custodian or nominee appointed with due care by
it hereunder.
(g) The Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Receivables or the
Accounts for the purpose of establishing the presence or absence of defects, the
compliance by the Company with its representations and warranties or for any
other purpose.
(h) In the event that the Trustee is also acting as Paying Agent or
Transfer Agent and Registrar hereunder, the rights and protections afforded to
the Trustee pursuant to this Article VIII shall also be afforded to such Paying
Agent or Transfer Agent and Registrar.
(i) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust created hereby or the powers granted
hereunder.
(j) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee be liable for special, indirect or consequential loss or
damage of any
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kind whatsoever (including but not limited to lost profits), even if the Trustee
has been advised of the likelihood of such loss or damage and regardless of the
form of action.
SECTION 8.03. Trustee Not Liable for Recitals. The Trustee assumes no
responsibility for the correctness of the recitals contained herein and in the
Investor Certificates (other than the certificate of authentication on the
Investor Certificates). Except as set forth in Section 8.15, the Trustee makes
no representations as to the validity or sufficiency of any Pooling and
Servicing Agreements, of the Investor Certificates (other than the certificate
of authentication on the Investor Certificates), of the Exchangeable Company
Interest, of any Subordinated Company Interest, of any Receivable or of any
related document or interest. The Trustee shall not be accountable for the use
or application by the Company of any of the Investor Certificates, any
Subordinated Company Interest or the Exchangeable Company Interest or of the
proceeds of such Investor Certificates, such Subordinated Company Interest or
the Exchangeable Company Interest or for the use or application of any funds
paid to the Company in respect of the Receivables or deposited in or withdrawn
from the Accounts or other accounts hereafter established to effectuate the
transactions contemplated herein and in accordance with the terms of any Pooling
and Servicing Agreements.
The Trustee shall not be accountable for the use or application by the
Servicer of any of the Investor Certificates or of the proceeds of such Investor
Certificates, or for the use or application of any funds paid to the Servicer in
respect of the Receivables or deposited in or withdrawn from the Accounts or any
Lockbox by or at the direction of the Servicer or Lockbox Processors. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable.
SECTION 8.04. Trustee May Own Investor Certificates. The Trustee in its
individual or any other capacity (a) may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the Trustee
and (b) may transact any banking and trust business with the Company, the
Servicer or the Sellers as it would were it not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
(a) The Master Servicer and each Servicer (if Ingram Micro or an
Affiliate thereof) covenants and agrees to pay, but only from funds available to
it as the Servicing Fee paid under the Servicing Agreement, to the Trustee
annually in advance on the Effective Date and on or about each one year
anniversary thereof, and the Trustee shall be entitled to receive, such
reasonable compensation as is agreed upon in writing between the Trustee and the
Company (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trust hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee. Notwithstanding the
foregoing, the Master Servicer and each Servicer will pay, reimburse and
indemnify the Trustee upon its request for all reasonable expenses (including,
without limitation, expenses incurred in connection with notices, requests for
documentation or other communications to
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Holders), disbursements, losses, liabilities, damages and advances incurred or
made by the Trustee in accordance with any of the provisions of the Pooling and
Servicing Agreements or by reason of its status as Trustee under any Pooling and
Servicing Agreements (including the reasonable fees and expenses of its agents,
any co-trustee and counsel) except any such expense, disbursement, loss,
liability, damage or advance as may arise from its negligence or bad faith. To
the extent the fees and expenses of the Trustee are not paid on a current basis,
the Trustee shall be entitled to be paid such items from amounts that would be
distributable to the Company under Article III of this Agreement and, to the
extent still unpaid in full, the Company will pay or reimburse the Trustee upon
its request for such items; provided, however that any payments to be made by
the Company pursuant to this Section shall (i) be Company Subordinated
Obligations, (ii) be made solely from funds available to the Company that are
not requested to be applied to Company Unsubordinated Obligations then due and
(iii) until the date that is one year and one day after the payment in full of
all Company Unsubordinated Obligations, not constitute a general recourse claim
against the Company after satisfying all Company Unsubordinated Obligations then
due at any time during the period of one year and one day following the date on
which all Company Unsubordinated Obligations have been paid in full but only a
claim against the Company to the extent funds are available (including, but not
limited to, funds available to the Company pursuant to the exercise of its right
to indemnity and other payments pursuant to Sections 2.06 and 9.02 of the
Receivables Sale Agreement) to the Company to make such payments. If the Trustee
is appointed Successor Servicer in accordance with the Servicing Agreement, the
provisions of this Section 8.05 shall not apply to expenses, disbursements,
losses, liabilities, damages and advances made or incurred by the Trustee in its
capacity as Successor Servicer, which items shall be paid, first, out of the
Servicing Fee, second, from amounts which would be distributable to the Company
under Article III of this Agreement, third, from amounts distributable to the
Company pursuant to Section 9.04 and fourth, to the extent still unpaid in full,
the Company will pay or reimburse the Trustee upon its request for such items
provided, however that any reimbursements to be made by the Company shall (i) be
Company Subordinated Obligations, (ii) be made solely from funds available to
the Company that are not requested to be applied to Company Unsubordinated
Obligations then due and (iii) until the date that is one year and one day after
the payment in full of all Company Unsubordinated Obligations, not constitute a
general recourse claim against the Company after satisfying all Company
Unsubordinated Obligations then due at any time during the period of one year
and one day following the date on which all Company Unsubordinated Obligations
have been paid in full but only a claim against the Company to the extent funds
are available (including, but not limited to, funds available to the Company
pursuant to the exercise of its right to indemnity and other payments pursuant
to Sections 2.06 and 9.02 of the Receivables Sale Agreement) to the Company to
make such payments. The provisions of this Section 8.05 shall apply to the
reasonable expenses, disbursements and advances made or incurred by the Trustee,
or any other Person, in its capacity as liquidating agent, to the extent not
otherwise paid. The covenants to pay the expenses, disbursements, losses,
liabilities, damages and advances provided for in this Section shall survive the
termination of any Pooling and Servicing Agreements and the resignation or
removal of the Trustee and shall be binding on the Company, the Master Servicer,
each Servicer and
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any Successor Servicer. The Company's and the Master Servicer's and each
Servicer's covenants and agreements contained in this Section 8.05 shall survive
the termination of this Agreement and the resignation or removal of the Trustee.
(b) If (i) the Trustee has reasonable cause to believe that (x) a
Servicer Default is likely to occur or (y) the Master Servicer or any Servicer
has otherwise failed in any material respect to perform its master servicing or
servicing functions in accordance with the Pooling and Servicing Agreements and
(ii) after reasonable written and/or telephonic inquiry in respect of such
likely Servicer Default or other material failure of the Master Servicer or
Servicer, the Trustee reasonably believes that further investigation or inquiry
in respect of such matter is necessary, then the Company shall pay the
reasonable fees, out-of-pocket costs and expenses incurred by the Trustee, in an
aggregate amount not to exceed $10,000 in respect of any calendar year, in
connection with an inspection of the Company's, the Master Servicer's and/or any
Servicer's offices, properties, books and records and/or discussions with the
officers, employees and Independent Public Accountants of the Company, the
Master Servicer or any Servicer in furtherance of such investigation or inquiry
(any such inspection and/or discussion, a "Reimbursable Trustee Inspection");
provided that a Reimbursable Trustee Inspection may not occur more frequently
than once per calendar year.
SECTION 8.06. Eligibility Recitals. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the United
States of America or any state thereof authorized under such laws to exercise
corporate trust powers, having (or having a holding company parent with) a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then, for the purpose of
this Section 8.06, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07.
SECTION 8.07. Resignation or Removal of Trustee.
(a) Subject to paragraph (c) below, the Trustee may at any time resign
and be discharged from the trust hereby created by giving written notice thereof
to the Company, the Master Servicer, the Rating Agencies and the Agents. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted such appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request therefor by the Master Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
if a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Company may remove the Trustee and promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
(d) The obligations of the Company described in Section 8.05 hereof and
the obligations of the Servicer described in Section 8.05 hereof and Section
5.02 of the Servicing Agreement shall survive the removal or resignation of the
Trustee as provided in this Agreement.
(e) No Trustee under this Agreement shall be personally liable for any
action or omission of any successor trustee.
SECTION 8.08. Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor Trustee all
documents or copies thereof, at the expense of the Master Servicer, and
statements held by it hereunder; and the Company and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, power, duties and obligations. The Master
Servicer shall immediately give notice, but in no event less than 10 days prior
to any such resignation or removal, to each Rating Agency upon the appointment
of a successor trustee.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.08 hereof unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, such successor Trustee shall mail notice of such succession
hereunder
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to all Holders at their addresses as shown in the Certificate Register, the
Exchange Register or the Subordinated Interest Register, as applicable.
SECTION 8.09. Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall promptly give notice (except to the
extent prohibited under any Requirement of Law or Contractual Obligation), but
in no event less than 10 days prior to any such merger or consolidation, to the
Company, the Master Servicer and the Rating Agencies upon any such merger or
consolidation of the Trustee. Information as to such merger or consolidation
that is made publicly available by the Trustee in at least two Authorized
Newspapers shall be deemed to satisfy the notice requirement of this Section
8.09.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of any Pooling and Servicing
Agreements, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust may at the time be located, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-Trustee or co-Trustees, or separate
Trustee or separate Trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Holders,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Trustee may consider necessary. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereof and no notice to Holders of the appointment of
any co-trustee or separate trustee shall be required under Section 8.08 hereof.
The Trustee shall promptly notify each Rating Agency of the appointment of any
co-trustee.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any statute of any jurisdiction in which any particular act or acts
are to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
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jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(ii) no Trustee hereunder shall be personally liable by reason of
any act or omission of any other Trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate Trustee and co-Trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of any Pooling and
Servicing Agreements, specifically including every provision of any Pooling and
Servicing Agreements relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy thereof given to the Master Servicer and the Company.
(d) Any separate Trustee or co-Trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to any
Pooling and Servicing Agreements on its behalf and in its name. If any separate
Trustee or co-Trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Tax Returns. In the event the Trust shall be required to
file U.S. Federal, state, local or foreign income tax returns, the Company shall
prepare and file or shall cause to be prepared and filed any such tax returns
required to be filed by the Trust and shall remit such tax returns to the
Trustee for signature at least five Business Days before such tax returns are
due to be filed (including extensions). The Company shall also prepare or shall
cause to be prepared all U.S. Federal tax information in connection with this
Agreement required by law to be distributed to Holders and shall deliver such
information to the Trustee at least five Business Days prior to the date it is
required by law to be distributed to the Holders. The Trustee, upon request,
will furnish the Company with all such information known to the Trustee as may
be reasonably determined by the Company to be required in connection with the
preparation of all U.S. Federal, state, local or foreign income tax returns of
the Trust, and shall, upon the Company's written request, execute such tax
returns. In no event shall the Trustee in its individual capacity be liable for
any liabilities, costs or expenses of the Trust, the Holders, the Company or the
Servicer, arising under any U.S. Federal, state, local or foreign income tax law
or regulation, including, without limitation, excise taxes or any other tax
imposed by a Governmental Authority on or measured by income (or any
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interest or penalty with respect thereto or arising from any failure to comply
therewith). The Trustee shall not be required to determine whether any filing of
tax returns is required.
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SECTION 8.12. Trustee May Enforce Claims Without Possession of Investor
Certificates. All rights of action and claims under any Pooling and Servicing
Agreements or the Investor Certificates may be prosecuted and enforced by the
Trustee without the possession of any of the Investor Certificates or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Investor Certificateholders in
respect of which such judgment has been obtained.
SECTION 8.13. Suits for Enforcement. If a Servicer Default shall occur
and be continuing, the Trustee may, as provided in Section 6.01 of the Servicing
Agreement, proceed to protect and enforce its rights and the rights of the
Holders under this Agreement or any other Transaction Document by suit, action
or proceeding (including any suit, action or proceeding on behalf of the Holders
against any third party) in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
any other Transaction Document or in aid of the execution of any power granted
in this Agreement or any other Transaction Document or for the enforcement of
any other legal, equitable or other remedy as the Trustee, being advised by
counsel, shall deem most effective to protect and enforce any of the rights of
the Trustee or the Holders. In furtherance of and without limiting the
generality of Section 8.01(d), the Trustee shall have the right to obtain,
before initiating any such action, such reasonable indemnity from the Investor
Certificateholders as the Trustee may require against the costs, expenses and
liabilities that may be incurred therein or thereby. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Investor Certificates, the Subordinated
Company Interests or the Exchangeable Company Interest or the rights of any
holder thereof, or authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 8.14. Rights of Investor Certificateholders To Direct Trustee.
Except as otherwise provided in the applicable Supplement and in Section 9.02
hereof, holders of Investor Certificates evidencing more than 50% of the
Invested Amount of all Series (or, with respect to any remedy, trust or power
that does not relate to all Series, more than 50% of the Invested Amount of all
Series to which such remedy, trust or power relates) shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that if Investor Certificateholders representing
more than 50% of the Invested Amount of any Series shall disagree with any
direction given to the Trustee pursuant to the terms of this Section 8.14, such
Investor Certificateholders shall be entitled to declare the Voluntary
Liquidation Date to have occurred with respect to such Series in accordance with
Section 9.02 hereof; provided, further, that nothing in any Pooling and
Servicing Agreements shall impair the right of the Trustee to take any action
deemed proper by the Trustee and which is not inconsistent
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with such direction of the Investor Certificateholders; provided, further that
in furtherance and without limiting the generality of Section 8.01(d), the
Trustee shall have the right to obtain, before acting in accordance with any
such direction of the Investor Certificateholders, such reasonable indemnity
from the Investor Certificateholders as the Trustee may require against the
costs, expenses and liabilities that may be incurred in so acting.
SECTION 8.15. Representations and Warranties of Trustee. The Trustee
represents and warrants that:
(a) the Trustee is a banking corporation organized, existing and in good
standing under the laws of the State of New York and is duly authorized to
exercise trust powers under applicable law;
(b) the Trustee has the power and authority to enter into this Agreement
and any Supplement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement and any Supplement;
and
(c) each Pooling and Servicing Agreements and each of the Transaction
Documents executed by it have been duly executed and delivered by the Trustee
and, in the case of all such Transaction Documents, are legal, valid and binding
obligations of the Trustee, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors, rights generally and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
SECTION 8.16. Maintenance of Office or Agency. The Trustee will maintain
at its expense in the city of New York, an office or offices or agency or
agencies where notices and demands to or upon the Trustee in respect of the
Investor Certificates or any other Interests and the Pooling and Servicing
Agreements may be served. The Trustee will give prompt written notice to the
Company, the Master Servicer and the Holders of any change in the location of
the Certificate Register, the Exchange Register, the Subordinated Interest
Register or any such office or agency.
SECTION 8.17. Limitation of Liability. The Investor Certificates are
executed by the Trustee, not in its individual capacity but solely as Trustee of
the Trust, in the exercise of the powers and authority conferred and vested in
it by the Trust Agreement. Each of the undertakings and agreements made on the
part of the Trustee in the Investor Certificates is made and intended not as a
personal undertaking or agreement by the Trustee but is made and intended for
the purpose of binding only the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination of Trust.
(a) The Trust and the respective obligations and responsibilities of the
Company, the Servicer and the Trustee created hereby (other than the obligation
of the Trustee to make payments to Holders as hereafter set forth) shall
terminate, except with respect to any such obligations or responsibilities
expressly stated to survive such termination, on the earliest of (i) the last
day of the May, 2018 Settlement Period, (ii) at the option of the Master
Servicer, at any time when the Aggregate Invested Amount is zero and no Variable
Funding Certificates are then outstanding, (iii) following the occurrence of any
of the Early Amortization Events specified in Section 7.01 of this Agreement, at
any time when the Aggregate Invested Amount is zero and no Variable Funding
Certificates are then outstanding and (iv) upon completion of distribution of
the amounts referred to in Section 7.02 (b) (the "Trust Termination Date").
(b) If on the Distribution Date in the month immediately preceding the
month in which the Trust Termination Date occurs (after giving effect to all
transfers, withdrawals, deposits and drawings to occur on such date and the
payment of principal on any Series of Investor Certificates to be made on the
related Distribution Date pursuant to Article III hereof), the Invested Amount
of any Series would be greater than zero (as certified in writing by the Master
Servicer), the Trustee, at the written direction of Investor Certificateholders
representing more than 50% of the Aggregate Invested Amount of such Series (or
in the case of a Series having more than one Class of Investor Certificates,
Investor Certificateholders representing more than 50% of the Invested Amount of
each Class in such Series), shall make reasonable efforts to sell within 30 days
of such Distribution Date all of the Receivables. Upon such direction the
Trustee shall be entitled to engage an investment bank to carry out its
obligation to sell Receivables pursuant to this Section 9.01 and the Trustee
shall rely and shall be protected in acting or refraining from acting upon any
advice from any investment bank hired pursuant to the terms of this Section
9.01(b) to the extent provided for in Section 8.01. The proceeds of such sale
shall be treated as Collections on the Receivables and shall be allocated in
accordance with Article III hereof. During such 30-day period, the Servicer
shall continue to collect Collections on the Receivables and allocate
Collections in accordance with the provisions of Article III hereof. The
reasonable costs and expenses incurred by the Trustee (including the
commercially reasonable fees payable to any investment bank, if any) in such
sale shall be reimbursable to the Trustee as provided in Section 8.05.
SECTION 9.02. Termination Date of Investor Certificates of Any Series.
All principal or interest with respect to any Series of Investor Certificates
shall be due and payable no later than the Series Termination Date with respect
to such Series. Unless otherwise provided in a Supplement, in the event that (i)
the Invested Amount of any Series of Investor Certificates is greater than zero
on its Series Termination Date (after giving effect to all transfers,
withdrawals, deposits and drawings to occur on such date
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and the payment of principal to be made on such Series on such date) and upon
the written direction of Investor Certificateholders representing more than 50%
of the Invested Amount of such Series or, in the case of a Series having more
than one Class of Investor Certificates, Investor Certificateholders
representing more than 50% of the Invested Amount of each Class of such Series
or (ii) the Voluntary Liquidation Date with respect to any Series of Investor
Certificates has occurred, the Trustee will sell or cause to be sold and shall
be entitled to engage an investment bank to carry out such sale (and the Trustee
shall rely and shall be protected in acting or refraining from acting upon any
advice from any investment bank hired pursuant to the terms of this Section 9.02
to the extent provided for in Section 8.01) and pay the proceeds to all Investor
Certificateholders of such Series pro rata (except that unless expressly
provided to the contrary in the related Supplement, no payment shall be made to
Investor Certificateholders of any Class of any Series that is by its terms
subordinated to any other Class until such senior Class of Investor Certificates
have been paid in full) in final payment of all principal of and accrued
interest on such Series of Investor Certificates, an amount of Principal Amount
of Eligible Receivables (or interests therein) equal to 110% of the Invested
Amount with respect to such Series as soon as practicable after such Series
Termination Date or Voluntary Liquidation Date, as the case may be, plus related
amounts including interest owed by the Obligor with respect to such Receivables;
provided, however, that in no event shall such amount exceed the product of (i)
the Aggregate Principal Amount of Receivables on such Series Termination Date or
Voluntary Liquidation Date, as the case may be, and (ii) the Invested Percentage
for such Series; provided, however, in furtherance and without limiting the
generality of Section 8.01(d), the Trustee shall have the right to obtain,
before acting in accordance with any such direction of the Investor
Certificateholders for any Series, such reasonable indemnity from the Investor
Certificateholders providing such direction as the Trustee may require against
the costs, expenses and liabilities that may be incurred in so acting. Absent
such direction from Investor Certificateholders representing more than 50% of
the Invested Amount of such Series or absent such reasonable indemnity as the
Trustee may require in connection with such direction, the Trustee shall
continue to hold the Trust Assets in respect of such Series in accordance with
the terms of the Pooling and Servicing Agreements until the Trust Termination
Date (or until a majority of the Investor Certificateholders of the applicable
Series shall otherwise direct the Trustee); provided, that the terms of this
Agreement, the related Supplement and the Servicing Agreement shall be deemed to
remain in full force and effect, except that no additional Receivables shall be
allocated with respect to such Series. The reasonable costs and expenses
incurred by the Trustee in such sale shall be reimbursable to the Trustee as
provided in Section 8.05 hereof. Any proceeds of such sale in excess of such
principal and interest paid shall be paid to the holder of the Exchangeable
Company Interest, unless and to the extent otherwise specified in any applicable
Supplement. Upon the sale of Receivables as soon as practicable after the Series
Termination Date or Voluntary Liquidation Date, as the case may be, with respect
to the applicable Series, final payment of all amounts allocable to any Investor
Certificates of such Series shall be made in the manner provided in this Section
9.02.
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SECTION 9.03. Final Payment with Respect to Any Series.
(a) Written notice of any termination, specifying the Distribution Date
upon which the Investor Certificateholders of any Series may surrender their
Investor Certificates for payment of the final distribution with respect to such
series and cancellation, shall be given (subject to at least 30 days' prior
written notice from the Master Servicer to the Trustee containing all
information required for the Trustee's notice or such shorter period as is
acceptable to the Trustee) by the Trustee to Investor Certificateholders of such
Series mailed not later than the fifth day of the month of such final
distribution specifying (i) the Distribution Date upon which final payment of
the Investor Certificates will be made upon presentation and surrender of
Investor Certificates at the office or offices therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Investor Certificates at the office or
offices therein specified. The Master Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officer's
Certificate setting forth the information specified in Section 4.03 of the
Servicing Agreement covering the period during the then current calendar year
through the date of such notice. The Trustee shall give such notice to the
Transfer Agent and Registrar and the Paying Agent at the time such notice is
given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to Section
9.01(a) hereof or the occurrence of the Series Termination Date or Voluntary
Liquidation Date with respect to any Series pursuant to Section 9.02 hereof, all
funds then on deposit in the Collection Account (but only to the extent
necessary to pay all outstanding and unpaid amounts to Holders) shall continue
to be held in trust for the benefit of the Holders and the Paying Agent or the
Trustee shall pay such funds to the Investor Certificateholders upon surrender
of their Investor Certificates in accordance with the terms hereof. Any Investor
Certificate not surrendered on the date specified in Section 9.03(a)(i) above
shall cease to accrue any interest provided for such Investor Certificate from
and after such date. In the event that any of the Investor Certificateholders
shall not have surrendered their Investor Certificates for cancellation within
six months after the date specified in the above-mentioned written notice, the
Trustee shall give a second written notice to the remaining Investor
Certificateholders of such Series to surrender their Investor Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any of the Investor Certificates of such Series
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Investor Certificateholders of such Series concerning surrender of
their Investor Certificates, and the cost thereof shall be paid out of the funds
in the Collection Account held for the benefit of such Investor
Certificateholders. The Trustee and the Paying Agent shall pay to the Company
upon request any monies held by them for the payment of principal or interest
that remains unclaimed for two years and neither the Trustee nor the Paying
Agent shall be liable to any Investor Certificateholder for such payment to the
Company
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upon its request. After payment to the Company, Holders entitled to the money
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person.
(c) All Investor Certificates surrendered for payment of the final
distribution with respect to such Investor Certificates and cancellation shall
be canceled by the Transfer Agent and Registrar and be disposed of in a
customary manner satisfactory to the Trustee.
SECTION 9.04. Company's Termination Rights. Upon the termination of the
Trust pursuant to Section 9.01 hereof and payment to the Trustee (in its
capacity as such and/or in its capacity as Successor Master Servicer) of all
amounts owed to it under any Pooling and Servicing Agreements, the Trustee shall
assign and convey to the Company (without recourse, representation or warranty)
in exchange for the Exchangeable Company Interest all right, title and interest
of the Trust in the Trust Assets, whether then existing or thereafter created,
and all proceeds thereof except for amounts held by the Trustee pursuant to
Section 9.03(b). The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case without recourse, representation or
warranty, as shall be reasonably requested by the Company to vest in the Company
all right, title and interest which the Trust had in the Trust Assets.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
(a) Except as otherwise provided in this Agreement, the Servicing
Agreement and each Supplement in respect of an outstanding Series (collectively,
the "Pooling and Servicing Agreements") may be amended in writing from time to
time by the Master Servicer, the Company and the Trustee, without the consent of
any Holder, to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions herein or
therein or to add any other provisions hereof or to change in any manner or
eliminate any of the provisions with respect to matters or questions raised
under any Pooling and Servicing Agreements which shall not be inconsistent with
the provisions of any Pooling and Servicing Agreements; provided, however, that
prior written notice thereof shall be provided to each Agent and that such
action shall not, as evidenced by an Officer's Certificate delivered to the
Trustee, have a Material Adverse Effect, Seller Material Adverse Effect,
Servicer Material Adverse Effect or a Company Material Adverse Effect; provided
further that any amendment that is entered into to provide additional
Enhancement for any Series, to conform to regulations issued by the Internal
Revenue Service or that would provide any additional rights or benefits to
Holders or not adversely affect the interests of any Holder shall be deemed to
have no Material Adverse Effect, Company Material Adverse Effect, Seller
Material Adverse Effect or Servicer Material Adverse Effect. The Trustee may,
but shall not be obligated to, enter into any such amendment pursuant to this
subsection or
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subsections below which affects the Trustee's rights, duties or immunities under
any Pooling and Servicing Agreements or otherwise.
(b) Except as otherwise provided in the Pooling and Servicing Agreements
and, to the extent provided in any Pooling and Servicing Agreements, any other
agreement relating to the Receivables may also be amended (other than in the
circumstances referred to in the preceding subsection (a)) in writing from time
to time by the Master Servicer, the Company and the Trustee with the consent of
Investor Certificateholders evidencing more than 50% of the Invested Amount of
any Series adversely affected in any material respect by the amendment (or, if
such Series shall have more than one Class of Investor Certificates adversely
affected in any material respect, more than 50% of the Invested Amount of each
such Class) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of such Pooling and Servicing
Agreements or such other agreement or of modifying in any manner the rights of
Holders of any Series then issued and outstanding; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Investor Certificate of
such Series without the consent of such Investor Certificateholder of such
Series; (ii) change the definition of or the manner of calculating the interest
of any Investor Certificateholder of such Series without the consent of such
Investor Certificateholder; or (iii) reduce the aforesaid percentage of the
Invested Amount of any adversely affected Series or Class the Holders of which
are required to consent to any such amendment without the consent of all
Investor Certificateholders of each Series adversely affected in any material
respect.
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(c) Notwithstanding anything in this Section 10.01 to the contrary, the
Supplement with respect to any Series may be amended on the terms and with the
procedures provided in such Supplement.
(d) Promptly after the execution of any such amendment or consent under
this Section 10.01, the Trustee shall furnish written notification of the
substance of such amendment to each Investor Certificateholder of each
Outstanding Series (or with respect to an amendment of a Supplement, to each
Investor Certificateholder of the applicable Series), and the Master Servicer
shall furnish written notification of the substance of such amendment to each
Rating Agency. No amendment under this Section 10.01 (including without
limitation, the amendment of any Supplement notwithstanding anything to the
contrary contained in any Supplement) shall be effective until the Rating Agency
Condition has been satisfied.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(f) In executing or accepting any amendment pursuant to this Section
10.01, the Trustee shall, upon request, be entitled to receive and rely upon (i)
an Opinion of Counsel stating that such amendment is authorized pursuant to a
specific provision of a Pooling and Servicing Agreements and complies with such
provision, (ii) an Officer's Certificate stating that (A) such amendment shall
not adversely affect the interests of any Holders of any outstanding Investor
Certificates in any material respect except for Holders of any Series whose
consent to such amendment has been obtained in accordance with clause (b) of
this Section 10.01 and (B) all conditions precedent to the execution and
delivery of such amendment shall have been satisfied in full and (iii) a Tax
Opinion.
SECTION 10.02. Protection of Right, Title and Interest to Trust. The
Company shall cause each Pooling and Servicing Agreements, all amendments
thereto and/or all financing statements and continuation statements and any
other necessary documents covering the Holders' and the Trustee's right, title
and interest to the Trust to be promptly recorded, registered and filed, and at
all times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Trustee hereunder to all property comprising the
Trust. The Company shall deliver to the Trustee copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. In the event that
the Company fails to file such financing or continuation statements and the
Trustee has received an Opinion of Counsel, at the expense of the Company, that
such filing is necessary to fully to preserve and to protect the Trustee's
right, title and interest in any Trust Asset then the Trustee shall have the
right to file the same on behalf of the Company and the Trustee shall be
reimbursed and indemnified by the Company for making such filing.
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SECTION 10.03. Limitation on Rights of Holders.
(a) The death or incapacity of any Holder shall not operate to terminate
this Agreement or the Trust, nor shall such death or incapacity entitle such
Holder's legal representatives or heirs to claim an accounting or to take any
action or commence any proceeding in any court for a partition or winding up of
the Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except with respect to the Investor Certificateholders as expressly
provided in any Pooling and Servicing Agreements, no Holder shall have any right
to vote or in any manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto; nor shall any Holder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Holder shall have any right by virtue of any provisions of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee, written request to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to initiate any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each Holder with
every other Holder and the Trustee, that no one or more Holder(s) shall have any
right in any manner whatever by virtue or by availing itself or themselves of
any provisions of the Pooling and Servicing Agreements to affect, disturb or
prejudice the rights of any other of the Interests, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders. For the protection and
enforcement of the provisions of this Section 10.03, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
(d) By their acceptance of Interests pursuant to this Agreement and the
applicable Supplement, the Holders agree to the provisions of this Section
10.03.
SECTION 10.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT ISSUES
OF PERFECTION ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
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SECTION 10.05. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows (i) in the case of the Company, the Master
Servicer and the Trustee, or to such other address as may be hereafter notified
by the respective parties hereto:
The Company:
Ingram Funding Inc.
1610 East St. Andrew Place
Santa Ana, CA 92705
Attention: Treasurer
Telecopy: (714) 566-7873
The Master Servicer and the Servicer:
Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, CA 92705
Attention: U.S. Treasurer
Telecopy: (714) 566-7873
The Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001
Attention: Capital Markets Fiduciary Services
Telecopy: (212) 946-8302
S & P:
Standard & Poor's Structured Finance Ratings
55 Water Street, 41st Floor
New York, NY 10041
Facsimile No: (212) 438-2664
Attention: Asset Backed Surveillance Department
Any notice required or permitted to be mailed to a Holder shall be given by
first-class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register, the Exchange Register or the Subordinated Interest
Register, as the case may be. Any notice so mailed within the time prescribed in
any Pooling and Servicing Agreements shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.
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SECTION 10.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of any Pooling and Servicing
Agreements shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of such Pooling and Servicing
Agreements and shall in no way affect the validity or enforceability of the
other provisions of any Pooling and Servicing Agreements or of the Investor
Certificates or rights of the Holders.
SECTION 10.07. Assignment. Notwithstanding anything to the contrary
contained herein, no Pooling and Servicing Agreements may be assigned by the
Company or the Servicer without the prior written consent of 66 2/3% of the
Invested Amount of each Outstanding Series and without the Rating Agency
Condition having been satisfied with respect to such assignment.
SECTION 10.08. Investor Certificates Nonassessable and Fully Paid. It is
the intention of the parties to each Pooling and Servicing Agreements that the
Investor Certificateholders shall not be personally liable for obligations of
the Trust, that the interests in the Trust represented by the Investor
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever and that Investor Certificates upon authentication
thereof by the Trustee pursuant to Section 5.02 are and shall be deemed fully
paid.
SECTION 10.09. Further Assurances. The Company and the Master Servicer
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of each Pooling and Servicing Agreements,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 10.10. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 10.11. Counterparts. This Agreement 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.
SECTION 10.12. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto and the Holders and their
respective successors and permitted assigns. Except as otherwise provided in
this Section 10.12, no other Person will have any right or obligation hereunder.
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SECTION 10.13. Actions by Investor Certificateholders. Wherever in any
Pooling and Servicing Agreements a provision is made that an action may be taken
or a notice, demand or instruction given by Investor Certificateholders, such
action, notice or instruction may be taken or given by any Investor
Certificateholders of any Series, unless such provision requires a specific
percentage of Investor Certificateholders of a certain Series or all Series.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other act by an Investor Certificateholder shall bind such Investor
Certificateholder and every subsequent Holder of such Investor Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or omitted to be done by the Trustee,
the Company, the Master Servicer or any Servicer in reliance thereon, whether or
not notation of such action is made upon such Investor Certificate.
SECTION 10.14. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement and the Servicing Agreement.
This Agreement and the Servicing Agreement may not be modified, amended, waived,
or supplemented except as provided herein.
SECTION 10.15. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 10.16. Construction of Agreement.
(a) The Company hereby grants to the Trustee, for the benefit of the
Holders, a security interest in all of the Company' s right, title and interest
in, to and under the Receivables and the other Trust Assets now existing and
hereafter created, all monies due or to become due and all amounts received with
respect thereto and all "proceeds" thereof (including Recoveries), to secure all
of the Company's and the Master Servicer's obligations hereunder, including,
without limitation, the Company's obligation to sell or transfer Receivables
hereafter created to the Trust.
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(b) This Agreement shall constitute a security agreement under
applicable law.
SECTION 10.17. No Setoff. Except as expressly provided in this Agreement
or any other Transaction Document, the Trustee agrees that it shall have no
right of setoff or banker's lien against, and no right to otherwise deduct from,
any funds held in the Collection Account for any amount owed to it by the
Company, the Master Servicer, any Servicer or any Holder.
SECTION 10.18. No Bankruptcy Petition. Each of the Trustee and the
Master Servicer hereby covenant and agree that, prior to the date which is one
year and one day after the Trust Termination Date with respect to all
Outstanding Series, it will not institute against, or join any other Person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any Federal or
state bankruptcy or similar law.
SECTION 10.19. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) each Pooling and Servicing Agreements is
executed and delivered by the Trustee, not individually or personally but solely
as Trustee of the Trust, in the exercise of the powers and authority conferred
and vested in it, (b) except with respect to Section 8.15 hereof, the
representations, undertakings and agreements herein made on the part of the
Trust are made and intended not as personal representations, undertakings and
agreements by the Trustee, but are made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating any
liability on the Trustee, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Agreement and by any
Person claiming by, through or under such parties; provided, however, the
Trustee shall be liable in its individual capacity for its own willful
misconduct or negligence and for any tax assessed against the Trustee based on
or measured by any fees, commission or compensation received by it for acting as
Trustee and (d) under no circumstances shall the Trustee be personally liable
for the payment of any indebtedness or expenses of the Trust or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under any Pooling and Servicing Agreements;
provided, further, that this Section 10.19 shall survive the resignation or
removal of the Trustee and the termination of this Agreement.
The Company hereby agrees to indemnify and hold harmless the Trustee,
the Trust (for the benefit of the Holders) and the Holders (each, an
"Indemnified Person") from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of, or relating to, activities of the Company pursuant to
any Pooling and Servicing Agreements to which it is a party, including but not
limited to any judgment, award, settlement, reasonable attorneys' fees and other
reasonable costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim, except to the extent such
loss, liability, expense, damage or injury resulted from the negligence, bad
faith or willful
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misconduct of an Indemnified Person or resulted from the performance of any
Receivable, market fluctuations or other market or investment risk not
attributable to acts or omissions or alleged acts or omissions of the Company;
provided, however, that any payments to be made by the Company pursuant to this
subsection shall (i) be Company Subordinated Obligations, (ii) be made solely
from funds available to the Company that are not required to be applied to
Company Unsubordinated Obligations then due, and (iii) not constitute a general
recourse claim against the Company after satisfying all Company Unsubordinated
Obligations then due.
SECTION 10.20. Certain Information. The Master Servicer and the Company
shall promptly provide to the Trustee such information in computer tape, hard
copy or other form regarding the Receivables as the Trustee may reasonably
determine to be necessary to perform its obligations hereunder.
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IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
INGRAM FUNDING INC.
By: /s/ P. Kurt Preising
---------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as Master Servicer
By: /s/ P. Kurt Preising
---------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: /s/ Melissa J. Adelson
---------------------------------
Title: Vice President
Signature Page
to
Pooling Agreement
<PAGE> 94
EXHIBIT A to the
Amended and Restated Pooling Agreement
FORM OF LOCKBOX AGREEMENT
________, 20__
[Name and address of Lockbox Bank]
Attention:
Ladies and Gentlemen:
Ingram Funding Inc., a Delaware corporation (the "Company"), has agreed
to purchase certain receivables (the "Receivables") from Ingram Micro Inc. and
certain other sellers (the "Sellers"), and in their capacity as servicers
pursuant to the Transaction Documents, (the "Servicers") pursuant to the Amended
and Restated Receivables Sale Agreement, dated as of March 8, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Receivables Sale
Agreement"), among the Sellers, the Servicer and the Company. The Company has in
turn assigned the Receivables to a master trust (the "Master Trust") pursuant to
an Amended and Restated Pooling Agreement, dated an of March 8, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Pooling
Agreement"), among the Company, Ingram Micro Inc., as master servicer (the
"Master Servicer") and The Chase Manhattan Bank, a New York banking corporation,
as trustee (the "Trustee" or "Secured Party"). The Receivables are serviced
pursuant to the terms of an Amended and Restated Servicing Agreement dated as of
March 8, 2000 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Servicing Agreement"; and, collectively with the Pooling
Agreement, the "Pooling and Servicing Agreements") among the Company, the Master
Servicer and the Trustee. Capitalized terms used herein but not defined herein
shall have the meanings assigned to such terms in the Pooling Agreement.
Pursuant to the terms of the Pooling and Servicing Agreements and except
as otherwise provided therein, (i) the Servicer party hereto has agreed to
instruct all Obligors under the Receivables originated by it as Seller to make
all payments in respect of such Receivables to a blocked deposit account (each,
a "Lockbox Account") designated by such Servicer to such Obligor and (ii) the
Company has agreed to grant a security interest in its right, title and interest
in each Lockbox Account and all funds and other evidences of payment held
therein to the Secured Party. Furthermore, the Company, such Servicer and the
Secured Party have agreed, pursuant to the Pooling and Servicing Agreements,
that the Servicer shall enter into an agreement with each bank maintaining a
Lockbox Account, and hereby request that [name of Lockbox Bank] (the "Lockbox
Bank") act, and the Lockbox Bank hereby agrees to act, as a lockbox deposit bank
for the Company with respect to the Lockbox Account. This Letter Agreement
A-1
<PAGE> 95
defines certain rights and obligations with respect to the appointment of the
Lockbox Bank.
Accordingly, the Company, the Servicer party hereto and the Lockbox Bank
agree as follows:
Reference is made to the Lockbox Account (Account No. ), including box
number thereunder (collectively, the "Specified Account"), maintained with you
by the Servicer party hereto. Such Servicer hereby transfers the Specified
Account to the Company and hereafter the Specified Account shall be in the name
of the Company and maintained by the Lockbox Bank for the benefit of the Company
and the Secured Party, as set forth herein. All funds and other evidences of
payment received by the Lockbox Bank in its capacity as Lockbox Bank shall be
deposited in the Specified Account. Such payments shall not be commingled with
other funds. All funds and other evidences of payment at any time on deposit in
the Specified Account shall be held by the Lockbox Bank for application strictly
in accordance with the terms of this Letter Agreement. The Lockbox Bank agrees
to give the Secured Party, the Company and the Servicer party hereto, prompt
notice if the Specified Account shall become subject to any writ, judgment,
warrant of attachment, execution or similar process.
The Secured Party shall have sole and exclusive dominion over and
control of the Specified Account and all Collections and other property from
time to time deposited therein, shall have the sole right of withdrawal from the
Specified Account and except as otherwise provided below and in the Pooling
Agreement, shall have the sole right as information agent to advise the Lockbox
Bank as to the payment instructions pertaining to transfers from the Specified
Account. Each of the Company and the Servicer acknowledge and agree that it
shall not have any dominion over or control of the Specified Account or any
Collections or other property from time to time deposited therein including any
right to withdraw or utilize any funds or other evidences of payment on deposit
in the Specified Account, other than the right to authorize transfers to the
Collection Account as set forth herein and pursuant to the terms of the Pooling
and Servicing Agreements. The Lockbox Bank shall automatically, by 1:00 p.m.,
_________________ time, at least as often as once each day that is a business
day for the Lockbox Bank and for the Trustee, transfer, by means of the
Automated Clearing House System, all available funds on deposit in the Specified
Account, including all funds transferred from Obligors on or before the end of
the preceding day, along with, subject to the next succeeding sentence, all
remittance advisements and payment invoices on deposit therein, to the
Collection Account provided such funds constitute good and clear monies. The
Lockbox Bank acknowledges that, until it receives instructions from the Secured
Party to the contrary, the Lockbox Bank shall return to the Company, upon the
Company's reasonable request therefor, any remittance advisements and payment
invoices deposited into the Specified Account.
Deposited checks with respect to the Specified Account returned to the
Lockbox Bank for any reason will be charged against the Specified Account.
Nothing contained in the previous sentence shall be construed to prejudice other
rights of the Lockbox Bank,
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<PAGE> 96
which rights include the right of recourse against the Company for any
overdrafts in the Specified Account.
The Secured Party is authorized to receive mail delivered to the Lockbox
Bank with respect to the Specified Account and the Company has filed a form of
standing delivery order with the United States Postal Service authorizing the
Secured Party to receive mail delivered to the Lockbox Bank with respect to the
Specified Account.
The Lockbox Bank shall also furnish the Secured Party with statements,
in the form and manner typical for the Lockbox Bank, of amounts of deposits in,
and amounts transferred to the Collection Account from, the Specified Account
pursuant to any reasonable request of the Secured Party but in any event not
less frequently than monthly and such other information relating to the
Specified Account at such time as shall be reasonably requested by the Secured
Party.
For purposes of this Letter Agreement any officer of the Secured Party
shall be authorized to act, and to give instructions and notice, on behalf of
the Secured Party hereunder.
The fees for the services of the Lockbox Bank shall be mutually agreed
upon between the Company and the Lockbox Bank and paid by the Company. Neither
the Secured Party nor any investor in the Master Trust shall have any
responsibility or liability for the payment of any such fee.
The Lockbox Bank may perform any of its duties hereunder by or through
its officers, employees or agents and shall be entitled to rely upon the advice
of counsel as to its duties. The Lockbox Bank shall not be liable to the Secured
Party, the Servicer party hereto or the Company for any action taken or omitted
to be taken by it in good faith, nor shall the Lockbox Bank be responsible to
the Secured Party, such Servicer or the Company for the consequences of any
oversight or error of judgment or be answerable to the Secured Party for the
same, unless such action, omission, oversight or error of judgment shall happen
through the Lockbox Bank's negligence or willful misconduct.
The Lockbox Bank hereby represents and warrants that (a) it is a banking
corporation duly organized, validly existing and in good standing under the laws
of [ ] and has full corporate power and authority under such law to execute,
deliver and perform its obligations under this Agreement and (b) the execution,
delivery and performance of this Agreement by the Lockbox Bank have been duly
and effectively authorized by all necessary corporate action and this Agreement
has been duly executed and delivered by the Lockbox Bank and constitutes a valid
and binding obligation of the Lockbox Bank enforceable in accordance with its
terms.
The Lockbox Bank may resign at any time as Lockbox Bank hereunder by
delivery to the Secured Party and the Company of written notice of resignation
not less than 30 days prior to the effective date of such resignation. The
Company may close the Specified Account at any time by delivery of notice to the
Lockbox Bank and the Secured Party at the addresses appearing below. If the
Company shall refuse any demand by the
A-3
<PAGE> 97
Secured Party to close the Specified Account in the event (i) an Early
Amortization Event shall occur and be continuing or (ii) there has been a
failure by the Lockbox Bank to perform any of its material obligations hereunder
and such failure could adversely affect the Secured Party's interest in any
Receivable or the Secured Party's rights, or ability to exercise any remedies,
under this Letter Agreement or the Pooling and Servicing Agreements, then the
Secured Party may close the Specified Account at any time by delivery of notice
to the Lockbox Bank and the Company at the addresses appearing below. This
Letter Agreement shall terminate upon receipt of such notice of closing, or
delivery of such notice of resignation, except that the Lockbox Bank shall
immediately transfer to the Collection Account, or any other account designated
by the Secured Party all available funds or, subject to the Company's reasonable
request to retain such items, any remittance advisements or payment invoices, if
any, then on deposit in, or otherwise to the credit of, the Specified Account
and deliver any available funds or such remittance advisements or payment
invoices relating to the Receivables received by the Lockbox Bank after such
notice directly to the Collection Account or any other account designated by the
Secured Party.
All notices and communications hereunder shall be in writing (except
where telephonic instructions or notices are authorized herein) and shall be
deemed to have been received and shall be effective on the day on which
delivered (including delivery by telex):
(i) in the case of the Secured Party, to it at:
(ii) in the case of the Lockbox Bank, to it at:
(iii) in the case of the Company, to it at: Ingram Funding Inc.
(iv) in the case of the Master Servicer, to it at: Ingram Micro
Inc.
(v) in the case of the Servicer party hereto:
The Lockbox Bank shall not assign or transfer any of its rights or
obligations hereunder (other than to the Secured Party) without the prior
written consent of the Secured Party. Notwithstanding anything herein to the
contrary, upon the succession of the Master Servicer to the Servicer party
hereto in accordance with and under the Servicing Agreement, the Master Servicer
shall succeed to, and be substituted for, and may exercise every right and power
of, the Servicer party hereto under this Letter Agreement with the same effect
as if the Master Servicer had been named as the Servicer party hereto. This
Letter Agreement may be amended only by a written instrument executed by the
Company, the Master Servicer, the Servicer party hereto, the Secured Party and
the Lockbox Bank, acting by their representative officers thereunto duly
authorized. Except with respect to the amount of its fees payable hereunder, the
Lockbox Bank hereby unconditionally and irrevocably waives (so long as the
Pooling and Servicing Agreements are in effect) any rights of setoff or banker's
lien against, or to
A-4
<PAGE> 98
otherwise deduct from, any funds or other evidences of payment hold in any
Specified Account for any indebtedness or other claim owed by the Company or the
Master Servicer or any Servicer to the Lockbox Bank.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF THE SECURITY INTEREST OR REMEDIES HEREUNDER IN RESPECT OF ANY
RECEIVABLE MAY BE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN NEW YORK.
This Letter Agreement (i) shall inure to the benefit of, and be binding
upon, the Company, the Master Servicer, the Servicer party hereto, the Secured
Party, the Lockbox Bank and their respective successors and assigns and (ii) may
be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Letter Agreement
by facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Letter Agreement.
A-5
<PAGE> 99
IN WITNESS WHEREOF, the parties hereto have caused this Letter Agreement
to be executed by their duly authorized officers as of the date first above
written.
Very truly yours,
INGRAM FUNDING INC.
By:
---------------------------------
Name:
Title:
as Servicer
By:
---------------------------------
Name:
Title:
INGRAM MICRO INC.,
as Master Servicer
By:
---------------------------------
Name:
Title:
Agreed to and accepted:
[NAME OF LOCKBOX BANK],
as Lockbox Bank
By:
---------------------------------
Name:
Title:
Acknowledged:
THE CHASE MANHATTAN BANK, as Secured Party
By:
---------------------------------
Name:
Title:
A-6
<PAGE> 100
EXHIBIT B to the
Amended and Restated Pooling Agreement
FORM OF ANNUAL OPINION OF COUNSEL
-----------------
To the Trustee:
Re: Ingram Funding Master Trust
Ladies and Gentlemen:
I am the General Counsel of Ingram Micro Inc., a Delaware corporation
(the "Company"), and am furnishing you this opinion pursuant to Section 2.07(b)
of the Amended and Restated Pooling Agreement dated as of March 8, 2000 among
Ingram Funding Inc. ("Funding"), the Company and The Chase Manhattan Bank, as
Trustee (the "Pooling Agreement"). Capitalized terms used but not defined herein
shall, unless the context otherwise requires, have the meanings assigned to them
in the Pooling Agreement.
In connection with this opinion, I have examined each of the following
documents:
(i) Executed copies of the Pooling Agreement, the Servicing
Agreement and the Receivables Sale Agreement;
(ii) Originals or photocopies of the following (collectively, the
"Financing Statements");
[List Financing Statements]
(iii) The originals or copies, certified or otherwise identified to my
satisfaction, of such records of the Company and Funding,
and any such agreements, certificates of public officials,
certificates of officers or representatives of the Company and
such other documents, certificates and records as I have deemed
necessary or appropriate as a basis for the opinion set forth
herein.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such latter documents. In making my examination
of documents executed by parties other than the Company and Funding, I have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by
B-1
<PAGE> 101
such parties of such documents and the validity and binding effect thereof. As
to any facts material to the opinions expressed herein which were not
independently established or verified, I have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others. Nothing has come to my attention that would indicate that
any of such statements or representations are inaccurate.
I am licensed to practice law in the States of [indicate state or
states], and do not purport to be an expert on the laws of any other
jurisdiction other than the federal laws of the United States.
Based on the foregoing, I am of the opinion that no filing or other
action is necessary from the date hereof through [indicate date] to continue the
perfected status of the interest of the Trust in the collateral described in the
Financing Statements. I call to your attention, however, that, if one of the
Debtors named in the Financing Statements changes its name, identity or
corporate structure during such period so as to make one of the Financing
Statements seriously misleading, it will be necessary to file an appropriate
financing statement indicating the new name, identity or corporate structure.
This opinion is furnished to you solely for your benefit and is not to
be used, circulated, quoted or otherwise referred to for any other purpose
without my express prior written permission.
Respectfully submitted,
[General Counsel]
B-2
<PAGE> 102
EXHIBIT C to the
Amended and Restated Pooling Agreement
SCHEDULE OF FISCAL MONTHS OF THE MASTER SERVICER
Attached.
<PAGE> 103
[INGRAM MICRO LOGO]
MEMORANDUM
TO: U.S. Senior Staff
FROM: Erin Bolton, Director - General Accounting
DATE: October 5, 1998
SUBJECT: MONTH-END CLOSING DATES - 1999 & 2000
For your reference, I have listed below our month-end closing dates for the next
two years. Also attached are the 1999 General Ledger Closing and 1999 Payroll
Distribution Calendars. Please distribute copies to your staff as needed.
<TABLE>
<CAPTION>
MONTH 1999 2000 LENGTH
<S> <C> <C> <C>
JANUARY January 30 January 29 4 Weeks
FEBRUARY February 27 February 26 4 Weeks
MARCH April 3 April 1 5 Weeks
APRIL May 1 April 29 4 Weeks
MAY May 29 May 27 4 Weeks
JUNE July 3 July 1 5 Weeks
JULY July 31 July 29 4 Weeks
AUGUST August 28 August 26 4 Weeks
SEPTEMBER October 2 September 30 5 Weeks
OCTOBER October 30 October 28 4 Weeks
NOVEMBER November 27 November 25 4 Weeks
DECEMBER January 1, 2000 December 30 5 Weeks
</TABLE>
<PAGE> 104
SCHEDULE 2 to
the Amended and Restated Pooling Agreement
IDENTIFICATION OF THE TRUST ACCOUNTS
<TABLE>
<CAPTION>
DDA # Account Name
----- ------------
<S> <C>
323-300065 Ingram Funding Master Trust Collection Acct
323-300634 Ingram Funding Mstr Tr Cmpny Coll Sb A/C
</TABLE>
<PAGE> 105
SCHEDULE 3 TO
POOLING AGREEMENT
Chief Executive Office of the Company:
1610 E. St. Andrew Place
Santa Ana, CA 92705
2
<PAGE> 1
EXHIBIT 10.57
EXECUTION COPY
AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
Among
INGRAM FUNDING INC.,
as Buyer
INGRAM MICRO INC.,
as Seller
and
INGRAM MICRO INC.,
as Servicer
Dated as of March 8, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Definitions.......................................................1
SECTION 1.01. Defined Terms............................................1
SECTION 1.02. Other Definitional Provisions............................5
ARTICLE II Purchase and Sale of Receivables.................................6
SECTION 2.01. Purchase and Sale of Receivables.........................6
SECTION 2.02. Purchase Price...........................................8
SECTION 2.03. Payment of Purchase Price................................8
SECTION 2.04. No Repurchase............................................9
SECTION 2.05. Rebates, Adjustments, Returns, Reductions and
Modifications...........................................10
SECTION 2.06. Payments in Respect of Ineligible Receivables
and Seller Indemnification Payments.....................10
SECTION 2.07. Certain Charges.........................................11
SECTION 2.08. Certain Allocations.....................................12
ARTICLE III Conditions to Purchase and Sale................................12
SECTION 3.01. Conditions Precedent to the Company's Purchase
of Receivables on the Effective Date....................12
SECTION 3.02. Conditions Precedent to All the Company's
Purchases of Receivables................................13
SECTION 3.03. Conditions Precedent to the Initial Seller's
Obligations on the Effective Date.......................14
SECTION 3.04. Conditions Precedent to All of the Seller's
Obligations.............................................14
SECTION 3.05. Condition Precedent to the Addition of a Seller.........15
ARTICLE IV Representations and Warranties..................................17
SECTION 4.01. Representations and Warranties of the Sellers...........17
SECTION 4.02. Representations and Warranties of the Sellers
Relating to the Receivables.............................21
SECTION 4.03. Representations and Warranties of the Company...........21
ARTICLE V Affirmative Covenants............................................23
SECTION 5.01. Certificates; Other Information.........................23
SECTION 5.02. Compliance with Law and Policies........................23
SECTION 5.03. Preservation of Corporate Existence.....................23
SECTION 5.04. Separate Corporate Existence............................23
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5.05. Inspection of Property; Books and Records;
Discussions.............................................24
SECTION 5.06. Location of Records.....................................25
SECTION 5.07. Computer Files..........................................25
SECTION 5.08. Obligations.............................................25
SECTION 5.09. Collections.............................................25
SECTION 5.10. Furnishing Copies, Etc..................................26
SECTION 5.11. Responsibilities of the Sellers.........................26
SECTION 5.12. Assessments.............................................26
SECTION 5.13. Further Action..........................................27
SECTION 5.14. Sale of Receivables.....................................27
ARTICLE VI Negative Covenants..............................................27
SECTION 6.01. Limitations on Transfers of Receivables Etc.............28
SECTION 6.02. Extension or Amendment of Receivables...................28
SECTION 6.03. Change in Payment Instructions to Obligors..............28
SECTION 6.04. Change in Name..........................................28
SECTION 6.05. Policies................................................28
SECTION 6.06. Modification of Legend..................................29
SECTION 6.07. Accounting for Purchases................................29
SECTION 6.08. Instruments.............................................29
SECTION 6.09. Ineligible Receivables..................................29
SECTION 6.10. Business of such Seller.................................29
SECTION 6.11. Limitation on Fundamental Changes.......................30
ARTICLE VII Purchase Termination Events....................................30
SECTION 7.01. Purchase Termination Events.............................30
SECTION 7.02. Remedies................................................33
ARTICLE VIII Seller Note...................................................35
SECTION 8.01. Seller Note.............................................35
SECTION 8.02. Restrictions on Transfer of Seller Note.................35
SECTION 8.03. Discretion; Aggregate Amount............................35
ARTICLE IX Miscellaneous...................................................36
SECTION 9.01. Payments................................................36
SECTION 9.02. Costs and Expenses......................................36
SECTION 9.03. Successors and Assigns..................................37
SECTION 9.04. Governing Law...........................................38
SECTION 9.05. No Waiver; Cumulative Remedies..........................38
SECTION 9.06. Amendments and Waivers..................................38
SECTION 9.07. Severability............................................38
SECTION 9.08. Notices.................................................38
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 9.09. Counterparts............................................39
SECTION 9.10. Waivers of Jury Trial...................................39
SECTION 9.11. Jurisdiction; Consent to Service of Process.............39
SECTION 9.12. Addition of Sellers.....................................40
SECTION 9.13. Termination of Seller...................................40
SECTION 9.14. No Bankruptcy Petition..................................42
SECTION 9.15. Termination.............................................42
</TABLE>
EXHIBITS
Exhibit A Form of Seller Note
Exhibit B Form of Additional Seller/Servicer Supplement
SCHEDULE
Schedule 1 Sellers and Servicers
Schedule 2 Intentionally Omitted
Schedule 3 Lockboxes
Schedule 4 Location of Chief Executive Offices; Location of Books and Records
Schedule 5 Names
Schedule 6 Discounted Percentage
iii
<PAGE> 5
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of March 8, 2000 (this
"Agreement"), among the Company and the Sellers and Servicers party hereto from
time to time.
W I T N E S S E T H :
WHEREAS, as of November 6, 1996 the initial parties hereto entered into
Amendment No. 2 to the Asset Purchase and Sale Agreement dated as of February
10, 1993, which had been previously amended by Amendment No. 1 on January 31,
1994 (as so amended, the "Original Agreement") in order for the initial Seller
to sell to the Company, and the Company to purchase from the initial Seller, all
of such Seller's, right, title and interest in, to and under the Receivables
then existing and thereafter created and all other Related Property (as defined
in the Pooling Agreement described below);
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement so as to amend various provisions of the Original Agreement;
WHEREAS, the Original Agreement shall be replaced in whole by this
Agreement; and
WHEREAS, the Master Servicer, the Company and The Chase Manhattan Bank,
as Trustee, have entered into an Amended and Restated Pooling Agreement dated as
of the date hereof (such agreement, as amended and restated on the date hereof
and as it may be amended, supplemented or otherwise modified from time to time
hereafter, being the "Pooling Agreement") in order to create a master trust into
which the Company has transferred, and will continue to transfer, all its right,
title and interest in, to and under the Receivables and certain other assets
then or hereafter owned by the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Capitalized terms defined or referenced in
the Pooling Agreement shall be used herein as therein defined (unless otherwise
defined or referenced herein), and the following terms shall have the following
meanings:
"Adjustment Amount" shall have the meaning specified in Section 2.06(a)
hereof.
1
<PAGE> 6
"Agent" shall mean General Electric Capital Corporation, a New York
corporation.
"Agreement" shall mean this Amended and Restated Receivables Sale
Agreement, as amended and restated on the date hereof and as it may be amended,
supplemented or otherwise modified from time to time.
"Applicable Insolvency Laws" shall have the meaning specified in Section
7.01(d) hereof.
"Collections" shall mean all collections and all amounts received in
respect of the Receivables sold to the Company, including Recoveries, Adjustment
Payments, indemnification payments made by the Master Servicer or any Servicer
or any Seller and payments received in respect of Dilution Adjustments, together
with all collections received in respect of the Related Property in the form of
cash, checks, wire transfers or any other form of cash payment, and all proceeds
of Receivables and collections thereof (including, without limitation,
collections evidenced by an account, note, instrument, letter of credit,
security, contract, security agreement, chattel paper, general intangible or
other evidence of Indebtedness or security, whatever is received upon the sale,
exchange, collection or other disposition of, or any indemnity, warranty or
guaranty payable in respect of, the foregoing and all "proceeds" as defined in
Section 9-306 of the UCC).
"Company" shall mean Ingram Funding Inc., a Delaware corporation, and
any successor thereto.
"Cut-Off Date" shall mean the close of business on February 29, 2000.
"Discounted Percentage" shall have the meaning specified in Schedule 6
hereto.
"Documents" shall have the meaning specified in Section 7.02(b)(iii)
hereof.
"Early Termination" shall have the meaning specified in Article VII
hereof.
"Effective Date" shall mean March 8, 2000.
"ERISA Affiliate" shall mean with respect to any Person, any trade or
business (whether or not incorporated) that is a member of a group of which such
Person is a member and which is treated as a single employer under Section 414
of the Internal Revenue Code.
"Indemnification Event" shall have the meaning specified in Section
2.06(b) hereof.
2
<PAGE> 7
"Indemnified Liabilities" shall have the meaning specified in Section
9.02 hereof.
"Ineligibility Event" shall have the meaning specified in Section
2.06(a) hereof.
"Ineligible Receivable" shall have the meaning specified in Section
2.06(a) hereof.
"Initial Seller" shall mean Ingram Micro Inc.
"Insolvency Event", with respect to any Seller, shall mean the
occurrence of any one or more of the Purchase Termination Events specified in
Section 7.01(d) hereof.
"Multiemployer Plan" shall mean with respect to any Person, a
multiemployer plan as defined in Section 4001(a)(3) of ERISA to which such
Person or any ERISA Affiliate of such Person (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code) is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"One-Month LIBOR" shall mean for any Accrual Period after the initial
Accrual Period, the rate per annum, as determined by the Agent, which is the
arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered rates for
U.S. Dollar deposits having a maturity of one month commencing on the first day
of such Accrual Period that appears on Page 3750 of the Telerate Service (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of the Telerate Service, as determined by the
Agent for purposes of providing interest rates applicable to U.S. Dollar
deposits having a maturity of one month in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Accrual Period. In the event that such rate is not so
available at such time for any reason, then "One-Month LIBOR" for such Accrual
Period shall be the rate at which U.S. Dollar deposits in a principal amount of
not less than $1,000,000 maturing in one month are offered to the principal
London office of the Agent in the London interbank market at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Accrual
Period.
"Original Agreement" shall have the meaning specified in the recitals
hereto.
"Original Principal Amount" of any Receivable shall mean the Principal
Amount of such Receivable as of the date on which such Receivable is sold or
otherwise conveyed to the Company hereunder.
3
<PAGE> 8
"Payment Date" shall have the meaning specified in Section 2.03(a)
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"Plan" shall mean, with respect to any Person, any pension plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Internal Revenue Code which is maintained for employees of
such Person or any ERISA Affiliate of such Person.
"Pooling Agreement" shall have the meaning specified in the recitals
hereto.
"Potential Purchase Termination Event" shall mean any condition or act
that, with the giving of notice or the lapse of time or both, would become a
Purchase Termination Event.
"Prime Rate" shall mean for any day the rate of interest per annum set
forth as the "Prime Rate" in the Money Rates Section of The Wall Street Journal
published on or, if no such rate is published on a particular day, most recently
before such day (or in any case where two or more "Prime Rates" are published on
a particular day, the average of such rates).
"Purchase Price" shall have the meaning specified in Section 2.02
hereof.
"Purchase Termination Event" shall have the meaning specified in Section
7.01 hereof.
"Purchased Receivable" shall mean, at any time, any Receivable sold or
otherwise conveyed to the Company by any Seller pursuant to, and in accordance
with the terms of, this Agreement, including any Receivables sold or otherwise
conveyed to the Company pursuant to the Original Agreement.
"Receivable" shall mean the indebtedness and payment obligations of any
Person to any Seller (including, without limitation, obligations evidenced by an
account, note, instrument, contract, security agreement, chattel paper, general
intangible or other evidence of indebtedness or security) arising from a sale of
merchandise or services by such Seller, including, without limitation, any right
to payment for goods sold or for services rendered, and including the right to
payment of any interest, sales taxes, finance charges, returned check or late
charges and other obligations of such Person with respect thereto, but not
including any Excluded Receivable.
"Receivable Assets" shall have the meaning specified in Section 2.01(a)
hereof.
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"Reportable Event" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate which is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code).
"Sale Documents" shall mean this Agreement and the Seller Note.
"Sale Termination Date" shall have the meaning specified in Section
9.13(b) hereof.
"Seller Addition Date" shall have the meaning specified in Section 3.05
hereof.
"Seller Adjustment Payment" shall have the meaning specified in Section
2.06(a) hereof.
"Seller Dilution Adjustment Payment" shall have the meaning specified in
Section 2.05 hereof.
"Seller Indemnification Payment" shall have the meaning specified in
Section 2.06(b) hereof.
"Seller Note" shall have the meaning specified in Section 8.01 hereof.
"Successor Servicer" shall have the meaning specified in Section 6.02 of
the Servicing Agreement.
"Transactions" shall have the meaning specified in Section 4.01(b)
hereof.
SECTION 1.02. Other Definitional Provisions.
(a) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and article, section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Sellers and the
Company, unless otherwise defined herein, shall have the respective meanings
given to them under GAAP.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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(d) Any reference herein to a Schedule or Exhibit to this Agreement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(e) Any reference in this Agreement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Agreement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(f) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
ARTICLE II
Purchase and Sale of Receivables
SECTION 2.01. Purchase and Sale of Receivables.
(a) Subject to the terms and conditions of this Agreement (including,
without limitation, Article III), each Seller hereby sells, transfers, assigns,
and conveys, without recourse (except as expressly provided herein), to the
Company, all its present and future right, title and interest in, to and under:
(i) all Receivables originated by such Seller, including those
transferred under the Original Agreement and those existing at the close
of business on the Effective Date and all such Receivables thereafter
arising from time to time until but not including the date an Early
Termination occurs;
(ii) the Related Property;
(iii) all Collections;
(iv) all rights (including rescission, replevin or reclamation)
relating to any Receivable originated by such Seller or arising
therefrom;
(v) subject to the provisions of Section 9-306 of the UCC as in
effect in the State of New York, all proceeds of or payments in respect
of any and all of the foregoing clauses (i) through (iv) (including
Collections).
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Such property described in the foregoing clauses (i) through (v) shall be
referred to collectively herein as the "Receivable Assets" and shall be
considered to be assets that have been sold, transferred, assigned, set over and
otherwise conveyed to the Company without any further action by such Seller or
any other Person.
(b) The parties to this Agreement intend that, for accounting and
commercial purposes, the transactions contemplated by this Section 2.01 hereby
shall be, and shall be treated as, a purchase by the Company and a sale by each
Seller of the Purchased Receivables and the other Receivable Assets and not a
lending transaction. All sales of Receivables and other Receivable Assets by
each Seller hereunder shall be without recourse to, or representation or
warranty of any kind (express or implied) by, such Seller, except as otherwise
specifically provided herein. The foregoing sale, assignment, transfer and
conveyance does not constitute and is not intended to result in the creation or
assumption by the Company of any obligation of the applicable Seller or any
other Person in connection with the Receivables, the other Receivable Assets or
any agreement or instrument relating thereto, including any obligation to any
Obligor. Although it is the intent of the parties to this Agreement that the
conveyance of each Seller's right, title and interest in, to and under the
Receivables and the other Receivable Assets pursuant to this Agreement shall
constitute purchases and sales and not loans, in the event that any such
conveyance is deemed to be a loan, such Seller hereby grants to the Company a
perfected first priority security interest in all of such Seller's present and
future right, title and interest in, to and under the Receivables and the other
Receivable Assets and that this Agreement shall be deemed to constitute a
security agreement under applicable law in favor of the Company.
(c) In connection with the foregoing conveyances, each Seller agrees to
record and file, or cause to be recorded and filed, at its own expense,
financing statements (and continuation statements with respect to such financing
statements when applicable), (i) with respect to the Purchased Receivables
originated by such Seller and (ii) with respect to any other Receivable Assets
for which a security interest may be perfected under the relevant UCC,
legislation or similar statute by such filing, in each case meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect and maintain perfection of the conveyance of such
Receivables and any other Receivable Assets to the Company, and to deliver to
the Company (x) where available, a file-stamped copy or certified statement of
such financing statement or other evidence of such filing and (y) otherwise, a
photocopy, certified by a Responsible Officer to be a true and correct copy, of
each such financing statement or other filing.
(d) In connection with the foregoing sales, transfers, assignments and
conveyances, each Seller agrees at its own expense, with respect to the
Receivables and any other similar receivables originated by such Seller that it
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will, as agent of the Company, (i) on or prior to the Effective Date and
thereafter, indicate or cause to be indicated on the computer files and other
physical records (but not including individual invoices or individual collection
files) relating to such Receivables (by means of a general legend that will
automatically appear at or near the beginning of any screen, list or print-out
of such Receivables) that, unless otherwise specifically identified on such
screen, list or print-out as a receivable not so sold, transferred, assigned and
conveyed, all Receivables included in such screen, list or print-out and all
other Receivable Assets have been sold, transferred, assigned and conveyed to
the Company in accordance with this Agreement and (ii) deliver or transmit or
cause to be delivered or transmitted to the Company a computer tape, diskette or
data transmission containing at least the information specified in Section
2.01(e) of the Pooling Agreement as to all such Receivables, as of a date no
later than the Cut-Off Date or Subsequent Cut-Off Date, as applicable.
SECTION 2.02. Purchase Price. The aggregate purchase price payable by
the Company to the Sellers (the "Purchase Price") for Receivables and other
Receivable Assets on any Payment Date under this Agreement shall be equal to the
product of (a) the aggregate outstanding Principal Amount of Receivables as set
forth in the applicable Daily Reports and (b) the Discounted Percentage.
SECTION 2.03. Payment of Purchase Price.
(a) The Company shall pay or provide for the Purchase Price for
Receivables and other Receivable Assets (net of the deductions referred to in
Section 2.03(d) below) in the manner provided below on each day for which a
Daily Report is required to be prepared and delivered to the Company (each such
day, a "Payment Date"). Each Seller hereby appoints the related Servicer as its
agent to receive payment of the Purchase Price and hereby authorizes the Company
to make all payments due to such Seller directly to, or as directed by, the
Servicer. The Servicer hereby accepts and agrees to such appointment.
(b) The Purchase Price (net of the deductions referred to in Section
2.03(c) below) shall be paid by the Company to the applicable Seller or to such
accounts or such Persons as such Seller may direct in writing (which direction
may consist of standing instructions provided by such Seller that shall remain
in effect until changed by such Seller in writing), on each Payment Date as
follows:
(i) to the extent available for such purpose, in cash from the net
proceeds of a transfer of such Purchased Receivables by the Company to other
Persons (including the Trustee pursuant to the Pooling Agreement);
(ii) to the extent available for such purpose, in cash from Collections
received by the Company from other Persons (including from
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the Trustee pursuant to the Pooling Agreement and any Supplement
thereto);
(iii) from contributions, including cash, Receivables or
proceeds thereof, made by Ingram Micro Inc., in its sole discretion, to
the capital of the Company in respect of Ingram Micro Inc.'s common
equity interest in the Company; and
(iv) at the option of the Company (subject to the provisions of
Section 8.03 hereof), by incurring Indebtedness to the Sellers evidenced
by the Seller Note. Any increase in the principal amount of the Seller
Note, in payment of any Purchase Price pursuant to this Section 2.03(b),
shall be applied to the Purchase Price in an amount equal to such
increase.
(c) The Company shall deduct from the Purchase Price otherwise payable
to the applicable Seller on any Payment Date, any Seller Dilution Adjustment
Payments, Seller Adjustment Payments or Seller Indemnification Payments pursuant
to Section 2.05, 2.06(a) or 2.06(b), respectively.
(d) All cash payments under this Agreement shall be made not later than
3:30 p.m. (New York City time) on the date specified therefor in same day funds,
and if to the Sellers, to the bank account for each Seller designated in writing
by the related Servicer to the Company and if to the Servicer, to the bank
account designated in writing by the Servicer to the Company.
(e) Whenever any payment to be made under this Agreement shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day. Amounts not paid when due in accordance with the
terms of this Agreement (i) shall bear interest at a rate equal at all times to
the Prime Rate plus 2% per annum and (ii) subject to the subordination
provisions set forth in paragraphs 3 and 6 of the Seller Note, shall be payable
on demand.
SECTION 2.04. No Repurchase. No Seller shall have any right or
obligation under this Agreement, by implication or otherwise, to repurchase from
the Company any Purchased Receivables originated by such Seller or other
Receivable Assets or to rescind or otherwise retroactively effect any purchase
of any such Purchased Receivables or other Receivable Assets after the Payment
Date relating thereto; provided that the foregoing shall not be interpreted to
limit the right of the Company herein to receive a Seller Adjustment Payment or
Seller Indemnification Payment.
SECTION 2.05. Rebates, Adjustments, Returns, Reductions and
Modifications. From time to time each Seller may make Dilution Adjustments to
Receivables in accordance with this Section 2.05 and Section 6.02. Each Seller
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<PAGE> 14
agrees to pay to the Company, on the Payment Date immediately succeeding the
date on which any Dilution Adjustment is granted or made, the amount of any such
Dilution Adjustment (a "Seller Dilution Adjustment Payment"). The amount of any
Dilution Adjustment shall be set forth on the first Daily Report prepared after
the date on which such Dilution Adjustment was granted or made.
SECTION 2.06. Payments in Respect of Ineligible Receivables and Seller
Indemnification Payments.
(a) Seller Adjustment Payments. If (i) any representation or warranty
under Sections 4.02(a) or (b) is not true and correct as of the date specified
therein with respect to any Receivable sold to the Company or any Receivable
encompassed by the representation or warranty under Section 4.02(c) hereof is
determined not to be an Eligible Receivable as of its date of purchase, (ii)
there is a breach of any covenant under Section 6.01 hereof with respect to any
Receivable or (iii) the Company's interest in any Receivable is not a first
priority perfected ownership or security interest at any time as a result of any
action taken by, or the failure to take action by, the applicable Seller (each
event referred to in clause (i), (ii) and (iii) of this Section 2.06(a) shall be
referred to herein as an "Ineligibility Event" and any Receivable as to which an
Ineligibility Event applies shall be referred to herein as an "Ineligible
Receivable"), then the Seller that originated such Receivable agrees to pay to
the Company, upon the request of the Company or the Seller obtaining knowledge
of such Ineligibility Event, an amount (the "Adjustment Amount") equal to the
Original Principal Amount of such Receivable (whether the Company paid the
related Purchase Price in cash or otherwise) less Collections received by the
Company in respect of the principal amount of such Receivable. Such payment
shall be made on or prior to the 30th day after the day the Company requests
such payment or the applicable Seller obtains knowledge that such payment is due
(except that if such day is not a Business Day, then such payment shall be made
on the Business Day immediately succeeding such day); provided that in the event
that (x) a Purchase Termination Event with respect to such Seller has occurred
and is continuing or (y) the Company shall be required to make a payment in
respect of such Receivable pursuant to Section 2.05 of the Pooling Agreement and
the Company has insufficient funds to make such payment, such Seller shall make
such payment immediately upon the Company's request for such payment or such
Seller obtaining knowledge that such payment is due. Any payment by any Seller
pursuant to this Section 2.06(a) is referred to as a "Seller Adjustment
Payment". If, on or prior to such 30th day (or the Business Day immediately
succeeding such 30th day, as applicable), a Seller shall make a Seller
Adjustment Payment in respect of any such Ineligible Receivable, then the
Company shall have no further remedy against such Seller in respect of the
Ineligibility Event with respect to such Receivable. Upon a Seller Adjustment
Payment, the Company shall automatically agree to pay to the applicable Seller
all Collections received with respect to such Ineligible Receivable.
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(b) Special Indemnification. In addition to its obligations under
Section 9.02 hereof, each Seller agrees to pay, indemnify and hold harmless the
Company and its successors and assigns from any loss, liability, expense, damage
or injury which may at any time be imposed on, incurred by or asserted against
the Company in any way relating to or arising out of (i) any Eligible Receivable
originated by such Seller becoming subject to any defense, dispute, offset or
counterclaim of any kind (other than as expressly permitted by this Agreement or
the Pooling Agreement) or (ii) such Seller breaching any covenant applicable to
it contained in Section 5.02, 5.08, 5.09, 5.10, 5.14, 6.01, 6.02, 6.03, 6.04,
6.05, 6.09 or 6.10 with respect to any Receivable originated by it (each of the
foregoing events or circumstances being an "Indemnification Event"), and such
Receivable (or a portion thereof) ceasing to be an Eligible Receivable on the
date on which such Indemnification Event occurs. The amount of such
indemnification shall be equal to the Original Principal Amount of such
Receivable (whether the Company paid the related Purchase Price in cash or
otherwise) less Collections received by the Company in respect of the principal
amount of such Receivable. Such payment shall be made on or prior to the 30th
Business Day after the day the Company requests such payment or the applicable
Seller obtains knowledge that such payment is due unless such Indemnification
Event shall have been cured on or before such 30th Business Day; provided,
however, that in the event that (x) a Purchase Termination Event with respect to
such Seller has occurred and is continuing or (y) the Company shall be required
to make a payment with respect to such Receivable pursuant to Section 2.05 of
the Pooling Agreement and the Company has insufficient funds to make such a
payment, such Seller shall make such payment immediately. If, on or prior to
such 30th Business Day, applicable Seller shall make such payment, then the
Company shall have no further remedy against such Seller in respect of such
Indemnification Event. Any payment by the Seller pursuant to this Section
2.06(b) is referred to as a "Seller Indemnification Payment". Upon a Seller
Indemnification Payment, the Company shall automatically agree to pay to such
Seller all Collections with respect to the Receivable in respect of which a
Seller Indemnification Payment is made.
SECTION 2.07. Certain Charges. Each Seller and the Company agree that
late charge revenue, reversals of discounts, other fees and charges and other
similar items, whenever created, accrued in respect of Purchased Receivables
shall be the property of the Company notwithstanding the occurrence of an Early
Termination and all Collections with respect thereto shall continue to be
allocated and treated as Collections in respect of Purchased Receivables.
SECTION 2.08. Certain Allocations. Each Seller hereby agrees that,
following the occurrence of an Early Termination, all Collections and other
proceeds received in respect of Receivables generated by such Seller shall be
applied, first, to pay the outstanding Principal Amount of Purchased Receivables
(as of the date of such Early Termination) of the Obligor to whom such
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Collections are attributable until such Purchased Receivables are paid in full
and, second, to such Seller to pay Receivables of such Obligor not sold to the
Company, if any; provided, however, that notwithstanding the foregoing, if such
Seller can attribute a Collection to a specific Obligor and a specific
Receivable, then such Collection shall be applied to pay such Receivable of such
Obligor.
ARTICLE III
Conditions to Purchase and Sale
SECTION 3.01. Conditions Precedent to the Company's Purchase of
Receivables on the Effective Date. The obligation of the Company to purchase
from the Initial Seller the Receivables and the other Receivable Assets
hereunder on the Effective Date is subject to the conditions precedent, which
may be waived by the Company, that (a) each of the Sale Documents shall be in
full force and effect and (b) the conditions set forth below shall have been
satisfied on or before the Effective Date:
(i) the Company shall have received copies of duly adopted
resolutions of the Board of Directors of the Initial Seller, as in
effect on such Effective Date, authorizing the transactions contemplated
hereby, certified by the Secretary or Assistant Secretary of the Intial
Seller;
(ii) the Company shall have received duly executed certificates
of the Secretary or an Assistant Secretary of the Initial Seller, dated
the Effective Date, and in form and substance reasonably satisfactory to
the Company, certifying the names and true signatures of the officers
authorized on behalf of such Seller to sign this Agreement and any
instruments or documents in connection with this Agreement;
(iii) the Initial Seller shall have filed, at its own expense,
UCC-1 financing statements with respect to the Receivables originated by
such Seller and other Receivable Assets in such manner and in such
jurisdictions as are necessary to perfect the Company's ownership
interest therein under the UCC and delivered evidence of such filings to
the Company; and all other action necessary, in the reasonable judgment
of the Company, to perfect under the UCC (to the extent applicable) the
Company's ownership of the Receivables originated by such Seller and
other Receivable Assets shall have been duly taken;
(iv) the Initial Seller shall have delivered or transmitted to
the Company, with respect to the Receivables originated by such Seller,
a computer tape, diskette or data transmission reasonably acceptable to
the Company showing, as of a date no later than the Cut-Off Date, at
least the information specified in Schedule 2 hereto as to all
Receivables to be
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transferred by such Seller to the Company on or prior to the Effective
Date;
(v) the Company shall have received reports of UCC-1 and other
searches of the Initial Seller with respect to the Receivables
originated by such Seller and the other Receivable Assets reflecting the
absence of Liens thereon, except for Liens created in connection with
the sale by such Seller to the Company, and by the Company to the Trust,
of such Receivables and other Receivable Assets, other Permitted Liens
and Liens as to which the Company has received UCC termination
statements;
(vi) the Company shall be satisfied that the Initial Seller's
systems, procedures and record keeping relating to the Purchased
Receivables originated by such Seller are sufficient and satisfactory in
order to permit the purchase and administration of such Purchased
Receivables in accordance with the terms and intent of this Agreement;
(vii) a Lockbox Account shall have been established in the name
of the Company and all Obligors with respect to Purchased Receivables
shall have been directed to remit all payments with respect to such
Purchased Receivables to the related Lockbox; and
(viii) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request.
SECTION 3.02. Conditions Precedent to All the Company's Purchases of
Receivables. The obligation of the Company to purchase any Receivable and the
other related Receivable Assets on each date (including the Effective Date)
shall be subject to the further conditions precedent, which, other than
conditions precedent relating to Purchase Termination Events arising from
Section 7.01(g) or (h), may be waived by the Company, that, on and as of the
related Payment Date, the following statements shall be true (and the acceptance
by each Seller of the Purchase Price for such Receivable on such Payment Date
shall constitute a representation and warranty by such Seller that on such
Payment Date the statements in clauses (i) and (ii) below are true):
(i) the representations and warranties of each Seller contained
in Sections 4.01 and 4.02 shall be true and correct on and as of such
Payment Date as though made on and as of such date, except insofar as
such representations and warranties are expressly made only as of
another date (in which case they shall be true and correct as of such
other date);
(ii) after giving effect to such purchase, no Purchase
Termination Event or Potential Purchase Termination Event (including,
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without limitation, any event set forth in Section 7.01 (d)(ii)(A)) with
respect to the applicable Seller shall have occurred and be continuing;
(iii) after giving effect to such purchase, no Early
Amortization Event or Potential Early Amortization Event with respect to
any Outstanding Series shall have occurred and be continuing; and
(iv) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request; provided,
however, that the failure of the applicable Seller to satisfy any of the
foregoing conditions shall not prevent such Seller from subsequently
selling Receivables originated by it upon satisfaction of all such
conditions.
SECTION 3.03. Conditions Precedent to the Initial Seller's Obligations
on the Effective Date. The obligations of the Initial Seller on the Effective
Date shall be subject to the conditions precedent, which may be waived by such
Seller, that such Seller shall have received on or before the Effective Date the
following, each dated the Effective Date and in form and substance satisfactory
to such Seller:
(i) a copy of duly adopted resolutions of the Board of Directors
of the Company authorizing the transactions contemplated hereby,
certified by the Secretary or Assistant Secretary of the Company; and
(ii) a duly executed certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of the
officers or authorized representatives authorized on its behalf to sign
this Agreement and the other documents to be delivered by it hereunder.
SECTION 3.04. Conditions Precedent to All of the Seller's Obligations.
The obligation of each Seller to sell any Receivable on any date (including on
the Effective Date) shall be subject to the further conditions precedent, which
may be waived by such Seller, that, on the related Payment Date, the following
statement shall be true (and the payment by the Company of the Purchase Price
for such Receivable on such date shall constitute a representation and warranty
by the Company on such Payment Date that the statement in clause (ii) below is
true): after giving effect to such purchase, (i) no Purchase Termination Event
set forth in subsection (d) of Section 7.01 hereof, and (ii) no Early
Amortization Event set forth in subsection (a) of Section 7.01 of the Pooling
Agreement (as in effect on the date hereof and without giving effect to any
amendment or supplement to, or modification or waiver of, or departure from,
such paragraph unless, in each case, such Seller shall have consented thereto)
shall have occurred and be continuing.
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SECTION 3.05. Condition Precedent to the Addition of a Seller. No direct
or indirect Subsidiary approved by the Company as an additional Seller pursuant
to Section 9.12 hereof shall be added as a Seller hereunder unless the
conditions set forth below shall have been satisfied on or before the date
designated for the addition of such Seller (the "Seller Addition Date"):
(i) the Company shall have received an Additional Seller
Supplement substantially in the form of Exhibit B hereto, duly executed
and delivered by such Seller;
(ii) each of the conditions precedent set forth in Section
2.08(l) of the Pooling Agreement and in any Supplement shall have been
satisfied;
(iii) the Company shall have received copies of duly adopted
resolutions of the Board of Directors of such Seller, as in effect on
the related Seller Addition Date, authorizing this Agreement, the
documents to be delivered by such Seller hereunder and the transactions
contemplated hereby, certified by the Secretary or Assistant Secretary
of such Seller;
(iv) the Company shall have received duly executed certificates
of the Secretary or an Assistant Secretary of such Seller, dated the
related Seller Addition Date, and in form and substance reasonably
satisfactory to the Company, certifying the names and true signatures of
the officers authorized on behalf of such Seller to sign the Additional
Seller Supplement or any instruments or documents in connection with
this Agreement;
(v) a Lockbox Account with respect to Receivables to be sold by
such Seller shall have been established in the name of the Company, or
such Seller shall have become a party to an agreement governing an
existing Lockbox Account, and all Obligors with respect to such
Receivables shall have been directed to remit payments with respect to
such Receivables to the related Lockbox;
(vi) such Seller shall have filed and recorded, at its own
expense, UCC-1 financing statements (and other similar instruments) with
respect to the Receivables originated by such Seller and the other
Receivable Assets in such manner and in such jurisdictions as are
necessary to perfect the Company's ownership interest thereof under the
UCC and delivered evidence of such filings to the Company on or prior to
the related Seller Addition Date; and all other action necessary, in the
reasonable judgment of the Company, to perfect the Company's ownership
of the Receivables originated by such Seller shall have been duly taken;
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(vii) such Seller shall have delivered or transmitted to the
Company, with respect to the Receivables originated by it, a computer
tape, diskette or data transmission reasonably acceptable to the Company
showing, as of a date no later than five Business Days preceding the
related Seller Addition Date, at least the information specified in
Schedule 2 hereto as to all Receivables to be transferred by such Seller
to the Company on the related Seller Addition Date;
(viii) the Company shall have received reports of UCC-1 and
other searches of such Seller with respect to the Receivables originated
by such Seller and other Receivable Assets reflecting the absence of
Liens thereon, except for (i) Liens created in connection with the sale
by such Seller to the Company, and by the Company to the Trust, of such
Receivables and other Receivable Assets, (ii) Liens as to which the
Company has received UCC termination statements to be filed on or prior
to the related Seller Addition Date and (iii) Permitted Liens;
(ix) the Company shall be satisfied that such Seller's systems,
procedures and record keeping relating to the Purchased Receivables
originated by such Seller are sufficient and satisfactory in order to
permit the purchase and administration of such Purchased Receivables in
accordance with the terms and intent of this Agreement;
(x) the prior written consent of the Agents shall have been
obtained; and
(xi) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request from such
Seller.
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ARTICLE IV
Representations and Warranties
SECTION 4.01. Representations and Warranties of the Sellers. Ingram
Micro Inc. as to itself and, where provided, its Significant Subsidiaries, and
each other Seller as to itself only, represents and warrants as follows:
(a) Organization; Powers. It (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except where
the failure so to qualify could not reasonably be expected to result in a Seller
Material Adverse Effect and (iv) has the corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated hereby or thereby
to which it is or will be a party.
(b) Authorization. The execution, delivery and performance by such
Seller of each of the Transaction Documents to which such Seller is a party and
the performance of the transactions contemplated hereby and thereby
(collectively, the "Transactions") (i) have been duly authorized by all
requisite corporate and, if required, stockholder action and (ii) will not (A)
violate (1) any Requirement of Law of such Seller or (2) any provision of any
Transaction Document or other material Contractual Obligation to which it is a
party or by which any of them or any of their property is or may be bound, (B)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under, any Transaction Document or any other material Contractual
Obligation except where any such conflict, violation, breach or default referred
to in clause (A) or (B), individually or in the aggregate, could not reasonably
be expected to have a Seller Material Adverse Effect or (C) result in the
creation or imposition of any Lien upon the Receivables (other than Permitted
Liens and any Lien created hereunder or contemplated or permitted hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by such Seller and constitutes, and each other Transaction Document to which
such Seller is a party when executed and delivered by such Seller will
constitute, a legal, valid and binding obligation of such Seller enforceable
against such Seller in accordance with its terms, subject (i) to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally, from time to time in
effect, and (ii) to general
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principles of equity (whether enforcement is sought by a proceeding in equity or
at law).
(d) Governmental Approvals. No action, consent or approval of,
registration or filing with, or any other action by, any Governmental Authority
is or will be required in connection with the Transactions, except for (i) the
filing of UCC financing statements, (ii) such as have been made or obtained and
are in full force and effect and (iii) such actions, consents, approvals and
filings the failure of which to obtain or make could not reasonably be expected
to result in a Seller Material Adverse Effect.
(e) Litigation; Compliance with Laws. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of such Seller, threatened against such Seller or
any Significant Subsidiary in respect of which there exists a reasonable
possibility of an outcome that would result in a Seller Material Adverse Effect.
(f) Judgments. Neither such Seller nor any Significant Subsidiary is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Seller Material Adverse Effect.
(g) Agreements. Neither such Seller nor any Significant Subsidiary is a
party to any agreement or instrument or subject to any corporate restriction
that has resulted or could reasonably be expected to result in a Seller Material
Adverse Effect.
(h) Contractual Obligations. Neither such Seller nor any Significant
Subsidiary is in default in any manner under any provision of any Contractual
Obligation to which it is a party or by which it or any of its properties or
assets are bound, where such default could reasonably be expected to result in a
Seller Material Adverse Effect.
(i) Federal Reserve Regulations. Neither such Seller nor any Significant
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin Stock.
(j) Use of Proceeds. No part of the proceeds from the sale of
Receivables hereunder will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of
the Board, including Regulation U or Regulation X.
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(k) Investment Company Act. Such Seller is not an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or any successor statute thereto.
(l) Tax Returns. Such Seller and each Significant Subsidiary has filed
or caused to be filed all material tax returns (Federal, State and local) and
has paid or caused to be paid or made adequate provision for all taxes due and
payable by it and all assessments received by it to the extent that such failure
to file or nonpayment (i) is being contested in good faith or (ii) could
reasonably be expected to result in a Seller Material Adverse Effect.
(m) Employee Benefit Plans. Except to the extent failure to comply could
not reasonably be expected to result in a Seller Material Adverse Effect, such
Seller and its ERISA Affiliates are in compliance in all material respects with
the applicable provisions of ERISA and the Internal Revenue Code and the
regulations and published interpretations thereunder. No Reportable Event has
occurred or is reasonably expected to occur that, when taken together with all
other such Reportable Events, could reasonably be expected to result in a Seller
Material Adverse Effect.
(n) Accounting Treatment. Such Seller will not prepare any financial
statements that shall account for the transactions contemplated hereby, nor will
it in any other respect (other than for tax purposes) account for the
transactions contemplated hereby, in a manner that is inconsistent with the
Company's ownership interest in the Receivables.
(o) Indebtedness to Company. Immediately prior to consummation of the
transactions contemplated hereby on the Effective Date, such Seller had no
outstanding Indebtedness to the Company other than amounts permitted by this
Agreement.
(p) Lockboxes. Set forth in Schedule 3 hereto is a complete and accurate
description as of the Effective Date of each Lockbox Account currently
maintained by such Seller. Each of the Lockbox Agreements is the valid and
binding agreement of such Seller, enforceable against such Seller in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect and to general principles of equity
(whether enforcement is sought by a proceeding in equity or at law).
(q) Chief Executive Office. The offices at which such Seller keeps its
records concerning the Receivables originated by it either (x) are located as
set forth on Schedule 4 hereto or (y) are in locations as to which such Seller
has notified the Company in accordance with Section 5.06 hereof. The chief
executive office of such Seller is listed opposite its name on Schedule 4 and is
the
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place where such Seller is "located" for the purposes of Section 9-103(3)(d) of
the UCC as in effect in the State of New York. As of the Effective Date, the
state and county where the chief executive office of such Seller is "located"
for the purposes of 9-103(3)(d) of the UCC as in effect in the State of New York
has not changed in the past four months.
(r) Bulk Sales Act. No transaction contemplated hereby with respect to
such Seller requires compliance with, or will be subject to avoidance under, any
bulk sales act or similar law.
(s) Names. The legal name of such Seller is as set forth in this
Agreement. It has no trade names, fictitious names, assumed names or "doing
business as" names except as set forth on Schedule 5.
(t) Solvency. No Insolvency Event with respect to such Seller has
occurred and the sale of the Receivables by it to the Company has not been made
in contemplation of the occurrence thereof. Both prior to and after giving
effect to the transactions occurring on the Effective Date and after giving
effect to each subsequent transaction contemplated hereunder, (i) the fair value
of the assets of such Seller at a fair valuation will exceed the debts and
liabilities, subordinated, contingent or otherwise, of such Seller; (ii) the
present fair salable value of the property of such Seller will be greater than
the amount that will be required to pay the probable liability of such Seller on
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) such Seller will
be able to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) such Seller
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted. For all purposes of clauses (i) through (iv) above, the amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
Such Seller does not intend to, nor does it believe that it will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness.
(u) No Purchase Termination Event. As of the Effective Date, no Purchase
Termination Event or Potential Purchase Termination Event with respect to such
Seller has occurred and is continuing.
(v) No Fraudulent Transfer. Such Seller is not entering into this
Agreement with the intent (whether actual or constructive) to hinder, delay, or
defraud its present or future creditors and is receiving reasonably equivalent
value
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and fair consideration for the Receivables originated by it being transferred
hereunder.
(w) Collection Procedures. Such Seller has in place procedures which are
either necessary or advisable to facilitate the timely collection of Receivables
originated by it.
SECTION 4.02. Representations and Warranties of the Sellers Relating to
the Receivables. Each Seller hereby represents and warrants to the Company on
each Payment Date that with respect to the Receivables originated by it being
paid for as of such date:
(a) Receivables Description. As of the Cut-Off Date or the Subsequent
Cut-Off Date as applicable, the computer tape, diskette or data transmission
delivered or transmitted pursuant to Section 2.01(d) hereof sets forth in all
material respects an accurate and complete listing of all Receivables sold to
the Company as of the Cut-Off Date or the Subsequent Cut-Off Date, as
applicable, and the information contained therein in accordance with Schedule 2
with respect to each such Receivable is true and correct as of the Cut-Off Date
or the Subsequent Cut-Off Date, as applicable. As of the Cut-Off Date or the
Subsequent Cut-Off Date, as applicable, the aggregate amount of Receivables
owned by such Seller is accurately set forth on such computer tape, diskette or
data transmission.
(b) No Liens. Each Receivable existing on the Effective Date or, in the
case of Receivables sold to the Company after the Effective Date, on the date
that each such Receivable shall have been sold to the Company, has been conveyed
to the Company free and clear of any Liens, except for Permitted Liens.
(c) Eligible Receivable. On the Effective Date, each Receivable
identified in the Daily Report as an Eligible Receivable sold to the Company is
an Eligible Receivable on the Effective Date and, in the case of Receivables
sold to the Company after the Effective Date, each such Receivable that is
identified in the Daily Report or Monthly Settlement Statement as an Eligible
Receivable sold to the Company on such later date is an Eligible Receivable on
such later date.
(d) Filings. All filings and other acts necessary (including but not
limited to all filings and other acts necessary or advisable under the UCC)
shall have been made or performed in order to grant the Company a first priority
perfected ownership or security interest in respect of all Receivables.
SECTION 4.03. Representations and Warranties of the Company. The Company
represents and warrants as to itself as follows:
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(a) Organization; Powers. The Company (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in, and is in good
standing in, each jurisdiction where the nature of its business so requires,
except where the failure so to qualify would not have a Company Material Adverse
Effect and (iv) has the corporate power and authority to execute, deliver and
perform its obligations under each of the Transaction Documents and each other
agreement or instrument contemplated hereby or thereby to which it is or will be
a party.
(b) Authorization. The execution, delivery and performance by the
Company of each of the Transaction Documents and the performance of the
Transactions (i) have been duly authorized by all requisite corporate and, if
required, stockholder action and (ii) will not (A) violate (1) any Requirement
of Law or (2) any provision of any Transaction Document or any other Contractual
Obligation to which the Company is a party or by which it or any of its property
is or may be bound, (B) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under, or give rise to
any right to accelerate or to require the pre-payment, repurchase or redemption
of any obligation under any Transaction Document or any other Contractual
Obligation or (C) result in the creation or imposition of any Lien upon the
Receivables (other than Permitted Liens and any Lien created hereunder or
contemplated or permitted hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by the Company and constitutes, and each other Transaction Document to which the
Company is a party when executed and delivered by the Company will constitute, a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its respective terms, subject (i) to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors, rights generally, from time to time in
effect and (ii) to general principles of equity whether enforcement is sought by
a proceeding in equity or at law.
(d) Accounting Treatment. The Company will not prepare any financial
statements that shall account for the transactions contemplated hereby, nor will
it in any other respect (other than for tax purposes) account for the
transactions contemplated hereby, in a manner that is inconsistent with the
Company's ownership interest in the Receivables.
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ARTICLE V
Affirmative Covenants
Each Seller hereby agrees that, so long as there are any amounts outstanding
with respect to Purchased Receivables originated by it previously sold to the
Company or until an Early Termination, whichever is later, such Seller shall:
SECTION 5.01. Certificates; Other Information. Furnish to the Company:
(a) not later than 120 days after the end of each fiscal year and not
later than 90 days after the end of each of the first three fiscal quarters of
each fiscal year, a certificate of a Responsible Officer of each Seller stating
that, to the knowledge of such Responsible Officer (after due inquiry), such
Seller during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in the Sale Documents
to which it is a party to be observed, performed or satisfied by it, and that
such Responsible Officer has obtained no knowledge of any Purchase Termination
Event or Potential Purchase Termination Event except as specified in such
certificate; and
(b) promptly, such additional financial and other information as the
Company may from time to time reasonably request.
SECTION 5.02. Compliance with Law and Policies.
(a) Comply with all Requirements of Law and material Contractual
Obligations applicable to it except to the extent that non-compliance would not
reasonably be likely to result in a Seller Material Adverse Effect.
(b) Perform its obligations in accordance with the Policies, as amended
from time to time in accordance with the Transaction Documents, in regard to the
Receivables originated by it and the other Receivable Assets.
SECTION 5.03. Preservation of Corporate Existence. (a) Preserve and
maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation and (b) qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the nature of its
business so requires, except where the failure so to qualify would not,
individually or in the aggregate with other such failures, have a Seller
Material Adverse Effect.
SECTION 5.04. Separate Corporate Existence.
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(a) Maintain its deposit account or accounts, separate from those of the
Company and ensure that its funds will not be diverted to the Company, nor will
such funds be commingled with the funds of the Company;
(b) To the extent that it shares any officers or other employees with
the Company, the salaries of and the expenses related to providing benefits to
such officers and other employees shall be fairly allocated among it and the
Company, and it and the Company shall bear their fair shares of the salary and
benefit costs associated with all such common officers and employees;
(c) To the extent that it jointly contracts with the Company to do
business with vendors or service providers or to share overhead expenses, the
costs incurred in so doing shall be allocated fairly between it and the Company
and it and the Company shall bear their fair shares of such costs. To the extent
that it contracts or does business with vendors or service providers where the
goods and services provided are partially for the benefit of the Company, the
costs incurred in so doing shall be fairly allocated between it and the Company
in proportion to the benefit of the goods or services each is provided, and it
and the Company shall bear their fair shares of such costs. All material
transactions between it and the Company, whether currently existing or hereafter
entered into, shall be only on an arm's length basis;
(d) Maintain office space separate from the office space of the Company
(but which may be located at the same address as the Company). To the extent
that it and the Company have offices in the same location, there shall be a fair
and appropriate allocation of overhead costs between them, and each shall bear
its fair share of such expenses;
(e) Issue financial statements separate from any financial statements
issued by the Company;
(f) Not assume or guarantee any of the liabilities of the Company; and
(g) Take, or refrain from taking, as the case may be, all other actions
that are necessary to be taken or not to be taken in order (x) to ensure that
the assumptions and factual recitations set forth in the Specified Bankruptcy
Opinion Provisions remain true and correct with respect to it (and, to the
extent within its control, to ensure that the assumptions and factual
recitations set forth in the Specified Bankruptcy Opinion Provisions remain true
and correct with respect to the Company) and (y) to comply with those procedures
described in such provisions that are applicable to it.
SECTION 5.05. Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which entries in conformity with
GAAP shall be made of all dealings and transactions in relation
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to its business and activities; and permit representatives of the Company upon
reasonable advance notice to visit and inspect any of its properties and examine
and make abstracts from any of its books and records during normal business
hours on any Business Day and as often as may reasonably be requested, subject
to such Seller's security and confidentiality requirements and to discuss the
business, operations, properties and financial condition of such Seller with
officers and employees of such Seller. Any such examination or visit shall be at
the cost and expense of the party or parties making such examination or visit.
SECTION 5.06. Location of Records. Keep its chief place of business and
chief executive office, and the offices where it keeps the records concerning
the Purchased Receivables and the other Related Assets (and all original
documents relating thereto), at the locations referred to for it on Schedule 4
hereto or upon 30 days' prior written notice to the Company, at such other
locations in a jurisdiction where all action required by Section 5.14 shall have
been taken and completed and be in full force and effect; provided, however,
that the Rating Agencies shall be notified of any such changes in location and
such location shall not be changed to a state which is within the Tenth Circuit
unless it delivers an opinion of counsel reasonably acceptable to the Rating
Agencies to the effect that Octagon Gas Systems, Inc. v. Rimmer, 995 F.2d 948
(10th Cir. 1993), is no longer controlling precedent in the Tenth Circuit.
SECTION 5.07. Computer Files. At its own cost and expense, retain the
ledger used by it as a master record of the Obligors and retain copies of all
documents relating to each Obligor as custodian and agent for the Company and
other Persons with interests in the Purchased Receivables originated by it.
SECTION 5.08. Obligations. Defend the right, title and interest of the
Company and its assigns in, to and under the Receivables originated by it and
the other Receivable Assets, whether now existing or hereafter created, against
all claims of third parties claiming through any Seller. Each Seller will duly
fulfill all obligations on its part to be fulfilled under or in connection with
each Receivable originated by it and will do nothing to materially impair the
rights of the Company in such Receivable.
SECTION 5.09. Collections. Instruct each Obligor to make payments in
respect of its Receivables to a Lockbox or a Lockbox Account or by wire transfer
to the applicable Collection Account and to comply in all material respects with
procedures with respect to Collections reasonably specified from time to time by
the Company. In the event that any payments in respect of any such Receivables
are made directly to a Seller (including, without limitation, any employees
thereof or independent contractors employed thereby), such Seller shall, within
two Business Days of receipt thereof, deliver (which may be via regular mail) or
deposit such amounts to a Lockbox, a Lockbox Account or the Collection
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Account and, prior to forwarding such amounts, such Seller shall hold such
payments in trust as custodian for the Company and the Trustee.
SECTION 5.10. Furnishing Copies, Etc. Furnish to the Company:
(a) within five Business Days of the Company's request, a certificate of
the chief financial officer of the applicable Seller or of the related Servicer,
on behalf of such Seller, certifying, as of the date thereof, to the knowledge
of such officer, that no Purchase Termination Event has occurred and is
continuing or if one has so occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect thereto;
(b) promptly after a Responsible Officer of a Seller obtains knowledge
of the occurrence of any Purchase Termination Event or Potential Purchase
Termination Event, written notice thereof;
(c) promptly following request therefor, such other information,
documents, records or reports regarding or with respect to the Purchased
Receivables, as the Company may from time to time reasonably request;
(d) promptly upon determining that any Purchased Receivable originated
by it designated as an Eligible Receivable on the applicable Daily Report or
Monthly Settlement Statement was not an Eligible Receivable as of the date
provided therefor, written notice of such determination.
SECTION 5.11. Responsibilities of the Sellers. Notwithstanding anything
herein to the contrary, (i) each Seller shall perform or cause to be performed
all its obligations under the Policies related to the Purchased Receivables to
the same extent as if such Purchased Receivables had not been transferred to the
Company hereunder, (ii) the exercise by the Company of any of its rights
hereunder shall not relieve such Seller of its obligations with respect to such
Purchased Receivables and (iii) except as provided by law, the Company shall not
have any obligation or liability with respect to any Purchased Receivables, nor
shall the Company be obligated to perform any of the obligations or duties of
such Seller thereunder.
SECTION 5.12. Assessments. Pay before the same become delinquent and
discharge all taxes, assessments, levies and other governmental charges imposed
on it except such taxes, assessments, levies and governmental charges which are
being contested in good faith and for which such Seller has set aside on its
books adequate reserves.
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SECTION 5.13. Further Action. In addition to the foregoing:
(a) Each Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary in such Seller's reasonable judgment or
that the Company may reasonably request, in order to protect the Company's
right, title and interest in the Purchased Receivables, or to enable the Company
to exercise or enforce any of its rights in respect thereof. Without limiting
the generality of the foregoing, each Seller will upon the request of the
Company (i) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or, in the opinion of the Company, advisable to protect the Company's security
interest in the Receivables and (ii) obtain the agreement of any Person having a
Lien on any Receivables owned by such Seller (other than any Lien created or
imposed hereunder or under the Pooling Agreement or any Permitted Lien) to
release such Lien upon the purchase of any such Receivables by the Company.
(b) Until the termination of this Agreement, each Seller hereby
irrevocably authorizes the Company to file one or more financing or continuation
statements (and other similar instruments), and amendments thereto, relative to
all or any part of the Purchased Receivables and the other Receivable Assets
sold or to be sold by such Seller without the signature of such Seller to the
extent permitted by applicable law.
(c) If any Seller fails to perform any of its agreements or obligations
under this Agreement, following notice to such Seller detailing such
delinquency, the Company may (but shall not be required to) perform, or cause
performance of, such agreements or obligations, and the expenses of the Company
incurred in connection therewith shall be payable by such Seller as provided in
Section 9.02 hereof. The Company agrees promptly to notify the applicable Seller
after any such performance; provided, however, that the failure to give such
notice shall not affect the validity of any such performance.
SECTION 5.14. Sale of Receivables. Sell Receivables solely in accordance
with the terms of this Agreement.
ARTICLE VI
Negative Covenants
Except as otherwise provided in Section 6.11 hereof, Ingram Micro Inc.
and each other Seller, to the extent applicable to it, hereby agrees that, so
long as there are any amounts outstanding with respect to Purchased Receivables
originated by it previously sold by such Seller to the Company or until an Early
Termination with
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respect to such Seller, whichever is later, such Seller shall not, directly or
indirectly:
SECTION 6.01. Limitations on Transfers of Receivables Etc. At any time
sell, transfer or otherwise dispose of any of the Receivables or other
Receivable Assets except as contemplated by the Transaction Documents or
pursuant to an Investment in the Company.
SECTION 6.02. Extension or Amendment of Receivables. Extend, make any
Dilution Adjustment to, rescind, cancel, amend or otherwise modify, or attempt
or purport to extend, amend or otherwise modify, the terms of any Purchased
Receivables, except (a) in accordance with the terms of the Policies, (b) as
required by any Requirement of Law or (c) in the case of Dilution Adjustments,
upon making a Seller Dilution Adjustment Payment pursuant to Section 2.05.
SECTION 6.03. Change in Payment Instructions to Obligors. Instruct any
Obligor of any Purchased Receivables to make any payments with respect to any
Receivables other than, in accordance with Section 5.09 hereof, to a Lockbox, a
Lockbox Account or by wire transfer to the Collection Account; provided,
however, that it may execute additional Lockbox Agreements or Lockbox Accounts
and instruct Obligors to make payments in respect of any Receivables to such
additional accounts; provided, that the Lockbox Agreements may be amended to add
or delete Servicers in accordance with the Transaction Documents; provided,
further, that upon the satisfaction of the Rating Agency Condition (or, if no
Outstanding Series has been rated by a Rating Agency, with the consent of the
Agent) and subject to the consent of the Agent (which consent shall not be
unreasonably withheld), any Seller may enter into any amendments or
modifications of a Lockbox Agreement that such Seller reasonably deems necessary
to conform such Lockbox Agreement to the cash management system of the Company
or such Seller.
SECTION 6.04. Change in Name. Change its name, use an additional name,
or change its identity or corporate structure in any manner which would or might
make any financing statement or continuation statement (or other similar
instrument) relating to this Agreement seriously misleading within the meaning
of Section 9-402(7) of the UCC, or impair the perfection of the Company's
interest in any Receivable under any other similar law, without 30 days' prior
written notice to the Company.
SECTION 6.05. Policies. Make any change or modification (or permit any
change or modification to be made) in any material respect to the Policies,
except (i) if such changes or modifications are necessary under any Requirement
of Law, or (ii) if the Rating Agency Condition is satisfied with respect thereto
and
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the Agents have consented thereto (which consent shall not be unreasonably
withheld); provided, however, that if any change or modification, other than a
change or modification permitted pursuant to clause (i) above, would reasonably
be expected to have a Material Adverse Effect, a Seller Material Adverse Effect,
a Servicer Material Adverse Effect or a Company Material Adverse Effect with
respect to a Series which is not rated by a Rating Agency, the consent of
Investor Certificateholders representing Investor Certificateholders' Interest
aggregating not less than 50% of the Adjusted Invested Amount of such Series
(or, as otherwise specified in the related Supplement) shall be required to
effect such change or modification.
SECTION 6.06. Modification of Legend. Delete or otherwise modify the
legend referred to in Section 2.01(d).
SECTION 6.07. Accounting for Purchases. Prepare any financial statements
which shall account for the transactions contemplated hereby (other than capital
contributions and the Seller Note contemplated hereby) in any manner other than
as a sale of the Purchased Receivables originated by such Seller to the Company
or in any other respect account for or treat the transactions contemplated
hereby (including for financial accounting purposes, except as required by law)
(other than capital contributions and the Seller Note contemplated hereby) in
any manner other than as sales of the Purchased Receivables originated by such
Seller to the Company; provided, however, that this subsection shall not apply
for any tax or tax accounting purposes.
SECTION 6.08. Instruments. Subject to the delivery requirements set
forth in Section 2.01(b) of the Pooling Agreement, take any action to cause any
Receivable not evidenced by an "instrument" (as defined in the UCC as in effect
in the State of New York or other similar statute or legislation) upon
origination to become evidenced by an instrument, except in connection with the
enforcement or collection of an overdue Receivable.
SECTION 6.09. Ineligible Receivables. Without the prior written approval
of the Company, take any action to cause, or which would permit, a Receivable
that was designated as an Eligible Receivable on the Payment Date relating to
such Receivable to cease to be an Eligible Receivable, except as otherwise
expressly provided by this Agreement.
SECTION 6.10. Business of such Seller. Fail to maintain and operate the
business currently conducted by such Seller and business activities reasonably
incidental or related thereto in substantially the manner in which it is
presently conducted and operated if such failure would materially adversely
affect the interests of the Company under the Transaction Documents.
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SECTION 6.11. Limitation on Fundamental Changes. Ingram Micro Inc. shall
not enter into any merger or consolidate with another Person or sell, lease,
transfer or otherwise dispose of assets constituting all or substantially all of
the assets of Ingram Micro Inc. and its consolidated Subsidiaries (taken as a
whole) other than the assignments and transfers contemplated hereby to another
Person or liquidate or dissolve unless:
(a) either (i) Ingram Micro Inc. is the surviving entity or (ii) the
surviving Person (A) is organized and in good standing under a State of the
United States or the District of Columbia and (B) assumes, upon consummation of
such transaction without execution or filing of any paper or any further act on
the part of any of the parties hereto other than a Seller, the performance of
each of Ingram Micro Inc.'s covenants and obligations hereunder; and
(b) it has delivered to the Trustee an officer's certificate executed by
a Vice President or other senior official of Ingram Micro Inc. addressed to the
Trust and the Trustee (i) stating that such consolidation, merger, conveyance or
transfer complies with this Section 6.11 and (ii) further stating in the
officer's certificate that all conditions precedent herein provided for relating
to such transaction have been complied with.
In the event of any action described in this Section 6.11, Ingram Micro Inc.
agrees to provide notice thereof to each Rating Agency.
ARTICLE VII
Purchase Termination Events
SECTION 7.01. Purchase Termination Events. If any of the following
events (each, a "Purchase Termination Event") shall have occurred and be
continuing with respect to a Seller:
(a) such Seller shall fail to pay (i) any amount due under Article II
hereof hereunder in accordance with the provisions hereof and such failure shall
continue unremedied for a period of five Business Days or (ii) any other amount
due hereunder in accordance with the provisions hereof and such failure shall
continue unremedied for a period of five Business Days from the earlier to occur
of (x) the date upon which a Responsible Officer of such Seller obtains
knowledge of such failure or (y) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (1) to such
Seller by the Company or the Trustee or (2) to the Company, to the Trustee and
to such Seller by holders of Investor Certificates evidencing 25% or more of the
Aggregate Invested Amount; or
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(b) such Seller shall fail to observe or perform in any material respect
any covenant or agreement applicable to it contained herein (other than as
specified in subsection (a) of this Section 7.01 or Section 5.07(b)); provided
that the failure to observe or perform either (i) the covenant specified in
Section 6.02 or (ii) any other covenant specified herein (other than the
covenants specified in Section 6.01 and Sections 6.03-6.11) shall not constitute
a Purchase Termination Event under this subsection (b) unless such failure shall
continue unremedied for a period of 30 consecutive days from the earlier of (i)
the date on which such Seller has or actual knowledge of such failure and (ii)
the date on which such Seller receives notice of such failure from the Company,
the Servicer or the Trustee; or
(c) (i) any representation, warranty, certification or statement made or
deemed made by such Seller in this Agreement or in any certificate delivered
pursuant to this Agreement (other than the Officer's Certificate to be delivered
pursuant to Section 5.07(b)) shall prove to have been incorrect in any material
respect when made or deemed made; provided that a Purchase Termination Event
shall not be deemed to have occurred under this subsection (c) based upon a
breach of any representation or warranty set forth in Section 4.02 if such
Seller shall have compiled with the provisions of Section 2.06 in respect
thereof; or
(d) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of such Seller in an involuntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect (the Bankruptcy Code and all other such applicable
laws being collectively, "Applicable Insolvency Laws"), which decree or order is
not stayed or any other similar relief shall be granted under any applicable
federal or state law now or hereafter in effect and shall not be stayed; (ii)(A)
an involuntary case is commenced against such Seller under any Applicable
Insolvency Law now or hereafter in effect, a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
such Seller, or over all or a substantial part of the property of such Seller,
shall have been entered, an interim receiver, trustee or other custodian of such
Seller for all or a substantial part of the property of such Seller is
involuntarily appointed, a warrant of attachment, execution or similar process
is issued against any substantial part of the property of such Seller and (B)
any event referred to in clause (ii)(A) above continues for 60 days unless
dismissed, bonded or discharged; provided, however, that such 60-day period
shall be deemed terminated immediately upon the occurrence of any of the events
referred to in this Section 7.01(d) other than those referred to in clause
(ii)(A) above; (iii) such Seller shall at its request have a decree or an order
for relief entered with respect to it or commence a voluntary case under any
Applicable Insolvency Law now or hereafter in effect, or shall consent to the
entry of a decree or an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such Applicable
Insolvency Law, consent to the appointment of
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or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; (iv) the making by such Seller of any general
assignment for the benefit of creditors; (v) the inability or failure of such
Seller generally to pay its debts as such debts become due; or (vi) the Board of
Directors of such Seller authorizes action to approve any of the foregoing; or
(e) there shall have occurred and be continuing (i) an Early
Amortization Event set forth in Section 7.01 of the Pooling Agreement or (ii) an
Amortization Period (after which the Revolving Period cannot recommence) with
respect to all Outstanding Series; or
(f) Ingram Micro Inc. has been terminated as Servicer following a
Servicer Default under the Servicing Agreement and a Successor Servicer has not
been appointed within 60 days thereafter; or
(g) a Responsible Officer of such Seller receives notice or is aware
that a notice of Lien shall have been filed by the PBGC against such Seller
under Section 412(n) 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 unless there shall have been
delivered to the Trustee and the Rating Agencies proof of release of such Lien;
or
(h) a Responsible Officer of such Seller receives notice or is aware
that a Federal tax notice of Lien shall have been filed against such Seller
unless there shall have been delivered to the Trustee and the Rating Agencies
proof of release of such Lien; or
(i) Ingram Micro Inc. shall fail to deliver the Officer's Certificate
required by the terms of Section 5.07(b); provided that no such failure shall
constitute a Purchase Termination Event under this subsection (i) unless such
failure shall continue unremedied for a period of 30 consecutive days from the
date a Responsible Officer of Ingram Micro Inc. becomes aware of such failure;
or
(j) The core information system on which Ingram Micro Inc. processes the
Receivables, IMpulse, is not Year 2000 compliant, such that, with respect to
such system, the performance of date sensitive functions by such system on or
after the Effective Date, through the term of this Agreement results in a Seller
Material Adverse Effect, a Servicer Material Adverse Effect, a Company Material
Adverse Effect or a Material Adverse Effect that is not corrected for a period
of 30 days;
then, (i) in the case of any Purchase Termination Event described in subsection
(e)(i) above, the obligation of the Company to purchase Receivables from the
Sellers shall thereupon automatically terminate without further notice of any
kind,
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which is hereby waived by each Seller, (ii) in the case of any Purchase
Termination Event described in subsection (d), (g) or (h) above, the obligation
of the Company to purchase Receivables from the Sellers shall thereupon, after
expiration of any applicable cure period, automatically terminate without
further notice of any kind, which is hereby waived by each Seller, (iii) in the
case of any Purchase Termination Event described in subsection (e)(ii) above,
the obligation of the Company to purchase Receivables from the Sellers shall
thereupon terminate without notice of any kind, which is hereby waived by each
Seller unless both the Company and each Seller agree in writing that such event
shall not trigger an Early Termination hereunder and (iv) in the case of any
other Purchase Termination Event, so long as such Purchase Termination Event
shall be continuing and after expiration of any applicable cure period, the
Company may terminate its obligation to purchase Receivables from all of the
Sellers by written notice to each Seller (any termination pursuant to clause
(i), (ii), (iii) or (iv) above is herein called an "Early Termination").
SECTION 7.02. Remedies. (a) If a Purchase Termination Event has occurred
and is continuing, the Company (and its assignees) shall have all of the rights
and remedies provided to a secured creditor or a purchaser of accounts under the
UCC by applicable law in respect thereto.
(b) Each Seller agrees that, upon the occurrence and during the
continuation of a Purchase Termination Event under Section 7.01(d) or (e)(i):
(i) the Company (and its assignees) shall have the right at any
time to notify, or require that such Seller, at such Seller's expense,
notify, the respective Obligors of the Company's ownership of the
Purchased Receivables and other Receivable Assets and may direct that
payment of all amounts due or to become due under the Purchased
Receivables be made directly to the Company or its designee;
(ii) the Company (and its assignees) shall have the right to (A)
sue for collection on any Purchased Receivables or (B) sell any
Purchased Receivables to any Person for a price that is acceptable to
the Company. If required by the terms of Section 9-504 or 9-505 of the
UCC (or analogous provisions of any other similar law applicable to the
Receivables), the Company (and its assignees) may offer to sell any
Purchased Receivable to any Person, together, at its option, with all
other Receivables created by the same Obligor. Any Purchased Receivable
sold hereunder (other than pursuant to the Pooling Agreement) shall
cease to be a Receivable for all purposes under this Agreement as of the
effective date of such sale;
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(iii) such Seller shall, upon the Company's written request and
at such Seller's expense, (A) assemble all of such Seller's documents,
instruments and other records (including credit files and computer tapes
or disks) that (1) evidence or will evidence or record Receivables sold
by such Seller and (2) are otherwise necessary or desirable to effect
Collections of such Purchased Receivables (collectively, the
"Documents") and (B) deliver the Documents to the Company or its
designee at a place designated by the Company. In recognition of such
Seller's need to have access to any Documents which may be transferred
to the Company hereunder, whether as a result of its continuing business
relationship with any Obligor for Receivables purchased hereunder or as
a result of its responsibilities as Servicer, the Company hereby grants
to such Seller an irrevocable license to access the Documents
transferred by such Seller to the Company and to access any such
transferred computer software in connection with any activity arising in
the ordinary course of such Seller's business or in performance of such
Seller's duties as Servicer; provided that such Seller shall not disrupt
or otherwise interfere with the Company's use of and access to the
Documents and its computer software during such license period;
(iv) such Seller hereby grants to the Company an irrevocable
power of attorney (coupled with an interest) to take any and all steps
in such Seller's name necessary or desirable, in the reasonable opinion
of the Company, to collect all amounts due under the Purchased
Receivables, including, without limitation, endorsing such Seller's name
on checks and other instruments representing Collections, enforcing the
Purchased Receivables and exercising all rights and remedies in respect
thereof; and
(v) upon written request of the Company, such Seller will (A)
deliver to the Company all licenses, rights, computer programs, related
material, computer tapes, disks, cassettes and data necessary for the
immediate collection of the Purchased Receivables by the Company, with
or without the participation of such Seller (excluding software licenses
which by their terms are not permitted to be so delivered; provided that
such Seller shall use reasonable efforts to obtain the consent of the
relevant licensor to such delivery but shall not be required, to the
extent it has an ownership interest in any electronic records, computer
software or licenses, to transfer, assign, set-over or otherwise convey
such ownership interests to the Company) and (B) make such arrangements
with respect to the collection of the Purchased Receivables as may be
reasonably required by the Company.
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ARTICLE VIII
Seller Note
SECTION 8.01. Seller Note. On the Effective Date, the Company shall
issue to the Sellers a subordinated note substantially in the form of Exhibit A
hereto (as amended, supplemented or otherwise modified from time to time, the
"Seller Note"). The Company has incurred Indebtedness evidenced by the Seller
Note and may continue to incur Indebtedness evidenced by the Seller Note on any
date only (i) if such date is a Payment Date; (ii) in payment to each Seller of
all or a portion of the Purchase Price (net of such deductions as provided in
Section 2.03(d) hereof) for Receivables and other Receivable Assets required to
be paid for by the Company to such Seller on such Payment Date in accordance
with Section 2.02 hereof; (iii) to the extent that cash was not available to pay
such Purchase Price (net of such deductions) in accordance with Sections
2.03(b)(i), 2.03(b)(ii) and 2.03(b)(iii) (as applicable); and (iv) subject, in
any event, to Section 8.03 hereof. Interest on the principal amount of the
Seller Note (as such principal amount may have been increased pursuant to the
preceding sentence and the following proviso) shall accrue at One-Month LIBOR
plus 2.00% per annum from and including the Effective Date and shall be paid on
each Distribution Date with respect to amounts accrued and not paid as of the
last day of the preceding Settlement Period and the maturity date thereof;
provided, however, that, to the maximum extent permitted by law, accrued
interest on the Seller Note which is not so paid shall be added, at the request
of the applicable Seller, to the principal amount of the Seller Note. The
principal amount of the Seller Note (as such principal amount may have been
increased pursuant to the proviso to the preceding sentence) shall be payable on
the maturity date of the Seller Note (unless sooner prepaid pursuant to the
terms thereof and of the other Transaction Documents). Each Seller's interest
in, and all payments in respect of, the Seller Note shall be allocated among the
Sellers by the Master Servicer pro rata in accordance with the amount of
Receivables sold by each such Seller to the Company that are paid for by the
incurrence of debt under the Seller Note. Default in the payment of principal or
interest under the Seller Note shall not constitute a default or event of
default or a Purchase Termination Event hereunder, a Servicer Default under the
Servicing Agreement or an Early Amortization Event under the Pooling Agreement
or any Supplement thereto.
SECTION 8.02. Restrictions on Transfer of Seller Note. Neither the
Seller Note, nor any right of the Sellers to receive payments thereunder, shall
be assigned, transferred, exchanged, pledged, hypothecated, participated or
otherwise conveyed.
SECTION 8.03. Discretion; Aggregate Amount. Anything herein to the
contrary notwithstanding, no Seller shall be obligated to accept payment of any
Purchase Price in the form of Indebtedness of the Company under the Seller Note
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unless such Seller shall be satisfied (and, for purposes hereof, in the absence
of notice to the contrary by such Seller to the Company and the Trustee, such
Seller shall be deemed satisfied) that, in the ordinary course of its business,
the Company will pay the principal of, and interest on, such Indebtedness in
accordance with the terms thereof. The principal amount of Indebtedness
evidenced by the Seller Note incurred on any Payment Date shall not, in any
event, be greater than the excess, if any, of (x) the Purchase Price for
Receivables and other Receivable Assets required to be paid for by the Company
on such Payment Date pursuant to Section 2.02 over (y) the portion of such
Purchase Price paid in cash pursuant to Sections 2.03(b)(i), 2.03(b)(ii) and
2.03(b)(iii).
ARTICLE IX
Miscellaneous
SECTION 9.01. Payments. Each cash payment to be made by the Company or
any Seller hereunder shall be made on the required payment date and in
immediately available funds at the office of the payee set forth below its
signature hereto or to such other office as may be specified by either party in
a notice to the other party hereto.
SECTION 9.02. Costs and Expenses. Each Seller agrees (a) to pay or
reimburse the Company for all its out-of-pocket costs and expenses incurred in
connection with the preparation and execution of, and any amendment, supplement
or modification to, this Agreement, the other Transaction Documents and any
other documents prepared in connection herewith and therewith, the consummation
and administration of the transactions contemplated hereby and thereby,
including, without limitation, all reasonable fees and disbursements of counsel,
(b) to pay or reimburse the Company for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any of the other Transaction Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Company, (c)
to pay, indemnify, and hold the Company harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay caused by such Seller in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of, any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement and any such
other documents, and (d) to pay, indemnify, and hold the Company harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (i) which may at any time be imposed on, incurred by
or asserted against the Company in any way relating to or arising out of this
Agreement or
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the other Sale Documents or the transactions contemplated hereby and thereby or
in connection herewith or any action taken or omitted by the Company under or in
connection with any of the foregoing (all such other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements being herein called "Indemnified Liabilities") or (ii) which would
not have been imposed on, incurred by or asserted against the Company but for
its having acquired the Receivables hereunder; provided, however, that such
indemnity shall not be available to the extent that such Indemnified Liabilities
result from the gross negligence or willful misconduct of the Company; provided,
further, that such Seller shall have no obligation under this Section 9.02 to
the Company with respect to Indemnified Liabilities arising from (i) any action
taken or omitted to be taken by the Trustee or the Company at the direction of
the Trustee in collecting from an Obligor or (ii) a default by an Obligor with
respect to any Purchased Receivable (other than arising out of (x) any
discharge, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Purchased Receivable (including,
without limitation, a defense based on such Purchased Receivable not being a
legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms) or any other claim resulting from the sale of the
merchandise or services related to any such Purchased Receivable or the
furnishing or failure to furnish such merchandise or services, (y) a failure by
such Seller to perform its duties or obligations under this Agreement or (z) the
sale of any Purchased Receivable that is designated on the applicable Daily
Report to be an Eligible Receivable and is determined to have been at the date
of such sale an Ineligible Receivable or any Purchased Receivable which
thereafter becomes subject to a Dilution Adjustment). The agreements in this
Section 9.02 shall survive the collection of all Receivables, the termination of
this Agreement and the payment of all amounts payable hereunder.
SECTION 9.03. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Sellers and the Company and their
respective successors (whether by merger, consolidation or otherwise) and
assigns. Each Seller agrees that it will not assign or transfer all or any
portion of its rights or obligations hereunder without the prior written consent
of the Company. Each Seller acknowledges that the Company shall assign all of
its rights hereunder to the Trustee. Each Seller consents to such assignment and
agrees that the Trustee, to the extent provided in the Pooling Agreement, shall
be entitled to enforce the terms of this Agreement and the rights (including,
without limitation, the right to grant or withhold any consent or, waiver) of
the Company directly against such Seller, whether or not a Purchase Termination
Event or a Potential Purchase Termination Event has occurred. Each Seller
further agrees that, in respect of its obligations hereunder, it will act at the
direction of and in accordance with all requests and instructions from the
Trustee until all amounts due to the Investor Certificateholders are paid in
full. The Trustee, on behalf of
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the Investor Certificateholders, shall have the rights of a third-party
beneficiary under this Agreement.
SECTION 9.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT ISSUES OF
PERFECTION ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 9.05. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Company, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.06. Amendments and Waivers. Neither this Agreement nor any
terms hereof may be amended, supplemented or modified except in a writing signed
by the Company and each Seller. Any amendment, supplement or modification shall
not be effective until the Rating Agency Condition has been satisfied and the
Agents have given their consent thereto (which consent shall not be unreasonably
withheld).
SECTION 9.07. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9.08. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company and each Seller, or to
such other address as may be hereafter notified by the respective parties
hereto:
The Company: Ingram Funding Inc.
1610 East St. Andrew Place
Santa Ana, California 92705
Attention: Treasurer
Telecopy: (714) 566-7873
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The Initial Seller: Ingram Micro Inc.
1600 East St. Andrew Place
Santa Ana, California 92705
Attention: U.S. Treasurer
Telecopy: (714) 566-7873
with a copy to the general counsel of Ingram Micro Inc. at the above
address
in each case, with a copy to
Trustee: The Chase Manhattan Bank, as Trustee
450 East 33rd Street, 14th Floor
New York, NY 10001
Attention: Capital Markets Fiduciary Services
Telecopy: (212) 946-8302
SECTION 9.09. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company.
SECTION 9.10. Waivers of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER SALE DOCUMENTS.
SECTION 9.11. Jurisdiction; Consent to Service of Process.
(a) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK
CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER SALE DOCUMENTS OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR,
TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO
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AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE COMPANY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
THE OTHER SALE DOCUMENTS AGAINST ANY SELLER OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER SALE
DOCUMENTS IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT.
(c) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.08. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 9.12. Addition of Sellers. Subject to Section 3.05 hereof,
Section 2.08(l) of the Pooling Agreement, any applicable provisions in any
Supplement, and the terms and conditions of this Section 9.12, from time to time
one or more additional direct or indirect Subsidiaries of Ingram Micro Inc. may
become a Seller hereunder and party hereto. If any such Subsidiary wishes to
become an additional Seller, it shall submit a request to such effect in writing
to the Company. If the Company shall have agreed to any such request, such
Subsidiary shall become an additional Seller hereunder and a party hereto on the
related Seller Addition Date upon satisfaction of the conditions set forth in
Section 3.05.
SECTION 9.13. Termination of Seller.
(a) Any Seller shall be terminated as a Seller hereunder by the Company
on the date such Seller ceases to be a direct or indirect Subsidiary of Ingram
Micro Inc.; provided, that (i) the aggregate outstanding Principal Amount of
Purchased Receivables sold by all Sellers which so cease to be Subsidiaries at
such time (together with the aggregate outstanding Principal Amount of
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Purchased Receivables sold by all Sellers which have been terminated pursuant to
this Section 9.13 within the preceding 90 days) shall not exceed 10% of the
aggregate outstanding Principal Amount of all Purchased Receivables and (ii) no
Purchase Termination Event or Potential Purchase Termination Event (other than
with respect to the Seller so terminated) has occurred and is continuing, or
would result as a result thereof. From and after the date any such Seller ceases
to be a direct or indirect Subsidiary of Ingram Micro Inc., the Company shall
cease buying Receivables and other Receivable Assets from such Seller. Each such
Seller shall be released as a Seller party hereto for all purposes and shall
cease to be a party hereto on the 91st day after the date on which there are no
amounts outstanding with respect to Purchased Receivables previously sold by
such Seller to the Company, whether such amounts have been collected or written
off in accordance with the Policies of such Seller, except to the extent of such
Seller's continuing obligations under Section 9.13(c) below. Prior to such date,
such Seller shall be obligated to perform its servicing and other obligations
hereunder and under the Transaction Documents to which it is a party with
respect to Purchased Receivables previously sold by such Seller to the Company,
including, without limitation, its obligation to direct the deposit of
Collections into the appropriate Lockbox.
(b) From time to time the Sellers, or the Master Servicer on behalf of
the Sellers, may request in writing that the Company designate one or more
Sellers as Sellers that shall cease to be parties to this Agreement; provided
that no Purchase Termination Event or Potential Purchase Termination Event has
occurred and is continuing, or would result as a result thereof. Any such
request shall specify the minimum aggregate Principal Amount of outstanding
Purchased Receivables sold by the Sellers to be so designated and terminated by
the Company. Promptly after receipt of any such designation by the Company, the
Sellers shall either (i) elect not to terminate such designated Sellers or (ii)
select a date, which date shall not be later than 30 days after the date of
receipt of such designation, as the "Sale Termination Date" for such designated
Sellers. From and after such Sale Termination Date, the Company shall cease
buying Receivables and other Receivable Assets from such Sellers. Each such
Seller shall be released as a Seller hereunder and a party hereto for all
purposes and shall cease to be a party hereto on the 91st day after the date on
which there are no amounts outstanding with respect to Purchased Receivables
previously sold by such Seller to the Company, whether such amounts have been
collected or written off in accordance with the Policies of such Seller, except
to the extent of such Seller's continuing obligations under Section 9.13(c)
below. Prior to such date, such Seller shall be obligated to perform its
servicing and other obligations hereunder and under the Transaction Documents to
which it is a party with respect to Purchased Receivables previously sold by
such Seller to the Company, including, without limitation, its obligation to
direct the deposit of Collections into the appropriate Lockbox.
41
<PAGE> 46
(c) A terminated Seller shall have no obligation to repurchase any
Purchased Receivables previously sold by it to the Company on and after the 90th
day following the date on which there are no amounts outstanding with respect to
such Purchased Receivables, but will have continuing obligations with respect to
such Receivables (including making any Seller Dilution Adjustment Payments,
Seller Adjustment Payments and Seller Indemnification Payments and with respect
to any Indemnified Liabilities) to the extent such obligations arise hereunder.
SECTION 9.14. No Bankruptcy Petition. Each Seller, by entering into this
Agreement, and any present or future holder of the Seller Note, by its
acceptance thereof, covenants and agrees that, prior to the date which is one
year and one day after the date of termination of this Agreement pursuant to
Section 9.15, it will not institute against, or join any other Person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any Applicable
Insolvency Laws.
SECTION 9.15. Termination. This Agreement will terminate at such time as
(i) the commitment of the Company to purchase Receivables from all the Sellers
hereunder shall have terminated, (ii) all Receivables purchased hereunder have
been collected, and the proceeds thereof turned over to the Company and all
other amounts owing to the Company hereunder shall have been paid in full or, if
Receivables sold hereunder have not been collected, such Receivables have become
Defaulted Receivables and the Company shall have completed its collection
efforts in respect thereto and (iii) the Trust Termination Date has occurred;
provided, however, that the indemnities of the Sellers to the Company set forth
in this Agreement shall survive such termination; provided, further, that, to
the extent any amounts remain due and owing to the Company hereunder, the
Company shall remain entitled to receive any Collections on Receivables sold
hereunder which have become Defaulted Receivables after it shall have completed
its collection efforts in respect thereof. Notwithstanding anything to the
contrary contained herein, if at any time, any payment made by any Seller is
rescinded or must be restored or returned by the Company as a result of any
Insolvency Event with respect to such Seller, then such Seller's obligations
with respect to such payment shall be reinstated as though such payment had
never been made.
42
<PAGE> 47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, all as of the day and
year first above written.
INGRAM FUNDING INC., as Buyer
By: /s/ P. Kurt Preising
------------------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as a Seller
By: /s/ P. Kurt Preising
------------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
INGRAM MICRO INC., as Servicer
By: /s/ P. Kurt Preising
---------------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
Signature Page
to
Receivables Sale Agreement
<PAGE> 48
Exhibit A
to
Amended and Restated Receivables Sale Agreement
[FORM OF SELLER NOTE]
New York, New York
_______, 20__
INGRAM FUNDING INC., a Delaware corporation (the "Company"), hereby
promises to pay to the order of Ingram Micro Inc. and any other Seller (each, a
"Seller" pursuant to the Receivables Sale Agreement described below) the
principal amount of this Seller Note, determined as described below, together
with interest thereon at a rate per annum equal to One-Month LIBOR plus 2.00% in
lawful money of the United States of America. Capitalized terms used herein but
not defined herein shall have the meanings assigned to such terms in the Amended
and Restated Receivables Sale Agreement dated as of March 8, 2000 among the
Company and the Sellers and the Servicers party thereto (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Receivables Sale Agreement") and in the Amended and Restated Pooling
Agreement, dated as of March 8, 2000, among the Company, Ingram Micro Inc., as
Master Servicer, and The Chase Manhattan Bank, a New York banking corporation,
as Trustee (as amended, restated, supplemented or otherwise modified from time
to time in accordance with its terms, the "Pooling Agreement"). This Seller Note
is the Seller Note referred to in the Receivables Sale Agreement and is subject
to the terms and conditions thereof.
1. Principal Amount. The aggregate principal amount of this Seller Note
at any time shall be calculated in accordance with Section 8.01 of the
Receivables Sale Agreement and shall be recorded by the Master Servicer (the
authority to so record such amounts being hereby granted to the Master Servicer)
on the schedule annexed to and constituting a part of this Seller Note.
2. Payments of Principal and Interest. (a) Principal on this Seller Note
may be prepaid at any time. Principal not prepaid shall be due and payable on
the Trust Termination Date (as defined in the Pooling Agreement).
(b) Payments of interest on this Seller Note shall be paid on
each Distribution Date (with respect to interest accrued and not paid as
of the preceding Distribution Date (or, in the case of the first
Distribution Date, as of the date on which this Seller Note is issued)
and on the Trust Termination Date by depositing such payment in such
account of the Sellers as each Seller may designate in writing;
provided, however, that accrued interest on this Seller Note which is
not so paid may (to the
A-1
<PAGE> 49
maximum extent permitted by law) be added to the principal amount of
this Seller Note as indicated on the schedule annexed to and
constituting a part of this Seller Note. Notwithstanding the foregoing,
no payments of interest or principal may be made under this Seller Note
at the times and to the extent prohibited under the Subordination
Provisions and Certain Termination Events described in Sections 3 and 6
respectively, below.
3. Subordination Provisions. The Company covenants and agrees, and the
Sellers, by their acceptance of this Seller Note, likewise covenant and agree,
that the payment of all obligations of the Company to the Sellers under this
Seller Note from or with the proceeds (other than proceeds allocable to, or paid
or payable in respect of, the Exchangeable Company Interest in compliance with
Section 2.08(n) of the Pooling Agreement) (such proceeds being the "Proceeds")
of Receivables or Related Property (and any extensions, renewals, financing,
refundings and replacements of all or any part of such obligations)
(collectively, the "Seller Subordinated Debt") are hereby expressly subordinated
in right of payment to the payment and performance of the obligations of the
Company to the Trustee for the benefit of the Holders, howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due (collectively the "Senior
Obligations") to the extent and in the manner set forth in this paragraph,
including each of the following subparts:
(a) Insolvency Events; Priority of Senior Obligations; Payments
Made Directly to the Trustee. In the event of any bankruptcy,
dissolution, winding up, liquidation, readjustment, reorganization or
other similar event relating to the Company, whether voluntary or
involuntary, partial or complete, and whether in bankruptcy, insolvency,
receivership or other similar proceedings, or upon an assignment for the
benefit of creditors, or any other marshaling of the assets and
liabilities of the Company (each an "Insolvency Event") or any sale of
all or substantially all the assets of the Company (except pursuant to
the Pooling Agreement and any Supplement thereto):
(i) the Senior Obligations shall first be paid and
performed in full and in cash before the Sellers shall be
entitled to receive and to retain any payment or distribution
from or with the Proceeds in respect of the Seller Subordinated
Debt, whether of principal, interest or otherwise; and
(ii) any payment or distribution from or with the
Proceeds of any kind (including cash or property arising from
Proceeds which may be payable or deliverable by reason of the
payment of any other Indebtedness of the Company being
subordinated to the payment of the Seller Subordinated Debt) in
respect of the Seller Subordinated Debt that otherwise would be
payable or deliverable with respect to the
A-2
<PAGE> 50
Seller Subordinated Debt directly or indirectly, by setoff or in
any other manner to the Sellers, shall be paid or delivered by
the Person making such payment or delivery (whether a trustee in
bankruptcy, a receiver, custodian, liquidating trustee or
otherwise) directly to the Trustee on behalf of the Holders for
application to (in the case of cash) or as collateral for (in
the case of non-cash property or securities) the payment of the
Senior Obligations until the Senior Obligations shall have been
paid in full in cash.
(b) Payments Received by the Sellers. In the event that the
Sellers receive any payment or other distribution of any kind or
character arising from Proceeds from the Company or from any other
source whatsoever in respect of the Seller Subordinated Debt after the
commencement of an Insolvency Event, such payment or other distribution
shall be deemed to be property of the Holders and shall be received and
held by the Sellers in trust for the Trustee on behalf of the Holders
and shall be turned over by the Sellers to the Trustee for the benefit
of the Holders forthwith, until all Senior Obligations have been paid
and performed in full and in cash.
(c) Application of Payments. All payments and distributions
arising from Proceeds received by the Trustee in respect of the Seller
Subordinated Debt, to the extent received in or converted into cash, may
be applied by the Trustee for the benefit of the Holders (i) first to
the payment of any and all reasonable expenses (including reasonable
attorneys' fees and legal expenses) paid or incurred by the Trustee or
any Holder in enforcing these Subordination Provisions, or in
endeavoring to collect or realize upon the Seller Subordinated Debt, and
(ii) any balance remaining therefrom shall be applied by the Trustee
toward the payment of the Senior Obligations in a manner determined by
the Trustee to be in accordance with the Pooling Agreement.
(d) Sellers' Rights of Subrogation. The Sellers agree that no
payment or distribution to Holders pursuant to these Subordination
Provisions shall entitle the Sellers to exercise any right of
subrogation in respect thereof until the Senior Obligations shall have
been paid in full in cash. The Sellers agree that these Subordination
Provisions herein shall not be affected by any action, or failure to
act, by any holder of Senior Obligations which results, or may result,
in affecting, impairing or extinguishing any right of reimbursement or
subrogation or other right or remedy of the Sellers.
(e) Company's Obligations Absolute. The provisions of this
paragraph are intended solely for the purpose of defining the relative
rights with respect to Proceeds of the Sellers, on the one hand, and the
Holders on the other hand. Nothing contained in these provisions or
A-3
<PAGE> 51
elsewhere in this Seller Note is intended to or shall impair, as between
the Company, its creditors (other than the Holders) and the Sellers, the
Company's obligation, which is unconditional and absolute, to pay the
Seller Subordinated Debt as and when the same shall become due and
payable in accordance with the terms hereof and of the Receivables Sale
Agreement or to affect the relative rights of the Sellers and creditors
of the Company (other than the Holders); provided that any payments made
by the Company pursuant to this subsection shall be made solely from
funds available to the Company which are not otherwise needed to be
applied to the payment of any amounts pursuant to any Pooling and
Servicing Agreements, shall be non-recourse other than with respect to
proceeds in excess of the proceeds to make such payment, and shall not
constitute a claim against the Company to the extent that insufficient
proceeds exist to make such payment.
(f) Avoided Payments. If, at any time, any payment (in whole or
in part) made with respect to any Senior Obligations is rescinded or
must be restored or returned by a Holder or the Trustee on behalf of the
Holders, the provisions of this paragraph shall continue to be effective
or shall be reinstated, as the case may be, as though such payment had
not been made.
(g) Subordination Not Affected by Certain Actions of Holders or
the Trustee. As between the Sellers, on the one hand, and the Holders
and the Trustee, on the other hand, each of the Holders or the Trustee
may, from time to time, at its sole discretion, without notice to the
Sellers, and without waiving any of its rights under these Subordination
Provisions, take any or all of the following actions: (i) retain or
obtain an interest in any property to secure any of the Senior
Obligations; (ii) extend or renew for one or more periods (whether or
not longer than the original period), alter, increase or exchange any of
the Senior Obligations, or release or compromise any obligation of any
nature with respect to any of the Senior Obligations; (iii) amend,
supplement, restate, or otherwise modify any Transaction Document; and
(iv) release its security interest in, or surrender, release or permit
any substitution or exchange for all or any part of any rights or
property securing any of the Senior Obligations.
(h) Waiver of Notice. By its acceptance hereof, each Seller
hereby waives: (i) notice of acceptance of the provisions of this
paragraph by any of the Holders or the Trustee; (ii) notice of the
existence, creation, non-payment or non-performance of all or any of the
Senior Obligations; and (iii) all diligence in enforcement, collection
or protection of, or realization upon, the Senior Obligations or any
security therefor.
A-4
<PAGE> 52
4. Restrictions on Assignment. Neither this Seller Note, nor any right
of the Sellers to receive payments hereunder, shall be assigned, transferred,
exchanged, pledged, hypothecated, participated or otherwise conveyed.
5. No Bankruptcy Petition. Each Seller covenants and agrees that, prior
to the date which is one year and one day after the date of termination of the
Receivables Sale Agreement pursuant to Section 9.15 thereof, it will not
institute against, or join any other Person in instituting against, the Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law.
6. Certain Termination Events. During the continuance of any Early
Amortization Event:
(a) the Company shall cease making any payments to the Sellers
under this Seller Note;
(b) the Trustee (on behalf of the Holders) may demand, sue for,
collect and receive every payment or distribution of any kind made in
respect of the Seller Subordinated Debt and file claims and proofs of
claim and take such other action (including enforcing any security
interest or other lien securing payment of the Seller Subordinated Debt)
as the Trustee (on behalf of the Holders) may deem necessary for the
exercise or enforcement of any of the rights or interests of Holders;
provided that in the event the Trustee takes such action, it shall apply
all proceeds first to the payment of costs under this Seller Note, then
to the payment of the Senior Obligations and any surplus proceeds
remaining thereafter to be paid over to whosoever may be lawfully
entitled thereto; and
(c) each Seller shall promptly take such action as the Trustee
(on behalf of the Holders) may request (i) to file appropriate claims or
proofs of claim in respect of the Seller Subordinated Debt; (ii) to
execute and deliver to the Trustee (on behalf of the Holders) such
powers of attorney, assignments, or other instruments as the Trustee may
request in order to enable it to enforce any and all claims with respect
to, and any security interests and other liens securing payment of, the
Seller Subordinated Debt, and (iii) to collect and receive any and all
payments or distributions which may be payable or deliverable upon or
with respect to the Seller Subordinated Debt for account of the Trustee
(on behalf of the Holders).
A-5
<PAGE> 53
THIS SELLER NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ANY CONFLICT OF LAW
PRINCIPLES.
INGRAM FUNDING INC.
By:
---------------------------------
Name:
Title:
A-6
<PAGE> 54
Schedule 1 to
Seller Note
Subordinated Loans and Payments of Principal
<TABLE>
<CAPTION>
Amount of Unpaid
Amount of Principal Principal Notation
Date Loans Repaid Balance Made By
---- --------- --------- --------- --------
<S> <C> <C> <C> <C>
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------
</TABLE>
A-7
<PAGE> 55
Exhibit B
to
Amended and Restated Receivables Sale Agreement
[FORM OF ADDITIONAL SELLER/SERVICER SUPPLEMENT]
SUPPLEMENT, dated [ ], to (i) the Amended and Restated Receivables Sale
Agreement, dated as of March 8, 2000 (as amended, restated, supplemented or
otherwise modified from time to time in accordance with its terms, the
"Receivables Sale Agreement"), among Ingram Funding Inc., the Seller named
therein and the Servicer named therein and (ii) the Amended and Restated
Servicing Agreement, dated as of March 8, 2000 (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Servicing Agreement"), among Ingram Funding Inc., Ingram Micro Inc.,
as Master Servicer and Servicer and The Chase Manhattan Bank, as Trustee.
Capitalized terms used herein and not defined herein shall have the respective
meanings set forth in the Receivables Sale Agreement.
W I T N E S S E T H:
WHEREAS, the Receivables Sale Agreement provides that any direct or
indirect, Subsidiary of Ingram Micro Inc., although not originally a Seller
thereunder, may become a Seller under the Receivables Sale Agreement upon the
satisfaction of each of the conditions precedent set forth in Sections 3.05 and
9.12 of the Receivables Sale Agreement, Section 2.08(l) of the Pooling Agreement
and any applicable provisions of any Supplement;
WHEREAS, the Servicing Agreement provides that any direct or indirect,
Subsidiary of Ingram Micro Inc., although not originally a Servicer thereunder,
may become a Servicer under the Servicing Agreement upon (i) the delivery to the
Company of a supplement in substantially the form of this Supplement and (ii)
the satisfaction of each of the conditions precedent set forth in Sections 3.05
of the Receivables Sale Agreement; and
WHEREAS, the undersigned was not an original Seller under the
Receivables Sale Agreement and the Seller Note or an original Servicer under the
Servicing Agreement but now desires to become a Seller and a Servicer,
respectively, thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the provisions of each of
the Receivables Sale Agreement, the Servicing Agreement and the other
Transaction Documents applicable to a Seller and a Servicer (other than the
Master Servicer), respectively, thereunder and agrees that it shall, on the date
this Supplement is
B-1
<PAGE> 56
accepted by the Company and the Trustee, on behalf of the Holders, become (a) in
the case of the Receivables Sale Agreement, a Seller, and (b) in the case of the
Servicing Agreement, a Servicer, for all purposes of the Receivables Sale
Agreement and the Servicing Agreement, respectively, to the same extent as if
originally a party thereto.
B-2
<PAGE> 57
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[Insert name of Seller/Servicer]
By:
---------------------------------
Name:
Title:
Accepted as of the date first above written:
INGRAM FUNDING INC.
By:--------------------------------
Name:
Title:
Acknowledged as of the date first above written:
[_____________], as Trustee, on
behalf of the Holders,
By:
--------------------------------
Name:
Title:
B-3
<PAGE> 58
Schedule 1
to
Amended and Restated Receivables Sale Agreement
Sellers: Ingram Micro Inc.
Servicers: Ingram Micro Inc.
<PAGE> 59
SCHEDULE 3 TO
RECEIVABLES SALE
AGREEMENT
Lockbox No. 72452
Bank of America San Francisco
Acct. # 1233307263
Ingram Micro Inc.
P.O. Box 6000,
San Francisco, CA 94160-2452
Lockbox No. 651266
Ingram Micro Inc.
Remittance Center # 651266
101 North Tryon Street, 5th Floor
Charlotte, NC 28265
Lockbox No. 31135
Bank of America,
Acct. # 1233307263
Dept. 5195
1000 West Temple Street
Los Angeles, CA 90012
Lockbox No. 651702
Ingram Micro Inc.
Remittance Center #651702
101 North Tryon Street, 5th Floor
Charlotte, NC 28285
Lockbox No. 31135
Bank of America
Acct. # 1233307263
Ingram Micro
Los Angeles, CA 90074-1135
Lockbox No. 651755
Ingram Micro Inc.
Remittance Center # 651755
101 North Tryon Street, 5th Floor
Charlotte, NC 28265
<PAGE> 60
Lockbox No. 98874
Bank of America Illinois
Acct. # 81881 01460
Ingram Micro Inc.
P.O. Box 98874
Chicago, IL 60693-8874
Lockbox No. 842219
Ingram Micro Inc.
Remittance Center # 842219
1401 Elm Street, 5th Floor
Dallas, TX 75284-2219
Lockbox No. 98415
Ingram Funding Inc.
C/O BOA Illinois
P.O. Box 98415
840 South Canal St., 3rd Floor
Chicago, IL 60693-8415
Lockbox No. 841381
Ingram Micro Inc.
P.O. Box 841381
Dallas, TX 75284-1381
Lockbox No. 65219
Ingram Micro Inc.
Remittance Center # 65219
101 North Tryon Street, 5th Floor
Charlotte, NC 28265
Lockbox No. 841972
Ingram Micro Inc.
P.O. Box 841972
Dallas, TX 75284-1972
Lockbox No. 65610
Ingram Micro Inc.
P.O. Box 65610
Charlotte, NC 28265-5610
2
<PAGE> 61
Schedule 4
to
Amended and Restated Receivables Sale Agreement
<TABLE>
<CAPTION>
Location of Chief Location of
Seller Executive Office Books and Records
- ----------------- --------------------- -----------------------------
<S> <C> <C>
Ingram Micro Inc. 1600 St. Andrew Place 1600 St. Andrew Place
Santa Ana, CA 92705 Santa Ana, CA 92705
1759 Wehrle Drive
Williamsville, NY 14221-7887
</TABLE>
<PAGE> 62
SCHEDULE 5 TO
RECEIVABLES SALE AGREEMENT
Names
Ingram Micro Inc.
Ingram Micro
IMpulse
Partnership America
Leading the Way in Worldwide Distribution
Frameworks Total Integration Services
Affiniti
eSolutions
ISG
VentureTech Network
Partners in Excellence
the Ingram Micro logo
Everest Series
<PAGE> 63
Schedule 6
to
Amended and Restated Receivables Sale Agreement
Discounted Percentage
All terms defined or referenced in the Receivables Sale Agreement, the
Pooling Agreement or Supplement and not otherwise defined or referenced herein
are used herein as therein defined or referenced.
The Discounted Percentage applicable to all the Receivables purchased on
any date from any Seller shall equal (a) until the date which is 90 days after
the initial Effective Date, ____% and (b) thereafter, the percentage obtained
from the following formula:
100% - (A + B + C + D)
all determined by the Company as of the related Distribution Date,
Where
A = Adjusted Loss Reserve Percentage, which as of such Payment Date will
equal the ratio obtained by dividing (a) Charged-Off Receivables (net
of recoveries in respect of Charged-Off Receivables) with respect to
such Seller during the six-fiscal-month period immediately preceding
the Settlement Report Date most recently preceding such Payment Date
by (b) two times the aggregate amount of Collections during the
three-fiscal-month period immediately preceding the Settlement Report
Date most recent to such Payment Date with respect to Receivables
originated by such Seller.
B = Adjusted Carrying Cost Reserve Percentage, which as of such Payment
Date will equal the amount obtained by dividing (a) the product of (i)
1.5, (ii) Days Sales Outstanding and (iii) the One-Month LIBOR plus 2%
by (b) 360.
C = The Servicing Fee Percentage divided by 360.
D = Processing Expense Reserve Percentage, which will equal 1/2% and
reflects the cost of the Company's overhead, including costs of
processing the purchase of Receivables and other normal operating costs
and a reasonable profit margin.
None of the elements of the above-referenced formula, in respect of any purchase
of Receivables, will be adjusted following the related Payment Date. With
<PAGE> 64
respect to each calculation set forth above with respect to a Settlement Report
Date, such calculation as calculated on such Settlement Report Date and included
in the applicable Monthly Settlement Statement shall remain in effect from and
including the related Settlement Report Date to but excluding the following
Settlement Report Date.
<PAGE> 1
EXHIBIT 10.58
EXECUTION COPY
AMENDED AND RESTATED
SERVICING AGREEMENT
Among
INGRAM FUNDING INC.,
INGRAM MICRO INC.,
as Master Servicer and Servicer,
and
THE CHASE MANHATTAN BANK,
as Trustee
Dated as of March 8, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I Definitions........................................................1
SECTION 1.01. Definitions...............................................1
SECTION 1.02. Other Definitional Provisions.............................1
ARTICLE II Administration and Servicing of Receivables.......................2
SECTION 2.01. Appointment of Servicer...................................2
SECTION 2.02. Servicing Procedures......................................3
SECTION 2.03. Collections...............................................5
SECTION 2.04. Reconciliation of Deposits................................6
SECTION 2.05. Servicing Compensation....................................6
ARTICLE III Representations and Warranties of the Master Servicer
and each Servicer................................................7
SECTION 3.01. Representations and Warranties............................7
ARTICLE IV Covenants of the Master Servicer and each Servicer................9
SECTION 4.01. Delivery of Daily Reports.................................9
SECTION 4.02. Delivery of Monthly Settlement Statement..................9
SECTION 4.03. Delivery of Annual Master Servicer's Certificates........10
SECTION 4.04. Delivery of Independent Public Accountants'
Servicing Reports........................................10
SECTION 4.05. Extension, Amendment and Adjustment of Receivables;
Amendment of Policies....................................10
SECTION 4.06. Protection of Holders' Rights............................11
SECTION 4.07. Security Interest........................................11
SECTION 4.08. Location of Records......................................11
SECTION 4.09. Visitation Rights........................................12
SECTION 4.10. Lockbox Agreement; Lockbox Accounts......................12
SECTION 4.11. Delivery of Financial Statements.........................13
SECTION 4.12. Notices..................................................14
ARTICLE V Other Matters Relating to the Master Servicer and Each Servicer...14
SECTION 5.01. Merger, Consolidation etc................................14
SECTION 5.02. Indemnification of the Trust and the Trustee.............14
SECTION 5.03. Resignation by Master Servicer or Any Servicer...........15
SECTION 5.04. Access to Certain Documentation and Information
Regarding the Receivables................................16
ARTICLE VI Servicer Defaults; Servicer Termination..........................16
SECTION 6.01. Servicer Defaults........................................16
SECTION 6.02. Trustee To Act; Appointment of Successor.................20
SECTION 6.03. Waiver of Past Defaults..................................21
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
ARTICLE VII Miscellaneous Provisions........................................21
SECTION 7.01. Amendment................................................21
SECTION 7.02. Termination..............................................22
SECTION 7.03. Governing Law............................................22
SECTION 7.04. Addition of Servicers....................................22
SECTION 7.05. Notices..................................................22
SECTION 7.06. Counterparts.............................................23
SECTION 7.07. Third-Party Beneficiaries................................23
SECTION 7.08. Merger and Integration...................................23
SECTION 7.09. Headings.................................................23
SECTION 7.10. No Set-Off...............................................23
SECTION 7.11. No Bankruptcy Petition...................................23
Exhibit A Form of Annual Master Servicer's Certificate
Exhibit B Form of Agreed Upon Procedures
Exhibit C Insurance Requirements
</TABLE>
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AMENDED AND RESTATED SERVICING AGREEMENT, dated as of March 8, 2000
(this "Agreement") among the Ingram Funding Inc. (the "Company"), the Master
Servicer, each Servicer and the Trustee.
W I T N E S S E T H:
WHEREAS, the Company, the Seller, and each Servicer have entered into an
Amended and Restated Receivables Sale Agreement, dated as of the date hereof (as
in effect on the date hereof and as hereafter amended, restated, supplemented or
otherwise modified from time to time, the "Receivables Sale Agreement");
WHEREAS, pursuant to the Receivables Sale Agreement, the Seller sells to
the Company, and the Company purchases from the Seller, all of the Seller's,
right, title and interest in, to and under the Receivables and other Receivable
Assets (as defined in the Receivables Sale Agreement);
WHEREAS, on November 6, 1996 the Company, the Master Servicer and the
Trustee, along with Ingram Industries Inc. entered into Amendment No. 2 to the
Pooling and Servicing Agreement dated as of February 10, 1993, which had been
previously amended by amendment No. 1 on January 31, 1994 (as so amended, the
"Original Agreement") and by further amendment and restatement on the date
hereof the Original Agreement (as in effect on the date hereof and as hereafter
amended, supplemented or otherwise modified from time to time, the "Pooling
Agreement") no longer provides for the servicing of the Receivables and
Receivables Assets; and
WHEREAS, the parties hereto are entering into this Agreement to provide
for the servicing of the Receivables and Receivables Assets.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Unless otherwise defined herein, capitalized
terms that are used herein shall have the meanings assigned to such terms in the
Pooling Agreement and each Supplement thereto.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement (directly or by incorporation by
reference pursuant to Section 1.01) shall have the defined meanings when used in
any certificates or other document made or delivered pursuant hereto unless
otherwise defined therein.
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(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined herein
(directly or by incorporation by reference pursuant to Section 1.01) and
accounting terms partly defined herein (directly or by incorporation by
reference pursuant to Section 1.01), to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the definitions
of accounting terms herein are inconsistent with the meanings of such terms
under GAAP, the definitions contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references contained in this Agreement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(d) The definitions contained herein are applicable to the singular as
well as the plural forms of such terms and to the masculine, the feminine and
the neuter genders of such terms.
(e) Where reference is made in this Agreement to the principal amount of
Receivables, such reference shall, unless explicitly stated otherwise, be deemed
a reference to the Principal Amount of such Receivables.
(f) Any reference herein or in any other Transaction Document to a
provision of the Internal Revenue Code, the 1940 Act or ERISA shall be deemed to
be also a reference to any successor provision thereto.
(g) Any reference herein to a Schedule or Exhibit to this Agreement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(h) Any reference in this Agreement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Agreement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(i) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
ARTICLE II
Administration and Servicing of Receivables
SECTION 2.01. Appointment of Servicer. The Company hereby appoints
Ingram Micro Inc. to act as, and Ingram Micro Inc. hereby accepts its
appointment and agrees to act as
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Master Servicer and as a Servicer under the Pooling and Servicing Agreements and
the Investor Certificateholders, by their acceptance of the Investor
Certificates, consent to Ingram Micro Inc. acting as Master Servicer and a
Servicer. Each Servicer shall have responsibility for the management of the
servicing and receipt of Collections in respect of the Receivables originated by
itself as a Seller and/or by one or more of its Affiliates, as may be determined
from time to time by the Servicer and identified on Schedule 1 or a revision
thereof to the Receivables Sale Agreement. (Such Servicer is sometimes referred
to as the "Responsible Servicer" with respect to any Receivable that it is
responsible to service hereunder and such Receivable is sometimes referred to
herein as a "Serviced Receivable" with respect to the Servicer that is
responsible to service such Receivable hereunder). Each Servicer shall have the
authority to make any management decisions relating to each Serviced Receivable
to the extent such authority is granted to the Servicer under any Pooling and
Servicing Agreement. Ingram Micro Inc., in its capacity as Master Servicer,
shall remain obligated for the supervision of each Servicer and the compliance
by each Servicer with the terms and conditions of the Policies and the Pooling
and Servicing Agreements and shall coordinate the servicing of all Receivables.
The Company, the Trustee and the Holders shall treat Ingram Micro Inc. as Master
Servicer and Servicer and may conclusively rely on the instructions, notices and
reports of Ingram Micro Inc. as the Master Servicer and Servicer for so long as
Ingram Micro Inc. continues in its appointments as Master Servicer and Servicer.
SECTION 2.02. Servicing Procedures.
(a) Each Servicer shall manage the servicing and administration of the
Serviced Receivables, the collection of payments due under such Serviced
Receivables and charging off of any such Serviced Receivables as uncollectible,
all in accordance with the Policies and the terms of the Pooling and Servicing
Agreements; provided, however, if Ingram Micro Inc. is no longer the Master
Servicer, the Master Servicer shall service the Receivables in accordance with
the standards that would be employed by a prudent institution in servicing
comparable receivables for its own account. Each Servicer shall have full power
and authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration that it may deem necessary or desirable, but subject to the terms
of this Agreement and the other Transaction Documents. Without limiting the
generality of the foregoing and subject to Section 6.01 hereof, each Servicer or
its designee with respect to its Serviced Receivables and the Master Servicer or
its designee with respect to all Receivables is hereby authorized and empowered
to (i) execute and deliver, on behalf of the Trustee for the benefit of the
Holders, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, and, after
the delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to Receivables and (ii) make any filings, reports,
notices, applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any Federal or state securities or reporting requirements or laws.
(b) Without limiting the generality of the foregoing and subject to
Section 6.01 hereof, the Master Servicer or its designee is hereby authorized
and empowered to give written
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direction to the Trustee with respect to withdrawals from, and payments to, the
Collection Account in accordance with the Daily Report and as otherwise
specified in the Pooling and Servicing Agreements.
(c) Each Servicer shall, at its cost and expense and as agent for the
Company and the Trustee, collect, consistent with its past practices, as and
when the same becomes due, all amounts owing on each Receivable. The Servicer
shall not make any material change in its administrative, servicing and
collection systems that deviates from its Policies, except as expressly
permitted by the terms of the Pooling and Servicing Agreements and after giving
written notice to the Trustee. In the event of a default under any Receivable,
the Servicer shall have the power and authority, on behalf of the Company and
the Trust, for the benefit of the Holders, to take such action in respect of
such Receivable as the Servicer may deem advisable. In the enforcement or
collection of any Receivable, the Servicer shall be entitled, but not required,
to sue thereon in (i) its own name or (ii) if, but only if, the Company consents
in writing (which consent shall not be unreasonably withheld), as agent for the
Company. In no event shall the Servicer be entitled to take any action that
would make the Company, the Trustee, any Agent or any Holder a party to any
litigation without the express prior written consent of such Person.
(d) Without limiting the generality of the foregoing and subject to
Section 6.01 hereof, each Servicer is hereby authorized and empowered to
delegate any or all of its servicing, collection, enforcement and administrative
duties hereunder with respect to the Receivables to a Person who agrees to
conduct such duties in accordance with the Policies; provided, however, that
such Servicer shall give prior written notice to the Company, the Trustee, each
Agent and the Rating Agencies of any such delegation relating to a material duty
prior to such delegation being effective, such Servicer shall have received
notice that the Rating Agency Condition shall be satisfied after giving effect
to such delegation and the consent of the Company, the Trustee and each Agent to
such delegation shall have been obtained. No delegation of duties by a Servicer
permitted hereunder shall relieve such Servicer of its liability and
responsibility with respect to such duties.
(e) Except as provided in the Pooling and Servicing Agreements, no
Servicer nor any Successor Servicer shall be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Serviced
Receivables transferred to the Company (and, subsequently, to the Trust) from
the procedures, offices, employees and accounts used by such Servicer or such
Successor Servicer, as the case may be, in connection with servicing other
receivables.
(f) Each Servicer shall comply with and perform its servicing
obligations with respect to the Serviced Receivables in accordance with the
contracts, if any, relating to the Serviced Receivables and the Policies.
(g) No Servicer shall take any action to cause any Serviced Receivable
not evidenced by any "instrument" (as defined in the UCC as in effect in the
State of New York) upon origination to become evidenced by an instrument and no
Servicer shall take any action to cause any interest in any Serviced Receivable
to be evidenced by any title documents in bearer form, except in connection with
its enforcement or collection of a Serviced Receivable, in which event
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such Servicer shall deliver such instrument or title documents to the Trustee as
soon as reasonably practicable, but in no event more than five days after
execution thereof; provided that any origination of Receivables by any Servicer,
in its capacity as a Seller, in compliance with the Pooling and Servicing
Agreements shall not constitute a breach of this Section 2.02(g).
SECTION 2.03. Collections.
(a) Each Servicer shall have instructed all Obligors to make all
payments in respect of the Receivables to a Lockbox or a Lockbox Account. Each
of the Company and each Servicer represents, warrants and agrees that all
Collections shall be collected, processed and deposited by it pursuant to, and
in accordance with the terms of, the Pooling and Servicing Agreements. Without
limiting the generality of the foregoing, the Master Servicer shall comply with
the provisions of subsection 3.01(d) of the Pooling Agreement as to remittance
of funds available in any Lockbox Account. In the event that any payments in
respect of any Receivable are made directly to a Servicer (including any
employees thereof or independent contractors employed thereby), such Servicer
shall, within two Business Days of receipt thereof, deliver (which may be via
regular mail) or deposit such amounts to a Lockbox, a Lockbox Account or the
Collection Account and, prior to forwarding such amounts, such Servicer shall
hold such payments in trust as custodian for the Company and the Trustee.
(b) Each Lockbox Agreement shall provide that the Lockbox Processor
thereunder is irrevocably directed, and such Lockbox Processor irrevocably
agrees, (i) to deposit funds received in the Lockbox directly into the Lockbox
Account and (ii) to transfer all available funds on deposit in the Lockbox
Account within one Business Day of the Business Day Received to the Trustee for
deposit in the Collection Account. Each Lockbox Agreement shall be substantially
in the form specified in the Pooling Agreement, subject to modifications thereof
as provided in the Pooling Agreement and applicable Supplements. Prior to any
resignation of the Lockbox Processor or termination of the Lockbox Processor by
the Company or the Trustee with respect to any Receivables, each Servicer hereby
agrees (to the extent that it is a Responsible Servicer with respect to such
Receivables) to obtain a replacement Lockbox Processor. Upon satisfaction of the
Rating Agency Condition, a Servicer may enter into any amendments or
modifications of a Lockbox Agreement that such Servicer reasonably deems
necessary to conform such Lockbox Agreement to the cash management system of the
Company or the Responsible Servicer.
(c) The Trustee shall administer amounts on deposit in the Collection
Account in accordance with the terms of the Pooling and Servicing Agreements.
Each of the Company, the Master Servicer and each Servicer acknowledges and
agrees that (i) it shall not have any right to withdraw any funds on deposit in
the Collection Account or any Lockbox Account and (ii) all amounts deposited in
the Collection Account or any Lockbox Account shall be under the sole dominion
and control of the Trustee (subject to the Master Servicer's or Servicer's
rights to direct the application of any such amounts as provided by the terms of
the Pooling and Servicing Agreements).
(d) As soon as practicable, but in any event not later than the Business
Day following the date that a Servicer identifies any of the collected funds
received in the Collection Account as
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funds that do not constitute Collections on account of the Receivables, such
moneys that do not constitute such Collections shall be remitted to the Master
Servicer and then by the Master Servicer to the appropriate Seller.
(e) Unless otherwise required by law or unless an Obligor designates
that a payment be applied to a specific Receivable, all Collections received
from an Obligor shall be applied to the oldest Receivables of such Obligor.
SECTION 2.04. Reconciliation of Deposits. If in respect of Collections
on account of a Receivable, the Responsible Servicer deposits into the
Collection Account an amount that is less than or more than the actual amount of
such Collections, such Servicer shall, in lieu of making a reconciling
withdrawal or deposit, as the case may be, adjust the amount subsequently
deposited into such Collection Account to reflect such mistake.
SECTION 2.05. Servicing Compensation.
(a) As full compensation for each Servicer's servicing activities
hereunder and reimbursement for its expenses as set forth in Section 2.05(b)
below, the Master Servicer, on behalf of the Servicers, shall be entitled to
receive on each Distribution Date, for the preceding Settlement Period prior to
the termination of the Trust pursuant to Section 9.01 of the Pooling Agreement,
a servicing fee (the "Servicing Fee"). The Servicing Fee shall be an amount
equal to (i) the product of (A) the Servicing Fee Percentage and (B) the average
aggregate Principal Amount of the Receivables in the Trust for such Settlement
Period and (C) the number of days in such Settlement Period, divided by (ii)
360. Except as otherwise set forth in the related Supplement, the share of the
Servicing Fee allocable to each Outstanding Series for any Settlement Period
shall be an amount equal to the product of (i) the Servicing Fee for such
Settlement Period and (ii) the Invested Percentage for such Series (with respect
to any such Series, the "Monthly Servicing Fee"); provided, however, that if on
any day a Seller or any Affiliate thereof is acting as a Servicer and an Early
Amortization Event has occurred and is continuing with respect to any
Outstanding Series, the portion of the Monthly Servicing Fee payable to such
Seller or an Affiliate thereof with respect to such Outstanding Series shall be
deferred until all amounts due under the Investor Certificates of such
Outstanding Series have been paid in full. The Servicing Fee shall be payable to
the Master Servicer, solely pursuant to the terms of, and to the extent amounts
are available for payment under, Article III of the Pooling Agreement.
(b) The Company hereby directs the Master Servicer to pay amounts due to
the Trustee pursuant to Section 8.05 of the Pooling Agreement and the reasonable
fees and disbursements of independent accountants, and all other reasonable fees
and expenses of the Trust (including counsel fees, if any) not expressly stated
herein to be for the account of the Holders; provided, however, that in no event
shall the Master Servicer, any Servicer or the Trustee be liable for any
Federal, state or local income or franchise tax, or any interest or penalties
with respect thereto, assessed on the Trust or the Holders except in accordance
with Section 5.02 hereof and as otherwise expressly provided herein. Each
Servicer shall be required to pay expenses for its own account, and shall not be
entitled to any payment therefor other than its portion of the Servicing Fee.
Nothing contained herein shall be construed to limit the
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obligation of the Master Servicer or the Company to pay any amounts due the
Trustee pursuant to Section 8.05 of the Pooling Agreement.
ARTICLE III
Representations and Warranties of the Master Servicer and each Servicer
SECTION 3.01. Representations and Warranties. As of (i) the date hereof
and (ii) each Issuance Date, the Master Servicer and each Servicer hereby make
the following representations and warranties as to itself (and in the case of
Ingram Micro Inc. as to its Significant Subsidiaries) to each of the parties
hereto:
(a) Organization; Powers. It (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except where
the failure so to qualify could not reasonably be expected to result in a
Servicer Material Adverse Effect and (iv) has the corporate power and authority
to execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated hereby to which it
is or will be a party.
(b) Authorization; No Conflict. The execution, delivery and performance
by it of each of the Transaction Documents to which it is a party and
performance of the transactions contemplated hereby and thereby (collectively,
the "Transactions") (i) have been duly authorized by all requisite corporate
and, if required, stockholder action and (ii) will not (A) violate (1) any
Requirement of Law or (2) any provision of any Transaction Document or other
material Contractual Obligation to which it or any Significant Subsidiary is a
party or by which any of them or any of their property is or may be bound, (B)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under any Transaction Document or any other material Contractual
Obligation, except where any such conflict, violation, breach or default
referred to in clause (A) or (B), individually or in the aggregate, could not
reasonably be expected to have a Servicer Material Adverse Effect, or (C) result
in the creation or imposition of any Lien upon the Receivables (other than
Permitted Liens and any Lien created hereunder or contemplated or permitted
hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by it and constitutes, and each other Transaction Document to which it is a
party when executed and delivered by it will constitute, its legal, valid and
binding obligation enforceable against it in accordance with such document's
terms, subject to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect and (b) general principals of equity
(whether enforcement is sought by a proceeding in equity or at law).
(d) Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with
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the Transactions, except for (i) the filing of UCC financing statements and (ii)
such as have been made or obtained and are in full force and effect.
(e) Litigation; Compliance with Laws.
(i) There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to its
knowledge, threatened against it or any Significant Subsidiary (A) that
involve any Transaction Document or the Transactions or (B) as to which
there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or
in the aggregate, to result in a Servicer Material Adverse Effect.
(ii) Neither it nor any Significant Subsidiary is in default
with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably
be expected to result in a Servicer Material Adverse Effect.
(f) Agreements.
(i) Neither it nor any Significant Subsidiary is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted or could reasonably be expected to result in a Servicer
Material Adverse Effect.
(ii) Neither it nor any Significant Subsidiary is in default in
any manner under any provision of any Contractual Obligation to which it
is a party or by which it or any of its properties or assets are bound,
where such default could reasonably be expected to result in a Servicer
Material Adverse Effect.
(g) No Servicer Default. No Servicer Default or Potential Servicer
Default has occurred and is continuing.
(h) Servicing Ability. As of the related Issuance Date, there has not
been since the date of this Agreement any adverse change in its ability to
perform its obligations as Servicer under any Transaction Document to which it
is a party.
(i) Location of Records. The office at which it keeps its records
concerning any Receivables is either (i) located at the address set forth for it
on Schedule 1 to the Receivables Sale Agreement or (ii) at a location as to
which the Company and the Trustee have been notified in accordance with the
provisions of Section 4.08 hereof. Its chief executive office is located at such
location and such office is the place where it is "located" for the purposes of
Section 9-103(3)(d) of the UCC as in effect in the State of New York.
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ARTICLE IV
Covenants of the Master Servicer and each Servicer
SECTION 4.01. Delivery of Daily Reports. Unless otherwise specified in
the Supplement with respect to any Series, for each Business Day (the "Reported
Day") and with respect to each Outstanding Series, the Master Servicer shall
submit to the Company, the Trustee and the relevant Agent no later than 3:30
p.m., New York City time, on the next Business Day following each Reported Day,
a written report substantially in the form attached to the related Supplement
for each such Series (the "Daily Report") setting forth for the Reported Day
total Collections on the Receivables, the amount of Collections attributable to
previously identified Ineligible Receivables for which an Adjustment Payment and
a Seller Adjustment Payment have been made pursuant to the Pooling Agreement and
the Receivables Sale Agreement, respectively (which are payable to the Seller in
accordance with Section 2.06(a) of the Receivables Sale Agreement), the amount
of Receivables originated, the amount of Ineligible Receivables (if any)
identified on the Reported Day, and such other information as the Company, the
Trustee or such Agent may reasonably request. The Daily Report may be delivered
in an electronic format mutually agreed upon by the Master Servicer and the
Trustee, or pending such agreement, by facsimile. By delivery of a Daily Report,
the Master Servicer shall be deemed to have made a representation and warranty
that all information set forth therein is true and correct in all material
respects.
SECTION 4.02. Delivery of Monthly Settlement Statement. Unless otherwise
specified in the Supplement with respect to any Outstanding Series, the Master
Servicer hereby covenants and agrees that it shall deliver to the Company, the
Trustee, the relevant Agent and each Rating Agency by 5:00 p.m., New York City
time, on each Settlement Report Date, a certificate of a Responsible Officer of
the Master Servicer substantially in the form attached to the related Supplement
for each such Outstanding Series (a "Monthly Settlement Statement") setting
forth, as of the last day of the Settlement Period most recently ended and for
such Settlement Period, (a) the information described in the form of such
Monthly Settlement Statement with such changes as may be agreed to by the Master
Servicer, the Company, the Trustee and the relevant Agent (if any) and subject
to satisfaction of the Rating Agency Condition and (b) such other information as
the Trustee or the relevant Agent may reasonably request. Such certificate shall
include a certification by a Responsible Officer of the Master Servicer that, to
such Responsible Officer's knowledge, the information contained therein is true
and correct in all material respects and the related Servicer has performed all
of its obligations in all material respects under each Transaction Document to
which it is a party throughout such preceding Settlement Period (or, if there
has been a default in the performance of any such obligation, specifying each
such default known to such Responsible Officer and the nature and status
thereof). A copy of each Monthly Settlement Statement may be obtained by any
Holder by a request in writing to the Trustee addressed to the Corporate Trust
Office.
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SECTION 4.03. Delivery of Annual Master Servicer's Certificates. The
Master Servicer shall deliver to the Company, the Trustee, each Agent and each
Rating Agency, an Officer's Certificate substantially in the form of Exhibit A
hereto, certifying that:
(a) a review of its activities during the preceding calendar year, and
of its performance under each Transaction Document was made under the
supervision of such Responsible Officer;
(b) to such Responsible Officer's knowledge, based on such review, the
Master Servicer and each Servicer have performed their respective obligations
under each Transaction Document throughout the period covered by such
certificate (or, if there has been a default in the performance of any such
obligation, specifying each such default known to such Responsible Officer and
the nature and status thereof); and
(c) each Daily Report and Monthly Settlement Statement was correct in
all material respects.
Such certificate shall be delivered by the Master Servicer within 120 days after
the end of each calendar year commencing with the year ending December 31, 2000.
A copy of each such certificate may be obtained by any Holder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
SECTION 4.04. Delivery of Independent Public Accountants' Servicing
Reports. The Master Servicer shall cause Independent Public Accountants to
furnish to the Company, and upon execution of an acknowledgment letter with such
Independent Public Accountants as they may reasonably require, the Trustee and
each Agent within 120 days following the last day of its fiscal year a letter to
the effect that such firm has performed certain agreed-upon procedures
(substantially in the form of Exhibit B hereto) relating to the Master Servicer
and its performance hereunder during the preceding fiscal year and describing
such accountant's findings with respect to such procedures. A copy of such
report may be obtained by any Holder by a request in writing to the Trustee
addressed to the Corporate Trust Office; provided, that reliance by such Holder
may be conditioned upon its execution of an acknowledgment letter with such
Independent Public Accountants.
SECTION 4.05. Extension, Amendment and Adjustment of Receivables;
Amendment of Policies.
(a) Each Servicer hereby covenants and agrees with the Company and the
Trustee that it shall not extend, rescind, cancel, amend or otherwise modify, or
attempt or purport to extend, rescind, cancel, amend or otherwise modify, the
terms of, or grant any Dilution Adjustment to, any Serviced Receivable, or
otherwise take any action that is intended to cause or permit a Serviced
Receivable that is an Eligible Receivable to cease to be an Eligible Receivable,
except in any such case (i) in accordance with the terms of its Policies, (ii)
as required by any Requirement of Law or (iii) in the case of any Dilution
Adjustments, upon the payment by or on behalf of the appropriate Seller of a
Seller Dilution Adjustment Payment pursuant to Section 2.05 of the Receivables
Sale Agreement. Any Dilution Adjustment authorized to be made
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pursuant to the preceding sentence shall result in the reduction, on the
Business Day on which such Dilution Adjustment arises or is identified, in the
aggregate Principal Amount of Receivables and if as a result of such a reduction
the Aggregate Target Receivables Amount exceeds the Aggregate Receivables
Amount, the Company (in addition to the obligations of the Seller under the
Receivables Sale Agreement in respect of such Dilution Adjustment) shall be
required to pay into the Series Principal Collection Sub-subaccount with respect
to each Outstanding Series in immediately available funds, within one Business
Day of such determination, the pro rata share for such Series of the amount (the
"Cash Dilution Payment") by which the Aggregate Target Receivables Amount
exceeds the Aggregate Receivables Amount.
(b) No Servicer shall change or modify its Policies in any material
respect, except (i) if such change or modification is necessary under any
Requirement of Law (which for the purposes of this Section shall not include the
certificate of incorporation or by-laws or other organizational or governing
documents of the Master Servicer) or (ii) if the Rating Agency Condition is
satisfied with respect thereto and the Agents have consented thereto (which
consent shall not be unreasonably withheld). Each Servicer shall provide notice
to the Company, the Trustee, each Agent and each Rating Agency of any change or
modification of its Policies; provided, however, that if any change or
modification, other than a change or modification permitted pursuant to clause
(i) above, would reasonably be expected to have a Material Adverse Effect, a
Seller Material Adverse Effect, a Servicer Material Adverse Effect or a Company
Material Adverse Effect with respect to a Series that is not rated by a Rating
Agency, then the consent of Investor Certificateholders representing Investor
Certificateholders' Interest aggregating not less than 50% of the Adjusted
Invested Amount of such Series (or, as otherwise specified in the related
Supplement) shall be required to effect such change or modification.
SECTION 4.06. Protection of Holders' Rights. Each of the Master Servicer
and each Servicer hereby agrees with the Company and the Trustee that it shall
take no action, nor intentionally omit to take any action, that would reasonably
be expected to adversely impair the rights, remedies or interests of the Holders
under the Transaction Documents in respect of the Receivables or any Related
Property nor shall it reschedule, revise or defer payments due on any Receivable
except in accordance with its Policies or Section 4.05 above.
SECTION 4.07. Security Interest. Each of the Master Servicer and each
Servicer hereby covenants and agrees that it shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) on, any Receivable or any Receivable
Assets (as defined in the Receivables Sale Agreement), whether now existing or
hereafter created, or any interest therein, and each of the Master Servicer and
each Servicer shall defend the right, title and interest of the Company and the
Trust in, to and under any Receivable and any Receivable Assets, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Master Servicer, the Servicer or the Company; provided,
however, that nothing in this Section 4.07 shall prevent or be deemed to
prohibit the Servicer from suffering to exist upon any of the Receivables any
Permitted Liens.
SECTION 4.08. Location of Records. Each Servicer hereby covenants and
agrees that it (a) shall not move its chief executive office or any of the
offices where it keeps its records with respect to any Receivables outside of
the location specified in respect thereof on Schedule 4 to
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the Receivables Sale Agreement, in any such case, without giving 30 days prior
written notice to the Company, the Trustee, each Agent and the Rating Agencies
and (b) shall promptly take all actions (including any filings under the UCC)
required or reasonably necessary in order to continue the valid and enforceable
interest of the Company and the Trust in all Receivables and Receivable Assets.
SECTION 4.09. Visitation Rights.
(a) Each Servicer shall, at any reasonable time during normal business
hours on any Business Day, and from time to time, upon reasonable prior notice,
and as often as may reasonably be requested, and at any time after the
occurrence of a Servicer Default, and in any case subject to its security and
confidentiality requirements, (i) permit the Company, the Trustee, any Agent or
any of their respective agents or representatives (who may be accompanied by
agents or representatives of any Insurer), (A) to examine and make copies of and
abstracts from its records, books of account and documents (including computer
tapes and disks) relating to the Receivables and (B) following the termination
of its appointment as Servicer to be present at its offices and properties to
administer and control the Collection of the Receivables and to allow the
Trustee access to documents, instruments and other records (including the
documents, instruments and other records required to be transferred to a
successor pursuant to Section 6.01 hereof upon a Servicer Transfer), equipment
and personnel that are necessary to enable a Successor Servicer to continue
servicing operations in accordance with the terms of the Transaction Documents
and (ii) permit the Company, the Trustee, any Agent or any of their respective
agents or representatives (who may be accompanied by agents or representatives
of any Insurer) to visit its properties to discuss its affairs, finances and
accounts relating to the Receivables or its performance hereunder or under any
of the other Transaction Documents to which it is a party with any of its
officers or directors; provided that, except as otherwise provided in Section
8.05(b) of the Pooling Agreement, any such examination or visit shall be at the
cost and expense of the party or parties making such examination or visit.
(b) Each Servicer shall provide the Trustee with such other information
as the Trustee may reasonably request in connection with the fulfillment of the
Trustee's obligations under the Pooling and Servicing Agreements.
SECTION 4.10. Lockbox Agreement; Lockbox Accounts. Each Servicer shall
(a) maintain, and keep in full force and effect, each Lockbox Agreement to which
it is a party, except to the extent otherwise permitted under the terms of the
Transaction Documents, and (b) take all reasonable actions necessary to ensure
that each Lockbox Account shall be free and clear of, and defend each Lockbox
Account against, any writ, order, stay, judgment, warrant of attachment or
execution or similar process; provided, however, that upon satisfaction of the
Rating Agency Condition, the Company may enter into any amendments to or
modifications of a Lockbox Agreement that the Company reasonably deems necessary
to conform such Lockbox Agreement to the cash management system of the Company
or the Servicer.
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SECTION 4.11. Delivery of Financial Statements. For so long as it is the
Master Servicer or a Servicer, Ingram Micro Inc. shall furnish to the Company,
the Trustee, any Insurer, each Agent and the Rating Agencies:
(a) promptly after filing, copies of each Form 10-K, Form 10-Q and Form
8K (or any respective successor forms) filed with the Securities and Exchange
Commission (or any successor authority) or any national securities exchange
(including, in each case, any exhibits thereto if requested);
(b) to the extent not disclosed in such Forms 10-K, Forms 10-Q and Forms
8-K for the applicable period, copies of the following financial statements,
reports, notices and information:
(i) within 120 days after the end of each fiscal year of Ingram
Micro Inc., Ingram Micro Inc.'s consolidated balance sheet and related
statements of income, stockholders' equity and cash flows showing the
consolidated financial condition of Ingram Micro Inc. and its
consolidated subsidiaries as of the close of such fiscal year and the
consolidated results of its operations and the operations of such
subsidiaries during such year (and showing, on a comparative basis, the
figures for the previous year), all audited by Price Waterhouse or other
independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect except that qualifications relating to
(i) preacquisition balance sheet accounts of Persons acquired by Ingram
Micro Inc. or any of its Subsidiaries and (ii) statements in reliance on
another accounting firm shall be permitted) to the effect that such
consolidated financial statements fairly present in all material
respects the financial condition and results of operations of Ingram
Micro Inc. and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(ii) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of Ingram Micro Inc., Ingram Micro
Inc.'s unaudited consolidated balance sheet and related statements of
income, stockholders' equity and cash flows showing the consolidated
financial condition of Ingram Micro Inc. and its consolidated
subsidiaries as of the close of such fiscal quarter and the consolidated
results of its operations and the operations of such subsidiaries during
such fiscal quarter and the then elapsed portion of the fiscal year (and
showing, on a comparative basis, such information as of and for the
corresponding dates and periods of the preceding fiscal year), all
certified by a Responsible Officer of Ingram Micro Inc. as fairly
presenting in all material respects the consolidated financial condition
and results of operations of Ingram Micro Inc. and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP (except for
the absence of footnote disclosure) consistently applied, subject to
year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
subsection (b)(i) above, a certificate of the Responsible Officer certifying
such statements;
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(d) promptly after the filing thereof copies of any registration
statement (other than the exhibits thereto and excluding any registration
statements on Form S-8 and any other registration statement relating exclusively
to stock, bonus, option, 401(k) and other similar plans for officers, directors
and employees of Ingram Micro Inc., Ingram Industries Inc., Ingram Entertainment
Inc. or any of their respective Subsidiaries or Affiliates); and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Ingram Micro Inc., any
Significant Subsidiary, or compliance with the terms of any Transaction
Document, in each case as the Trustee, any Agent or any Holder may reasonably
request.
SECTION 4.12. Notices. The Master Servicer and each Servicer, as
applicable, shall furnish to the Company, the Trustee, each Agent, any Insurer
and each Rating Agency, promptly upon obtaining knowledge of the occurrence of
any Purchase Termination Event, Potential Purchase Termination Event, Early
Amortization Event, Potential Early Amortization Event or Servicer Default,
written notice thereof.
ARTICLE V
Other Matters Relating to the Master Servicer and Each Servicer
SECTION 5.01. Merger, Consolidation etc. The Master Servicer shall not
enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
transfer, lease, assign or otherwise dispose of, all or substantially all of its
assets and its consolidated subsidiaries (taken as a whole) other than the
assignments and transfers contemplated hereby to another Person or liquidate or
dissolve unless:
(i) either the Master Servicer is the surviving entity or the
surviving Person (A) is organized and in good standing under a State of
the United States or the District of Columbia and is an Eligible
Successor Master Servicer and (B) assumes, by execution of a
supplemental agreement (a "Supplemental Agreement") the performance of
each of the Master Servicer's covenants and obligations hereunder;
(ii) it has delivered to the Trustee an Officer's Certificate
executed by a Vice President or other senior officer of the Master
Servicer and an Opinion of Counsel addressed to the Trust and the
Trustee (A) each stating that such consolidation, merger, conveyance or
transfer complies with this Section 5.01 and (B) further stating in the
Officer's Certificate that all conditions precedent herein provided for
relating to such transaction have been complied with and in the case of
the Opinion of Counsel, that such Supplemental Agreement is legally
valid and binding; and
(iii) the Rating Agency Condition shall have been satisfied.
SECTION 5.02. Indemnification of the Trust and the Trustee.
(a) The Master Servicer and each Servicer hereby agree to indemnify and
hold harmless the Company, the Trustee for the benefit of the Holders and the
Trustee and their
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respective directors, officers, agents and employees and the Trust (each, an
"Indemnified Person") from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of, or relating to, its activities pursuant to any Pooling
and Servicing Agreement including but not limited to any judgment, award,
settlement, reasonable attorneys fees and other reasonable costs or expenses
incurred in connection therewith; provided that neither the Master Servicer nor
any Servicer shall indemnify any Indemnified Person for any liability, cost or
expense of such Indemnified Person (i) arising from a default by an Obligor with
respect to any Receivable (except that indemnification shall be made to the
extent that such default arises out of the Master Servicer's or any Servicer's
failure to perform its duties or obligations under this Agreement), (ii) to the
extent that such liability, cost or expense arises from the gross negligence,
bad faith or willful misconduct of such Indemnified Person (or any of its
respective directors, officers, agents or employees), (iii) with respect to any
federal, state or local income or franchise taxes or any other taxes imposed on
or measured by income (or any interest or penalties or additions with respect
thereto) required to be paid by the Trust, any Holder or any other Person in
connection herewith to any taxing authority or (iv) with respect to any action
taken by the Trustee at the request of any Investor Certificateholder or holder
of a VFC Beneficial Interest. The provisions of this indemnity shall run
directly to, and be enforceable by, any injured party and shall survive the
termination of the Agreement or the resignation of the Master Servicer or any
Servicer as the case may be.
(b) In addition to subsection (a) above, the Master Servicer and each
Servicer shall indemnify and hold harmless each Indemnified Person from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of a breach by the Master Servicer or any Servicer of any covenant
contained in Sections 2.02(g), 4.05, 4.06 or 4.07 that materially adversely
affects the interest of the Company or the Holders under the Transaction
Documents with respect to any Receivable (an "Indemnification Event"), in an
amount equal to the outstanding Principal Amount at such time of such
Receivable. Payment shall occur on or prior to the 30th Business Day after the
day such Indemnification Event becomes known to the Master Servicer or Servicer
unless such Indemnification Event shall have been cured on or before such day.
SECTION 5.03. Resignation by Master Servicer or Any Servicer. Neither
the Master Servicer nor any Servicer shall resign from the obligations and
duties hereby imposed on it except (i) upon determination that (A) the
performance of its duties hereunder is no longer permissible under applicable
law, and (B) there is no reasonable course of action that it could take to make
the performance of its duties hereunder permissible under applicable law or (ii)
such Servicer is terminated as a Seller in accordance with the Receivables Sale
Agreement. Any such determination pursuant to clause (i) above permitting the
resignation of the Master Servicer or a Servicer shall be evidenced as to clause
(i)(a) above by an Opinion of Counsel to such effect delivered to the Company,
the Trustee and each Agent. No such resignation shall become effective until a
Successor Servicer or the Trustee shall have assumed the responsibilities and
obligations of the Master Servicer or such Servicer, as applicable, in
accordance with Section 6.02 hereof. The Trustee, the Company, each Agent, any
Insurer and each Rating Agency shall be notified of such resignation by the
Master Servicer or such Servicer.
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SECTION 5.04. Access to Certain Documentation and Information Regarding
the Receivables. Each Servicer shall hold in trust for the Company and the
Trustee and shall provide access to, at the office of such Servicer such
documents, computer programs, books of account and other records as are
reasonably necessary to enable the Trustee to determine at any time the status
of the Serviced Receivables and all collections and payments in respect thereof
(including, without limitation, an ability to recreate records evidencing the
Serviced Receivables in the event of the destruction of the originals thereof or
otherwise in connection with the enforcement of the rights of
Certificateholders; provided that such access is afforded only (i) upon such
reasonable request, (ii) during normal business hours and (iii) subject to such
Servicer's normal security and confidentiality procedures).
ARTICLE VI
Servicer Defaults; Servicer Termination
SECTION 6.01. Servicer Defaults. If any one of the following events
(each, a "Servicer Default") shall occur and be continuing:
(a) failure by the Master Servicer to deliver (i) any Daily Report
within two Business Days of the date due or, if such failure arises from a
failure of the Master Servicer's management information system and the Agent has
been notified of the occurrence of such management information system failure,
within three Business Days of the date due or (ii) any Monthly Settlement
Statement within three Business Days of the date due, conforming in all material
respects to the requirement of Section 4.01 or 4.02, as the case may be;
(b) failure by the Master Servicer or any Servicer to (i) make any
payment required to be paid by it under Section 2.03 or any other fixed
principal, interest or fees payable under any Pooling and Servicing Agreement
(it being acknowledged that for such purpose the responsibility of the Master
Servicer or such Servicer is limited to payment of amounts actually received)
and such failure shall remain unremedied for more than five Business Days or
(ii) pay all amounts required to be paid in respect of those payments described
in the foregoing clause (i) and pay any other amounts required to be paid by it
under any Pooling and Servicing Agreement (it being acknowledged that for such
purpose the responsibility of the Master Servicer or such Servicer is limited to
payment of amounts actually received) and such failure continues for five
Business Days after the earlier to occur of (x) the date upon which a
Responsible Officer of the Master Servicer or such Servicer obtains knowledge of
such failure or (y) the date on which written notice of such failure, requiring
the same to be remedied, shall have been given (1) to the Master Servicer or
such Servicer by the Company or the Trustee, or (2) to the Company, the Trustee,
the Master Servicer and such Servicer by Holders of Investor Certificates
evidencing 25% or more of the Aggregate Invested Amount;
(c) failure on the part of the Master Servicer or any Servicer duly to
observe or to perform in any material respect any other of its covenants or
agreements set forth in any Pooling and Servicing Agreement and that, with
respect to any covenants or agreements not contained in Section 4.07 or 4.08,
continues unremedied for more than 30 days after the earlier of (i) the date on
which the Master Servicer has actual knowledge of such failure and (ii) the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the
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Master Servicer by the Company or the Trustee, or to the Company, to the
Trustee, to the Master Servicer and to the Servicer by any Holder of Investor
Certificates or any Agent; provided, that no Servicer Default shall be deemed to
occur under this subsection with respect to a failure on the part of the Master
Servicer or a Servicer if the Master Servicer or the Servicer, as the case may
be, shall have complied with the provisions of Section 5.02(b) with respect
thereto;
(d) any representation, warranty or certification made by the Master
Servicer or a Servicer in the Pooling and Servicing Agreements or in any
certificate delivered pursuant thereto shall prove to have been incorrect in any
material respect when made or deemed made; provided, that no Servicer Default
shall be deemed to occur under this Section 6.01(d)(i) with respect to a failure
on the part of the Master Servicer or the Servicer if the Servicer shall have
complied with the provisions of Section 5.02(b) with respect thereto;
(e) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Master Servicer or a Servicer in an
involuntary case under any Applicable Insolvency Law, which decree or order is
not stayed, or any other similar relief shall be granted under any applicable
Federal or state law and shall not be stayed; (ii) an involuntary case is
commenced against the Master Servicer or a Servicer under any Applicable
Insolvency Law, a decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Master Servicer or a Servicer or
over all or a substantial part of the property of the Master Servicer or a
Servicer shall have been entered, an interim receiver, trustee or other
custodian of the Master Servicer or a Servicer for all or a substantial part of
the property of the Master Servicer or a Servicer is involuntarily appointed or
a warrant of attachment, execution or similar process is issued against any
substantial part of the property of the Master Servicer or a Servicer and the
continuance of any such events in this clause (ii) for 60 days unless dismissed,
bonded or discharged; (iii) the Master Servicer or a Servicer shall at its
request have a decree or an order for relief entered with respect to it,
commence a voluntary case under the Bankruptcy Code or any Applicable Insolvency
Law, consent to the entry of a decree or an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or consent to the appointment of or taking possession by a receiver,
trustee or other custodian of all or a substantial part of its property; (iv)
the making by the Master Servicer or a Servicer of any general assignment for
the benefit of creditors; (v) the inability or failure of the Master Servicer or
a Servicer generally to pay its debts as such debts become due; or (vi) the
Board of Directors of the Master Servicer or a Servicer adopts any resolution or
otherwise authorizes action to approve any of the foregoing; or
(f) there shall have occurred and be continuing (i) a Purchase
Termination Event under the Receivables Sale Agreement or (ii) an Early
Amortization Event (other than Early Amortization Events set forth in Section
5.01(b), (c), (f), (g), (i), (j), (k), (l), (n), (o), and (s) of the Series
2000-1 Supplement);
(g) the Servicing Agreement shall cease, for any reason, to be in full
force and effect or the Master Servicer or any Servicer or any Affiliate of the
foregoing shall so assert in writing;
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(h) (i) a default in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any Indebtedness of the
Master Servicer or a Servicer or any of their respective Subsidiaries having an
outstanding aggregate principal amount in excess of the lesser of (A) (1) 5% of
Consolidated Tangible Net Worth for the then most recently ended Fiscal Period,
individually or (2) 10% of Consolidated Tangible Net Worth for the then most
recently ended Fiscal Period, in the aggregate and (B) $75,000,000, or a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness and (ii) in either case, the holder or holders of
such Indebtedness, or any trustee or agent for such holders, has caused the
maturity of such Indebtedness to be accelerated or such Indebtedness is thereby
required to be repaid, redeemed, purchased, defeased or is otherwise due and
payable prior to its expressed maturity (for purposes of this subsection, the
terms Consolidated Tangible Net Worth and Fiscal Period shall have the meanings
set forth in Section 8.03 of the Series 2000-1 Supplement);
then, in the event of any Servicer Default, so long as the Servicer
Default shall not have been remedied or waived, the Company (with the consent of
the Trustee) may, the Company at the direction of the Trustee shall, and the
Company and the Trustee shall, at the written direction of the Holders of
Investor Certificates evidencing more than 50% of the Aggregate Invested Amount
voting as a single class, by notice then given in writing to the Master Servicer
and the Servicers and to each Rating Agency (a "Termination Notice"), terminate
all or any part of the rights and obligations of the Master Servicer or any
Servicer, as applicable, under the Pooling and Servicing Agreements.
Notwithstanding anything to the contrary in this Section 6.01, a delay in or
failure of performance referred to under clause (b) above for so long as no
funds have been remitted to the Master Servicer, a Servicer or the Company or a
delay in or failure of performance referred to under clause (a) above for a
period of 5 Business Days after the applicable grace period shall not constitute
a Servicer Default, if such delay or failure could not have been prevented by
the exercise of reasonable diligence by the applicable Servicer and such delay
or failure was caused by a Force Majeure Delay. After receipt by the Master
Servicer or a Servicer of a Termination Notice, and on the date that a Successor
Master Servicer or Successor Servicer, as the case may be, shall have been
appointed by the Company and the Trustee pursuant to Section 6.02 hereof, all
authority and power of the Master Servicer or such Servicer, as the case may be,
under any Pooling and Servicing Agreement to the extent specified in such
Termination Notice shall pass to and be vested in the Successor Master Servicer
(a "Master Servicer Transfer") or Successor Servicer (a "Service Transfer"), as
the case may be, and, without limitation, such Successor Master Servicer or such
Successor Servicer, as the case may be, is hereby directed, authorized and
empowered (upon the refusal of the Master Servicer or the Servicer to cooperate)
to execute and deliver, on behalf of the Master Servicer or such Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
refusal of the Master Servicer or such Servicer to execute or to deliver such
documents or instruments, and to do and to accomplish all other acts or things
necessary or appropriate to effect the purposes of such Master Servicer Transfer
or Service Transfer, as the case may be, and the Successor Master Servicer or
Successor Servicer shall incur no liability in connection with effecting such
Master Servicer Transfer or Service Transfer. Each of the Master Servicer and
the Servicer agrees to cooperate with the Company and the Trustee and such
Successor Master Servicer or Successor Servicer in effecting the termination of
the responsibilities and rights of the Master Servicer or the Servicer to
conduct its duties hereunder, including, without limitation, the transfer to the
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Successor Master Servicer or Successor Servicer, as the case may be, of all
authority of the Master Servicer to coordinate the Servicing of all Receivables
or all authority of such Servicer to service the Serviced Receivables, as the
case may be, provided for under the Pooling and Servicing Agreements (including,
in the case of such Servicer, without limitation, all authority over all
Collections that shall on the date of transfer be held by the Servicer for
deposit, or that have been deposited by such Servicer, in the Collection
Account, or that shall thereafter be received with respect to the Serviced
Receivables), and in assisting the Successor Master Servicer or Successor
Servicer. Upon a Master Servicer Transfer or Service Transfer, the terminated
Master Servicer or Servicer shall promptly (x) assemble all of its documents,
instruments and other records (including credit files, licenses (to the extent
transferable), rights, copies of all relevant computer programs and any
necessary licenses (to the extent transferable) for the use thereof, related
material, computer tapes, disks, cassettes and data) that (i) evidence or record
Receivables sold and assigned to the Trust and (ii) are otherwise necessary to
enable a Successor Master Servicer or Successor Servicer, as the case may be, to
coordinate servicing of all such Receivables and to, in the case of a Successor
Master Servicer, prepare and deliver Daily Reports and Monthly Settlement
Statements, (iii) are otherwise necessary to enable a Successor Master Servicer
or Successor Servicer to effect the immediate Collection of such Receivables,
with or without the participation of the Seller, Master Servicer or Servicer and
(y) deliver to the extent permitted by law or license (to the extent
transferable) the use of all of the foregoing documents, instruments and other
records to such Successor Master Servicer or Successor Servicer at a place
designated by such Successor Master Servicer or Successor Servicer; provided,
however, that neither the Master Servicer nor such Servicer shall be required,
to the extent it has an ownership interest in any electronic records, computer
software or licenses, to transfer, assign, set-over or otherwise convey such
ownership interests to the Successor Master Servicer or Successor Servicer. In
recognition of the terminated Master Servicer's or Servicer's need to have
access to any such documents, instruments and other records that may be
transferred to a Successor Master Servicer or Successor Servicer hereunder,
whether as a result of its continuing responsibility as a Servicer of accounts
receivable that are not sold and assigned to the Trust or otherwise, such
Successor Master Servicer or Successor Servicer shall provide to such terminated
Master Servicer or Servicer reasonable access to such documents, instruments and
other records transferred by such terminated Master Servicer or Servicer to it
in connection with any activity arising in the ordinary course of the terminated
Master Servicer's or Servicer's business; provided that the terminated Master
Servicer or Servicer shall not disrupt or otherwise interfere with the Successor
Master Servicer or Successor Servicer's use of and access to such documents,
instruments and other records. To the extent that compliance with this Section
6.01 shall require the terminated Master Servicer or Servicer to disclose to the
Successor Master Servicer or Successor Servicer information of any kind that the
terminated Master Servicer or Servicer reasonably deems to be confidential, the
Successor Master Servicer or Successor Servicer shall be required to enter into
such customary licensing and confidentiality agreements as the terminated Master
Servicer or Servicer shall reasonably deem necessary to protect its interests.
All costs and expenses incurred by the terminated Master Servicer or Servicer
and the Trustee in connection with any Master Servicer Transfer or Service
Transfer shall be for the account of the terminated Master Servicer or Servicer
and to the extent any costs or expenses incurred by the Trustee are not so paid,
the Trustee shall be entitled to be paid such items from amounts that would
otherwise be distributable to the Company under Article III of the Pooling
Agreement.
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SECTION 6.02. Trustee To Act; Appointment of Successor.
(a) On and after (i) the receipt by any Servicer of a Termination Notice
pursuant to Section 6.01 or (ii) the date on which the applicable Servicer
notifies the Trustee, the Master Servicer, the Company, each Rating Agency and
each Agent in writing of its resignation pursuant to Section 5.03 (the
"Resignation Notice"), the Servicer shall continue to perform all servicing
functions under the Pooling and Servicing Agreements until the earlier of (x)
the date on which a successor Servicer (a "Successor Servicer") accepts its
appointment and (y) 60 days after the delivery of such Termination Notice or
Resignation Notice, as the case may be. Upon the receipt by the Master Servicer
of a Termination Notice or Resignation Notice with respect to a Servicer, the
Master Servicer shall, without any action on the part of the Company, the
Trustee or any other Person, be deemed appointed as Successor Servicer with
respect to the Serviced Receivables; provided that no Successor Servicer need be
appointed if the Servicer has resigned its duties in connection with its
termination as a Seller in accordance with Section 7.04(b) hereof. The Master
Servicer shall accept its appointment as Successor Servicer by a written notice
delivered to the Trustee and the Company. In the event that the Master Servicer
is unable to accept the appointment as Successor Servicer, the Trustee shall
appoint any Eligible Successor Servicer.
(b) On and after (i) the receipt by the Master Servicer of a Termination
Notice pursuant to Section 6.01 (the "Master Servicer Termination Notice") or
(ii) the date on which the Master Servicer notifies the Trustee, the Company and
each Rating Agency in writing of its resignation pursuant to Section 5.03 (the
"Master Servicer Resignation Notice"), the Master Servicer shall continue to
perform all master servicing functions under the Pooling and Servicing
Agreements until the earlier of (x) the date on which an Eligible Successor
Master Servicer who has been appointed as successor Master Servicer (a
"Successor Master Servicer") accepts its appointment and (y) 60 days after the
delivery of such Master Servicer Termination Notice or Master Servicer
Resignation Notice, as the case may be. Upon the receipt by the Master Servicer
of a Master Servicer Termination Notice or by the Trustee of a Master Servicer
Resignation Notice with respect to the Master Servicer, the Trustee shall
appoint any Eligible Successor Master Servicer, and such Successor Master
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Trustee.
(c) In the event that a Successor Servicer or Successor Master Servicer,
as the case may be, has not been appointed or has not accepted its appointment
within 60 days of delivery of the Termination Notice or Resignation Notice
referred to in subsection (a) hereof with respect to a Successor Servicer, or a
Master Servicer Termination Notice or a Master Servicer Resignation Notice
referred to in subsection (b) hereof with respect to a Successor Master
Servicer, the Trustee without further action shall be appointed Successor
Servicer or Successor Master Servicer, as the case may be; provided, that the
Trustee shall only be responsible for the duties and liabilities of Successor
Servicer or Successor Master Servicer, as the case may be, that are consistent
with an orderly collection and liquidation of the Receivables and other Trust
Assets in the manner contemplated for such liquidations in Section 7.02 of the
Pooling Agreement. The Trustee shall not be liable for any action taken or not
taken in effecting such liquidations of Receivables so long as such liquidations
are conducted in a commercially reasonable manner and on commercially reasonable
terms. The Trustee may delegate any of its master servicing or
20
<PAGE> 24
servicing obligations to an affiliate or agent in accordance with Section
2.02(d). Notwithstanding the above, the Trustee shall, if the Trustee is legally
unable so to act, petition a court of competent jurisdiction to appoint any
Person qualifying as an Eligible Successor Servicer or Eligible Successor Master
Servicer as the Successor Servicer or Successor Master Servicer, as the case may
be, hereunder. The Master Servicer shall immediately give notice to each Rating
Agency of the appointment of any Successor Servicer or Successor Master
Servicer.
(d) Upon its appointment, the Successor Servicer or Successor Master
Servicer shall be the successor in all respects to the Servicer or Master
Servicer with respect to servicing or master servicing functions under the
Pooling and Servicing Agreements (with such changes as are agreed to between
such Successor Servicer or Successor Master Servicer, as the case may be, and
either the Company (with the consent of the Rating Agencies) or the Company and
the Trustee) and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer or Master Servicer by the
terms and provisions hereof, and all references in any Pooling and Servicing
Agreement to the Servicer or Master Servicer shall be deemed to refer to such
Successor Servicer or Master Servicer, as the case may be. The Successor
Servicer or Master Servicer, as the case may be, shall not be liable for, and
the replaced Master Servicer or Servicer, as the case may be, shall indemnify
the Successor Servicer against costs incurred by the Successor Servicer or
Master Servicer, as the case may be, as a result of, any acts or omissions of
such replaced Servicer or Master Servicer or any events or occurrences occurring
prior to the Successor Servicer's acceptance of its appointment as Successor
Servicer or Master Servicer, as the case may be. Any Successor Servicer or the
Successor Master Servicer, as the case may be, shall manage the servicing and
administration of the Receivables in accordance with the Policies of the
replaced Servicer or Master Servicer and the terms of the Pooling and Servicing
Agreements.
SECTION 6.03. Waiver of Past Defaults. Except as otherwise provided in
any Supplement, Holders of Investor Certificates evidencing more than 50% of the
Aggregate Invested Amount may waive any continuing default by the Master
Servicer, any Servicer or the Company in the performance of its respective
obligations hereunder and its consequences, except a default in the failure to
make any required deposits or payments in respect of any Series of Investor
Certificates, which shall require a waiver by the Holders of all of the affected
Investor Certificates. Upon any such waiver of a past default, such default
shall cease to exist, and any default arising therefrom shall be deemed to have
been remedied for every purpose of the Pooling and Servicing Agreements. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived. Either the Company,
the Master Servicer or the Servicer shall provide notice to each Rating Agency
of any such waiver.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Amendment. This Agreement may only be amended,
supplemented or otherwise modified from time to time if such amendment,
supplement or modification is effected in accordance with the provisions of
Section 10.01 of the Pooling Agreement as the same may be modified by applicable
provisions of any Supplement.
21
<PAGE> 25
SECTION 7.02. Termination.
(a) The respective obligations and responsibilities of the parties
hereto shall terminate on the Trust Termination Date (unless such obligations or
responsibilities are expressly stated to survive the termination of this
Agreement).
(b) All authority and power granted to the Master Servicer and any
Servicer under the Pooling and Servicing Agreements shall automatically cease
and terminate on the Trust Termination Date, and shall pass to and be vested in
the Company and, without limitation, the Company is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer or the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments,
and to do and accomplish all other acts or things necessary or appropriate to
effect the purposes of such transfer of rights from and after the Trust
Termination Date. The Master Servicer and each Servicer shall cooperate with the
Company in effecting the termination of its responsibilities and rights to
conduct master servicing or servicing, as the case may be, of the Receivables.
The Master Servicer and each Servicer shall transfer all of its records relating
to the Receivables to the Company in such form as the Company may reasonably
request and shall transfer all other records, correspondence and documents to
the Company in the manner and at such times as the Company shall reasonably
request. To the extent that compliance with this Section 7.02 (b) shall require
the Master Servicer or a Servicer to disclose to the Company information of any
kind that the Master Servicer or the Servicer, as applicable, deems to be
confidential, the Company shall be required to enter into such customary
licensing and confidentiality agreements as the Master Servicer or the Servicer,
as applicable, shall reasonably deem necessary to protect its interests.
SECTION 7.03. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICTS OF LAWS PRINCIPLES.
SECTION 7.04. Addition of Servicers.
(a) Subject to the terms and conditions hereof, from time to time one or
more direct or indirect Subsidiaries of Ingram Micro Inc. that have been
approved as additional Sellers pursuant to the Pooling Agreement and any
Supplement may become additional Servicers party hereto upon (i) execution by
each such Subsidiary of an Additional Seller/Servicer Supplement and (ii)
satisfaction of all conditions precedent set forth in Section 3.05 of the
Receivables Sale Agreement to such Subsidiary becoming an additional Seller.
(b) Concurrent with any termination of a Seller under Section 9.13(b) of
the Receivables Sales Agreement, the related Servicer shall be terminated as a
Servicer under the Servicing Agreement unless such Servicer is the Servicer of
the Receivables of a Seller that has not been so terminated.
SECTION 7.05. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by
22
<PAGE> 26
hand, or three days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as set forth in Section
10.05 of the Pooling Agreement or Section 9.08 of the Receivables Sale
Agreement, or to such other address as may be hereafter notified by the
respective parties hereto.
SECTION 7.06. Counterparts. This Agreement 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. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 7.07. Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and the Holders and their
respective successors and permitted assigns. Except as provided in this Article
VII, no other Person shall have any right or obligation hereunder.
SECTION 7.08. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.09. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.10. No Set-Off. Except as expressly provided in this
Agreement, each of the Master Servicer and the Servicers agree that it shall
have no right of set-off or banker's lien against, and no right to otherwise
deduct from, any funds held in any Lockbox Account or in the Collection Account
for any amount owed to it by the Company, the Trust, the Trustee or any Holder.
SECTION 7.11. No Bankruptcy Petition. The Master Servicer and the
Trustee each hereby covenant and agree that, prior to the date which is one year
and one day after the Trust Termination Date, it shall not institute against, or
join any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any Federal or state bankruptcy or similar law.
23
<PAGE> 27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
INGRAM FUNDING INC.
By: /s/ P. Kurt Preising
------------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as Master Servicer
and a Servicer
By: /s/ P. Kurt Preising
------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee
By: /s/ Melissa J. Adelson
------------------------------------
Title: Vice President
Signature Page
to
Servicing Agreement
<PAGE> 28
EXHIBIT A
TO
AMENDED AND RESTATED SERVICING AGREEMENT
FORM OF ANNUAL MASTER SERVICER'S CERTIFICATE
(As required to be delivered within 90 days after the end of each
calendar year pursuant to Section 4.03 of the Servicing
Agreement referred to below)
-------------------------------------
INGRAM MICRO MASTER TRUST
--------------------------------------
The undersigned, a duly authorized representative of Ingram Micro Inc.,
as Master Servicer pursuant to (a) the Amended and Restated Pooling Agreement,
dated as of March 8, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Pooling Agreement"), by and among Ingram
Funding Inc. (the "Company"), Ingram Micro Inc., as Master Servicer and The
Chase Manhattan Bank, as Trustee (the "Trustee") and (b) the Amended and
Restated Servicing Agreement, dated as of March 8, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Servicing Agreement";
the Pooling Agreement and the Servicing Agreement, collectively, the "Pooling
and Servicing Agreements"), by and among the Company, the Master Servicer, the
Servicer and the Trustee, does hereby certify that:
1. Ingram Micro Inc. is, as of the date hereof, the Master Servicer
under the Pooling and Servicing Agreements.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreements to execute and deliver this Certificate to the Trustee.
3. A review of the activities of the Company, the Master Servicer and
the Servicer during the calendar year ended December, 31, 20__, and of its
performance under each Transaction Document was conducted under my supervision.
4. Based on such review, to my knowledge, each of the Company, the
Master Servicer and the Servicer has performed in all material respects all of
its respective obligations under each Transaction Document and no material
default in the performance of such obligations has occurred or is continuing
except as set forth in paragraph 5 below.
A-1
<PAGE> 29
5. The following is a description of all material defaults in the
performance of the Master Servicer, each Servicer or the Company under the
provisions of the Transaction Documents known to us to have been made during the
calendar year ended December 31, 199__, which sets forth in detail (i) the
nature of each such default, (ii) the action taken by the Master Servicer, the
Servicer and /or the Company, if any, to remedy each such default and (iii) the
current status of each default:
[If applicable, insert "None."]
6. The following is a description of each material inaccuracy known to
us to exist in any Daily Report and/or Monthly Settlement Statement during the
fiscal year of Ingram Micro Inc. ended _____________________.
Capitalized terms used in this certificate have the meanings ascribed to
them in the Pooling and Servicing Agreements.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
this ___ day of _________________, 20__.
By:
---------------------------------
Name:
Title:
A-2
<PAGE> 30
EXHIBIT B TO
AMENDED AND RESTATED SERVICING AGREEMENT
FORM OF AGREED-UPON PROCEDURES
To the Board of Directors of Ingram Funding Inc., the Trustee, the
Agent, the Rating Agencies and the Certificateholders:
Independent Accountant's Report on Applying Agreed-Upon Procedures
[Date]
To the Board of Directors of Ingram Micro Inc. and [list specified users]:
We have performed the procedures enumerated below, which were agreed to
by [list specified users], solely to assist you with respect to Section 4.04 of
the Amended and Restated Servicing Agreement dated as of March 8, 2000 (the
"Agreement") among Ingram Funding Inc., Ingram Micro Inc. (as Servicer), and The
Chase Manhattan Bank (as Trustee). This engagement to apply agreed-upon
procedures was performed in accordance with standards established by the
American Institute of Certified Public Accountants. The sufficiency of the
procedures is solely the responsibility of the specified users of the report.
Consequently, we make no representation regarding the sufficiency of the
procedures described below either for the purpose for which this report has been
requested or for any other purpose.
The procedures listed below were performed for the period _____ to _____
with respect to information on the Monthly Settlement Statements (the
"Statements") and on five Daily Reports that were selected on a random basis
from the above-referenced period (the "Daily Reports"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Agreement. These procedures were not designed to report immaterial items,
herein defined as differences of less than $_________.
A. We obtained all Statements for the Fiscal Period and performed the
following:
- We recalculated the mathematical accuracy of the statements.
- With respect to ending balances of Receivables, we agreed the amounts
appearing as Principal Amounts to either schedules prepared by the
Servicer or reports generated by the Servicer's systems.
B. For a selection of three Statements (one of which was the Statement for
the last Settlement Period of the Fiscal Period), we performed the
following procedures:
With respect to the amount appearing as Collections on such Statements:
B-1
<PAGE> 31
- Obtained a daily listing of Collections for that Settlement Period and
agreed the total on the Statements to a cumulative total of the daily
listing of Collections for that period.
- Agreed a random sample of 10% (but at least 10) of the daily
collections appearing on the daily listing of cash Collections to the
bank statements of Ingram Funding Master Trust (the "Trust").
- Agreed the total amount of cash Collections allocated to the Series
Collection Subaccount of each Outstanding Series during that
Settlement Period to the Trust's bank statements.
- Agreed the total amount of cash Collections allocated to the Series
Principal Collection Sub-subaccount and Series Non-Principal
Collection Sub-subaccount of each Outstanding Series during that
Settlement Period to the Trust's bank statement.
- Agreed the aggregate amount of Recoveries received during that
Settlement Period to the Servicer's system-generated reports.
- For each Obligor listed on the applicable schedules the amount of
whose Receivables is greater than 3.0% of the aggregate amount of all
Receivables, agreed the aggregate amount of Receivables with respect
to such Obligor to the Seller's system-generated reports.
With respect to the amount appearing as Defaulted Receivables:
- Agreed the total Defaulted Receivables to the Servicer's
system-generated reports.
- From a random sample of 10% (but at least 10) of Defaulted Receivables
during the month, agreed the default amount to reports generated by
the Servicer's system.
With respect to the amount appearing as Dilution Adjustment Amounts (as
defined in the Receivables Sale Agreement):
- Agreed the Dilution Adjustment Amount to a schedule prepared by the
Servicer.
With respect to the amounts appearing as Ending Eligible Receivables:
- Recalculated the mathematical accuracy of the Company's schedule of
Eligible Receivables.
- Agreed the amounts appearing in this schedule to a report generated by
the Master Servicer's system.
B-2
<PAGE> 32
With respect to the amounts appearing as Ending Invested Percentages
applicable during that Settlement Period:
- Agreed amounts to schedules provided by the Master Servicer.
C. With respect to each of the five selected Daily Reports, agreed amounts
to the system-generated reports provided by each Originator for such day
for Beginning and Ending Receivable balances, Collections, Dilution
Adjustments, Sales, Adjustments, Net Write-Offs, Defaulted Receivables,
Ineligible Receivables and the Overconcentration Amount.
D. Agreed the calculation used in computing the aggregate Servicing Reserve
Ratio to the Agreement and agreed amounts appearing in the schedule of
Servicing Fee prepared by the Servicer to the Statements.
We were not engaged to, and did not, perform an audit, the objective of
which would be the expression of an opinion on the specified elements, accounts,
or items. Accordingly, we do not express such an opinion. Had we performed
additional procedures, other matters might have come to our attention that would
have been reported to you. This report is intended solely for the use of the
specified users listed above and should not be used by those who have not agreed
to the procedures and taken responsibility for the sufficiency of the procedures
for their purposes.
B-3
<PAGE> 1
EXHIBIT 10.59
EXECUTION COPY
INGRAM FUNDING MASTER TRUST
SERIES 2000-1 SUPPLEMENT
Dated as of March 8, 2000
to
AMENDED AND RESTATED
POOLING AGREEMENT
Dated as of March 8, 2000
Among
INGRAM FUNDING INC.,
as Company
INGRAM MICRO INC.,
as Master Servicer,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent,
REDWOOD RECEIVABLES CORPORATION
as Initial Purchaser
THE SEVERAL FINANCIAL INSTITUTIONS PARTY HERETO
FROM TIME TO TIME AS LIQUIDITY BANKS
and
THE CHASE MANHATTAN BANK,
as Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Definitions........................................................1
SECTION 1.01. Definitions...............................................1
SECTION 1.02. Other Terms..............................................20
SECTION 1.03. Computation of Time Periods..............................21
ARTICLE II Designation of VFC Certificate; Purchase and Sale
of the VFC Certificate...........................................21
SECTION 2.01. Designation..............................................21
SECTION 2.02. The VFC Certificates and Series 2000-1
Subordinated Interest....................................21
SECTION 2.03. Purchases of Interests in the VFC Certificates and
the Series 2000-1 Subordinated Interest..................22
SECTION 2.04. Delivery.................................................23
SECTION 2.05. Procedure for Initial Issuance and for Increasing
the Series 2000-1 Invested Amount........................23
SECTION 2.06. Procedure for Decreasing the
Series 2000-1 Invested Amount............................25
SECTION 2.07. Reductions of the Commitments............................25
SECTION 2.08. Interest; Commitment Fee.................................26
SECTION 2.09. Indemnification by the Company...........................27
ARTICLE III Article III of the Agreement....................................29
SECTION 3.01............................................................29
SECTION 3.02. Establishment of Trust Accounts..........................29
SECTION 3.03. Daily Allocations........................................31
SECTION 3.04. Determination of Interest................................33
SECTION 3.05. Determination of Series 2000-1 Monthly Principal.........34
SECTION 3.06. Applications.............................................35
SECTION 3.07. Prepayment...............................................37
ARTICLE IV Distributions and Reports........................................38
SECTION 4.01. Distributions............................................39
SECTION 4.02. Daily Reports............................................39
SECTION 4.03. Statements and Notices...................................39
ARTICLE V Additional Early Amortization Events..............................40
SECTION 5.01. Additional Early Amortization Events.....................40
ARTICLE VI Servicing Fee....................................................44
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 6.01. Servicing Compensation...................................44
ARTICLE VII Change in Circumstances.........................................44
SECTION 7.01. Illegality...............................................44
SECTION 7.02. Requirements of Law......................................45
SECTION 7.03. Taxes....................................................47
SECTION 7.04. Indemnity................................................50
SECTION 7.05. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate..........................51
SECTION 7.06. Limitation...............................................52
ARTICLE VIII Covenants, Representations and Warranties......................52
SECTION 8.01. Representations and Warranties of the Company and
the Master Servicer......................................52
SECTION 8.02. Covenants of the Company and the Master Servicer.........52
SECTION 8.03. Negative Covenants of the Company; Covenants of
the Master Servicer......................................53
SECTION 8.04. Obligations Unaffected...................................57
SECTION 8.05. Representations and Warranties of
the Initial Purchaser and the Liquidity Banks............58
ARTICLE IX Conditions Precedent.............................................60
SECTION 9.01. Conditions Precedent to Effectiveness of Supplement......60
ARTICLE X The Agent.........................................................63
SECTION 10.01. Appointment.............................................63
SECTION 10.02. Delegation of Duties....................................63
SECTION 10.03. Exculpatory Provisions..................................64
SECTION 10.04. Reliance by Agent.......................................64
SECTION 10.05. Notice of Servicer Default or Early Amortization
Event or Potential Early Amortization Event.............65
SECTION 10.06. Non-Reliance on Agent and Other Purchasers..............65
SECTION 10.07. Indemnification.........................................66
SECTION 10.08. Agent in Its Individual Capacity........................66
SECTION 10.09. Successor Agent.........................................66
ARTICLE XI Miscellaneous....................................................67
SECTION 11.01. Ratification of Agreement...............................67
SECTION 11.02. Governing Law...........................................67
SECTION 11.03. Further Assurances......................................67
SECTION 11.04. Payments................................................67
SECTION 11.05. Costs and Expenses......................................68
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 11.06. No Waiver; Cumulative Remedies..........................68
SECTION 11.07. Amendments..............................................69
SECTION 11.08. Severability............................................70
SECTION 11.09. Notices.................................................70
SECTION 11.10. Successors and Assigns..................................70
SECTION 11.11. Counterparts............................................71
SECTION 11.12. Adjustments; Setoff.....................................71
SECTION 11.13. Limitation of Payments by Company.......................72
SECTION 11.14. No Bankruptcy Petition..................................72
SECTION 11.15. Limitation on Addition and Termination of Sellers.......72
SECTION 11.16. Third-Party Beneficiaries...............................74
SECTION 11.17. Subordination Agreement.................................74
SECTION 11.18. Information With Respect to the Receivables.............77
ARTICLE XII Final Distributions.............................................78
SECTION 12.01. Certain Distributions...................................78
</TABLE>
EXHIBITS
Exhibit A Form of VFC Certificate, Series 2000-1
Exhibit B Form of Commitment Transfer Supplement
Exhibit C Form of Administrative Questionnaire
Exhibit D Form of Daily Report
Exhibit E Form of Monthly Settlement Statement
Exhibit F Form of Notice of Issuance/Increase
Exhibit G Form of Confidentiality Agreement
SCHEDULES
Schedule 1 Commitments
Schedule 2 Trust Accounts
iii
<PAGE> 5
Series 2000-1 SUPPLEMENT dated as of March 8, 2000 (this
"Supplement"), among the Company, the Master Servicer, Redwood Receivables
Corporation ("Redwood"), the Liquidity Banks from time to time party hereto,
General Electric Capital Corporation, as agent (the "Agent") for the Purchasers
(as hereinafter defined) and the Trustee.
W I T N E S S E T H :
WHEREAS, the Company, the Master Servicer and the Trustee have entered
into the Amended and Restated Pooling Agreement dated as of March 8, 2000 (as
in effect on the date hereof and as the same may be amended, supplemented or
otherwise modified from time to time, the "Agreement");
WHEREAS, the Agreement provides, among other things, that the Company,
the Master Servicer and the Trustee may at any time and from time to time enter
into supplements to the Agreement for the purpose of authorizing the issuance
on behalf of the Trust by the Company for execution and redelivery to the
Trustee for authentication of one or more Series of Investor Certificates; and
WHEREAS, the Company, the Master Servicer, the Trustee, Redwood as the
Initial Purchaser (the "Initial Purchaser") and the Liquidity Banks wish to
supplement the Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Capitalized terms defined or referenced in
the Agreement or the Liquidity Agreement shall be used herein as therein
defined (unless otherwise defined or referenced herein) and the following words
and phrases shall have the following meanings with respect to Series 2000-1 and
the definitions of such terms are applicable to the singular as well as the
plural form of such terms and to the masculine as well as the feminine and
neuter genders of such terms:
"Accrual Period" shall have the meaning assigned in the Agreement
except that with respect to the Commitment Fee and interest on the VFC
Certificates, "Accrual Period" shall mean a calendar month (and such Accrual
Period shall relate to the Distribution Date next succeeding the end of such
Accrual Period).
1
<PAGE> 6
"Accrued Expense Adjustment" shall mean, for any Business Day in any
Accrual Period, the amount, if any, which may be less than zero, equal to the
difference between (a) the entire amount of (i) the Commitment Fee, if any, due
and payable on the next succeeding Distribution Date, (ii) the Series 2000-1
Monthly Interest to be distributed on the next succeeding Distribution Date,
(iii) the Series 2000-1 Monthly Servicing Fee, (iv) the aggregate amount of all
previously accrued and unpaid Series 2000-1 Monthly Interest for prior
Distribution Dates, (v) the aggregate amount of all accrued and unpaid
Additional Interest and (vi) all accrued Program Costs, in each case for such
Accrual Period determined as of such day, and (b) the aggregate of the amounts
transferred to the Series 2000-1 Non-Principal Collection Sub-subaccount on or
before such day in respect of such Accrual Period pursuant to Section
3.03(a)(i), before giving effect to any transfer made in respect of the Accrued
Expense Adjustment on such day pursuant to the proviso to such Section
3.03(a)(i).
"Accrued Expense Amount" shall mean, for each Business Day during an
Accrual Period, the sum of (a) in the case of each of the first ten Business
Days in the Accrual Period, one-thirtieth of the Commitment Fee payable to the
Agent for the benefit of the Purchasers as provided in Section 2.08(b) hereof,
(b) in the case of each of the first ten Business Days in the Accrual Period,
one-tenth of the Series 2000-1 Monthly Servicing Fee and (c) in the case of the
last Business Day of each Accrual Period an amount equal to the Monthly
Interest Payment payable on the succeeding Distribution Date, (in the case of
the foregoing clause (b), up to the amount thereof due and payable on the
succeeding Distribution Date, and in the case of the foregoing clause (a), up
to the amount thereof next due and payable pursuant to Section 2.08 hereof but
subject to Accrued Expense Adjustments as provided in Section 3.03(a)(i)), (d)
the aggregate amount of all previously accrued and unpaid Series 2000-1 Monthly
Interest for prior Distribution Dates, (e) the aggregate amount of all accrued
and unpaid Additional Interest and (f) all Program Costs that have accrued
since the preceding Business Day.
"Acquisition Date" shall have the meaning assigned in Section 7.01.
"Additional Interest" shall have the meaning assigned in Section
3.04(b).
"Adjusted Liquidity Price" shall have the meaning ascribed to such
term in the Liquidity Agreement.
"Administration Fee" shall have the meaning assigned in Section
2.08(c) hereof.
"Aged Receivables Ratio" shall mean, as of the last day of each
Settlement Period and calculated as provided in Section 1.01(f), the percentage
equivalent of a fraction, the numerator of which shall be the sum of (a) the
2
<PAGE> 7
aggregate unpaid balance of Receivables originated by the Sellers that were 91
to 120 days past due and (b) the aggregate amount of Charged-Off Receivables of
the Sellers that were charged off as uncollectible prior to the day that is 91
days after its original due date during such Settlement Period, and the
denominator of which shall be the aggregate Principal Amount of Receivables
originated by the Sellers during the fourth prior Settlement Period.
"Aggregate Commitment Amount" shall mean, with respect to any Business
Day, the aggregate amount of the Commitments of all Purchasers on such date, as
reduced from time to time or terminated in their entirety pursuant to Section
2.07 hereof.
"Agreement" shall have the meaning specified in the recitals hereto.
"Applicable Margin" shall mean at any date of determination: (a) with
respect to the CP Rate, 0.3675% per annum, and (b) with respect to the
Liquidity Interest Rate and the LOC Draw Rate, 0%.
"Article VII Costs" shall mean any amounts due pursuant to Article VII
hereof.
"Available Commitment" shall mean, with respect to any Business Day,
the (i) Aggregate Commitment Amount on such Business Day minus (ii) the Series
2000-1 Invested Amount.
"Base Rate" shall mean "Prime Rate" in the Money Rates Section of The
Wall Street Journal published on or most recently before such date.
"Benefited Purchaser" shall have the meaning assigned in Section 11.12
hereof.
"Carrying Cost Reserve Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) equal to (a) the product of (i) 2.0 times
Days Sales Outstanding as of such day and (ii) 1.30 times the Base Rate in
effect as of such day divided by (b) 365.
"Change in Control" shall mean the occurrence of any event the result
of which causes the Company not to be a direct or indirect, wholly owned
Subsidiary of Ingram Micro Inc.
"Claim" shall have the meaning specified in Section 2.09(a) hereof.
"Commitment" shall mean, (i) as to any Purchaser, its obligation to
maintain and, subject to certain conditions, increase, its Series 2000-1
Purchaser Invested Amount, in an aggregate amount not to exceed at any one time
3
<PAGE> 8
outstanding the amount set forth opposite such Purchaser's name on Schedule 1
hereto under the caption "Commitment", or in its Commitment Transfer Supplement
as such amount may be reduced from time to time as provided herein;
collectively, as to all Purchasers, the "Commitments" and (ii) as to any
Liquidity Banks prior to becoming a Purchaser, its Commitment as set forth in
the Liquidity Agreement or in Section 1 to its Liquidity Lender Assignment
Agreement.
"Commitment Fee" shall have the meaning assigned in Section 2.08(b)
hereof.
"Commitment Percentage" shall mean, (i) as to any Purchaser and as of
any date, the percentage equivalent of a fraction, the numerator of which is
such Purchaser's Commitment as set forth on Schedule 1 or in its Commitment
Transfer Supplement and the denominator of which is the Aggregate Commitment
Amount as of such date and (ii) as to any Liquidity Bank and as of any date
prior to its becoming a Purchaser, the percentage equivalent of a fraction, the
numerator of which is such Liquidity Bank's Commitment as set forth in the
Liquidity Agreement or in Section 1 to its Liquidity Lender Assignment
Agreement and the denominator of which is the total Commitments of all
Liquidity Banks as of such date.
"Commitment Period" shall mean the period commencing on the Issuance
Date and terminating on the date that the Series 2000-1 Amortization Period
commences pursuant to clause (i) of the definition thereof.
"Commitment Reduction" shall have the meaning assigned in Section
2.07(a) hereof.
"Commitment Termination Date" shall mean the earlier of (a) March 7,
2005 and (b) the date on which the Commitments are terminated in whole pursuant
to Section 2.07.
"Commitment Transfer Supplement" shall mean a commitment transfer
supplement substantially in the form of Exhibit B hereto.
"Company Indemnified Person" shall have the meaning assigned in
Section 2.09(a).
"CP Net Amount" shall mean, at any time, (A) Redwood's Series 2000-1
Purchaser Invested Amount (calculated without regard to clauses (d) and (e) of
the definition of Series 2000-1 Purchaser Invested Amount), minus (B) the
aggregate unpaid principal amount of all Liquidity Loans, plus (C) the
aggregate amount, allocated to Redwood's Series 2000-1 Purchaser Invested
Amount, of proceeds from outstanding Liquidity Loans which cannot be used to
pay maturing commercial paper and are, therefore, retained until commercial
paper matures and
4
<PAGE> 9
can be paid, minus (D) the excess, if any, of the aggregate outstanding
principal amount of proceeds from LOC Draws over any payments received by the
Letter of Credit Provider in respect thereof as of such date, plus (E) the
aggregate amount, allocated to Redwood's Series 2000-1 Purchaser Invested
Amount, of proceeds from outstanding LOC Draws which cannot be used to pay
maturing commercial paper and are, therefore, retained until commercial paper
matures and can be paid.
"CP Rate" shall mean, for any day, the weighted average of the
interest rates (or if issued at a discount, the weighted average of the rates,
after converting to interest-bearing equivalents) on all outstanding commercial
paper issued by Redwood and outstanding on such day.
"Daily Interest Adjustment" shall mean, for any Business Day in any
Accrual Period, the amount, if any, which may be less than zero, equal to the
difference between (i) the sum of (A) the Series 2000-1 Monthly Interest
determined as of such day, (B) the aggregate amount of all previously accrued
and unpaid Series 2000-1 Monthly Interest for prior Distribution Dates and (C)
the aggregate amount of all accrued and unpaid Additional Interest and (ii) the
amount on deposit in the Series 2000-1 Accrued Interest Sub-subaccount on such
day, if any, after making any deposit thereto pursuant to Section 3.03(c),
before giving effect to any transfer made in respect of the Daily Interest
Adjustment on such day pursuant to the proviso to such subsection.
"Daily Interest Deposit" shall mean, for any Business Day, an amount
equal to (i) the amount of accrued and unpaid Daily Interest Expense in respect
of such day plus (ii) the aggregate amount of all previously accrued, unpaid
and unallocated Series 2000-1 Monthly Interest for prior Distribution Dates
plus (iii) the aggregate amount of all accrued and unpaid Additional Interest.
"Daily Interest Expense" for any day in any Accrual Period, shall mean
the sum of (A) the product of (i) the CP Net Amount divided by 360 and (ii) the
CP Rate plus the Applicable Margin in effect on such day, plus (B) the product
of (i) the aggregate amount of outstanding Liquidity Loans (or following a draw
under the Insurance Policy, an amount equal to the principal amount of such
draw) divided by 360 and (ii) the Liquidity Interest Rate plus the Applicable
Margin in effect on such day, plus (C) the product of (i) LOC Draws Outstanding
divided by 360 and (ii) the LOC Draw Rate plus the Applicable Margin in effect
on such day; provided, that for any such day during the continuation of a
Designated Early Amortization Period, the "Daily Interest Expense" for such day
shall be equal to the greater of (x) the sum of the amounts calculated pursuant
to clauses (A), (B) and (C) above and (y) the product of (1) the Series 2000-1
Invested Amount on such day divided by 365 and (2) the Base Rate in effect on
such day plus 2.00% per annum.
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<PAGE> 10
"Daily Report" shall mean a report prepared by the Master Servicer on
each Business Day for the period specified therein, in substantially the form
of Exhibit D hereto.
"Days Sales Outstanding" shall mean, as of any Settlement Report Date
and continuing until the next Settlement Report Date, the number of days equal
to the product of (a) 91 and (b) the amount obtained by dividing (i) the
aggregate Principal Amount of Eligible Receivables as at the last day of the
Settlement Period immediately preceding such earlier Settlement Report Date, by
(ii) the aggregate Principal Amount of Receivables generated by the Seller for
the three Settlement Periods immediately preceding such earlier Settlement
Report Date.
"Decrease" shall have the meaning assigned in Section 2.06(a).
"Default Ratio" shall mean, as of any date of determination, the ratio
(expressed as a percentage) of:
(a) (i) the average of the respective Principal Amounts of all
Receivables which constituted Defaulted Receivables as of the last day of
the six Settlement Periods immediately preceding such date, plus (ii)
without duplication, the aggregate Principal Amount of Receivables that
were written off as uncollectible during such Settlement Periods,
to
(b) the average of the respective Principal Amounts of all
Receivables in the Trust as of the last day of the six Settlement Periods
immediately preceding such date.
"Deficit" shall have the meaning ascribed to such term in the
Liquidity Agreement.
"Designated Early Amortization Period" means an Early Amortization
Period that is triggered by any of the events described in Section 5.01(a)-(i),
inclusive, (m), (p), (q) (r), and (t) of this Supplement, or in Section 7.01 of
the Agreement.
"Dilution Horizon" shall mean the number of days from the invoicing of
a Receivable until a Dilution Adjustment with respect to such Receivable is
issued by the Seller or the Seller receives notice that a Dilution Adjustment
will have to be issued in respect of such Receivable.
"Dilution Horizon Factor" shall mean (i) for the period beginning on
the Issuance Date through and until the sixth Settlement Report Date to occur
thereafter, 1.28 and (ii) for any six-month period thereafter (beginning and
ending
6
<PAGE> 11
on a Settlement Report Date), a fraction, the numerator of which is the dollar
weighted average Dilution Horizon of the Sellers (based upon the Dilution
Adjustment of the selected Receivables) for such period (which shall be
calculated by the Master Servicer, in accordance with its past procedures for
such calculations, selecting a random sample of approximately 1000 Dilution
Adjustment memos from the Seller created during such period and determining the
dollar weighted average Dilution Horizon therefrom) and the denominator of
which is 30.
"Dilution Period" shall mean, as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, the
quotient of (i) the product of (A) the aggregate Principal Amount of
Receivables that were originated by the Seller during the Settlement Period
preceding such earlier Settlement Report Date and (B) the Dilution Horizon
Factor and (ii) the Aggregate Receivables Amount as of the last day of the
Settlement Period preceding such earlier Settlement Report Date.
"Dilution Ratio" shall mean, as of the last day of each Settlement
Period and calculated as provided in Section 1.01(f) hereof, an amount
(expressed as a percentage) equal to the aggregate amount of Dilution
Adjustments made during such Settlement Period divided by the aggregate
Principal Amount of Receivables that were originated by the Seller during the
immediately preceding Settlement Period.
"Dilution Reserve Ratio" shall mean, as of any Settlement Report Date,
and continuing until (but not including) the next Settlement Report Date, an
amount (expressed as a percentage) that is calculated as follows:
DRR = [(c * d) + [(e-d) * (e/d)]] * f
Where:
DRR = Dilution Reserve Ratio;
c = 2.00;
d = the twelve-month rolling average of the Dilution Ratio that
occurred during the period of twelve consecutive Settlement Periods ending
immediately prior to such earlier Settlement Report Date;
e = the highest Dilution Ratio that occurred during the period of
twelve consecutive Settlement Periods ending prior to such earlier Settlement
Report Date; and
f = the Dilution Period.
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<PAGE> 12
"Distribution Date" shall mean the 10th day of the month, or if such
day is not a Business Day, the next succeeding Business Day.
"Early Amortization Event" shall have the meanings assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"Early Amortization Period" shall have the meaning assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"ECI Holder" shall have the meaning assigned in Section 11.17(a)
hereof.
"Effective Date" shall have the meaning assigned in Section 9.01
hereof.
"Eligible Assignee" shall mean General Electric Capital Corporation,
any Affiliate of General Electric Capital Corporation (other than GE's IT
Solutions business) and any special purpose investment vehicle managed or
administered by General Electric Capital Corporation or any Affiliate of
General Electric Capital Corporation (other than GE's IT Solutions business),
the Insurer and any other Person that (i) is a financial institution formed
under the laws of any OECD Country provided that such Person, if not a
financial institution organized under the laws of the United States, is acting
through a branch or agency located in the United States, (ii) has a short-term
debt rating of at least A-1 from S&P and P-1 from Moody's, and (iii) is
acceptable to the Company.
"Excess Program Costs" shall have the meaning assigned to such term
within the definition of "Program Costs".
"Excluded Taxes" shall have the meaning assigned in Section 7.03(a)
hereof.
"Extension Request" shall have the meaning assigned in Section
11.16(a) hereof.
"Funding Notice" shall have the meaning assigned in Section 2.05(c)
hereof.
"Increase" shall have the meaning assigned in Section 2.05(a) hereof.
"Increase Amount" shall have the meaning assigned in Section 2.05(a)
hereof.
"Increase Date" shall have the meaning assigned in Section 2.05(a)
hereof.
"Indemnified Amounts" shall have the meaning assigned in Section
2.09(a) hereof.
8
<PAGE> 13
"Indemnified Parties" shall have the meaning assigned in Section
2.09(a) hereof.
"Information" shall have the meaning assigned in Section 8.05(e)
hereof.
"Initial Purchaser" shall have the meaning specified in the recitals
hereto.
"Insurance Agreement" shall mean that certain Insurance Agreement
dated on or around March 8, 2000 among the Insurer, the Initial Purchaser and
the Agent, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Insurance Policy" shall mean that certain insurance policy dated on
or around March 8, 2000 issued by the Insurer in favor of the Agent.
"Insurer" shall mean Ambac Assurance Corporation and its successors
and permitted assigns as issuer of the Insurance Policy.
"Interest Shortfall" shall have the meaning assigned in Section
3.04(b) hereof.
"Invested Amount" shall mean, with respect to Series 2000-1, the
Series 2000-1 Invested Amount.
"Issuance Date" shall mean March 8, 2000.
"Junior Claimant" shall have the meaning assigned in Section 11.17(a)
hereof.
"Junior Claims" shall have the meaning assigned in Section 11.17(a)
hereof.
"LIBOR" shall mean for any Accrual Period, the per annum rate for
deposits in Dollars for a period of 30 days which appears on Telerate Page 3750
as of 11:00 a.m., London time, on the last Business Day of the immediately
preceding Accrual Period. If such rate does not appear on Telerate Page 3750 on
such day, the rate will be determined on the basis of the rates at which
deposits in United States dollars are offered by the reference banks selected
by the Agent at approximately 11:00 a.m., London time, on such day to prime
banks in the London interbank market for a period of one month commencing on
that day. The Agent will request the principal London office of each of the
reference banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that day will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the
rate for that day will be the arithmetic mean of the rates quoted by two or
more major banks in New York City, selected by the Agent, in its sole
discretion at approximately 11:00 a.m., New York City
9
<PAGE> 14
time, on that day for loans in United States dollars to leading European banks
for a period of 30 days.
"Letter of Credit" shall mean that certain irrevocable Letter of
Credit dated on or around March 7, 2000, issued by the Letter of Credit
Provider in favor of General Electric Capital Corporation, as Collateral Agent.
"Letter of Credit Provider" shall mean General Electric Capital
Corporation.
"Liquidity Agent" shall have the meaning set forth in the Liquidity
Agreement.
"Liquidity Agreement" shall mean the Liquidity Agreement, dated as of
March 8, 2000 by and among Redwood Receivables Corporation, General Electric
Capital Corporation, as Agent and the Liquidity Lenders from time to time party
thereto and relating to the Ingram Funding Master Trust, as the same from time
to time may be amended, restated, supplemented or otherwise modified from time
to time.
"Liquidity Banks" shall mean any "Liquidity Lender" party to the
Liquidity Agreement.
"Liquidity Commitment Fee" shall have the meaning assigned in Section
2.8(b) hereof.
"Liquidity Interest Rate" shall mean, on any day in an Accrual Period,
an interest rate per annum equal to the lower of (i) the Base Rate and (ii)
LIBOR plus 0.3675% or
(a) if the Liquidity Agent requires that the Liquidity Banks provide
a Liquidity Loan with less than three Business Days' notice, if the LIBOR
market is closed, or if the Liquidity Agent determines that it is illegal
for any Liquidity Bank to make Liquidity Loans accruing interest at a rate
based upon LIBOR, an interest rate per annum equal to the Base Rate;
(b) with respect to any Liquidity Loans made on a "Termination Draw
Date" under the Liquidity Agreement an interest rate per annum equal to
the higher of (i) the Base Rate plus 2.00% and (ii) LIBOR plus 2.3675%; or
(c) if a draw under the Insurance Policy has been made, an interest
rate per annum equal to the Base Rate plus 3.00%.
10
<PAGE> 15
"Liquidity Loans" shall have the meaning assigned in the Liquidity
Agreement.
"LOC Draw Rate" shall mean, on any day in an Accrual Period, an
interest rate per annum equal to the higher of:
(a) the highest prime, base or equivalent lending rate of interest
announced or published on or most recently before such date by any of the
five largest member banks of the New York Clearing House Association, Inc.
(with the understanding that such rates may merely serve as a basis upon
which effective rates of interest are calculated for loans making
reference to such prime, base or equivalent rates and that such rates are
not necessarily the lowest or best rates at which such banks calculate
interest or extend credit); and
(b) LIBOR, which shall equal for this purpose the per annum rate for
deposits in Dollars for a period of 30 days which appears on Telerate Page
3750 as of 11:00 a.m., London time, on the last Business Day of the
immediately preceding Accrual Period. If such rate does not appear on
Telerate Page 3750 on such day, the rate will be determined on the basis
of the rates at which deposits in United States dollars are offered by the
reference banks selected by the Agent at approximately 11:00 a.m., London
time, on such day to prime banks in the London interbank market for a
period of one month commencing on that day. The Agent will request the
principal London office of each of the reference banks to provide a
quotation of its rate. If at least two such quotations are provided, the
rate for that day will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that day will
be the arithmetic mean of the rates quoted by two or more major banks in
New York City, selected by the Agent, in its sole discretion at
approximately 11:00 a.m., New York City time, on that day for loans in
United States dollars to leading European banks for a period of 30 days.
"LOC Draws" shall have the meaning set forth in the Liquidity
Agreement.
"LOC Draws Outstanding" shall have the meaning set forth in the
Liquidity Agreement.
"Loss Reserve Ratio" shall mean, as of any Settlement Report Date, and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) that is calculated as follows:
LRR = [(a * b)/c] * d * e
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<PAGE> 16
Where:
LRR = Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables originated by
the Seller during the three Settlement Periods immediately
preceding such earlier Settlement Report Date;
b = the highest three-month rolling average of the Aged
Receivables Ratio that occurred during the period of twelve
consecutive Settlement Periods ending prior to such earlier
Settlement Report Date;
c = the Aggregate Receivables Amount as of the last day of the
Settlement Period preceding such earlier Settlement Report Date;
d = 2.00; and
e = Payment Terms Factor.
"Majority Purchasers" shall mean, on any day, Purchasers having, in
the aggregate, more than 50% of the Aggregate Commitment Amount.
"Master Servicer Indemnified Person" shall have the meaning specified
in Section 2.09(b) hereof.
"Maximum Commitment Amount" shall mean $700,000,000.
"Maximum Invested Amount" shall mean, as of any day, the lesser of (a)
the Maximum Commitment Amount as of such day and (b) the Aggregate Receivables
Amount as of such day minus the Series 2000-1 Required Subordinated Amount as
of such day. The "Maximum Invested Amount" of the Initial Purchaser shall be
the "Funding Base" for purposes of the Initial Purchaser's commercial paper
program documents.
"Minimum Amount" shall have the meaning specified in Section 11.16(c)
hereof.
"Minimum Ratio" shall mean as of any Settlement Report Date, and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) equal to the greater of:
(a) (a*b) + c
Where:
12
<PAGE> 17
a = the average of the Dilution Ratios during the
period of the twelve connective Settlement Periods
ending prior to such earlier Settlement Report Date;
b = the Dilution Period; and
c = 15%;
and
(b) 25%.
"Monthly Interest Payment" shall have the meaning assigned in Section
3.06(a) hereof.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor
thereto.
"Non-Excluded Taxes" shall have the meaning assigned in Section
7.03(a) hereof.
"OECD Country" shall mean a country that is a member of the grouping
of countries that are full members of the Organisation for Economic
Co-operation and Development.
"Other Persons" shall have the meaning assigned in Section 2.09(a)
hereof.
"Other Taxes" shall have the meaning assigned in Section 7.03(a)
hereof.
"Participants" shall have the meaning assigned in Section 11.10(f)
hereof.
"Payment Terms Factor" shall mean (a) for the period from the Issuance
Date until the third Settlement Report Date to occur thereafter, 0.89 and (b)
for each three-month period to occur after such initial period, a fraction, the
numerator of which is the sum of (i) the weighted average payment terms (based
upon the Principal Amount of the Receivables and expressed as a number of days)
for the Receivables originated during such period and (ii) 60, and the
denominator of which is 90; provided, however, that if the Payment Terms Factor
for any period is less than the Payment Terms Factor for the immediately
preceding periods, then the actual Payment Terms Factor for such current period
shall be recalculated to equal a fraction, the numerator of which is equal to
the average of the numerators used to calculate the Payment Terms Factor for
such current period and the three immediately preceding periods, and the
denominator of which is 90.
13
<PAGE> 18
"Program Costs" shall mean, for any Business Day, the sum of (i) all
expenses, indemnities and other amounts due and payable to the Purchasers, the
Insurer and the Agent under the Agreement, this Supplement or the Insurance
Agreement (including, without limitation, the Commitment Fee and any Article
VII Costs, but specifically excluding any Premium (as defined in the Insurance
Agreement)), (ii) the product of (A) all unpaid fees and expenses due and
payable to counsel to, and independent auditors of, the Company (other than
fees and expenses payable on or in connection with the closing of the issuance
of the VFC Certificates) and (B) a fraction, the numerator of which is the
Aggregate Commitment Amount on such Business Day, and the denominator of which
is the sum of (x) the Invested Amount on such Business Day for all Series then
Outstanding (excluding Series 2000-1) and (y) the Series 2000-1 Aggregate
Commitment Amount on such Business Day, and (iii) all unpaid fees and expenses
due and payable to Rating Agencies rating the VFC Certificates; provided,
however, that Program Costs shall not exceed $100,000 in the aggregate in any
fiscal year of the Master Servicer (any amount of the foregoing expenses,
indemnities and fees in excess of $100,000 shall be referred to herein as
"Excess Program Costs").
"Purchase Termination Event" shall have the meaning assigned in
Section 7.01 of the Receivables Sale Agreement.
"Purchaser" shall mean each purchaser of a VFC Certificate or VFC
Beneficial Interest, including the Initial Purchaser and each Liquidity Bank
that acquires such a VFC Beneficial Interest pursuant to Section 2.5 of the
Liquidity Agreement.
"Rating Agency" shall mean, in the event that Series 2000-1 has been
rated, S&P and Moody's and, any rating agency that has rated the VFC
Certificates at the request of the Agent, as applicable.
"Rating Agency Condition" shall, with respect to any action, have the
meaning assigned in Section 1.01 of the Agreement.
"Receivable Collection Turnover" shall mean, as of any date of
determination, the amount (expressed in days) equal to:
(a) a fraction, (i) the numerator of which is equal to the average of
the Principal Amounts of Receivables on the first day of the 6 Settlement
Periods immediately preceding such date and (ii) the denominator of which is
equal to aggregate Collections received during such 6 Settlement Periods with
respect to all Receivables,
multiplied by
14
<PAGE> 19
(b) the number of days contained in such 6 Settlement Periods.
"Record Date" shall mean, with respect to any Distribution Date, the
Business Day immediately preceding such date.
"Redwood" shall mean Redwood Receivables Corporation, and any
successor thereto.
"Register" shall have the meaning assigned in Section 11.10(d) hereof.
"Seller Addition Date" shall have the meaning assigned in Section 3.05
of the Receivables Sale Agreement.
"Senior Claims" shall have the meaning assigned in Section 11.17(a)
hereof.
"Series 2000-1" shall mean the Series of Investor Certificates and the
Subordinated Company Interest, the Principal Terms of which are set forth in
this Supplement.
"Series 2000-1 Accrued Interest Sub-subaccount" shall have the meaning
assigned in Section 3.02(a) hereof.
"Series 2000-1 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 2000-1 Invested Amount on such date, minus (ii)
the amount on deposit in the Series 2000-1 Principal Collection Sub-subaccount
in excess of amounts then payable from such account under Section 3.06(c)(i)
hereof on such date up to a maximum of the Series 2000-1 Invested Amount.
"Series 2000-1 Allocable Charged-Off Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, that has been allocated to Series 2000-1.
"Series 2000-1 Allocable Recoveries Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, that has been allocated to Series 2000-1.
"Series 2000-1 Allocated Receivables Amount" shall mean, on any date
of determination, the sum of (a) the lower of (i) the Series 2000-1 Target
Receivables Amount on such day and (ii) the Aggregate Receivables Amount on
such day times the percentage equivalent of a fraction the numerator of which
is the Series 2000-1 Target Receivables Amount on such day and the denominator
of which is the Aggregate Target Receivables Amount on such day, plus (b) on
last day of a Series 2000-1 Revolving Period and at any time during a Series
2000-1 Amortization Period, the excess, if any, of (i) the Aggregate
Receivables Amount over (ii) the Aggregate Target Receivables Amount.
15
<PAGE> 20
"Series 2000-1 Amortization Period" shall mean any period commencing
(i) on the Business Day following the occurrence of (a) the date on which an
Early Amortization Period is declared to commence or automatically commences or
(b) the Commitment Termination Date and in either case ending on the date when
the Series 2000-1 Invested Amount shall have been reduced to zero and all
accrued interest and other amounts owing on the VFC Certificates and to the
Agent, the Insurer and the Purchasers hereunder shall have been paid or (ii) on
the Business Day following the occurrence of any event referred to in Section
7.01(a)(ii)(A) of the Agreement and ending on the date on which any such event
is no longer continuing (or has been dismissed, bonded or discharged) so long
as no Series 2000-1 Amortization Period has commenced pursuant to clause (i) of
this definition, and otherwise ending on the date when the Series 2000-1
Invested Amount shall have been reduced to zero and all accrued interest and
other amounts owing on the VFC Certificates and to the Agent, the Insurer and
the Purchasers hereunder shall have been paid.
"Series 2000-1 Collections" shall mean, with respect to any Business
Day, an amount equal to the product of (i) the Series 2000-1 Invested
Percentage on such Business Day and (ii) Aggregate Daily Collections.
"Series 2000-1 Collection Subaccount" shall have the meaning assigned
in Section 3.02(a) hereof.
"Series 2000-1 Initial Invested Amount" shall mean $50,000,000.
"Series 2000-1 Initial Subordinated Interest Amount" shall mean the
Series 2000-1 Subordinated Interest Amount on the Issuance Date.
"Series 2000-1 Invested Amount" shall mean, as of any date of
determination, the sum of the Series 2000-1 Purchaser Invested Amounts of all
Purchasers on such date.
"Series 2000-1 Invested Percentage" shall mean, with respect to any
Business Day (i) during a Series 2000-1 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 2000-1 Allocated
Receivables Amount as of the end of the immediately preceding Business Day and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined and (ii) during a
Series 2000-1 Amortization Period, the percentage equivalent of a fraction, the
numerator of which is the Series 2000-1 Allocated Receivables Amount as of the
end of the last Business Day of the Series 2000-1 Revolving Period immediately
preceding such Series 2000-1 Amortization Period (provided that if during a
Series 2000-1 Amortization Period, the amortization periods of all
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other Outstanding Series which were outstanding prior to the commencement of a
Series 2000-1 Amortization Period commence, then, from and after the date the
last of such series commences its Amortization Period, the numerator shall be
the Series 2000-1 Allocated Receivables Amount as of the end of the Business Day
preceding such date) and the denominator of which is the greater of (A) the
Aggregate Receivables Amount as of the end of the immediately preceding Business
Day and (B) the sum of the numerators used to calculate the Invested Percentage
for all Outstanding Series on the Business Day for which such percentage is
determined.
"Series 2000-1 Monthly Interest" shall mean, with respect to any
Accrual Period, the sum of the Daily Interest Expense for each day in such
Accrual Period.
"Series 2000-1 Monthly Interest Distribution" shall have the meaning
assigned in Section 3.04(a) hereof.
"Series 2000-1 Monthly Principal Payment" shall have the meaning
assigned in Section 3.05 hereof.
"Series 2000-1 Monthly Servicing Fee" shall have the meaning assigned
in Section 6.01 hereof.
"Series 2000-1 Non-Principal Collection Sub-subaccount" shall have the
meaning assigned in Section 3.02(a) hereof.
"Series 2000-1 Principal Collection Sub-subaccount" shall have the
meaning assigned in Section 3.02(a) hereof.
"Series 2000-1 Purchaser Invested Amount" shall mean, with respect to
any Purchaser on the Issuance Date, an amount equal to the product of such
Purchaser's Commitment Percentage on such date and the Series 2000-1 Initial
Invested Amount, and with respect to such Purchaser on any date of
determination thereafter, an amount equal to (a) such Purchaser's Series 2000-1
Purchaser Invested Amount on the immediately preceding Business Day (or, with
respect to the day as of which such Purchaser becomes a Purchaser, whether by
executing a counterpart hereof, a Commitment Transfer Supplement or otherwise,
the portion of the transferor's Series 2000-1 Purchaser Invested Amount being
purchased, in the case of a Liquidity Bank), plus (b) the amount of any
increases in such Purchaser's Series 2000-1 Purchaser Invested Amount pursuant
to Section 2.05 made on such day, minus (c) the amount of any distributions
received and applied to such Purchaser pursuant to Section 2.06 or Section
3.06(c)(ii) on such day, minus (d) the aggregate Series 2000-1 Allocable
Charged-Off Amount allocable to the VFC Beneficial Interest of such Purchaser
on or prior to such date pursuant to Section 3.05(b)(ii), plus (e) (but only to
the extent of any unreimbursed reductions made pursuant to clause (d) above)
the aggregate Series
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<PAGE> 22
2000-1 Allocable Recoveries Amount allocable to the VFC Beneficial Interest of
such Purchaser on or prior to such date pursuant to Section 3.05(c)(i).
"Series 2000-1 Required Reserves Ratio" shall mean the greater of (i)
the sum of the Dilution Reserve Ratio and the Loss Reserve Ratio and (ii) the
Minimum Ratio.
"Series 2000-1 Required Subordinated Amount" shall mean (a) on any
date of determination during a Series 2000-1 Revolving Period, an amount equal
to the sum of:
(i) the product of (A) the Series 2000-1 Adjusted Invested Amount on
such day and (B) a fraction the numerator of which is the Series 2000-1
Required Reserves Ratio and the denominator of which is one minus the
Series 2000-1 Required Reserves Ratio;
(ii) the product of (A) the Series 2000-1 Invested Amount and (B) a
fraction the numerator of which is the Carrying Cost Reserve Ratio and the
denominator of which is one minus the Series 2000-1 Required Reserves
Ratio; and
(iii) the product of (A) the aggregate Principal Amount of Receivables
in the Trust on such day, (B) a fraction the numerator of which is the
Series 2000-1 Adjusted Invested Amount and the denominator of which is the
sum of (1) the Series 2000-1 Aggregate Commitment Amount, plus (2) the
Adjusted Invested Amount on such day for all Series then outstanding
(excluding Series 2000-1) and (C) a fraction the numerator of which is the
Servicing Reserve Ratio and the denominator of which is one minus the
Series 2000-1 Required Reserves Ratio.
and (b) on any date of determination during a Series 2000-1 Amortization
Period, an amount equal to the Series 2000-1 Required Subordinated Amount on
the last Business Day of the Series 2000-1 Revolving Period immediately
preceding such Series 2000-1 Amortization Period; provided that such amount
shall be adjusted on each Special Allocation Settlement Report Date, if any, as
set forth in Section 3.05(b)(i) and Section 3.05(c)(ii).
"Series 2000-1 Revolving Period" shall mean the period commencing on
the Issuance Date (subject to the proviso hereto) and terminating on the close
of business on the day immediately preceding the date on which a Series 2000-1
Amortization Period is declared to commence or automatically commences;
provided that the Series 2000-1 Revolving Period, if ended as a result of the
commencement of a Series 2000-1 Amortization Period pursuant to clause (ii) of
the definition thereof, may recommence on the date on which any such event
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<PAGE> 23
referred to in Section 7.01(a)(ii)(A) is no longer continuing (or has been
dismissed, bonded or discharged) so long as no Series 2000-1 Amortization
Period has commenced pursuant to clause (i) of the definition thereof and any
such re-commenced Series 2000-1 Revolving Period shall also terminate on the
close of business on the Business Day immediately preceding the date on which
another Series 2000-1 Amortization Period is declared to commence or
automatically commences.
"Series 2000-1 Subordinated Interest" shall have the meaning assigned
in Section 2.02(b) hereof.
"Series 2000-1 Subordinated Interest Amount" shall mean, for any date
of determination, an amount equal to (i) the Series 2000-1 Allocated
Receivables Amount minus (ii) the Series 2000-1 Adjusted Invested Amount.
"Series 2000-1 Subordinated Interest Increase Amount" shall have the
meaning assigned in Section 2.05(a) hereof.
"Series 2000-1 Subordinated Interest Reduction Amount" shall have the
meaning assigned in Section 2.06(b) hereof.
"Series 2000-1 Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Series 2000-1 Adjusted Invested Amount on
such day and (ii) the Series 2000-1 Required Subordinated Amount for such day.
"Series 2000-1 Termination Date" shall mean the Distribution Date that
occurs in September, 2006.
"Servicing Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, an
amount (expressed as a percentage) equal to (i) the product of (A) the
Servicing Fee Percentage and (B) 2.0 times Days Sales Outstanding as of such
earlier Settlement Report Date divided by (C) 360.
"Settlement Report Date" shall mean the 9th day of each calendar month
or if such ninth day is not a Business Day, the next succeeding Business Day.
"Subsequent Cut-Off Date" shall mean a date specified by an Agent in
any notice delivered by such Agent pursuant to Section 11.18(b) hereof.
"Taxes" shall have the meaning assigned in Section 7.03(a) hereof.
"Transfer Effective Date" shall have the meaning specified in the Form
of Liquidity Lender Assignment Agreement attached as Exhibit A to the Liquidity
Agreement.
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"Transfer Issuance Date" shall mean the date on which a Commitment
Transfer Supplement becomes effective pursuant to the terms of such Commitment
Transfer Supplement.
"Trust Accounts" shall have the meaning assigned in Section 3.02(a)
hereof.
"VFC Beneficial Interest" shall mean each undivided percentage
interest in a VFC Certificate acquired by (i) the Initial Purchaser in
connection with the Initial Purchase of such VFC Certificate or any Increase in
the Series 2000-1 Invested Amount or (ii) any Liquidity Banks becoming a
Purchaser hereunder pursuant to a transfer of such VFC Beneficial Interest or
any Increase in the Series 2000-1 Invested Amount.
"VFC Certificate" shall mean each VFC Certificate Series 2000-1
executed by the Company and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A hereto.
"VFC Certificateholder" shall mean the registered holder of a VFC
Certificate.
"VFC Certificateholder's Interest" shall have the meaning assigned in
Section 2.02(a) hereof.
SECTION 1.02. Other Terms.
(a) If any term, definition or provision contained herein conflicts
with or is inconsistent with any term, definition or provision contained in the
Agreement, the terms and provisions of this Supplement shall govern. All
capitalized terms not otherwise defined herein are defined in the Agreement. All
Article, Section, subsection, Exhibit and Schedule references herein shall mean
Article, Section or subsection of or Exhibit or Schedule to this Supplement,
except as otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the
Agreement, each capitalized term used or defined herein shall relate only to the
VFC Certificates and the Series 2000-1 Subordinated Interest and to no other
Series of Investor Certificates or Subordinated Company Interest issued by the
Trust.
(b) Any reference herein to a Schedule or Exhibit to this Supplement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the
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<PAGE> 25
effect of amending, modifying or supplementing information contained in such
Schedule or Exhibit) in compliance with the terms of the Transaction Documents.
(c) Any reference in this Supplement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Supplement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
SECTION 1.03. Computation of Time Periods.
(a) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
(b) For purposes of calculating the Aged Receivables Ratio and the
Dilution Ratio, the aggregate Principal Amount of Receivables originated during
the third Settlement Period of each calendar quarter and Dilution Adjustments
reported in the third Settlement Period of each calendar quarter shall be
adjusted by dividing the dollar amount of Receivables in each category by the
number of weeks in such Settlement Period and multiplying by 4.3.
ARTICLE II
Designation of VFC Certificate; Purchase and Sale of the VFC Certificate
SECTION 2.01. Designation. The Investor Certificates created and
authorized pursuant to the Agreement and this Supplement shall be designated as
the "VFC Certificate, Series 2000-1" and the "Subordinated Company Certificate,
Series 2000-1."
SECTION 2.02. The VFC Certificates and Series 2000-1 Subordinated
Interest.
(a) The VFC Certificates shall represent a fractional undivided
interest in the Trust Assets, consisting of the right of the VFC
Certificateholders to receive the distributions specified herein out of (i) the
Series 2000-1 Invested Percentage (expressed as a decimal) of Collections
received with respect to the Receivables and all other funds on deposit in the
Collection Account and (ii) to the extent such interests appear herein, all
other funds on deposit in the Series 2000-1 Collection Subaccount and any
subaccounts thereof (collectively, the "VFC Certificateholder's Interest").
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(b) The Company shall retain a fractional undivided interest in the
Trust Assets, consisting of the right of the holder of the Series 2000-1
Subordinated Interest to receive the distributions specified herein out of (i)
the Series 2000-1 Invested Percentage (expressed as a decimal) of Collections
received with respect to the Receivables and all other funds on deposit in the
Collection Account and (ii) to the extent such interests appear herein, all
other funds on deposit in the Series 2000-1 Collection Subaccount and any
subaccounts thereof, in each case to the extent not required to be distributed
to or for the benefit of the VFC Certificateholders (the "Series 2000-1
Subordinated Interest"). The Exchangeable Company Interest and any other Series
of Investor Certificates or Subordinated Company Interests outstanding shall
represent the ownership interests in the remainder of the Trust Assets not
allocated pursuant hereto to the VFC Certificateholder's Interest or the Series
2000-1 Subordinated Interest.
(c) The VFC Certificates shall be substantially in the form of Exhibit
A, and shall, upon issue, be executed and delivered by the Company to the
Trustee for authentication and redelivery as provided in Section 2.04 hereof and
Section 5.02 of the Agreement. The VFC Certificates shall not be issued in the
form of a single global certificate as provided for in Section 5.01 of the
Agreement, but shall instead be issued in the form of two definitive
certificates, registered in the name of the Initial Purchaser. The Series 2000-1
Subordinated Interest shall be uncertificated.
SECTION 2.03. Purchases of Interests in the VFC Certificates and the
Series 2000-1 Subordinated Interest.
(a) Initial Purchase. Subject to the terms and conditions of this
Supplement, including delivery of notice, if any, required by Section 2.05, (i)
the Initial Purchaser hereby agrees (A) to purchase on the Issuance Date VFC
Certificates in an aggregate amount equal to the Series 2000-1 Initial Invested
Amount and (B) to maintain its VFC Certificate, subject to increase or decrease
during a Series 2000-1 Revolving Period, in accordance with the provisions of
this Supplement and the Liquidity Agreement and (ii) the Company hereby agrees
(A) to purchase from the Trust on the Issuance Date the rights as holder of the
Series 2000-1 Subordinated Interest in an amount equal to the Series 2000-1
Initial Subordinated Interest Amount and (B) to maintain such interest in the
Series 2000-1 Subordinated Interest, subject to increase or decrease during a
Series 2000-1 Revolving Period, in accordance with the provisions of this
Supplement. Payment by the Initial Purchaser in respect of the VFC Certificates
shall be made in immediately available funds on the Issuance Date to the Agent
for payment to the Trust.
(b) Subsequent Purchases. Subject to the terms and conditions of this
Supplement, each Purchaser shall be deemed to have severally agreed, by its
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acceptance of its VFC Beneficial Interest, to maintain its VFC Beneficial
Interest, subject to increase or decrease during a Series 2000-1 Revolving
Period, in accordance with the provisions of this Supplement and the Liquidity
Agreement.
(c) Maximum Series 2000-1 Purchaser Invested Amount. Notwithstanding
anything to the contrary contained in this Supplement, at no time shall the
Series 2000-1 Purchaser Invested Amount (calculated without regard to clauses
(d) and (e) of the definition thereof) of any Purchaser exceed such Purchaser's
Commitment at such time.
SECTION 2.04. Delivery. On the Issuance Date, the Company shall sign
on behalf of the Trust and shall direct the Trustee in writing pursuant to
Section 5.02 of the Agreement to duly authenticate, and the Trustee, upon
receiving such direction, shall so authenticate the VFC Certificates in the
name of the Agent and deliver such VFC Certificate to the Agent for the benefit
of the Initial Purchaser in accordance with such written directions. The
Trustee shall mark on its books the actual Series 2000-1 Invested Amount and
Series 2000-1 Subordinated Interest Amount outstanding on any date of
determination, which, absent manifest error, shall constitute prima facie
evidence of the outstanding Series 2000-1 Invested Amount of each Class and
Series 2000-1 Subordinated Interest Amount from time to time.
SECTION 2.05. Procedure for Initial Issuance and for Increasing the
Series 2000-1 Invested Amount.
(a) Subject to Subsection (b) of this Section 2.05, on any Business
Day during a Series 2000-1 Revolving Period, including the Issuance Date, each
Purchaser agrees that the Series 2000-1 Invested Amount may be increased by
increasing each Purchaser's Series 2000-1 Purchaser Invested Amount (an
"Increase"), up to an amount in the aggregate not exceeding each Purchaser's
Commitment, upon the request of the Master Servicer or the Company on behalf of
the Trust (each date on which an increase in the Series 2000-1 Invested Amount
occurs hereunder being herein referred to as the "Increase Date" applicable to
such Increase); provided, however, that the Master Servicer or the Company, as
the case may be, shall have given the Agent irrevocable written notice
(effective upon receipt), substantially in the form of Exhibit F hereto, of
such request no later than 4:00 p.m. New York City time, one Business Day prior
to the Issuance Date or such Increase Date; provided, further, that the
provisions of this subsection shall not restrict the allocations of Collections
pursuant to Article III. Such notice shall state (x) the Issuance Date or
Increase Date, as the case may be; and (y) the Series 2000-1 Initial Invested
Amount or the proposed amount of such Increase (the "Increase Amount"), as the
case may be. No Purchaser shall be obligated to fund any such Increase, unless
concurrently with any such Increase in the Series 2000-1 Invested Amount, the
Series 2000-1
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Subordinated Interest Amount shall be increased by an amount (the "Series
2000-1 Subordinated Interest Increase Amount") such that after giving effect to
such increase, the Series 2000-1 Allocated Receivables Amount is at least equal
to the Series 2000-1 Target Receivables Amount.
(b) The Purchasers shall not be required to make an initial purchase
of VFC Beneficial Interests on the Issuance Date or to increase their
respective Series 2000-1 Purchaser Invested Amounts on any Increase Date
hereunder unless:
(i) the related aggregate Series 2000-1 Initial Invested Amount or
Increase Amount is equal to $1,000,000 or an integral multiple of $100,000
in excess thereof;
(ii) after giving effect to the Series 2000-1 Initial Invested Amount
or Increase Amount, (A) the Series 2000-1 Invested Amount (calculated
without regard to clauses (d) and (e) of the definition of Series 2000-1
Purchaser Invested Amount) would not exceed the Maximum Commitment Amount
on the Issuance Date or such Increase Date, as the case may be, and (B)
the Series 2000-1 Allocated Receivables Amount would not be less than the
Series 2000-1 Target Receivables Amount on the Issuance Date or such
Increase Date, as the case may be; and
(iii) no Early Amortization Event or Potential Early Amortization
Event under the Agreement or this Supplement shall have occurred and be
continuing.
(c) After receipt by the Agent of the notice required by Section
2.05(a) above from the Master Servicer or the Company on behalf of the Trust,
the Agent shall, so long as the conditions set forth in Sections 2.05(a) and
(b) are satisfied, promptly provide telephonic notice to each Purchaser of the
Increase Date and of the portion of the Increase Amount allocable to such
Purchaser (which shall equal such Purchaser's Commitment Percentage of the
Increase Amount). The Master Servicer shall promptly notify the Company and the
Trustee of the Increase Date and the amount of the Series 2000-1 Subordinated
Interest Increase Amount. Each Purchaser agrees to pay in immediately available
funds such Purchaser's Commitment Percentage of each Increase on the related
Increase Date to the Agent for payment to the Trust to be transferred to the
Company Collection Subaccount; provided that in no event shall any Purchaser be
required to exceed its respective Commitment.
(d) Administration by Agent. The Agent shall pay to the Purchasers all
amounts received as interest and principal on the VFC Certificates on a pro
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rata basis in accordance with their respective Series 2000-1 Purchaser Invested
Amounts.
SECTION 2.06. Procedure for Decreasing the Series 2000-1 Invested
Amount.
(a) Subject to Section 7.04 hereof, on any Business Day during a
Series 2000-1 Revolving Period or the Series 2000-1 Amortization Period (except
for Distribution Dates during the Series 2000-1 Amortization Period (which
shall be governed by Section 3.06(c)), upon the written request of the Master
Servicer or the Company on behalf of the Trust, the Series 2000-1 Invested
Amount may be reduced (a "Decrease") by the distribution by the Trustee to the
Agent for the pro rata benefit of the Purchasers in accordance with their
Series 2000-1 Purchaser Invested Amounts of some or all of the funds on deposit
in the Series 2000-1 Principal Collection Sub-subaccount on such day; provided
that the Master Servicer shall have given the Agent and the Trustee irrevocable
written notice (effective upon receipt), prior to 2:00 p.m., New York City
time, on the first Business Day prior to such Decrease, and which notice shall
state the amount of such Decrease; provided, further, that such Decrease shall
be in an amount equal to $100,000 or integral multiples of $100,000 in excess
thereof; provided, further, however, that no prepayment on any day other than a
Distribution Date may occur unless, concurrently with such prepayment, the
Company shall have paid to the Purchasers any amounts due and payable pursuant
to Section 7.04 hereof.
(b) Simultaneously with any such Decrease during a Series 2000-1
Revolving Period, the Series 2000-1 Subordinated Interest Amount shall be
reduced by an amount (the "Series 2000-1 Subordinated Interest Reduction
Amount") such that the Series 2000-1 Subordinated Interest Amount shall equal
the Series 2000-1 Required Subordinated Amount after giving effect to such
Decrease. During a Series 2000-1 Revolving Period, after the distribution
described in subsection (a) above has been made, and the Series 2000-1
Subordinated Interest Amount shall have been reduced by the Series 2000-1
Subordinated Interest Reduction Amount, a distribution shall be made to the
holder of the Series 2000-1 Subordinated Interest out of remaining funds on
deposit in the Series 2000-1 Principal Collection Sub-subaccount in an amount
equal to the lesser of (x) the Series 2000-1 Subordinated Interest Reduction
Amount and (y) the amount of such remaining funds on deposit in the Series
2000-1 Principal Collection Sub-subaccount.
SECTION 2.07. Reductions of the Commitments.
(a) On any Distribution Date during a Series 2000-1 Revolving Period,
the Company, on behalf of the Trust, may, upon three Business Days' prior
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written notice (effective upon receipt), reduce or terminate the Commitments (a
"Commitment Reduction") in an aggregate amount equal to $5,000,000 or a whole
multiple of $5,000,000 in excess thereof or terminate the Commitments in their
entirety; provided that no such termination or reduction shall be permitted if,
after giving effect thereto and to any reduction in the Series 2000-1 Invested
Amount (calculated without regard to clauses (d) and (e) of the definition of
Series 2000-1 Purchaser Invested Amount) on such date, the Series 2000-1
Invested Amount would exceed the Aggregate Commitment Amount then in effect.
Each Purchaser's Commitment shall be reduced by such Purchaser's Commitment
Percentage of the amount of such Commitment Reduction.
(b) Once reduced, the portion of the Aggregate Commitment Amount so
reduced may not be subsequently reinstated. Upon effectiveness of any such
reduction, the Agent shall prepare a revised Schedule 1 to this Supplement to
reflect the reduced Commitment of each Purchaser and the existing Schedule 1 to
this Supplement shall be deemed to be automatically superseded by such revised
Schedule 1. The Agent shall distribute such revised Schedule 1 to the Company,
the Master Servicer, each Servicer, the Trustee and each Purchaser.
Concurrently therewith, the Commitments of the Liquidity Banks shall be reduced
and the Agent shall distribute a revised Annex I to the Liquidity Agreement to
the Company, the Master Servicer, each Servicer and each Liquidity Banks.
SECTION 2.08. Interest; Commitment Fee.
(a) Interest shall be payable on the VFC Certificates on each
Distribution Date pursuant to Section 3.06(a) hereof.
(b) The Trustee (acting at the written direction of the Master
Servicer) shall pay to the Agent, for the pro rata account of the Purchasers in
accordance with their Commitment Percentages, on each Distribution Date, a
commitment fee with respect to each Accrual Period or portion thereof ending on
such date (the "Commitment Fee") during any Series 2000-1 Revolving Period (and
any Series 2000-1 Amortization Period pursuant to clause (ii) of the definition
thereof) at a rate equal to 0.25% per annum multiplied by the daily average of
the excess, if any, of the Aggregate Commitment Amount over the Series 2000-1
Invested Amount, in each case as of each day of such Accrual Period. The
Commitment Fee shall be payable monthly in arrears on each Distribution Date.
To the extent that funds on deposit in the Series 2000-1 Accrued Interest
Sub-subaccount and the Series 2000-1 Non-Principal Collection Sub-subaccount at
any such date are insufficient to pay the Commitment Fee due on such date, the
Trustee shall so notify the Company and the Company shall immediately pay the
Agent the amount of any such deficiency. The amount of any deficiency referred
to in the immediately preceding sentence (if any) shall be a Company
Subordinated
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Obligation. The Trustee shall not be liable for the payment of the Commitment
Fee from its own funds.
(c) The Trustee (acting at the written direction of the Master
Servicer) shall pay to the Agent, on the Issuance Date and on each Distribution
Date in March in each year, an administration fee (the "Administration Fee")
equal to $100,000. To the extent that funds on deposit in the Series 2000-1
Accrued Interest Sub-subaccount and the Series 2000-1 Non-Principal Collection
Sub-subaccount at any such date are insufficient to pay the Administration Fee
due on such date, the Trustee shall so notify the Company and the Company shall
immediately pay the Agent the amount of any such deficiency. The Trustee shall
not be liable for the payment of the Administration Fee from its own funds.
(d) Calculations of per annum rates and fees under this Supplement
shall be made on the basis of a 360 day year with respect to Commitment Fees,
other fees, and interest rates except with respect to interest rates based on
Base Rate, which shall be calculated on the basis of a 365 day year. All fees
shall be fully earned when paid and shall be non-refundable. Each determination
of LIBOR by the Agent shall be conclusive and binding upon each of the parties
hereto in the absence of manifest error.
SECTION 2.09. Indemnification by the Company.
(a) Without limiting any other rights that the Agent, the Insurer,
Redwood or the Liquidity Banks may have under this Agreement, the Transaction
Documents or under applicable law, the Company hereby agrees to indemnify
Redwood, the other Purchasers, the Liquidity Banks, the Insurer and the Agent
and any of their respective agents, officers, directors and employees
(collectively, the "Indemnified Parties") from and against any and all damages,
losses, claims, liabilities, costs and expenses, including reasonable
attorneys' fees and reasonable disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them in connection with the entering into and performance of this
Agreement, the Insurance Agreement or any of the Transaction Documents by any
of the Indemnified Parties (other than any action successfully brought by or on
behalf of the Company with respect to any determination by Redwood not to fund
any Initial Purchase or Increase or any action by Redwood, the Agent or the
Liquidity Banks to terminate or reduce the Commitments in violation of the
terms of this Supplement or the Liquidity Agreement), excluding, however, any
amounts (i) to the extent resulting from the gross negligence or willful
misconduct on the part of such Indemnified Party other than Redwood, (ii)
constituting recourse (except as otherwise specifically provided herein or in
any Transaction Document) for Charged-Off Receivables, (iii) arising out of the
imposition of any Taxes, (iv) to the extent otherwise provided for in Sections
7.01, 7.02 or 7.04 or (v) in respect of special, punitive,
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exemplary or consequential damages under this Section 2.09, except to the
extent that such damages are imposed on an Indemnified Party as a result of
claims in respect of Indemnified Amounts asserted by an unaffiliated Person not
party to any of the Transaction Documents or any of the transactions
contemplated thereby.
Notwithstanding the foregoing, if Redwood enters into agreements for the
purchase of receivables or interests in receivables from any Persons who are
not party to the Transaction Documents (such Persons being "Other Persons"),
(i) no inference shall arise from the agreements herein that the Company is or
in any way shall be liable for amounts arising from transactions by Redwood
with such Other Persons and (ii) any amounts attributable to such Other Persons
shall be solely the liability of such Other Persons.
(b) In case any proceeding by any Person shall be instituted involving
any Indemnified Party in respect of which indemnity may be sought pursuant to
subsection (a) of this Section 2.09, such Indemnified Party shall promptly
notify the Company, and the Company, upon request of the Indemnified Party,
shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Company has agreed to pay such fees and
expenses, (ii) the Company shall have failed to assume the defense of such
action or proceeding and employ counsel reasonably satisfactory to the Agent in
any such action or proceeding or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the Indemnified Party
and the Company, and the Indemnified Party shall have been advised by counsel
that (A) there may be one or more legal defenses available to it which are
different from or additional to those available to the Company and (B) the
representation of the Company and the Indemnified Party by the same counsel
would be inappropriate or contrary to prudent practice (in which case, if the
Indemnified Party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Party, it being understood, however, that the Company shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time (in
addition to local counsel, if necessary) for the Indemnified Parties, which
firm (or firms) shall be designated in writing by the Agent). The Company shall
not be liable for any settlement of any such action or proceeding effected
without its written consent to the extent that any such settlement shall be
prejudicial to the
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Company, but, if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding with respect to
which the Company shall have received notice in accordance with this subsection
(b), the Company agrees to indemnify and hold the Indemnified Parties harmless
from and against any loss or liability by reason of such settlement or
judgment.
(c) Any payments to be made by the Company pursuant to this Section
2.09 shall (i) be Company Subordinated Obligations, (ii) be made solely from
funds available to the Company that are not required to be applied to Company
Unsubordinated Obligations then due and (iii) not constitute a general recourse
claim against the Company then due at any time during the period of one year
and one day following the date on which all Company Unsubordinated Obligations
have been paid in full, except to the extent that funds are available
(including, but not limited to, funds available to the Company pursuant to the
exercise of its right to indemnity and other payments pursuant to Sections 2.06
and 9.02 of the Receivables Sale Agreement) to the Company to make such
payments.
ARTICLE III
Article III of the Agreement
SECTION 3.01. Section 3.01 of the Agreement and each other section of
Article III of the Agreement relating to another Series shall be read in its
entirety as provided in the Agreement. Article III of the Agreement (except for
Section 3.01 thereof and any portion thereof relating to another Series) shall
read in its entirety as follows and shall be exclusively applicable to Series
2000-1:
SECTION 3.02. Establishment of Trust Accounts.
(a) The Trustee shall cause to be established and maintained in the
name of the Trustee, on behalf of the Trust, (i) for the benefit of the VFC
Certificateholders and (ii) in the case of clauses (A) and (B) below, for the
benefit (subject to the prior and senior interest of the VFC
Certificateholders) of the holder of the Series 2000-1 Subordinated Interest,
(A) a subaccount of the Collection Account (the "Series 2000-1 Collection
Subaccount"), which subaccount is the Series Collection Subaccount with respect
to Series 2000-1; (B) two subaccounts of the Series 2000-1 Collection
Subaccount: (1) the Series 2000-1 Principal Collection Sub-subaccount and (2)
the Series 2000-1 Non-Principal Collection Sub-subaccount (respectively, the
"Series 2000-1 Principal Collection Sub-subaccount" and the "Series 2000-1
Non-Principal Collection Sub-subaccount"), and (C) a subaccount of the Series
2000-1 Non-Principal Collection Sub-subaccount (the "Series 2000-1 Accrued
Interest Sub-subaccount"; all accounts established pursuant to this Section
3.02(a) and listed on Schedule 2 hereto, collectively, the "Trust Accounts"),
each Trust Account to bear a designation indicating that the funds deposited
therein are held for the benefit of
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the Persons (and, for each such Person, to the extent) set forth in clauses (i)
and (ii) above. The Trustee, on behalf of the Holders, shall possess all right,
title and interest in all funds from time to time on deposit in, and all
Eligible Investments credited to, the Trust Accounts and in all proceeds
thereof. The Trust Accounts shall be under the sole dominion and control of the
Trustee for the exclusive benefit of the Persons (and, for each such Person, to
the extent) set forth in clauses (i) and (ii) above.
(b) All Eligible Investments in the Trust Accounts shall be held by
the Trustee, on behalf of the Holders, for the benefit of the VFC
Certificateholders and, subject to the prior interest of the VFC
Certificateholders, of the holder of the Series 2000-1 Subordinated Interest;
provided, however, that funds on deposit in a Trust Account that is a
subaccount or sub-subaccount of the Collection Account shall, at the written
direction of the Company, be invested together with funds held in other
Sub-subaccounts of the Collection Account. After giving effect to any
distribution to the Company pursuant to Section 3.03(b)(i) hereof, amounts on
deposit and available for investment in the Series 2000-1 Principal Collection
Sub-subaccount shall be invested by the Trustee at the written direction of the
Company in Eligible Investments that mature, or that are payable or redeemable
upon demand of the holder thereof, (i) in the case of any such investment made
during a Series 2000-1 Revolving Period, on or prior to the next Business Day
and (ii) in the case of any such investment made during a Series 2000-1
Amortization Period, on or prior to the Business Day immediately preceding the
next Distribution Date. Amounts on deposit and available for investment in the
Series 2000-1 Non-Principal Collection Sub-subaccount and the Series 2000-1
Accrued Interest Sub-subaccount shall be invested by the Trustee at the written
direction of the Company in Eligible Investments that mature, or that are
payable or redeemable upon demand of the holder thereof, on or prior to the
Business Day immediately preceding the subsequent Distribution Date. As of the
Business Day immediately preceding the Settlement Report Date, all interest and
other investment earnings (net of losses and investment expenses) on funds
deposited in the Series 2000-1 Accrued Interest Sub-subaccount shall be
deposited in the Series 2000-1 Non-Principal Collection Sub-subaccount. As of
the Business Day immediately preceding the Settlement Report Date, all interest
and investment earnings (net of losses and investment expenses) on funds
deposited in the Series 2000-1 Principal Collection Sub-subaccount shall be
deposited in the Series 2000-1 Non-Principal Collection Sub-subaccount.
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SECTION 3.03. Daily Allocations.
(a) The portion of the Aggregate Daily Collections allocated to Series
2000-1 pursuant to Article III of the Agreement shall be allocated and
distributed as set forth in this Article III by the Trustee based solely on the
information provided it by the Master Servicer in the Daily Report (upon which
the Trustee may conclusively rely):
(i) on each Business Day, an amount equal to the Accrued Expense
Amount for such day (or, during a Series 2000-1 Revolving Period, such
greater amount as the Company may request in writing) shall be transferred
from the Series 2000-1 Collection Subaccount to the Series 2000-1
Non-Principal Collection Sub-subaccount; provided, that (A) on the tenth
Business Day of each Accrual Period (and each Business Day thereafter, if
necessary, until the full amount of any positive Accrued Expense
Adjustment is transferred), (B) on the day of any Increase (and each
Business Day thereafter, if necessary, until the full amount of any
positive Accrued Expense Adjustment is transferred), (C) on the day of any
Decrease and (D) on the last Business Day of each Accrual Period, an
amount equal to the Accrued Expense Adjustment shall, if such adjustment
is a positive amount, be transferred from the Series 2000-1 Collection
Subaccount to the Series 2000-1 Non-Principal Collection Sub-subaccount
or, if such adjustment is a negative amount, be transferred from the
Series 2000-1 Non-Principal Collection Sub-subaccount to the Series 2000-1
Collection Subaccount (or deducted from the transfer in respect of the
Accrued Expense Amount for such day); and
(ii) on each Business Day (including Distribution Dates), following
the transfers pursuant to clause (i) above, any remaining funds on deposit
in the Series 2000-1 Collection Subaccount shall be transferred by the
Trustee to the Series 2000-1 Principal Collection Sub-subaccount.
(b) (i) On each Business Day during a Series 2000-1 Revolving Period (including
Distribution Dates), after giving effect to all allocations of Aggregate Daily
Collections referred to in subsections (a)(i) and (a)(ii) above on such
Business Day, amounts on deposit in the Series 2000-1 Principal Collection
Sub-subaccount (including any amounts transferred thereto pursuant to Section
3.03(c)(i) of any Supplement) shall be distributed by the Trustee, based solely
on the information provided to the Trustee by the Master Servicer in the Daily
Report (upon which the Trustee may conclusively rely), (A) first, to pay Excess
Program Costs (first, to the Initial Purchaser, second to the Insurer, third,
to the Agent, and fourth, to any other Persons to whom such Excess Program
Costs are owed, ratably in accordance with the amounts owed) and (B) second, to
the
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Company (but only to the extent that the Trustee has received a Daily Report
which reflects the receipt of the Collections on deposit therein) in accordance
with directions contained in the Daily Report or to such accounts or such
Persons as the Company may direct in writing (which directions may consist of
standing instructions provided by the Company that shall remain in effect until
changed by the Company in writing); provided that such distribution shall be
made only if no Early Amortization Event or Potential Early Amortization Event
relating to an Early Amortization Event set forth in subsections (a), (d) (but
only with respect to a Servicer Default set forth in Section 6.01(e) of the
Servicing Agreement) or (g) of Section 5.01 of this Supplement has occurred and
is continuing and only to the extent that if, after giving effect to such
distribution, the Series 2000-1 Target Receivables Amount would not exceed the
Series 2000-1 Allocated Receivables Amount; provided, further, that if the
Company or the Master Servicer, on behalf of the Company, shall have given the
Agent and the Trustee irrevocable written notice (effective upon receipt) at
least one Business Day prior to such day, the Company or the Master Servicer
may instruct the Trustee in writing (specifying the related amount) to withdraw
all or a portion of such amounts on deposit in the Series 2000-1 Principal
Collection Sub-subaccount (including any amounts transferred thereto pursuant
to Section 3.03(c)(i) of any Supplement) and apply such withdrawn amounts
toward the reduction of the Series 2000-1 Invested Amount and the Series 2000-1
Subordinated Interest Amount in accordance with Section 2.06 hereof. Amounts
distributed to the Company hereunder shall be deemed to be paid first from
Collections received directly by the Master Servicer and second from
Collections received in the Lockboxes.
(ii) During any Series 2000-1 Amortization Period, amounts on deposit
in the Series 2000-1 Principal Collection Sub-subaccount on each Distribution
Date shall be distributed on such Distribution Date in accordance with Section
3.06(c). No amounts on deposit in the Series 2000-1 Principal Collection
Sub-subaccount shall be distributed by the Trustee to the Company or the holder
of the Series 2000-1 Subordinated Interest during a Series 2000-1 Amortization
Period.
(c) On each Business Day, an amount equal to the Daily Interest
Deposit for such day shall be transferred by the Trustee, based solely on the
information provided to the Trustee by the Master Servicer in the Daily Report
(upon which the Trustee may conclusively rely), from the Series 2000-1
Non-Principal Collection Sub-subaccount to the Series 2000-1 Accrued Interest
Sub-subaccount; provided, that, on each Business Day that a transfer of funds
is required to be made in respect of an Accrued Expense Adjustment pursuant to
the proviso to Section 3.03(a)(i), an amount equal to the Daily Interest
Adjustment shall, if such adjustment is a positive amount, be transferred from
the Series 2000-1 Non-Principal Collection Sub-subaccount to the Series 2000-1
Accrued Interest Sub-subaccount or, if such adjustment is a negative amount, be
transferred from
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the Series 2000-1 Accrued Interest Sub-subaccount to the Series 2000-1
Non-Principal Collection Sub-subaccount (or deducted from the transfer in
respect of the Daily Interest Deposit for such day).
(d) The allocations to be made pursuant to this Section 3.03 are
subject to the provisions of Sections 2.05, 2.06, 7.02, 9.01 and 9.04 of the
Agreement.
SECTION 3.04. Determination of Interest.
(a) (i) The amount of interest distributable with respect to the VFC
Certificates ("Series 2000-1 Monthly Interest Distribution") on each
Distribution Date as indicated on the Monthly Settlement Statement for such
Distribution Date shall be the aggregate amount of Daily Interest Expense
accrued during the immediately preceding Accrual Period.
(ii) Following any change in the CP Net Amount, the aggregate amount
of outstanding Liquidity Loans or the LOC Draws Outstanding during an
Accrual Period, the Series 2000-1 Monthly Interest shall be calculated
with respect to such changed amount for the number of days in the Accrual
Period during which such changed amount is outstanding.
(iii) If the CP Rate, LIBOR or the Base Rate changes during any
Accrual Period, the Master Servicer shall amend the Monthly Settlement
Statement to reflect the adjustment in the Series 2000-1 Monthly Interest
for such Accrual Period caused by such change and any consequent
adjustments and the Master Servicer shall also provide written
notification to the Trustee of any such change in the CP Rate, LIBOR and
the Base Rate. Any amendment to the Monthly Settlement Statement pursuant
to this Section 3.04(a)(iii) shall be completed by 1:00 p.m. on the day
preceding the next Settlement Report Date.
(b) On each Distribution Date, the Master Servicer shall determine the
excess, if any (the "Interest Shortfall"), of (i) the aggregate Series 2000-1
Monthly Interest Distribution for the Accrual Period ending on such
Distribution Date over (ii) the amount that will be available to be distributed
to the Purchasers on such Distribution Date in respect thereof pursuant to this
Supplement. If the Interest Shortfall with respect to any Distribution Date is
greater than zero, an additional amount ("Additional Interest") equal to the
product of (A) the number of days until such Interest Shortfall shall be repaid
divided by 365, (B) the Base Rate and (C) such Interest Shortfall (or the
portion thereof that has not been paid to the Purchasers) shall be payable as
provided herein with respect to the VFC Certificates on each Distribution Date
following such Distribution Date to and including the Distribution Date on
which such Interest Shortfall is paid to the VFC Certificateholders.
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SECTION 3.05. Determination of Series 2000-1 Monthly Principal.
(a) Payments of Series 2000-1 Principal. The amount (the "Series
2000-1 Monthly Principal Payment") distributable from the Series 2000-1
Principal Collection Sub-subaccount on each Distribution Date as indicated on
the Monthly Settlement Statement during a Series 2000-1 Amortization Period
shall be equal to the amount on deposit in such account on the immediately
preceding Settlement Report Date; provided, however, that the Series 2000-1
Monthly Principal Payment on any Distribution Date shall not exceed the Series
2000-1 Invested Amount on such Distribution Date after giving effect to the
reductions and increases pursuant to subsections (b) and (c) below; provided,
further, no payment by the Insurer under the Insurance Policy shall reduce the
amount of any Series 2000-1 Monthly Principal Payment payable hereunder.
Further, on any other Business Day during a Series 2000-1 Amortization Period,
funds may be distributed from the Series 2000-1 Principal Collection
Sub-subaccount to the VFC Certificateholders in accordance with Section 2.06 of
this Supplement.
(b) Reductions to Series 2000-1 Principal. If, on any Special
Allocation Settlement Report Date, the Series 2000-1 Allocable Charged-Off
Amount is greater than zero for the related Settlement Period, the Trustee
shall (in accordance with the written directions of the Master Servicer upon
which the Trustee may conclusively rely) make the following applications of
such amounts in the following order of priority:
(i) the Series 2000-1 Required Subordinated Amount shall be reduced
(but not below zero) by an amount equal to the Series 2000-1 Allocable
Charged-Off Amount (which shall also be reduced by the amount so applied);
and
(ii) then, to the extent that the Series 2000-1 Allocable Charged-Off
Amount is greater than zero following the application in clause (i) above,
the Series 2000-1 Invested Amount shall be reduced (but not below zero) by
such remaining Series 2000-1 Allocable Charged-Off Amount (which shall
also be reduced by the amount so applied) and shall be allocated to the
Series 2000-1 Purchaser Invested Amounts on a pro rata basis.
(c) Increases to Series 2000-1 Principal. If, on any Special
Allocation Settlement Report Date, the Series 2000-1 Allocable Recoveries
Amount is greater than zero for the related Settlement Period, the Trustee
shall (in accordance with written directions from the Master Servicer upon
which the Trustee may conclusively rely) make the following applications (after
giving effect to the applications in subsection (b) above of such amount in the
following order of priority):
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(i) the Series 2000-1 Invested Amount shall be increased (but only to
the extent of any previous reductions of the Series 2000-1 Invested Amount
pursuant to Section 3.05(b)(ii)) by the amount of the Series 2000-1
Allocable Recoveries Amount (which shall also be reduced by the amount so
applied) and shall be allocated to the Series 2000-1 Purchaser Invested
Amounts on a pro rata basis; and
(ii) then, to the extent that the Series 2000-1 Allocable Recoveries
Amount is greater than zero following the applications in clause (i)
above, the Series 2000-1 Required Subordinated Amount shall be increased
(but only to the extent of any previous reductions of the Series 2000-1
Required Subordinated Amount pursuant to Section 3.05(b)(i)) by such
remaining Series 2000-1 Allocable Recoveries Amount (which shall also be
reduced by the amount so applied).
SECTION 3.06. Applications.
(a) The Trustee shall distribute, based solely on the information
provided to the Trustee by the Master Servicer in the Monthly Settlement
Statement (upon which the Trustee may conclusively rely), on each Distribution
Date, from amounts on deposit in the Series 2000-1 Accrued Interest
Sub-subaccount, an amount equal to the Series 2000-1 Monthly Interest
Distribution payable on such Distribution Date (such amount, the "Monthly
Interest Payment"), plus the amount of any Monthly Interest Payment previously
due but not distributed to the VFC Certificateholders on a prior Distribution
Date, plus the amount of any Additional Interest for such Distribution Date and
any Additional Interest previously due but not distributed to the VFC
Certificateholders on a prior Distribution Date, to the VFC Certificateholders
(pro rata based upon the respective amounts owed to each VFC
Certificateholder).
(b) On each Distribution Date, the Trustee shall, based solely on the
information provided to the Trustee by the Master Servicer in the Daily Report
(upon which the Trustee may conclusively rely), apply funds on deposit in the
Series 2000-1 Non-Principal Collection Sub-subaccount in the following order of
priority to the extent funds are available:
(i) an amount equal to the Series 2000-1 Monthly Servicing Fee for
the Accrual Period ending on such Distribution Date shall be withdrawn
from the Series 2000-1 Non-Principal Collection Sub-subaccount by the
Trustee and paid to the Master Servicer (less any amounts payable to the
Trustee pursuant to Section 8.05 of the Agreement which shall be paid to
the Trustee); and
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(ii) an amount equal to any Program Costs due and payable shall be
withdrawn from the Series 2000-1 Non-Principal Collection Sub-subaccount
by the Trustee and paid (a) first to the Persons owed any such amounts
that are Company Unsubordinated Obligations (first, to the Initial
Purchaser, second, to the Insurer, third, to the Agent, and fourth, to any
other Persons to whom such Program Costs are owed, ratably in accordance
with the amounts owed) and (b) second to the Persons owed any such amounts
that are Company Subordinated Obligations (first to the Initial Purchaser,
second to the Insurer, third, to the Agent, and fourth, to any other
Persons to whom such Program Costs are owed ratably in accordance with the
amounts owed).
Any remaining amounts on deposit in the Series 2000-1 Non-Principal Collection
Sub-subaccount (in excess of the Accrued Expense Amount as of such day) not
allocated pursuant to clauses (i) and (ii) above shall be paid to the holder of
the Series 2000-1 Subordinated Interest; provided, however, that during any
Series 2000-1 Amortization Period, such remaining amounts shall be deposited in
the Series 2000-1 Principal Collection Sub-subaccount for distribution in
accordance with Section 3.06(c) hereof.
(c) During any Series 2000-1 Amortization Period, the Trustee shall,
based solely on the information provided to the Trustee by the Master Servicer
in the Daily Report (upon which the Trustee may conclusively rely), apply, on
each Distribution Date, amounts on deposit in the Series 2000-1 Principal
Collection Sub-subaccount in the following order of priority:
(i) if any amounts are owed to the Trustee or any other Person, on
account of the Series 2000-1 Monthly Servicing Fees incurred in respect of
the performance of its responsibilities as Successor Master Servicer or
amounts are owing by the Master Servicer to the Trustee (as Trustee or as
Successor Master Servicer) pursuant to Section 8.05 of the Agreement out
of the Series 2000-1 Monthly Servicing Fees, and the Master Servicer has
failed to pay such amounts, an amount equal to the product of (a) the
aggregate amounts so owed to such Trustee or other Person and (b) Series
2000-1 Invested Percentage as of the end of the immediately preceding
Accrual Period shall be transferred from the Series 2000-1 Principal
Collection Sub-subaccount to the Trustee or such other Person;
(ii) following the repayment in full of all amounts set forth in
clause (i) above, an amount equal to the sum of the Series 2000-1 Monthly
Principal Payment for such Distribution Date shall be distributed from the
Series 2000-1 Principal Collection Sub-subaccount first, to the VFC
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Certificateholders in reduction of the Series 2000-1 Invested Amount (pro
rata based upon their respective Series 2000-1 Purchaser Invested Amounts)
and second, to repay any Excess Program Costs to the Person to whom such
Excess Program Costs are owed (in each case, first in satisfaction of any
Company Unsubordinated Obligations and second in satisfaction of any
Company Subordinated Obligations);
(iii) if, following the repayment in full of all amounts set forth in
clauses (i) and (ii) above, any amounts are owed to the Trustee or any
other Person, on account of its fees, expenses and disbursements incurred
in respect of the performance of its responsibilities hereunder or as
Successor Master Servicer, such amounts shall be transferred from the
Series 2000-1 Principal Collection Sub-subaccount and paid to the Trustee
or such other Person; and
(iv) following the repayment in full of all amounts set forth in
clauses (i) through (iii) above, the remaining amount on deposit in the
Series 2000-1 Principal Collection Sub-subaccount on such Distribution
Date, if any, shall be distributed to the holder of the Series 2000-1
Subordinated Interest.
SECTION 3.07. Prepayment. On any Distribution Date, the Company may,
with 30 days' prior written notice to the Agent, the Trustee and the Master
Servicer, prepay all or a portion of the Series 2000-1 Invested Amount. The
Series 2000-1 Invested Amount may be prepaid in full or in part, but the VFC
Certificates and all other amounts (if any) then owed to the Purchasers by the
Trust, the Company, the Master Servicer, any Servicer or any Seller pursuant to
the Transaction Documents must, at the time of such prepayment, be repaid,
together with any other funds made available by the Company as may be necessary
for such payment in full. The Company shall, to effect such prepayment, deposit
no later than 11:00 a.m. on such Distribution Date (i)(A) an amount equal to
any shortfall on such Distribution Date in the Series 2000-1 Accrued Interest
Sub-subaccount in respect of the Monthly Interest Payment previously due but
not distributed to the VFC Certificateholders on a prior Distribution Date,
plus the amount of Additional Interest for such Distribution Date and any
Additional Interest previously due but not distributed to the Series 2000-1
Accrued Interest Sub subaccount, (B) the Series 2000-1 Adjusted Invested Amount
to be redeemed to the Series 2000-1 Principal Collection Sub-subaccount, (C)
all other amounts then owing to the VFC Certificateholders in respect of the
Series 2000-1 Invested Amount to be repaid pursuant to the Transaction
Documents to the Series 2000-1 Non-Principal Collection Sub subaccount, in each
case, for distribution to the VFC Certificateholders by the Trustee in
accordance with Section 4.01(a) or (ii) funds in the same aggregate amount as
specified in the foregoing clause (i) to such accounts of the Agent or
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the VFC Certificateholders and in such amounts as may be specified by the
Agent. In the case of either clause (i) or (ii), the Master Servicer's Daily
Report and Monthly Settlement Statement delivered pursuant to Sections 4.02 and
4.03 shall reflect such deposits in connection with the prepayment.
ARTICLE IV
Distributions and Reports
Article IV of the Agreement (except for any portion thereof relating
to another Series) shall read in its entirety as follows and the following
shall be exclusively applicable to the VFC Certificates issued pursuant to this
Supplement:
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SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall distribute to the VFC
Certificateholders from the account indicated in Article III hereof the amount
to be distributed to the VFC Certificateholders pursuant thereto. The Agent
shall, except to the extent a different allocation is specified herein,
distribute to each Purchaser its pro rata share of such amounts based upon each
Purchaser's Series 2000-1 Purchaser Invested Amount.
(b) All allocations and distributions hereunder shall be in accordance
with the Daily Report and the Monthly Settlement Statement and shall be made in
accordance with the provisions of Section 11.04 hereof and subject to Section
3.01(h) of the Agreement.
SECTION 4.02. Daily Reports. The Master Servicer shall provide the
Agent and the Trustee with a Daily Report in accordance with Section 4.01 of
the Servicing Agreement. The Agent shall make copies of the Daily Report
available to each VFC Certificateholder at its reasonable request at the
Agent's office.
SECTION 4.03. Statements and Notices.
(a) Monthly Settlement Statements. On each Settlement Report Date
(commencing with the Settlement Report Date occurring in April, 2000, the
Master Servicer shall deliver to the Trustee, the Agent and the Insurer a
Monthly Settlement Statement in the Form of Exhibit E hereto setting forth,
among other things, the Loss Reserve Ratio, the Dilution Reserve Ratio, the
Minimum Ratio, the Carrying Cost Reserve Ratio and the Servicing Reserve Ratio,
each as recalculated for the next succeeding Settlement Period. The Agent shall
forward a copy of each Monthly Settlement Statement to any Purchaser upon
request by such Purchaser.
(b) Annual Certificateholders' Tax Statement. On or before April 1 of
each calendar year (or such earlier date as required by applicable law),
beginning with calendar year 2000, the Company on behalf of the Trustee shall
furnish, or cause to be furnished, to each Person who at any time during the
preceding calendar year was a Purchaser, a statement prepared by the Company
containing the aggregate amount distributed to such Person for such preceding
calendar year or the applicable portion thereof during which such Person was a
Purchaser, together with such other information as is required to be provided
by an issuer of indebtedness under the Internal Revenue Code and such other
customary information as the Company deems necessary to enable the Purchasers
to prepare their tax returns. Such obligation of the Company shall be deemed to
have been satisfied to the extent that substantially comparable information
shall have been provided by the Trustee pursuant to any requirements of the
Internal Revenue
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Code as from time to time in effect. The Trustee shall be under no obligation
to prepare tax returns for the Trust.
(c) Early Amortization Event/Distribution of Principal Notices. Upon
the occurrence of an Early Amortization Event with respect to Series 2000-1,
the Company or the Master Servicer, as the case may be, shall give prompt
written notice thereof to the Trustee and the Agent. As promptly as reasonably
practicable after its receipt of notice of the occurrence of an Early
Amortization Event with respect to Series 2000-1 (i) the Trustee shall give
notice to each Rating Agency (which notice shall be given, by telephone or
otherwise, not later than the second Business Day after such receipt) and (ii)
the Agent shall give notice to each Purchaser and the Insurer. In addition, on
the Business Day preceding each day on which a distribution of principal is to
be made during the Series 2000-1 Amortization Period, the Master Servicer shall
direct the Agent to send notice to each Purchaser and the Insurer, which notice
shall set forth the amount of principal to be distributed on the related date
to each Purchaser with respect to their Beneficial Interests in the VFC
Certificates.
ARTICLE V
Additional Early Amortization Events
SECTION 5.01. Additional Early Amortization Events. If any one of the
events specified in Section 7.01 of the Agreement (after any grace periods or
consents applicable thereto) or any one of the following events (each, an
"Early Amortization Event"), after grace periods applicable thereto, shall
occur during a Series 2000-1 Revolving Period or a Series 2000-1 Amortization
Period pursuant to clause (ii) of the definition thereof:
(a) (i) failure on the part of the Master Servicer to direct any
payment to be made, or failure of any payment to be made, in respect of
principal or interest owing on any VFC Certificate or the Commitment Fee and
such failure continues for more than five Business Days, or (ii) failure on the
part of the Master Servicer to direct any other payment to be made, or failure
of the Company to make any payment in respect of any other amounts owing by the
Company under any Pooling and Servicing Agreement to or for the benefit of any
VFC Certificateholder, the Agent, any Purchaser or any Indemnified Party and
such failure continues unremedied for more than five Business Days after the
earlier to occur of (x) the date upon which a Responsible Officer of the Master
Servicer obtains knowledge of such failure or (y) the date on which written
notice of such failure (1) is given to the Master Servicer by the Company or
the Trustee or (2) to the Company, to the Trustee and to the Master Servicer by
holders of Investor Certificates evidencing 25% or more of the Aggregate
Invested Amount;
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(b) failure on the part of the Company duly to observe or perform in
any material respect any covenant or agreement of the Company set forth in any
Pooling and Servicing Agreement (including each covenant contained in Sections
2.07 and 2.08 of the Agreement) that continues unremedied 30 days after the
earlier of (i) the date on which a Responsible Officer of the Company or, so
long as the Master Servicer is an Affiliate of the Company, the Master Servicer
has actual knowledge of such failure and (ii) the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to
the Company by the Trustee, or to the Company and the Trustee by the Agent or
Purchasers;
(c) any representation or warranty made or deemed made by the Company
in any Pooling and Servicing Agreement to or for the benefit of any VFC
Certificateholder shall prove to have been incorrect in any material respect
when made or when deemed made that continues to be incorrect 30 days after the
earlier of (i) the date on which a Responsible Officer of the Company or, so
long as the Master Servicer is an Affiliate of the Company, the Master Servicer
has actual knowledge of such failure and (ii) the date on which notice of such
failure, requiring the same to be remedied, shall have been given to the
Company by the Trustee or to the Company and the Trustee by the Agent or the
Purchasers; provided, however, that an Early Amortization Event with respect to
Series 2000-1 shall not be deemed to have occurred under this paragraph if the
incorrectness of such representation or warranty gives rise to an obligation to
repurchase or make an adjustment payment in respect of the related Receivables
and the Company has repurchased or made an adjustment payment in respect of the
related Receivable or all such Receivables, if applicable, in accordance with
the provisions of the applicable Pooling and Servicing Agreement within 5
Business Days of when the Company was obligated to do so;
(d) a Servicer Default other than any Servicer Default that is within
Section 5.01(a) above shall have occurred and be continuing;
(e) a Purchase Termination Event shall have occurred and be
continuing;
(f) a Change in Control shall have occurred;
(g) the Series 2000-1 Allocated Receivables Amount shall be less than
the Series 2000-1 Target Receivables Amount for a period of five consecutive
Business Days;
(h) any of the Agreement, the Servicing Agreement, this Supplement or
the Receivables Sale Agreement shall cease, for any reason, to be in full force
and effect, or the Company, the Master Servicer, any Servicer or any Seller, or
any Affiliate of any of the foregoing, shall so assert in writing;
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(i) the Trust shall for any reason cease to have a valid and perfected
first priority undivided ownership or first priority security interest in any
or all of the Trust Assets (subject to no other Liens other than any Permitted
Liens) and such cessation would, individually or together with other
cessations, have a Material Adverse Effect, a Seller Material Adverse Effect or
a Servicer Material Adverse Effect;
(j) the Agent shall have determined that the funding of a VFC
Certificate is impracticable for any reason whatsoever, including as a result
of (i) a drop in or withdrawal of any of the ratings assigned to Redwood's
commercial paper, (ii) restrictions on the amount of assets Redwood may finance
or (iv) the inability of Redwood to issue commercial paper;
(k) an LOC Draw shall have occurred;
(l) the obligations of the Liquidity Banks to make Liquidity Loans
shall have terminated and not otherwise been replaced;
(m) a default or breach of any of the covenants set forth in Section
8.03(d) shall have occurred;
(n) an event of default under the "Collateral Agent Agreement" or any
other "Program Document" (each as defined in the Liquidity Agreement) shall
have occurred;
(o) the short term debt rating of a Liquidity Bank shall have been
downgraded by a Rating Agency and such Liquidity Bank shall not have been
replaced in accordance with the terms of the Liquidity Agreement within 30 days
thereafter;
(p) (i) the Default Ratio as of the last day of any Settlement Period
shall be greater than 5.00%, (ii) the ratio (expressed as a percentage) of
Dilution Adjustments made during any Settlement Period divided by the aggregate
Principal Amount of Receivables originated by the Seller during such Settlement
Period (determined as of the last day of such Settlement Period) shall be
greater than 8.00% or (iii) the Receivable Collection Turnover as of the last
day of any Settlement Period shall be greater than 30 days;
(q) a Federal tax notice of a Lien shall have been filed against the
Company or the Trust unless there shall have been delivered to the Trustee and
the Rating Agencies proof of release of such Lien;
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(r) 15 days shall have elapsed after a Responsible Officer of the
Company receives notice as to, or becomes aware of, a notice of a Lien having
been filed by the PBGC against the Company or the Trust under Section 412(n) 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 unless there shall have been delivered to the
Trustee and the Rating Agencies proof of the release of such Lien;
(s) unless the Agent and each Liquidity Bank otherwise consent, (i)
the Insurance Policy shall for any reason cease to be in full force and effect,
(ii) the Insurer shall deny all or any portion of its liability under the
Insurance Policy, or (iii) the Insurer shall cease to have a long-term debt
rating of A- or better from S&P and A3 from Moody's, and, in each case, the
Agent shall not have received a replacement Insurance Policy within 45 days on
substantially the same terms and issued by an insurance company or other
financial institution with a long-term debt rating of AA or better from S&P and
Aa2 or better from Moody's and otherwise acceptable to the Agent;
(t) (i) one or more judgments for the payment of money (to the extent
not bonded or covered by insurance to the reasonable satisfaction of the Agent)
shall be rendered against the Company in an aggregate amount greater than
$100,000 or (ii) one or more judgments for the payment of money (to the extent
not bonded or covered by insurance to the reasonable satisfaction of the Agent)
shall be rendered against the Master Servicer, any Servicer or any Seller in an
aggregate amount greater than (i) 7.25% of the consolidated tangible net worth
of Ingram Micro Inc. at the end of the most recently ended fiscal quarter or
(ii) $80,000,000, whichever is less, and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy
upon assets or properties of the Company, the Master Servicer, any Servicer, or
any Seller to enforce any such judgment and no stay of enforcement shall be in
effect;
then, in the case of (x) any event described in Section 7.01 of the Agreement
(after the applicable grace period, if any), automatically without any notice
or action on the part of the Trustee or Purchasers, an early amortization
period shall immediately commence or (y) any event described above, after the
applicable grace period (if any) set forth in the applicable subsection, the
Trustee may, and at the written direction of the Majority Purchasers shall, by
written notice then given to the Company and the Master Servicer, declare that
an early amortization period has commenced as of the date of such notice with
respect to Series 2000-1 (any such period under clause (x) or (y) above, an
"Early Amortization Period"); provided, however, that in the case of the event
described in subsection (g) above, if an Early Amortization Period has not been
declared within 10 Business Days from the occurrence of such event, then an
Early Amortization Period shall occur
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automatically unless, (i) prior to the end of such 10 Business Day period, the
Series 2000-1 Allocated Receivables Amount shall no longer be less than the
Series 2000-1 Target Receivables Amount and (ii) so long as the Series 2000-1
Allocated Receivables Amount continues to be equal to or greater than the
Series 2000-1 Target Receivables Amount, Purchasers evidencing 66-2/3% or more
of the Series 2000-1 Invested Amount shall have waived the occurrence of such
event.
ARTICLE VI
Servicing Fee
SECTION 6.01. Servicing Compensation. A monthly servicing fee (the
"Series 2000-1 Monthly Servicing Fee") shall be payable to the Master Servicer
on each Distribution Date for the preceding Settlement Period, in an amount
equal to the product of (a) the Servicing Fee and (b) the Series 2000-1
Invested Percentage as of the end of the preceding Settlement Period.
To the extent that funds on deposit in the Series 2000-1 Non-Principal
Collection Sub-subaccount at any such date are insufficient to pay the Series
2000-1 Monthly Servicing Fee due on such date as set forth in the Monthly
Settlement Statement delivered by the Master Servicer to the Trustee, the
Trustee shall so notify the Company and the Company shall immediately pay the
Master Servicer the amount of any such deficiency; provided, however, that any
payments to be made by the Company pursuant to this Section shall, if the
Master Servicer is Ingram Micro Inc. or an Affiliate thereof, (i) be Company
Subordinated Obligations, (ii) be made solely from funds available to the
Company that are not required to be applied to Company Unsubordinated
Obligations then due and (iii) not constitute a general recourse claim against
the Company but only a claim against the Company to the extent of funds
available to the Company after satisfying all Company Unsubordinated
Obligations then due.
ARTICLE VII
Change in Circumstances
SECTION 7.01. Illegality. Notwithstanding any other provision herein,
if, after the Issuance Date, or with respect to any Person becoming a Purchaser
or a Liquidity Bank subsequent to the Issuance Date, after the new date such
Person became a Purchaser or a Liquidity Bank, as applicable (the "Acquisition
Date"), the adoption of or any change in any Requirement of Law or in the
interpretation or administration thereof by any Governmental Authority charged
with the administration or interpretation thereof shall make it unlawful for
any Purchaser or Liquidity Bank to make or maintain its portion of the VFC
Certificateholder's Interest with respect to which interest accrues by
reference to LIBOR and such
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Purchaser or Liquidity Bank, as applicable, shall provide written notice to the
Agent, the Trustee and the Company, then effective with commencement of the
next Accrual Period, or immediately if it shall be unlawful for such Purchaser
or Liquidity Bank to maintain its portion of the VFC Certificateholder's
Interest with respect to which interest accrues by reference to LIBOR to the
end of the applicable Accrual Period, the Liquidity Interest Rate with respect
to such portion of the VFC Certificateholder's Interest applicable to such
Purchaser or Liquidity Bank shall until the foregoing notice is withdrawn be
calculated by reference to the Base Rate (such calculation to be performed by
the Agent). If any such change in the method of calculating interest occurs on
a day which is not the last day of the applicable Accrual Period, the Company
shall pay to the Agent for the account of such Purchaser or Liquidity Bank the
amounts, if any, as may be required pursuant to Section 7.04 hereof.
SECTION 7.02. Requirements of Law.
(a) Notwithstanding any other provision herein, if after the Issuance
Date the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by the Insurer
or any Purchaser or any Liquidity Bank with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority made (i) as to the Insurer or any Purchaser or Liquidity Bank that is
a Purchaser or Liquidity Bank on the date hereof, subsequent to the date hereof
or (ii) as to any Purchaser the Insurer or Liquidity Bank that becomes a
Purchaser, the Insurer, or a Liquidity Bank after the date hereof, subsequent
to the Acquisition Date:
(i) shall change the basis of taxation of payments to any such
Purchaser, the Insurer or any such Liquidity Bank in respect of the
Transaction Documents; or
(ii) shall impose, modify or deem applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Purchaser, the Insurer or such Liquidity Bank which is not
otherwise included in the determination of LIBOR;
and the result of any of the foregoing is to increase the cost to such
Purchaser, the Insurer or such Liquidity Bank by an amount which such
Purchaser, the Insurer or such Liquidity Bank deems in its reasonable judgment
to be material, of making, converting into, continuing, maintaining or
guaranteeing the Insurance Policy or an interest in the VFC Certificateholder's
Interest with respect to which interest
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accrues by reference to LIBOR or to reduce any amount receivable hereunder in
respect thereof or the result of any of the foregoing is to increase the cost
to the Insurer of entering into or performing its obligations under the
Insurance Policy or the Insurance Agreement (including any reduction of any
premium, fee or other sum payable thereunder), then, in any such case, the
Company will pay to such Purchaser, the Insurer or such Liquidity Bank upon
demand such additional amount or amounts as will compensate such Purchaser, the
Insurer or such Liquidity Bank for such additional costs incurred or reduced
amount receivable other than amounts with respect to Taxes for which the
Company is held harmless pursuant to Section 7.03 hereof and without
duplication of any amounts for which the Company is obligated to make payment
pursuant thereto.
(b) If any Purchaser, the Insurer or any Liquidity Bank (i) that is
the Insurer or a Purchaser or a Liquidity Bank on the date hereof shall have
determined that the adoption after the Issuance Date of or any change after the
Issuance Date, or (ii) that becomes a Purchaser, Insurer or a Liquidity Bank
after the date hereof shall have determined that the adoption after the
Acquisition Date of or any change after the Acquisition Date, in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Purchaser, the Insurer or such
Liquidity Bank or any corporation controlling such Purchaser, the Insurer or
such Liquidity Bank with any request, guideline or directive regarding capital
adequacy or the amount of capital required or expected to be maintained by the
Insurer or such Purchaser or Liquidity Bank (whether or not having the force of
law) from any Governmental Authority made subsequent to the date hereof shall
have the effect of reducing the rate of return on such Purchaser's, the
Insurer's, such Liquidity Bank's or such corporation's capital as a consequence
of its obligations hereunder under the Insurance Agreement or the Insurance
Policy or under the other Transaction Documents to a level below that which
such Purchaser, the Insurer, such Liquidity Bank or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Purchaser's, the Insurer's, such Liquidity Bank's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Purchaser, the Insurer or such Liquidity Bank in its reasonable judgment to be
material, then from time to time, the Company shall promptly pay to such
Purchaser, the Insurer or such Liquidity Bank such additional amount or amounts
as will compensate such Purchaser, the Insurer or such Liquidity Bank for such
reduction suffered.
(c) Any payments to be made by the Company pursuant to this Section shall (i)
be Company Subordinated Obligations, (ii) be made solely from funds available
to the Company that are not required to be applied to Company Unsubordinated
Obligations then due and (iii) until the date that is one year and one day
after payment in full of the Company Unsubordinated Obligations, not
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constitute a general recourse claim against the Company after satisfying all
Company Unsubordinated Obligations then due at any time during the period of
one year and one day following the date on which all Company Unsubordinated
Obligations have been paid in full, except to the extent that funds are
available (including, but not limited to, funds available to the Company
pursuant to the exercise of its right to indemnity and other payments pursuant
to Sections 2.06 and 9.02 of the Receivables Sale Agreement) to the Company to
make such payments.
(d) If any Purchaser, Insurer or any Liquidity Bank becomes entitled
to claim any additional amounts pursuant to subsection (a) or (b) above, it
shall promptly notify the Company (with a copy to the Agent) of the event by
reason of which it has become so entitled. No delay or failure to deliver such
notice shall impair the rights of the Purchasers, the Insurer and the Liquidity
Banks hereunder; provided that the Company shall not be required to compensate
a Purchaser, the Insurer or any Liquidity Bank pursuant to this Section 7.02
for any increased costs, reduced returns or other losses incurred more than 360
days prior to the date that such Purchaser, Insurer or such Liquidity Bank, as
the case may be, notifies the Company of its intention to claim compensation
therefor. A certificate setting forth (i) any additional amounts payable
pursuant to this subsection and (ii) a reasonably detailed explanation of the
calculation of such amount or amounts submitted by such Purchaser, the Insurer
or such Liquidity Bank to the Company (with a copy to the Agent) shall be
conclusive in the absence of manifest error. The agreements in this Section
7.02 shall survive the termination of this Supplement and the Agreement and the
payment of all amounts payable hereunder.
SECTION 7.03. Taxes.
(a) All payments made by the Company under this Supplement shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority with
respect to any payment by the Company ("Taxes"), excluding Taxes imposed (i) on
the net income or franchise taxes imposed on the net income (or in lieu of net
income) of the Agent, the Insurer, any Purchaser, or any Liquidity Bank by (A)
the United States or any political subdivision or taxing authority thereof or
therein, or (B) any jurisdiction under the laws of which the Agent, the
Insurer, such Purchaser, such Liquidity Bank or such lending office is
organized or in which its lending office is located, managed or controlled or
in which its principal office is located or any political subdivision or taxing
authority thereof or therein, (ii) as a result of a present or former
connection between the Agent, the Insurer or any Purchaser or Liquidity Bank
and the governmental authority imposing such tax other than as a
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result of the Agreement or this Supplement or any transaction thereunder or
hereunder, and (iii) for any Purchaser or Liquidity Bank that is not organized
under the laws of the United States of America or a state thereof, any United
States withholding tax to the extent existing on the date such Purchaser or
Liquidity Bank became a Purchaser or Liquidity Bank (or, in the case of
payments to a new lending office on the date such Purchaser or Liquidity Bank
designated such new lending office) (the Taxes referred to in the foregoing
clauses (i), (ii) and (iii) individually or collectively being called "Excluded
Taxes" and any and all other Taxes, collectively or individually, being called
"Non-Excluded Taxes"). If any such Non-Excluded Taxes are required to be
withheld from any amounts payable to the Agent, the Insurer, the Trustee or any
Purchaser or Liquidity Bank hereunder, the Company shall pay additional amounts
to the Agent, the Insurer, the Trustee or such Purchaser or Liquidity Bank to
the extent necessary to yield to the Agent, the Insurer or such Purchaser or
Liquidity Bank (after giving effect to all deductions and withholdings in
respect of Non-Excluded Taxes, including Non-Excluded Taxes upon or in respect
of such additional amounts) interest or any such other amounts payable
hereunder at the rates or in the amounts otherwise specified in this
Supplement; provided, however, that the Company shall not be required to
increase any such amounts payable to any Purchaser or Liquidity Bank that is
not organized under the laws of the United States of America or a state thereof
if such Purchaser or Liquidity Bank fails to comply with the requirements of
subsection (b) of this Section 7.02. Whenever any Non-Excluded Taxes are
payable by the Company, as promptly as possible thereafter the Company shall
send to the Insurer or Agent for its own account or for the account of such
Purchaser or Liquidity Bank, as the case may be, a certified copy of any
original official receipt received by the Company showing payment thereof or
any other proof reasonably acceptable to the Agent. In addition, the Company
agrees to pay any and all present or future stamp or documentary taxes and any
other excise or property taxes or charges or similar levies that arise from any
payment made under any Pooling and Servicing Agreement, this Supplement, the
Insurance Agreement or the VFC Certificates or from the execution or delivery
of, or otherwise with respect to, any Pooling and Servicing Agreement, this
Supplement, the Insurance Agreement or the VFC Certificates (collectively,
"Other Taxes"). The Company agrees to indemnify each of the Agent, the Insurer,
the Trustee, the Purchasers and the Liquidity Banks for the full amount of any
Non-Excluded Taxes and Other Taxes paid by the Agent, the Insurer, the Trustee
or any Purchaser or any Liquidity Bank (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto other than any penalties, interest or expense to the extent arising
from the failure of the Agent, the Insurer, such Purchaser or Liquidity Banks
to pay such Non-Excluded Taxes or other Taxes on a timely basis. If the Company
fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent or the Insurer, as the case may be,
the required receipts or any other proof reasonably acceptable to the
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Agent or the Insurer, as the case may be, the Company shall indemnify the
Agent, the Insurer, the Trustee, the Purchasers and the Liquidity Banks for any
incremental taxes, interest or penalties that may become payable by the Agent,
the Insurer, the Trustee or any Purchaser or any Liquidity Bank as a result of
any such failure. If the Agent, the Insurer or any Purchaser or Liquidity Bank
shall become aware that it is entitled to receive a refund or other tax credit
or benefit in respect of any Non-Excluded Taxes, it shall promptly notify the
Company thereof and, in the case of a refund, shall within 30 days after
receipt of a request by the Company, apply for such refund at the Company's
expense. If the Agent, the Insurer, the Trustee or any Purchaser or Liquidity
Bank receives a refund or the benefit of a refund in respect of any
Non-Excluded Taxes for which the Company has made a payment hereunder, it shall
promptly notify the Company thereof and shall promptly repay such refund or the
amount of the benefit derived from such refund, as the case may be, to the
Company without interest and net of any expenses incurred, except to the extent
interest shall have explicitly accompanied such refund; provided that the
Company, upon the request of such Purchaser or Liquidity Bank, the Insurer or
the Agent, agrees to return the amount paid in respect of such refund (plus any
penalties that are not attributable to the negligence or misconduct of such
Purchaser, the Insurer or such Liquidity Bank, interest or other charges
required to be paid) to such Purchaser, the Insurer or Liquidity Bank or the
Agent in the event such Purchaser, the Insurer, such or Liquidity Bank or the
Agent is required to repay such amount to the relevant taxing authority. The
agreements in this Section 7.03(a)shall survive the termination of this
Supplement and the repayment of the Series 2000-1 Invested Amount and all other
amounts payable hereunder.
(b) Each Purchaser, the Insurer and each Liquidity Bank shall:
(i) deliver to the Company, the Trustee and the Agent a properly
completed and executed copy of any form, certification or similar
documentation necessary for claiming exemption from or reduction of
withholding taxes including, in the case of a Purchaser, the Insurer or
Liquidity Bank that is not incorporated under the laws of the United
States of America or a state thereof, (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Company, the Trustee and the Agent two further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company; and
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(iii) seek to obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Company
or the Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Purchaser, the Insurer or Liquidity Bank from duly
completing and delivering any such form with respect to it and such Purchaser,
the Insurer or Liquidity Bank so advises the Company and the Agent. Each
Purchaser or Liquidity Bank so incorporated shall certify to the Company, the
Trustee and the Agent at the time it first becomes a Purchaser or Liquidity
Bank, and thereafter to the extent provided by law, (i) all such forms are true
and complete, (ii) in the case of a Form 1001, W-8BEN, W-8ECI or 4224, that it
is entitled to receive payments under this Agreement without, or at a reduced
rate of, withholding of any United States federal income taxes and (iii) in the
case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Purchaser, a
Liquidity Bank or a Participant pursuant to Section 11.10 hereof shall, upon
the effectiveness of the related transfer, be required to provide to the
Company, the Trustee and the Agent all of the forms and statements required
pursuant to this Section 7.03; provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the
Purchaser or Liquidity Banks from which the related participation shall have
been purchased.
SECTION 7.04. Indemnity. The Company agrees to indemnify each Purchaser, the
Insurer and each Liquidity Bank and to hold each Purchaser, the Insurer and
each Liquidity Bank harmless from any loss or expense which such Purchaser, the
Insurer or Liquidity Bank may sustain or incur as a consequence of (a) failure
by the Company to make an Increase after the Company has given irrevocable
notice requesting the same in accordance with the provisions of this
Supplement, or (b) default by the Company in making any prepayment of the
Series 2000-1 Invested Amount with respect to which interest is calculated by
reference to LIBOR or the CP Rate in connection with a Decrease after the
Company has given irrevocable notice thereof in accordance with the provisions
of Section 2.06 of this Supplement or (c) the making of a prepayment of the
Series 2000-1 Invested Amount with respect to which interest is calculated by
reference to LIBOR or the CP Rate other than on a Distribution Date. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid or not so
prepaid or subject to an Increase, for the period from the date of such
prepayment or of such failure by the Company to make an
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Increase or prepay to the last day of the Accrual Period (or in the case of a
failure by the Company to make an Increase, the Accrual Period that would have
commenced on the date of such prepayment or of such failure) in each case at
the applicable rate of interest for the Series 2000-1 Invested Amount with
respect to which interest is calculated by reference to LIBOR or the CP Rate
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Purchaser, the Insurer or Liquidity Bank) which would have accrued to such
Purchaser, the Insurer or Liquidity Bank on such amount by placing such amount
on deposit for a comparable period with leading banks in the interbank
Eurodollar market; provided that any payments made by the Company pursuant to
this Section shall be Company Subordinated Obligations. This covenant shall
survive the termination of this Supplement and the payment of all amounts
payable hereunder. A certificate of a Purchaser, the Insurer or Liquidity Bank
setting forth (i) any amount that such Purchaser, the Insurer or Liquidity Bank
is entitled to receive pursuant to this Section 7.04 and (ii) a reasonably
detailed explanation of the calculation of such amount shall be delivered to
the Company and the Master Servicer and shall be conclusive absent manifest
error.
SECTION 7.05. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate.
(a) If (i) any Purchaser or Liquidity Bank delivers a notice described
in Section 7.02 hereof or (ii) the Company is required to pay any additional
amount or indemnification payment to any Purchaser or Liquidity Bank pursuant
to Section 7.03, the Company may, at its sole expense and effort (including
with respect to the processing and recordation fee referred to in Section
11.10(b)), upon notice to such Purchaser or Liquidity Bank and the Agent,
require such Purchaser or Liquidity Bank to transfer and assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 11.10), all of its interests, rights and obligations under this
Agreement to an Eligible Assignee that shall assume such assigned obligations
(which assignee may be another Purchaser or Liquidity Bank, as applicable, if
another Purchaser or Liquidity Bank accepts such assignment); provided that (A)
such assignment shall not conflict with any law, rule or regulation or order of
any court or other Governmental Authority having jurisdiction, (B) the Company
shall have received the prior written consent of the Agent, which consent shall
not unreasonably be withheld, and (C) the Company or such assignee shall have
paid to the affected Purchaser or Liquidity Bank in immediately available funds
an amount equal to the sum of the principal of, and interest accrued to the
date of such payment on, the outstanding VFC Beneficial Interests of such
Purchaser or Liquidity Bank plus all fees and other amounts accrued for the
account of such Purchaser or Liquidity Banks hereunder (including any amounts
under Sections 7.02, 7.03 and 7.04); provided, further, that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Purchaser's or Liquidity Bank's
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notice under Section 7.02 or the amounts paid pursuant to Section 7.03, as the
case may be, cease to cause such Purchaser or Liquidity Bank to suffer
increased costs or reductions in amounts received or receivable or reduction in
return on capital, or cease to have the consequences specified in Section 7.02,
or cease to result in amounts being payable under Section 7.03, as the case may
be (including as a result of any action taken by such Purchaser or Liquidity
Bank pursuant to Section 7.05(b) below), or if such Purchaser or Liquidity Bank
shall withdraw its notice under Section 7.02 or shall waive its right to
further payments under Section 7.03 in respect of such circumstances or event,
as the case may be, then such Purchaser or Liquidity Bank shall not thereafter
be required to make any such transfer and assignment hereunder.
(b) If (i) any Purchaser or Liquidity Banks delivers a notice
described in Section 7.02 or (ii) the Company is required to pay any additional
amount to any Purchaser or Liquidity Bank pursuant to Section 7.03, then such
Purchaser or Liquidity Bank shall use reasonable efforts (which shall not
require such Purchaser or Liquidity Bank to incur an unreimbursed loss or
unreimbursed cost or expense or otherwise take any action inconsistent with its
internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden reasonably deemed by it to be significant) to (A) file
any certificate or document reasonably requested in writing by the Company or
(B) assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would enable it to withdraw its notice delivered pursuant to Section 7.02 or
would reduce amounts payable pursuant to Section 7.03, as the case may be, in
the future. The Company hereby agrees to pay all reasonable costs and expenses
incurred by any Purchaser or Liquidity Banks in connection with any such filing
or assignment, delegation and transfer.
SECTION 7.06. Limitation. The obligations of the Company under this
Article VII shall be limited by Section 11.13.
ARTICLE VIII
Covenants, Representations and Warranties
SECTION 8.01. Representations and Warranties of the Company and the
Master Servicer. The Company and the Master Servicer each hereby represents and
warrants to the Trustee, the Agent, the Insurer and each of the Purchasers and
the Liquidity Banks that each and every of their respective representations and
warranties contained in the Agreement and the Servicing Agreement is true and
correct as of the Issuance Date and as of the date of each Increase.
SECTION 8.02. Covenants of the Company and the Master Servicer. The
Company and the Master Servicer each hereby agrees, in addition to its
obligations under the Agreement and the Servicing Agreement, that:
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(a) it shall not terminate the Agreement unless in compliance with the
terms of the Agreement and the supplements relating to each Outstanding Series;
(b) it will provide the Agent with evidence, satisfactory to the
Agent, of (i) the establishment of a disaster recovery plan, (ii) the
establishment of computer back-up systems and (iii) the operational readiness
of an off-site disaster recovery facility;
(c) it shall observe in all material respects each and every of its
respective covenants (both affirmative and negative) contained in the
Agreement, the Servicing Agreement, this Supplement and all other Transaction
Documents to which it is a party;
(d) it shall, and shall cause each Servicer to, (i) afford the Agent
or any representative of the Agent (who may be accompanied by agents or
representatives of the Insurer) access to all records relating to the
Receivables at any reasonable time during regular business hours, upon
reasonable prior notice, for purposes of inspection and shall, and (ii) permit
the Agent or the Trustee or any representative of the Agent (who may be
accompanied by agents or representatives of the Insurer) to visit any of its
offices or properties during regular business hours and as often as may
reasonably be requested, subject to its normal security and confidentiality
requirements, to discuss the business, operations, properties, financial and
other conditions of the Company or the Master Servicer with its officers and
employees and with its Independent Public Accountants; provided that the Agent
shall notify the Company or the Master Servicer, as the case may be, prior to
any contact with such accountants and shall give the Company or the Master
Servicer the opportunity to participate in such discussions; provided, further,
that, except as otherwise provided in Section 11.05 hereof and Section 8.05(b)
of the Agreement, any costs and expenses incurred in connection with any such
examination or visit, including without limitation any costs incurred in
respect of fees of Independent Public Accountants, shall be solely the
obligation of the party or parties making such examination; and
(e) it shall not waive the provisions of Sections 7.01(d), (e)(i),
(g), (i) or (j) or Sections 2.06 or 9.02 of the Receivables Sale Agreement
without the consent of Holders of not less than 50% of the Series 2000-1
Adjusted Invested Amount.
SECTION 8.03. Negative Covenants of the Company; Covenants of the
Master Servicer.
(a) The Company shall not make any Restricted Payment while Series
2000-1 is an Outstanding Series, unless such Restricted Payment is made (i)
from amounts distributed to the Company (x) in respect of the Exchangeable
Company
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Interest; provided that on the date any such Restricted Payment is made, the
Company is in compliance with its payment obligations under Section 2.05 of the
Agreement or (y) pursuant to Section 3.03(b); (ii) in compliance with all terms
of the Transaction Documents, including the Company's covenant as to net worth
set forth in Section 2.07(m) of the Agreement and (iii) in accordance with all
corporate and legal formalities applicable to the Company; provided that no
Restricted Payment shall be made if an Early Amortization Event has occurred
and is continuing (or would occur as a result of making such Restricted
Payment).
(b) The Company shall not issue any Investor Certificates at any time
after the Issuance Date without the prior written consent of the Agent.
(c) The Master Servicer hereby agrees that it shall observe each and
all of its covenants (both affirmative and negative) contained in each Pooling
and Servicing Agreement in all material respects and that it shall:
(i) Provide to the Agent and the Insurer, simultaneously with
delivery to the Trustee or the Rating Agencies, all reports, notices,
certificates, statements and other documents required to be delivered to
the Trustee or the Rating Agencies pursuant to the Agreement, the
Servicing Agreement and the other Transaction Documents and furnish to the
Agent and the Insurer promptly after receipt thereof a copy of each
material notice, material demand or other material communication
(excluding routine communications) received by or on behalf of the Company
or the Master Servicer with respect to the Transaction Documents; and
(ii) Provide notice to the Agent and the Insurer of the appointment
of a Successor Master Servicer or a Successor Servicer pursuant to Section
6.02 of the Servicing Agreement.
(d) The Master Servicer will not permit any of the following:
(i) the ratio of (x) Consolidated EBITDA for any period of four
consecutive Fiscal Periods to (y) Consolidated Interest Charges for such
period to be less than 2.5 to 1.0; provided that, for purposes of
calculating the preceding ratio the contribution of any Subsidiary of the
Master Servicer acquired (to the extent the acquisition is treated for
accounting purposes as a purchase) during those four Fiscal Periods to
Consolidated EBITDA shall be calculated on a pro forma basis as if it had
been a Subsidiary of the Master Servicer during all of those four Fiscal
Periods.
(ii) The Consolidated Tangible Net Worth at the end of any Fiscal
Period to be less than the sum of (x) $875,000,000, plus (y) 50% of
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Consolidated Net Income (without taking into account any losses incurred in any
Fiscal Year) for each Fiscal Year ended on or after December 30, 2000.
For purposes of the foregoing Section 8.3(d), the capitalized terms
not previously defined shall have the following meanings:
"Capitalized Lease Liabilities" of any Person means, at any time, any
obligation of such Person at such time to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or personal
property, which obligation is, or in accordance with GAAP (including FASB
Statement 13) is required to be, classified and accounted for as a capital
lease on a balance sheet of such Person at the time incurred; and for purposes
of this Agreement the amount of such obligation shall be the capitalized amount
thereof determined in accordance with such FASB Statement 13.
"Consolidated Assets" means, at any date, the total assets of the
Master Servicer and its Consolidated Subsidiaries as at such date in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period adjusted by adding thereto the amount of Consolidated Interest
Charges that were deducted in arriving at Consolidated Net Income for such
period and all amortization of intangibles, taxes, depreciation and any other
non-cash charges that were deducted in arriving at Consolidated Net Income for
such period.
"Consolidated Interest Charges" means, with respect to any period, the
sum (without duplication) of the following (in each case, eliminating all
offsetting debits and credits between the Master Servicer and its Subsidiaries
and all other items required to be eliminated in the course of the preparation
of consolidated financial statements of the Master Servicer and its
Subsidiaries in accordance with GAAP):
(a) aggregate net interest expense in respect of Indebtedness of the
Master Servicer and its Subsidiaries (including imputed interest on
Capitalized Lease Liabilities) deducted in determining Consolidated Net
Income for such period plus, to the extent not deducted in determining
Consolidated Net Income for such period, the amount of all interest
previously capitalized or deferred that was amortized during such period,
and
(b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Income for such period,
and
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(c) all attributable interest and fees in lieu of interest associated
with any securitizations by the Master Servicer or any of its
Subsidiaries.
"Consolidated Liabilities" means, at any date, the sum of all
obligations of the Master Servicer and its Consolidated Subsidiaries as at such
date in accordance with GAAP.
"Consolidated Net Income" means, for any period, the consolidated net
income of the Master Servicer and its Consolidated Subsidiaries as reflected on
a statement of income of the Master Servicer and its Consolidated Subsidiaries
for such period in accordance with GAAP.
"Consolidated Stockholders' Equity" means, at any date:
(a) Consolidated Assets as at such date,
less
(b) Consolidated Liabilities as at such date.
"Consolidated Subsidiary" means any Subsidiary whose financial
statements are required in accordance with GAAP to be consolidated with the
consolidated financial statements delivered by the Master Servicer from time to
time in accordance with Section 4.11 of the Servicing Agreement.
"Consolidated Tangible Net Worth" means, at any date:
(a) Consolidated Stockholders' Equity as at such date plus the
accumulated after-tax amount of non-cash charges and adjustments to income and
Consolidated Stockholders' Equity attributable to employee stock options and
stock purchases through such date,
less
(b) goodwill and other Intangible Assets of the Master Servicer and
its Consolidated Subsidiaries.
"Fiscal Period" means a fiscal period of the Master Servicer or any of
its Subsidiaries, which shall be either a calendar quarter or an aggregate
period comprised of three (3) consecutive periods of four (4) weeks and five
(5) weeks (or, on occasion, six (6) weeks instead of five), currently
commencing on or about each January 1, April 1, July 1 or October 1.
"Fiscal Year" means, with respect to any Person, the fiscal year of
such Person. The term Fiscal Year, when used without reference to any Person,
shall
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mean a Fiscal Year of the Master Servicer, which currently ends on the
Saturday nearest December 31.
"GAAP" means U.S. generally accepted accounting principles as of the
date hereof provided however, that if, after the date hereof, there shall be
any change in the Master Servicer's Fiscal Year or GAAP (whether such
modification is adopted or imposed by the Federal Accounting Standards Board,
the American Institute of Certified Public Accountants or any other
professional body) which changes result in a change in the method of
calculation of financial covenants set forth in this Section 8.03(d), the
parties hereto agree to promptly enter into negotiations in order to amend such
financial covenants so as to reflect equitably such changes, with the desired
result that the evaluations of the Master Servicer's financial condition shall
be the same after such changes as if such changes had not been made; provided,
further, that until the parties hereto have reached a definitive agreement on
such amendments, the Master Servicer's financial condition shall continue to be
evaluated on the same principles as those in effect on the date hereof.
"Intangible Assets" means, with respect to any Person, that portion of
the book value of the assets of such Person which would be treated as
intangibles under GAAP, including all items such as goodwill, trademarks, trade
names, brands, trade secrets, customer lists, copyrights, patents, licenses,
franchise conversion rights and rights with respect to any of the foregoing and
all unamortized debt or equity discount and expenses.
"Subsidiary" means, with respect to any Person, any corporation,
company, partnership or other entity of which more than fifty percent (50%) of
the outstanding shares or other ownership interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors of, or
other persons performing similar functions for, such corporation, company,
partnership or other entity (irrespective of whether at the time shares or
other ownership interests of any other class or classes of such corporation,
company, partnership or other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more Subsidiaries of such Person, or by
one or more Subsidiaries of such Person.
SECTION 8.04. Obligations Unaffected. The obligations of the Company
and the Master Servicer to the Agent, the Insurer, the Purchasers and the
Liquidity Banks under this Supplement shall not be affected by reason of any
invalidity, illegality or irregularity of any of the Receivables or any sale of
any of the Receivables.
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SECTION 8.05. Representations and Warranties of the Initial Purchaser
and the Liquidity Banks. Each Initial Purchaser and each Liquidity Bank
represents, warrants and covenants to the Company and the Master Servicer, as
of the Issuance Date (or, in the case of each Liquidity Bank, as of the date
such Liquidity Bank becomes a Purchaser), that:
(a) It acknowledges that the VFC Certificates (and related VFC
Beneficial Interests) have not been and will not be registered under the
Securities Act and are being initially offered and sold in reliance upon the
exemption provided in Section 4(2) of the Securities Act, and have not and will
not be registered or qualified under the securities or "blue sky" laws of any
jurisdiction, and may not be resold or otherwise transferred unless so
registered or qualified or unless any exemption from such requirements is
available.
(b) It is purchasing the VFC Certificates and/or VFC Beneficial
Interests in the ordinary course of its business and for investment only solely
for its own account or accounts for which it exercises sole investment
discretion and not as nominee or agent for any other Person and not with a view
to, or for offer or sale in connection with, any distribution thereof (within
the meaning of the Securities Act) that would be in violation of the securities
laws of the United States of America or any state thereof.
(c) It is (i) an institutional investor that is an "Accredited
Investor" (as defined under Rule 501(a)(1), (2), (3) or (7), of the Securities
Act) or, if the VFC Certificates and/or the VFC Beneficial Interests are to be
purchased for one or more institutional accounts ("investor accounts") for
which it is acting as a fiduciary or agent, each such investor account is an
institutional investor that is an Accredited Investor and (ii) a corporation or
a banking association duly organized and validly existing under the laws of its
jurisdiction of incorporation or organization and has all corporate power to
perform its obligations hereunder and under the Liquidity Agreement.
(d) It invests in or has such knowledge and experience in business and
financial matters and with respect to investments in securities so as to enable
it to understand and evaluate the risks of such investments and form an
investment decision with respect thereto and is able to bear the risk of such
investment for an indefinite period.
(e) It has been afforded access to information (including the
financial condition) about the Company and the Sellers to enable it to evaluate
its investment in the VFC Certificates and/or the VFC Beneficial Interests (the
"Information") and acknowledges that it has been afforded the opportunity (i)
to ask such questions as it has deemed necessary of, and to receive answers
from, representatives of the Company, the Sellers or Persons acting on their
behalf
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concerning the terms and conditions of the offering of the VFC Certificates
and/or the VFC Beneficial Interests and the merits and risks of investing in
the VFC Certificates and/or the VFC Beneficial Interests, (ii) to obtain such
additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to verify the accuracy and
completeness of the Information and (iii) to review, if applicable, the filings
of Ingram Micro Inc. with the Securities and Exchange Commission and all of the
public disclosure of Ingram Micro Inc.
(f) It acknowledges that it is the expressed intent of the Company
that the VFC Certificates and related VFC Beneficial Interests are being issued
only in transactions not involving any public offering within the meaning of
the Securities Act and that the VFC Certificates and, if certificated, the VFC
Beneficial Interests will bear a legend substantially as set forth in the form
of the VFC Certificate Interests included in this Supplement and will be
subject to certain limitations on transfer and exchange specified in the
Agreement, this Supplement and the other Transaction Documents.
(g) The execution, delivery and performance of the Liquidity Agreement
and this Supplement are within its corporate powers, have been duly authorized
by all necessary corporate action, do not contravene or violate (i) its
certificate or articles of incorporation or association or by-laws, (ii) any
law, rule or regulation applicable to it, (iii) any restrictions under any
agreement, contract or instrument to which it is a party or any of its property
is bound, or (iv) any order, writ, judgment, award, injunction or decree
binding on or affecting it or its property and do not result in the creation or
imposition of any adverse claim on its assets, which contravention or violation
in any of the foregoing cases could have a material adverse effect on its
financial condition or its ability to perform its obligations hereunder.
(h) The Liquidity Agreement and this Supplement constitute its legal,
valid and binding obligations enforceable against it in accordance with their
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to limiting
creditors' rights generally and by equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(i) The Liquidity Agreement and this Supplement have been duly
authorized, executed and delivered by it.
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(j) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by it of this Agreement that has
not otherwise been obtained.
ARTICLE IX
Conditions Precedent
SECTION 9.01. Conditions Precedent to Effectiveness of Supplement.
This Supplement will become effective on the date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) Transaction Documents. The Agent shall have received an original
copy for itself and photocopies for each Purchaser, each executed and delivered
in form and substance satisfactory to the Agent, of (i) the Agreement executed
by a duly authorized officer of each of the Company, the Master Servicer and
the Trustee, (ii) this Supplement executed by a duly authorized officer or
authorized representative of each of the Company, the Master Servicer, the
Trustee, the Agent, the Initial Purchaser and the Liquidity Banks and (iii) the
other Transaction Documents duly executed by the parties thereto.
(b) Corporate Documents; Corporate Proceedings of the Company, the
Seller and the Master Servicer. The Agent shall have received, with a copy for
each Purchaser, from the Company, the Seller and the Master Servicer, complete
copies of:
(i) a copy of the certificate of incorporation including all
amendments thereto, of such Person, certified as of a recent date by the
Secretary of State or other appropriate authority of the state of
incorporation, as the case may be, and a certificate of compliance, of
status or of good standing, as and to the extent applicable, of each such
Person as of a recent date, from the Secretary of State or other
appropriate authority of such jurisdiction;
(ii) a certificate of the Secretary or Assistant Secretary of such
Person dated the Effective Date and certifying (A) that attached thereto
is a true and complete copy of the By-laws of such Person in effect as of
the Effective Date, (B) that attached thereto is a true and complete copy
of the resolutions of the Board of Directors of such Person or committees
thereof authorizing the execution, delivery and performance of the
transactions contemplated by the Transaction Documents, and that such
resolutions have not been amended, modified, revoked or rescinded and are
in full force and effect on the Effective Date, (C) that the certificate
of incorporation of such Person has not been amended since the last
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amendment thereto shown on the certificate of the Secretary of State of
the state of incorporation of such Person furnished pursuant to clause (i)
above and (D) as to the incumbency and specimen signature of each officer
executing any Transaction Documents or any other document delivered in
connection herewith or therewith on behalf of such Person; and
(iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above.
(c) Good Standing Certificates. The Agent shall have received copies
of certificates of compliance, of status or of good standing, dated as of a
recent date from the Secretary of State or other appropriate authority of such
jurisdiction, with respect to such Person in each State where the ownership,
lease or operation of property or the conduct of business requires it to
qualify as a foreign corporation, except where the failure to so qualify would
not reasonably be expected to have a material adverse effect on the business,
operations, properties or condition (financial or otherwise) of such Person.
(d) Consents, Licenses, Approvals, Etc. The Agent shall have received,
with a photocopy for each Purchaser, certificates dated the Effective Date of
the President, Vice Chairman, Chief Financial Officer or any Vice President or
the Treasurer of such Person either (i) attaching copies of all material
consents, licenses and approvals required in connection with the execution,
delivery and performance by such Person of the Agreement, this Supplement, the
Receivables Sale Agreement and/or the Servicing Agreement, as the case may be,
and the validity and enforceability of the Agreement, this Supplement, the
Receivables Sale Agreement and/or the Servicing Agreement against such Person
and such consents, licenses and approvals shall be in full force and effect or
(ii) stating that no such consents, licenses or approvals are so required,
except those that may be required under state securities or "blue sky" laws.
(e) Filings, Registrations and Recordings. Any documents (including,
without limitation, financing statements) required to be filed in order to (i)
perfect the sale of the Receivables by the Seller to the Company pursuant to
the Receivables Sale Agreement and (ii) create, in favor of the Trustee, a
perfected ownership/perfected first priority security interest in the Trust
Assets under the Agreement with respect to which an ownership/security interest
may be perfected by a filing under the UCC or other comparable statute shall,
in each case, have been properly prepared and executed for filing in each
office in each jurisdiction where required pursuant to the Agreement or the
Receivables Sale Agreement, as the case may be, and such filings are the only
filings required in order to perfect the sale of the Receivables to the Company
under the Receivables Sale
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Agreement or to the Trust under the Agreement, as the case may be, in the
jurisdiction listed therein. The Agent shall have received evidence reasonably
satisfactory to it of each such filing, registration or recordation made or to
be made and reasonably satisfactory evidence of the payment of any necessary
fee, tax or expense relating thereto.
(f) Lien Searches. The Agent and the Trustee shall have received the
results of a recent search satisfactory to the Agent of any UCC filings (or
equivalent filings) made with respect to the Company and the Seller (and with
respect to such other Persons as the Agent deems necessary) in the states (or
other jurisdictions) in which the chief executive office of the Company, the
Seller and each such other Person is located, any offices of the Company, the
Seller and each such other Person in which records have been kept relating to
the Receivables and the other jurisdictions in which UCC filings (or equivalent
filings) are to be made pursuant to the preceding subsection, together with
copies of the financing statements (or similar documents) disclosed by such
search, and accompanied by evidence satisfactory to the Agent that any Liens
disclosed by such search would be Permitted Liens or have been released.
(g) Legal Opinions. The Agent, the Insurer and the Trustee shall have
received, with a counterpart for each Purchaser, (i) opinions of counsel to the
Company and the Master Servicer, dated the Issuance Date, as to corporate, tax,
bankruptcy, perfection and other matters, in form and substance reasonably
acceptable to the Agent and its counsel and (ii) opinions of local counsel to
the Company and the Master Servicer, dated the Issuance Date, as to certain
perfection matters, in form and substance reasonably acceptable to the Agent
and its counsel.
(h) Fees. The Agent, the Initial Purchaser and the Trustee shall have
received payment of all fees and other amounts due and payable to any of them
on or before the Effective Date.
(i) Conditions Under the Receivables Sale Agreement. A Responsible
Officer of the Company shall have certified that all conditions to the
obligations of the Company and the Seller under the Receivables Sale Agreement
shall have been satisfied in all material respects.
(j) Copies of Written Policies. The Agent and the Trustee shall have
received copies of the written Policies of the Seller in form and substance
acceptable to the Agent.
(k) Company's Board of Directors. The composition of the Company's
Board of Directors (including one independent director) shall be reasonably
acceptable to the Agent.
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(l) Financial Statements. The Agent shall have received a pro forma
balance sheet for the Company for the fiscal year ended January 1, 2000 giving
effect to all transactions occurring on the Issuance Date. The Agent shall have
received the consolidated balance sheets and statements of income,
stockholders' equity and cash flows of Ingram Micro Inc. and its subsidiaries
on a consolidated basis as of and for the fiscal year ended January 2, 1999,
audited by and accompanied by a copy of the opinion of Price Waterhouse Coopers
L.L.C., independent public accountants.
(m) Solvency Certificate. The Agent and the Trustee shall have
received a certificate dated the Effective Date and signed by a Responsible
Officer of the Company, in form satisfactory to the Agent, to the effect that
the Company will be solvent after giving effect to the transactions occurring
on the Issuance Date.
(n) Representations and Warranties. On the Issuance Date, the
representations and warranties of the Company and the Master Servicer in the
Agreement and this Supplement shall be true and correct in all material
respects.
(o) Additional Documents. The Agent shall have received such other
agreements, documents, instruments, certificates and opinions as it shall have
requested.
ARTICLE X
The Agent
SECTION 10.01. Appointment. Each Purchaser hereby irrevocably
designates and appoints the Agent as the agent of such Purchaser under this
Supplement and the other Transaction Documents and each such Purchaser
irrevocably authorizes the Agent, in such capacity, to take such action on its
behalf under the provisions of this Supplement and the other Transaction
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Agent by the terms of this Supplement and the other
Transaction Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Supplement or any other Transaction Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Supplement or otherwise exist against the Agent.
SECTION 10.02. Delegation of Duties. The Agent may execute any of its
duties under this Supplement or any other Transaction Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel (who
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may be counsel for the Initial Purchaser or any other Purchaser), independent
public accountants and other experts selected by it concerning all matters
pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
SECTION 10.03. Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with the Agreement or this Supplement or
any other Transaction Document (x) with the consent or at the request of the
Majority Purchasers or (y) in the absence of its own gross negligence or
willful misconduct or (ii) responsible in any manner to any of the Purchasers
for any recitals, statements, representations or warranties made by the Company
or any officer thereof contained in this Supplement or any other Transaction
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Supplement or any other Transaction Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Supplement or
any other Transaction Document or for any failure of the Company to perform its
obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Supplement or any other Transaction Document, or to inspect the properties,
books or records of the Company, the Master Servicer or any Servicer.
SECTION 10.04. Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company, the Master Servicer or any Servicer),
independent accountants and other experts selected by the Agent and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts. The Agent
may deem and treat the payee of a VFC Certificate as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Supplement or any other
Transaction Document unless it shall first receive such advice or concurrence
of the Majority Purchasers is it deems appropriate and it shall first be
indemnified to its satisfaction by the Purchasers against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all
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cases be fully protected in acting, or in refraining from acting, under this
Supplement and the other Transaction Documents in accordance with a request of
the Majority Purchasers, and such request and any action taken or failure to
act pursuant thereto shall be binding.
SECTION 10.05. Notice of Servicer Default or Early Amortization Event
or Potential Early Amortization Event. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Servicer Default with respect to
the Master Servicer or any Servicer or any Early Amortization Event or
Potential Early Amortization Event hereunder unless the Agent has received
written notice from a Purchaser, the Company, the Master Servicer or any
Servicer referring to the Agreement or this Supplement, describing such
Servicer Default or Early Amortization Event or Potential Early Amortization
Event and stating that such notice is a "notice of a Servicer Default with
respect to the Master Servicer or the Servicer" or a "notice of an Early
Amortization Event or Potential Early Amortization Event", as the case may be.
In the event that the Agent receives such a notice, the Agent shall give notice
thereof to the Purchasers, the Trustee, the Company and the Master Servicer.
The Agent shall take such action with respect to such Servicer Default or Early
Amortization Event or Potential Early Amortization Event as shall be reasonably
directed by the Majority Purchasers; provided that unless and until the Agent
shall have received such directions and indemnification satisfactory to the
Agent from the Purchasers, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Servicer
Default or Early Amortization Event or Potential Early Amortization Event as it
shall deem advisable in the best interests of the Purchasers.
SECTION 10.06. Non-Reliance on Agent and Other Purchasers. Each
Purchaser expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Company, shall be
deemed to constitute any representation or warranty by the Agent to any
Purchaser. Each Purchaser represents to the Agent that it has, independently
and without reliance upon the Agent or any other Purchaser, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Company and made its own decision
to enter into this supplement. Each Purchaser also represents that it will,
independently and without reliance upon the Agent or any other Purchaser, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Supplement and the other Transaction
Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and
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other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly required to be furnished to the
Purchasers by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Purchaser with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
SECTION 10.07. Indemnification. Intentionally Omitted.
SECTION 10.08. Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company, the Master Servicer, the Servicers or any of
their Affiliates as though the Agent were not the Agent hereunder. With respect
to any VFC Beneficial Interest held by the Agent, the Agent shall have the same
rights and powers under this Supplement and the other Transaction Documents as
any Purchaser and may exercise the same as though it were not the Agent, and
the terms "Purchaser" and "Purchasers" shall include the Agent in its
individual capacity.
SECTION 10.09. Successor Agent. The Agent may resign as Agent upon 10
days' notice to the Purchasers. If the Agent shall resign as Agent under this
Supplement, then the Majority Purchasers shall appoint from among the
Purchasers a successor agent for the Purchasers, which successor agent shall be
approved by the Company and the Master Servicer (which approval shall not be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Supplement. After any retiring Agent's resignation as Agent,
the provisions of this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Supplement.
Within a reasonable time after the appointment of a Successor Agent, the Master
Servicer shall provide written notice to the Trustee of such appointment.
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ARTICLE XI
Miscellaneous
SECTION 11.01. Ratification of Agreement. As supplemented by this
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 11.02. Governing Law. THIS SUPPLEMENT 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 OF THE STATE OF NEW YORK, BUT
OTHERWISE WITHOUT REFERENCE TO ANY CONFLICT OF LAW PRINCIPLES), EXCEPT TO THE
EXTENT ISSUES OF PERFECTION ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 11.03. Further Assurances. Subject to the provisions of the
last sentence of Section 11.07(a) hereof, each of the Company, the Master
Servicer and the Trustee agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments required or reasonably
requested by the Agent or Majority Purchasers more fully to effect the purposes
of this Supplement and the sale of the VFC Certificates and the VFC Beneficial
Interests hereunder, including, without limitation, in the case of the Company
and the Master Servicer, the execution of any financing or registration
statements or similar documents or notices or continuation statements relating
to the Receivables and the other Trust Assets for filing or registration under
the provisions of the UCC or similar legislation of any applicable
jurisdiction, provided that, in the case of the Trustee, in furtherance and
without limiting the generality of Section 8.01(d) of the Agreement, the
Trustee shall have received reasonable assurance in writing of adequate
reimbursement and indemnity in connection with taking such action before the
Trustee shall be required to take any such action.
SECTION 11.04. Payments. Each payment to be made hereunder shall be
made on the required payment date in lawful money of the United States and in
immediately available funds, if to the Purchasers, at the office of the Agent
set forth below its signature hereto. On each Distribution Date, the Agent
shall remit in like funds to each Purchaser its applicable pro rata share
(based on each such Purchaser's Series 2000-1 Purchaser Invested Amount, except
to the extent that another method of allocation is otherwise specified herein)
of each such payment received by the Agent for the account of the Purchasers.
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SECTION 11.05. Costs and Expenses.
(a) The Company agrees to pay all reasonable fees and out-of-pocket
costs and expenses of the Agent and Redwood (including, without limitation,
reasonable fees and disbursements of counsel to the Agent and Redwood and the
reasonable costs and expenses of the Insurer) in connection with (i) the
preparation, execution and delivery of this Supplement, the Agreement, and the
other Transaction Documents and amendments or waivers of any such documents,
(ii) the enforcement by the Agent and Redwood of the obligations and
liabilities of the Company and the Master Servicer under the Agreement, this
Supplement or any related document and (iii) any restructuring or workout of
the Agreement, this Supplement or any related document; provided, however, that
any payments made by the Company pursuant to this Section shall be Company
Subordinated Obligations.
(b) (i) Prior to the occurrence and continuance of an Early
Amortization Event under the Agreement or this Supplement, the Company agrees
to pay reasonable fees, out-of-pocket costs and expenses incurred by
representatives of the Agent, the Insurer and Redwood, in an aggregate amount
not to exceed $25,000 in any calendar year, in connection with any inspection
of the Company's, the Master Servicer's and/or any Servicer's offices,
properties, books and records and/or any discussions with the officers,
employees and Independent Public Accountants of the Company, the Master
Servicer or any Servicer.
(ii) Following the occurrence and during the continuance of an Early
Amortization Event under the Agreement or this Supplement, the Company
agrees to pay reasonable fees and out-of-pocket costs and expenses of
representatives of the Agent, the Insurer and Redwood in connection with
any inspection of the Company's, the Master Servicer's and/or any
Servicer's offices, properties, books and records and any discussions with
the officers, employees and the Independent Public Accountants of the
Company, the Master Servicer or any Servicer. Any amounts owing by the
Company pursuant to this Section 11.05(b)(ii) shall be Company
Subordinated Obligations.
SECTION 11.06. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee, the Agent or any
Purchaser, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies,
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powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
SECTION 11.07. Amendments.
(a) Subject to subsection (c) of this Section 11.07, this Supplement
may be amended in writing from time to time by the Master Servicer, the Company
and the Trustee, with prior written notice to and written consent of the Agent,
but without the consent of any holder of any outstanding VFC Certificate or any
VFC Beneficial Interest, to cure any ambiguity, to correct or supplement any
provisions herein or therein which may be inconsistent with any other
provisions herein or therein or to add any other provisions to or changing in
any manner or eliminating any of the provisions with respect to matters or
questions raised under this Supplement which shall not be inconsistent with the
provisions of any Pooling and Servicing Agreement; provided, however, that such
action shall not, as evidenced by an Officer's Certificate of the Master
Servicer delivered to the Trustee upon which the Trustee may conclusively rely,
have a Material Adverse Effect, a Seller Material Adverse Effect, a Servicer
Material Adverse Effect or a Company Material Adverse Effect (but, to the
extent that the determination of whether such action would have a Material
Adverse Effect, a Seller Material Adverse Effect, a Servicer Material Adverse
Effect or a Company Material Adverse Effect requires a conclusion as to a
question of law, an Opinion of Counsel shall be delivered by the Master
Servicer to the Trustee in addition to such Officer's Certificate); provided,
further, that any amendment that is entered into to provide additional
Enhancement for any Outstanding Series, to conform to regulations issued by the
Internal Revenue Service or that would provide any additional rights or
benefits to Holders or not adversely affect the interests of any Holder shall
be deemed to have no Material Adverse Effect, a Seller Material Adverse Effect,
a Servicer Material Adverse Effect or Company Material Adverse Effect. The
Trustee may, but shall not be obligated to, enter into any such amendment
pursuant to this Section 11.07(a) or subsection (b) below that affects the
Trustee's rights, duties or immunities under any Pooling and Servicing
Agreement or otherwise.
(b) Subject to subsection (c) of this Section 11.07, this Supplement
may also be amended (other than in the circumstances referred to in subsection
(a) above) in writing from time to time by the Master Servicer, the Company and
the Trustee with the written consent of the Agent and the Majority Purchasers
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Supplement or of modifying in any
manner the rights of the VFC Certificateholders or owner of a VFC Beneficial
Interest; provided, however, that no such amendment shall, unless signed or
consented to in writing by all Purchasers, (i) extend the time for payment, or
reduce the amount, of any amount of money payable to or for the account of any
Purchaser under any
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provision of this Supplement, (ii) subject any Purchaser to any additional
obligation (including, without limitation, any change in the determination of
any amount payable by any Purchaser) or (iii) change the Aggregate Commitment
Amount or the number of Purchasers which shall be required for any action under
this subsection or any other provision of this Supplement.
(c) No such amendment shall be effective until the Rating Agency
Condition is satisfied.
(d) Prior to consenting to any amendment pursuant to this Section
11.07, the Trustee shall be entitled to obtain an Opinion of Counsel stating
that the amendment is authorized and permitted pursuant to this Supplement and
the Agreement.
SECTION 11.08. Severability. If any provision hereof is void or
unenforceable in any jurisdiction, such status shall not affect the validity or
enforceability of (i) such provision in any other jurisdiction or (ii) any
other provision hereof in such or any other jurisdiction.
SECTION 11.09. Notices. All notices, requests and demands to or upon
any party hereto to be effective shall be given (i) in the case of the Company,
the Master Servicer and the Trustee, in the manner set forth in Section 10.05
of the Agreement and (ii) in the case of the Agent, the Insurer, each Purchaser
and the Rating Agencies, in writing (including a confirmed transmission by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, (A) in the case of the Agent and each Purchaser, at their
respective addresses set forth below their names on Schedule 1 hereto, (B) in
the case of the Rating Agencies, at the addresses notified by such Rating
Agencies and (c) in the case of the Insurer, to 1 State Street Plaza, New York,
New York 10004, attention: Specialized Finance Group Head, facsimile (212)
208-3547; or to such other address as may be hereafter notified by the
respective parties hereto.
SECTION 11.10. Successors and Assigns. This Supplement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Neither the Company nor the Master Servicer
may assign, transfer, hypothecate or otherwise convey any of their respective
rights or obligations hereunder or interests herein without the express prior
written consent of the Purchasers, the Agent and the Trustee and unless the
Rating Agency Condition shall have been satisfied with respect to any such
assignment. Any such purported assignment, transfer, hypothecation or other
conveyance by the
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Company or the Master Servicer without the prior express written consent of the
Purchasers, the Agent and the Trustee shall be void. The Purchasers, the Agent,
the Liquidity Banks or the Agent may, at any time, assign any of its rights and
obligations hereunder or interests herein to an Eligible Assignee and any such
assignee may further assign at any time its rights and obligations hereunder or
interests herein (including any rights it may have in and to the Series 2000-1
Allocated Receivables Amount and any rights it may have to exercise remedies
hereunder), in each case without the consent of the Company or the Master
Servicer. The Company acknowledges and agrees that, upon any such assignment,
the assignee thereof may enforce directly, without joinder of the Purchasers,
all of the obligations of the Company hereunder.
SECTION 11.11. Counterparts. This Supplement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same agreement.
SECTION 11.12. Adjustments; Setoff.
(a) If any Purchaser (a "Benefitted Purchaser") shall at any time
receive in respect of its Series 2000-1 Purchaser Invested Amount any
distribution of principal, interest, Commitment Fees or other fees, or any
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by setoff, or otherwise) in a greater proportion
than any such distribution received by any other Purchaser, if any, in respect
of such other Purchaser's Series 2000-1 Purchaser Invested Amount, or interest
thereon, such Benefitted Purchaser shall purchase for cash from the other
Purchasers such portion of each such other Purchaser's interest in the VFC
Certificates, or shall provide such other Purchasers with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Purchaser to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Purchasers; provided, however, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Purchaser, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Company agrees that each Purchaser so purchasing a VFC Beneficial
Interest may exercise all rights of payment (including, without limitation,
rights of setoff) with respect to such portion as fully as if such Purchaser
were the direct holder of such portion.
(b) In addition to any rights and remedies of the Purchasers provided
by law, each Purchaser shall have the right, without prior notice to the
Company, any such notice being expressly waived by the Company to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Company hereunder or under the VFC Certificates to setoff and appropriate and
apply
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against any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Purchaser to or for the
credit or the account of the Company. Each Purchaser agrees promptly to notify
the Company and the Agent after any such setoff and application made by such
Purchaser; provided that the failure to give such notice shall not affect the
validity of such setoff and application.
SECTION 11.13. Limitation of Payments by Company. The Company's
obligations under Article VII hereof shall be limited to the funds available to
the Company which have been properly distributed to the Company pursuant to the
Agreement and any Supplement and neither the Agent nor any Purchaser shall have
any actionable claim against the Company for failure to satisfy such obligation
because it does not have funds available therefor from amounts properly
distributed.
SECTION 11.14. No Bankruptcy Petition.
(a) Each Purchaser and each Liquidity Bank hereby covenants and agrees
that, prior to the date which is one year and one day after the later of (i)
the last day of a Series 2000-1 Amortization Period commencing pursuant to
clause (i) of the definition thereof and (ii) the date on which all Investor
Certificates of each other Outstanding Series are repaid in full, it will not
institute against, or join any other Person in instituting against, the Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other similar proceedings under any Federal or state bankruptcy
or similar law.
(b) Each Purchaser, the Company, the Master Servicer, the Agent and
each Liquidity Bank hereby covenant and agree that prior to the date which is
one year and one day after the latest of (i) the last day of the Series 2000-1
Amortization Period and (ii) the date on which all Investor Certificates of
each other Outstanding Series are repaid in full, and (iii) the date on which
all Outstanding Commercial Paper of Redwood is paid in full, it will not
institute against, or join any other Person in instituting against, Redwood any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any Federal or state bankruptcy or similar
law.
(c) The provisions of this Section 11.14 shall survive termination of
this Agreement.
SECTION 11.15. Limitation on Addition and Termination of Sellers.
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(a) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement or the Agreement, the Company shall not consent to
the addition of a Seller thereunder unless each of the following conditions
shall have been satisfied.
(i) Each of the conditions set forth in Section 3.05 of the
Receivables Sale Agreement shall have been satisfied and the Trustee shall
have received evidence in the form of an appropriate Officer's Certificate
as to that fact.
(ii) The Company, the Trustee and the Agent shall have received
evidence that the Rating Agency Condition shall have been satisfied with
respect to the addition of such Seller; provided that satisfaction of the
Rating Agency Condition (and such receipt of evidence thereof) shall not
be required with respect to the addition of up to three additional Sellers
during any calendar year, each of which meets the following criteria: (x)
such proposed additional Seller is, in the judgment of the Company as
certified by the Company to the Trustee in an Officer's Certificate, in
the same line of business as the existing Sellers as of the related Seller
Addition Date (as defined in the Receivables Sale Agreement), and (y) as
of the Seller Addition Date, immediately prior to giving effect to such
addition, the ratio (as determined by the Company and expressed as a
percentage) of (I) the aggregate Principal Amount of what would constitute
all Eligible Receivables of the proposed additional Seller if it were a
Seller at the end of the Business Date immediately preceding the Seller
Addition Date minus the amount which would constitute the
Overconcentration Amount applicable to such Receivables on the Seller
Addition Date if the proposed additional Seller were a Seller to (II) the
Aggregate Receivables Amount on the Seller Addition Date (before giving
effect to such addition), is less than five percent.
(iii) The Company, the Trustee and the Agent shall have received a
certificate prepared by a Responsible Officer of the Master Servicer
certifying that after giving effect to the addition of such Seller, the
Aggregate Allocated Receivables Amount shall equal or exceed the Aggregate
Target Receivables Amount on the related Seller Addition Date and setting
forth a re-calculation of the Series 2000-1 Required Subordinated Amount
(including Receivables originated by the additional Seller(s)).
(b) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement, the Company shall not consent to any request made
pursuant to Section 9.14(b) thereof, nor shall any Seller which is the subject
of such request be terminated under the Receivables Sale Agreement, in each
case
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unless (i) no Early Amortization Event, Potential Early Amortization Event or
Potential Purchase Termination Event (as defined in the Receivables Sale
Agreement) (other than with respect to the Seller to be so terminated) has
occurred and is continuing (both before and after giving effect to such
termination) and (ii) the Trustee shall have received prior written notice of
such termination (which notice shall be accompanied by a pro forma Daily Report
confirming that the Aggregate Allocated Receivables Amount equals or exceeds
the Aggregate Target Receivables Amount, each calculated after giving effect to
such termination and excluding all Receivables originated by the Seller to be
terminated).
(c) Upon the termination of a Seller pursuant to Section 9.14(b) of
the Receivables Sale Agreement and the foregoing subsection (b) calculation
(including, without limitation, for purposes of the pro forma calculations
pursuant to subsection (b) above) of the Aggregate Target Receivables Amount,
the Aggregate Allocated Receivables Amount, the Series 2000-1 Required
Subordinated Amount and all other amounts from which each such amount is
directly or indirectly derived shall exclude in each case the Receivables
originated by such terminated Seller.
SECTION 11.16. Third-Party Beneficiaries. The Insurer shall be a
third-party beneficiary of this Supplement entitled to enforce the provisions
hereof as if party hereto.
SECTION 11.17. Subordination Agreement.
(a) Irrespective of the time, order or method of payment and
irrespective of anything else contained in this or any other document or
agreement other than in this Section 11.17, so long as any VFC Certificate
remains outstanding, the Company agrees that any and all rights of the Company
of any kind in the Trust Assets (other than any rights of the Company in the
Trust Assets with respect to the Exchangeable Company Interest), including
without limitation any right to receive any distribution pursuant to the terms
of this Supplement (other than any right of the Company to receive any
distribution with respect to the Exchangeable Company Interest) (collectively,
the "Junior Claims"), are and shall be expressly subordinate and junior in
right and time of payment to the interests of the VFC Certificateholders and
the holder of the Exchangeable Company Interest in the Trust Assets (any such
holder of an Exchangeable Company Interest, but only to the extent of such
holder's Exchangeable Company Interest, an "ECI Holder"), including but not
limited to the right of the VFC Certificateholders and the ECI Holders to
receive distributions pursuant to the terms of this Supplement and all other
Indebtedness, obligations and liabilities of the Company to any VFC
Certificateholder and any ECI Holder, whether now existing or hereafter
incurred or created, under or with respect to the VFC
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Certificates and the Exchangeable Company Interest (all of the foregoing,
collectively, the "Senior Claims"). Each holder of any Junior Claim (or
any instrument evidencing the same) (each such holder, but only to the
extent of its interest in any Junior Claim, a "Junior Claimant") by
acceptance thereof waives any and all notice of the creation or accrual of
any such Senior Claim and notice of proof of reliance upon these
subordination provisions by any holder of any Senior Claim. Any such
Senior Claim shall conclusively be deemed to have been created, contracted
or incurred in reliance upon these subordination provisions and all
dealings between the Company and any holders of any such Senior Claims
(including the Company as an ECI Holder) so arising shall be deemed to
have been consummated in reliance upon these subordination provisions. The
provisions of this Section 11.17 are and are intended to be solely for the
purpose of defining the relative rights of the Junior Claimants, on the
one hand, and the holders of any Senior Claims, on the other hand.
(b) In the event of any Insolvency Event:
(i) All Senior Claims shall first be Indefeasibly Paid, or such
payment shall have been provided for in a manner satisfactory to all of
the holders of Senior Claims, before any payment or distribution, whether
in cash, securities or other property, shall be made to any Junior
Claimant on account of such Junior Claim.
(ii) Any payment or distribution of any kind or character, whether in
cash, securities or other property that would otherwise (but for these
subordination provisions) be payable or deliverable with respect to any
Junior Claim shall be paid or delivered directly to the holders of Senior
Claims (or to a banking institution selected by the court or other Person
making the payment or delivery or designated by any holder of any Senior
Claim) for application in payment of the Senior Claims in accordance with
the priorities then existing among such holders until all Senior Claims
shall have been Indefeasibly Paid, or such payment shall have been
provided for in a manner satisfactory to all of the holders of Senior
Claims.
As used in this Section 11.17, the term "Indefeasibly Paid" means, with respect
to the making of any payment on or with respect to any Senior Claim, a payment
of such Senior Claim in full that is not subject to avoidance under Section 547
of the Bankruptcy Code.
(c) Turnover of Improper Payments. If any payment or distribution of
any character or any security, whether in cash, securities or other property
shall be received by any Junior Claimant in contravention of any of the terms
hereof and before all the Senior Claims shall have been Indefeasibly Paid or
such payment
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shall have been provided for in a manner satisfactory to all of the holders of
Senior Claims, such payment or distribution or security shall be received in
trust for the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Claims at the time outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all Senior Claims remaining unpaid, to the extent necessary to pay all such
Senior Claims in full. In the event of the failure of any Junior Claimant to
endorse or assign any such payment, distribution or security, the Agent is
hereby irrevocably authorized to endorse or assign the same.
(d) No Prejudice or Impairment. The rights under these subordination
provisions of the holders of any Senior Claims as against any Junior Claimant
shall, to the fullest extent permitted by applicable law, remain in full force
and effect without regard to, and shall not be impaired or affected by (i) any
act or failure to act on the part of the Company; or (ii) any extension or
indulgence with respect to any payment or prepayment of any Senior Claim or any
part thereof or with respect to any other amount payable to any holder of any
Senior Claim; or (iii) any amendment, modification or waiver of, or addition or
supplement to, or deletion from, or compromise, release, consent or other
action with respect to, any of the terms of any Senior Claim, the Agreement,
this Supplement or any other agreement that may be made relating to any Senior
Claim; or (iv) any exercise or non-exercise by the holder of any Senior Claim
of any right, power, privilege or remedy under or with respect to such Senior
Claim, the Agreement, this Supplement or any waiver of any such right, power,
privilege or remedy or of any default with respect to such Senior Claim, the
Agreement or this Supplement, or any receipt by the holder of any Senior Claim
of any security, or any failure by such holders to perfect a security interest
in, or any release by such holder of, any security for the payment of such
Senior Claim; or (v) any merger or consolidation of the Company or any of its
Subsidiaries into or with any other Person, or any sale, lease or transfer of
any or all of the assets of the Company or any of its Subsidiaries to any other
Person; or (vi) absence of any notice to, or knowledge by, any Junior Claimant
of the existence or occurrence of any of the matters or events set forth in the
foregoing clauses (i) through (v); or (vii) any other circumstance. The terms
and conditions of this Section 11.17 shall not be modified or amended without
the express written consent of the Certificateholders of at least 50% of the
Invested Amount of each Outstanding Series of VFC Certificates and, if any such
amendment would adversely affect the interests of an ECI Holder, without the
written consent of the ECI Holder or Holders.
(e) The obligations of the Junior Claimants under these subordination
provisions shall continue to be effective, or be reinstated, as the case may
be, if at any time any payment with respect to any Senior Claim, or any other
payment to any holder of any Senior Claim in its capacity as such, is rescinded
or must otherwise be restored or returned by the holder of such Senior Claim
upon the
76
<PAGE> 81
occurrence of any Insolvency Event, or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer for,
the Company or any substantial part of its property, or otherwise, all as
though such payment had not been made.
(f) No Junior Claimant shall have any subrogation or other rights as
the holder of a Senior Claim, and each Junior Claimant hereby waives all such
rights of subrogation and all rights of reimbursement or indemnity whatsoever
and all rights of recourse to any security for any Senior Claim, until such
time as all the Senior Claims shall be Indefeasibly Paid or such payment shall
have been provided for in a manner satisfactory to all of the holders of Senior
Claims and all of the obligations of the Company under the Senior Claims, the
Agreement and this Supplement shall have been duly performed. From and after
the time at which all Senior Claims have been Indefeasibly Paid or such payment
shall have been provided for in a manner satisfactory to all of the holders of
Senior Claims, the Junior Claimants shall be subrogated to all rights of any
holders of Senior Claims to receive any further payments or distributions
applicable to the Senior Claims until the Junior Claims shall have been paid in
full or such payment shall have been provided for in a manner satisfactory to
the majority in amount of the Junior Claimants, and for the purposes of such
subrogation, no payment or distribution received by the holders of Senior
Claims of cash, securities or other property to which the Junior Claimants
would have been entitled except for these subordination provisions shall, as
between the Company and its creditors other than the holders of Senior Claims,
on the one hand, and the Junior Claimants, on the other, be deemed to be a
payment or distribution by the Company to or on account of the Senior Claims.
(g) Each Certificate or other instrumentality evidencing any Junior
Claim shall contain the following legend conspicuously noted on the face
thereof: "THIS [NAME OF INSTRUMENT] IS SUBJECT TO THE SUBORDINATION PROVISIONS
SET FORTH IN SECTION 11.17 OF THE SERIES 2000-1 SUPPLEMENT AMONG INGRAM FUNDING
INC., INGRAM MICRO INC., AS MASTER SERVICER, REDWOOD RECEIVABLES CORPORATION,
THE LIQUIDITY BANKS PARTY THERETO, GENERAL ELECTRIC CAPITAL CORPORATION, AS
AGENT, AND THE CHASE MANHATTAN BANK, AS TRUSTEE, DATED AS OF MARCH 8, 2000" and
shall specifically state that a copy of these subordination provisions (to the
extent not expressly stated in such instrument) is on file with the Company and
is available for inspection at the Company's offices.
SECTION 11.18. Information With Respect to the Receivables.
(a) The Master Servicer agrees, on behalf of each Seller, with respect
to the Receivables and any other similar receivables originated by such Seller
that
77
<PAGE> 82
it will, after the Effective Date upon the written request of the Agent, which
request, in the absence of the occurrence and continuance of an Early
Amortization Event, shall not be delivered more often than annually and shall
be solely at the expense and cost (including the costs of the Master Servicer
and Seller's employees in complying with such request) of the party or parties
making such request, deliver or transmit or cause to be delivered or
transmitted to the Company a computer tape, diskette or data transmission
containing at least the information specified in Section 2.01(e) of the
Agreement as to all such Receivables, as of a date no later than the Cut-Off
Date or Subsequent Cut-Off Date, as applicable.
(b) The Company agrees, after the Effective Date upon the request of
the Agent, which request, in the absence of the occurrence and continuance of an
Early Amortization Event, shall not be delivered more often than annually and
shall be solely at the expense and cost (including costs of the Company's
employees in complying with such request) of the party or parties on whose
behalf the Agent makes such request, to deliver or transmit or cause to be
delivered or transmitted to the Trustee computer tapes, diskettes or data
transmission containing a true and complete list of all Receivables, transferred
to the Trust specifying for each Receivable, as of the Cut-Off Date or any
Subsequent Cut-Off Date as applicable, at least (i) the name of the Obligor and
(ii) the aggregate Principal Amount of the Receivables, owing by such Obligor.
ARTICLE XII
Final Distributions
SECTION 12.01. Certain Distributions.
(a) Not later than 2:00 p.m., New York City time, on the Distribution
Date following the date on which the proceeds from the disposition of the
Receivables pursuant to Section 7.02(b) of the Agreement are deposited into the
Series 2000-1 Non-Principal Collection Sub-subaccount and the Series 2000-1
Principal Collection Sub-subaccount, the Trustee shall distribute such amounts
pursuant to Article III of this Supplement.
(b) Notwithstanding anything to the contrary in this Supplement or the
Agreement, any distribution made pursuant to this Section 12.01 shall be deemed
to be a final distribution pursuant to Section 9.03 of the Agreement with
respect to the VFC Certificates.
78
<PAGE> 83
IN WITNESS WHEREOF, the Company, the Master Servicer, the Trustee, the
Agent and the Initial Purchaser have caused this Series 2000-1 Supplement to be
duly executed by their respective officers as of the day and year first above
written.
INGRAM FUNDING INC.
By: /s/ P. Kurt Preising
-------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as Master Servicer
By: /s/ P. Kurt Preising
--------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee
By: /s/ Melissa J. Adelson
-------------------------------
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: /s/ Denis M. Creeden
-------------------------------
Title: Duly Authorized Signatory
Signature Page 1
to
Series 2000-1 Supplement
<PAGE> 84
REDWOOD RECEIVABLES CORPORATION,
as an Initial Purchaser
By: /s/ Joseph Wiles
-------------------------------
Title: Assistant Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as sole Liquidity Bank
By: /s/ Denis M. Creeden
-------------------------------
Title: Duly Authorized Signatory
Signature Page 2
to
Series 2000-1 Supplement
<PAGE> 85
EXHIBIT A
TO
SERIES 2000-1 SUPPLEMENT
FORM OF VFC CERTIFICATE, SERIES 2000-1
REGISTERED UP TO $.00 SERIES
NO. VFC-[ ] 2000-1 PURCHASER INVESTED AMOUNT*
(OF UP TO $ 700,000,000.00 SERIES 2000-1
PURCHASER INVESTED AMOUNT ISSUED)
*THE SERIES 2000-1 PURCHASER INVESTED AMOUNT OF THIS VFC CERTIFICATE IS
SUBJECT TO CHANGE AS DESCRIBED HEREIN.
THIS VFC CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT"). NEITHER THIS VFC CERTIFICATE NOR ANY PORTION HEREOF
MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS.
THIS VFC CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE POOLING AGREEMENT AND SUPPLEMENT REFERRED TO HEREIN.
This VFC Certificate evidences a fractional undivided interest in the
assets of the
INGRAM MICRO MASTER TRUST
the corpus of which consists of receivables representing amounts payable for
goods or services, which receivables have been purchased by Ingram Funding Inc.,
a Delaware corporation, which in turn transferred and assigned such receivables
to the Ingram Micro Master Trust.
(Not an interest in or recourse obligation of
Ingram Micro Inc., Ingram Funding Inc.
or any of their respective Affiliates)
This certifies that
[NAME OF CERTIFICATEHOLDER]
(the "VFC Certificateholder") is the registered owner of a fractional undivided
interest in the assets of Ingram Micro Master Trust (the "Trust") originally
created pursuant to the Pooling and Servicing Agreement, dated as of February
12, 1993 (as amended and restated on March 8, 2000,
A-1
<PAGE> 86
and as the same may from time to time be amended, restated, supplemented or
otherwise modified thereafter, the "Pooling Agreement"), by and among Ingram
Funding Inc., a Delaware corporation (the "Company"), Ingram Micro Inc., a
Delaware corporation, as Master Servicer (the "Master Servicer"), and The Chase
Manhattan Bank, a New York banking corporation, not in its individual capacity
but solely as trustee (in such capacity, the "Trustee") for the Trust, as
supplemented by the Series 2000-1 Supplement, dated as of March 8, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Supplement", collectively, with the Pooling Agreement, the "Agreement"), by and
among the Company, the Master Servicer, the Trustee, General Electric Capital
Corporation, as agent (the "Agent"), Redwood Receivables Corporation, as initial
purchaser (the "Initial Purchaser"), the several financial institutions party
thereto, as liquidity banks (the "Liquidity Banks") and the Trustee. The corpus
of the Trust consists of receivables (the "Receivables") representing amounts
payable for goods or services and all other Trust Assets referred to in the
Agreement. Although a summary of certain provisions of the Agreement is set
forth below, this VFC Certificate does not purport to summarize the Agreement,
is qualified in its entirety by the terms and provisions of the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Trustee. A copy of the Agreement
may be requested by a holder hereof by writing to the Trustee at The Chase
Manhattan Bank, [450 W. 33rd Street, 14th Floor, New York, New York 10001,
Attention of Structured Finance Services]. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Agreement.
This VFC Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the VFC
Certificateholder, by virtue of the acceptance hereof, assents and is bound.
The Master Servicer, the Company, each VFC Certificateholder and the
Trustee intend, for federal, state and local income and franchise tax purposes
only, that the VFC Certificates be evidence of indebtedness of the Company
secured by the Trust Assets and that the Trust not be characterized as an
association or publicly traded partnership taxable as a corporation. The VFC
Certificateholder, by the acceptance hereof, agrees to treat the VFC
Certificates for federal, state and local income and franchise tax purposes as
indebtedness of the Company.
This VFC Certificate is the Investor Certificate entitled "Ingram Micro
Trust, VFC Certificate, Series 2000-1" (the "VFC Certificate") representing a
fractional undivided interest in the Trust Assets, consisting of the right to
receive the distributions specified in the Supplement out of (i) the Series
2000-1 Invested Percentage (expressed as a decimal) of Collections received with
respect to the Receivables and all other funds on deposit in the Collection
Account and (ii) to the extent such interests appear in the Supplement, all
other funds on deposit in the Series 2000-1 Collection Subaccount and any
subaccounts thereof (collectively, the "VFC Certificateholder's Interest").
Concurrent with the issuance of the VFC Certificate, the Trust shall also issue
a Subordinated Company Interest to the Company representing a fractional
undivided interest in the Trust Assets, consisting of the right to receive the
distributions specified in the Supplement out of (i) the Series 2000-1 Invested
Percentage (expressed as a decimal) of Collections received with respect to the
Receivables and all other funds on deposit in the Collection Account and (ii) to
the extent such interests appear in the Supplement, all other funds
A-2
<PAGE> 87
on deposit in the Series 2000-1 Collection Subaccount and any subaccounts
thereof, in each case to the extent not required to be distributed to or for the
benefit of the VFC Certificateholder (the "Series 2000-1 Subordinated
Interest"). The Trust Assets are allocated in part to the VFC Certificateholder
and the holders of the Series 2000-1 Subordinated Interest with the remainder
allocated to the Investor Certificateholders and the holders of the Subordinated
Company Interests of other Series, if any, and to the Company. An Exchangeable
Company Interest representing the Company's interest in the Trust was issued to
the Company pursuant to the Pooling Agreement on March 8, 2000. The Exchangeable
Company Interest represents the interest in the Trust Assets not represented by
the Investor Certificates and the Subordinated Company Interests of each
Outstanding Series. The Exchangeable Company Interest may be decreased by the
Company pursuant to the Pooling Agreement in exchange for an increase in the
Invested Amount of a Class of Investor Certificates of an Outstanding Series and
an increase in the related Series Subordinated Company Interest, or one or more
newly issued Series of Investor Certificates and the related newly issued Series
Subordinated Company Interest, upon the conditions set forth in the Agreement.
Distributions with respect to this VFC Certificate shall be paid by the
Trustee in immediately available funds to the VFC Certificateholder at the
office of the Trustee set forth in the Agreement. Final payment of this VFC
Certificate shall be made only upon presentation and surrender of this VFC
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the VFC Certificateholder in accordance
with the Agreement.
This VFC Certificate does not represent an obligation of, or an interest
in, the Company, the Master Servicer or any Affiliate of either of them.
The transfer of this VFC Certificate shall be registered in the
Certificate Register upon surrender of this VFC Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer, in a form satisfactory to the
Trustee, the Transfer Agent and Registrar, the Company and the Master Servicer,
duly executed by the VFC Certificateholder or the VFC Certificateholder's
attorney, and duly authorized in writing with such signature guaranteed, and
thereupon one or more new VFC Certificates of authorized denominations and of
like aggregate Investor Certificateholders' Interests will be issued to the
designated transferee or transferees. In addition, the Trustee shall maintain at
one of its offices in the City of New York the Certificate Register for the
recordation of the names and addresses of the Purchasers, and the Commitment of,
and the principal amount of VFC Certificates issued to, each Purchaser.
The Company, the Trustee, the Master Servicer, the Transfer Agent and
Registrar, the Agent and any agent of any of them, may treat the person whose
name is recorded in the Certificate Register as a Purchaser for all purposes of
the Supplement, notwithstanding notice to the contrary (other than notice in
connection with an assignment effected or to be effected in accordance with
Section 11.10 of the Supplement).
It is expressly understood and agreed by the Company and the VFC
Certificateholder that (i) the Agreement is executed and delivered by the
Trustee, not individually or personally but solely as Trustee of the Trust, in
the exercise of the powers and
A-3
<PAGE> 88
authority conferred and vested in it, (ii) the representations, undertakings and
agreements made on the part of the Trust in the Agreement are made and intended
not as personal representations, undertakings and agreements by the Trustee, but
are made and intended for the purpose of binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability of the Trustee,
individually or personally, to perform any covenant either expressed or implied
made on the part of the Trust in the Agreement, all such liability, if any,
being expressly waived by the parties who are signatories to the Agreement and
by any Person claiming by, through or under such parties; provided, however, the
Trustee shall be liable in its individual capacity for its own willful
misconduct or gross negligence and for any tax assessed against the Trustee
based on or measured by any fees, commission or compensation received by it for
acting as Trustee and (iv) under no circumstances shall the Trustee be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement.
The holder of this VFC Certificate is authorized to record the date and
amount of each increase and decrease in the Series 2000-1 Purchaser Invested
Amount with respect to such holder on the schedules annexed hereto and made a
part hereof and any such recordation shall constitute prima facie evidence of
the accuracy of the information so recorded, absent manifest error, provided
that the failure of the holder of this VFC Certificate to make such recordation
(or any error in such recordation) shall not affect the obligations of the
Company, the holder of the Series 2000-1 Subordinated Interest, the Master
Servicer or the Trustee under the Agreement.
This VFC Certificate shall be construed in accordance with and governed
by the laws of the State of New York without reference to any conflict of law
principles.
By acceptance of this VFC Certificate, the VFC Certificateholder hereby
agrees that, prior to the date which is one year and one day after the later of
(i) the last day of the Series 2000-1 Amortization Period (determined pursuant
to clause (i) of the definition thereof) and (ii) the date on which all Investor
Certificates of each other Outstanding Series are repaid in full, it will not
institute against, or join any other Person in instituting against, the Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this VFC Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
A-4
<PAGE> 89
IN WITNESS WHEREOF, the Company has caused this VFC Certificate to be
duly executed.
Dated: _____________, 2000
INGRAM FUNDING INC.,
as authorized pursuant to Section
5.01 of the Pooling Agreement,
By:
---------------------------------
Name:
Title:
A-5
<PAGE> 90
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the VFC Certificates described in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK, not in
its individual capacity but solely
as Trustee,
By:
---------------------------------
Name:
Title:
A-6
<PAGE> 91
Schedule 1
to VFC Certificate
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Increase Decrease
in Series in Series
2000-1 2000-1 Series 2000-1
Purchaser Purchaser Purchaser
Invested Invested Invested Notation
Date Amount Amount Amount Made By
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
A-7
<PAGE> 92
EXHIBIT B
TO
SERIES 2000-1 SUPPLEMENT
FORM OF COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of _____________, 20__, among
__________ (the "Transferor"), each purchaser listed as an Acquiring Purchaser
on the signature pages hereof (each, an "Acquiring Purchaser"), GENERAL ELECTRIC
CAPITAL CORPORATION, as agent for the Purchasers (in such capacity, the "Agent")
and THE CHASE MANHATTAN BANK, as Trustee under the Supplement described below
(the "Trustee").
W I T N E S S E T H :
WHEREAS this Commitment Transfer Supplement is being executed and
delivered in accordance with Section 11.10 of the Series 2000-1 Supplement,
dated as of March 8, 2000 (as the same may be amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the
"Supplement"), among the Company, the Master Servicer, the Transferor, the other
Purchasers from time to time parties thereto, the Agent, the financial
institutions party thereto from time to time, as liquidity banks (the "Liquidity
Banks") and the Trustee, to the Ingram Funding Master Trust Amended and Restated
Pooling Agreement, dated as of March 8, 2000 among the Company, the Master
Servicer and the Trustee (as the same may be amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the
"Pooling Agreement"; capitalized terms used herein and not defined herein shall
have the meanings ascribed thereto in the Supplement or the Pooling Agreement);
WHEREAS each Acquiring Purchaser (if it is not already a Purchaser party
to the Supplement) wishes to become a Purchaser party to the Supplement; and
WHEREAS the Transferor is selling and assigning to each Acquiring
Purchaser, rights, obligations and commitments under the Supplement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon the execution and delivery of this Commitment Transfer
Supplement by each Acquiring Purchaser, the Transferor, the Agent and the
Trustee (the "Transfer Issuance Date"), each Acquiring Purchaser shall be a
Purchaser party to the Supplement for all purposes thereof.
2. This Commitment Transfer Supplement is being delivered to the
Trustee together with (i) if the Acquiring Purchaser is organized under the
laws of a jurisdiction outside the United States, the forms specified in
Section 7.03(b) of the Supplement, duly
B-1
<PAGE> 93
completed and executed by such Acquiring Purchaser, (ii) if the Acquiring
Purchaser is not already a Purchaser under the Supplement, an
Administrative Questionnaire in the form of Exhibit C to the Supplement and
(iii) a processing and recordation fee of $3,500.
3. The Transferor acknowledges receipt from each Acquiring Purchaser
of an amount equal to the purchase price, as agreed between the Transferor
and such Acquiring Purchaser (the "Purchase Price"), of the portion being
purchased by such Acquiring Purchaser (such Acquiring Purchaser's
"Purchased Percentage") of the undivided interest in the VFC Certificate
owned by, and other amounts owing to, the Transferor under the Supplement.
The Transferor hereby irrevocably sells, assigns and transfers to each
Acquiring Purchaser, without recourse, representation or warranty (except
as set forth in paragraph 8(i) below), and each Acquiring Purchaser hereby
irrevocably purchases, takes and assumes from the Transferor, such
Acquiring Purchaser's Purchased Percentage of the Commitment of the
Transferor to increase its Series 2000-1 Purchaser Invested Amount under,
and the portion of the undivided interest in, the VFC Certificate owned by,
and other amounts owing to, the Transferor, in each case under the
Supplement together with all instruments, documents and collateral security
pertaining thereto.
4. The Transferor has made arrangements with each Acquiring Purchaser
with respect to (i) the portion, if any, to be paid, and the date or dates
for payment, by the Transferor to such Acquiring Purchaser of any
Commitment Fees heretofore received by the Transferor pursuant to the
Supplement prior to the Transfer Issuance Date and (ii) the portion, if
any, to be paid, and the date or dates for payment, by such Acquiring
Purchaser to the Transferor of Commitment Fees or Series 2000-1 Monthly
Interest received by such Acquiring Purchaser pursuant to the Supplement
from and after the Transfer Issuance Date.
5. From and after the Transfer Issuance Date, amounts that would
otherwise be payable to or for the account of the Transferor pursuant to
the Supplement shall, instead, be payable to or for the account of the
Transferor and the Acquiring Purchasers, as the case may be, in accordance
with their respective interests as reflected in this Commitment Transfer
Supplement, whether such amounts have accrued prior to the Transfer
Issuance Date or accrue subsequent to the Transfer Issuance Date.
6. Prior to or concurrently with the execution and delivery hereof,
the Agent will, at the expense of the Transferor, provide to each Acquiring
Purchaser (if it is not already a Purchaser party to the Supplement)
photocopies of all documents delivered to the Agent on the Issuance Date in
satisfaction of the conditions precedent set forth in the Supplement.
7. Each of the parties to this Commitment Transfer Supplement agrees
that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order
to effect the purposes of this Commitment Transfer Supplement.
B-2
<PAGE> 94
8. By executing and delivering this Commitment Transfer Supplement,
the Transferor and each Acquiring Purchaser confirm to and agree with each
other and the Purchasers as follows: (i) the Transferor warrants that it is
the legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim and that its Commitment, and the outstanding
balance of its VFC Certificate, in each case without giving effect to
assignments thereof which have not become effective, are [ ] and [ ],
respectively; (ii) except as set forth in clause (i) above, the Transferor
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Supplement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Supplement, any
other Transaction Document or any other instrument or document furnished
pursuant hereto or thereto, or the financial condition of the Seller, the
Master Servicer, the Servicer or the Company or the performance or
observance by the Seller, the Master Servicer, the Servicer or the Company
of any of their respective obligations under the Supplement, any other
Transaction Document or any other instrument or document furnished pursuant
hereto or thereto; (iii) the Acquiring Purchaser represents and warrants
that it is legally authorized to enter into this Commitment Transfer
Supplement; (iv) the Acquiring Purchaser confirms that it has received a
copy of the Supplement, the other Transaction Documents and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Commitment Transfer
Supplement; (v) the Acquiring Purchaser will independently and without
reliance upon the Trustee, the assigning Purchaser or any other Purchaser
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Supplement or any other Transaction Document; (vi) the
Acquiring Purchaser appoints and authorizes the Agent and the Trustee to
take such action as agent on its behalf and to exercise such powers under
the Supplement as are delegated to the Agent and the Trustee, respectively,
by the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) the Acquiring Purchaser agrees that it will perform in
accordance with their terms all the obligations which by the terms of the
Supplement are required to be performed by it as a Purchaser.
9. The Acquiring Purchaser confirms that, by executing and delivering
this Commitment Transfer Supplement, it shall be deemed to have made the
representations and warranties in Section 8.05 of the Supplement.
10. Schedule I hereto sets forth the revised Commitment Percentages of
the Transferor and each Acquiring Purchaser as well as administrative
information with respect to each Acquiring Purchaser.
11. This Commitment Transfer Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York without
giving effect to principles of conflict of laws.
B-3
<PAGE> 95
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed by their respective duly authorized officers
as of the date first set forth above.
[NAME OF SELLING PURCHASER], as
Transferor,
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
[NAME OF PURCHASING PURCHASER], as
Acquiring Purchaser,
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE CHASE MANHATTAN BANK, as
Trustee
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
B-4
<PAGE> 96
SCHEDULE I
TO
COMMITMENT TRANSFER SUPPLEMENT
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT PERCENTAGES
THE CHASE MANHATTAN BANK, as Trustee
Address: [450 West 33rd Street, 14th Floor
New York, New York 10001]
Attention: _____________
Telephone: (212) ________
Telecopy: (212) ________
GENERAL ELECTRIC CAPITAL CORPORATION, as Agent
Address: 201 High Ridge Road
Stamford, CT 06927
Attention: _____________
Telephone: (203) ________
Telecopy: (203) ________
[TRANSFEROR]
Address:
Prior Commitment Percentage:
Revised Commitment Percentage:
[ACQUIRING PURCHASER]
Address:
[Prior] Commitment Percentage:
[Revised Commitment Percentage:]
B-5
<PAGE> 97
EXHIBIT C
TO SERIES 2000-1 SUPPLEMENT
FORM OF
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via Telecopy to
the attention of [ ] at [ ] as soon as possible, at Telecopy No.
( )[ ].
- --------------------------------------------------------------------------------
PURCHASER LEGAL NAME TO APPEAR IN DOCUMENTATION:
- --------------------------------------------------------------------------------
GENERAL INFORMATION:
Institution Name:_______________________________________________________________
Street Address:_________________________________________________________________
City, State, Zip Code:__________________________________________________________
POST-CLOSING, ONGOING CREDIT CONTRACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:________________________________________________________________
Street Address:_________________________________________________________________
City, State, Zip Code:__________________________________________________________
Phone Number:___________________________________________________________________
Telecopy Number:________________________________________________________________
Backup Contact:_________________________________________________________________
Street Address:_________________________________________________________________
City, State, Zip Code:__________________________________________________________
Phone Number:___________________________________________________________________
Telecopy Number:________________________________________________________________
C-1
<PAGE> 98
TAX WITHHOLDING:
Nonresident Alien ________Y* ________N
* Form 4224 Enclosed
Tax ID Number ______________________________________
POST-CLOSING, ONGOING ADMINISTRATIVE CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - PAYMENTS, FEES, ETC.
Contact:________________________________________________________________________
Street Address:_________________________________________________________________
City, State, Zip Code:__________________________________________________________
Phone Number:___________________________________________________________________
Telecopy Number:________________________________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank to which funds are to be transferred:
________________________________________________________________________________
Routing Transit/ABA number of Bank to which funds are to be transferred:
________________________________________________________________________________
Name of Account, if applicable:
________________________________________________________________________________
Account Number: ________________________________________________________________
Additional information: ________________________________________________________
________________________________________________________________________________
C-2
<PAGE> 99
It is very important that all the above information be accurately completed and
that this questionnaire be returned to the person specified in the introductory
paragraph of this questionnaire as soon as possible. If there is someone other
than yourself who should receive this questionnaire, please notify us of that
person's name and telecopy number and we will telecopy a copy of the
questionnaire. If you have any questions about this form, please call [ ] at
( )[ ].
C-3
<PAGE> 100
EXHIBIT D
TO
SERIES 2000-1 SUPPLEMENT
FORM OF DAILY REPORT
Attached.
D-1
<PAGE> 101
INGRAM FUNDING MASTER TRUST
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Company Interest Series 1993-2 Series 1994-2 Series 1994-3
-----------------------------------------------------------------------------
Investor Interest Investor Interest Investor Interest Investor Interest
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance
Plus: Gross Credit Sales
Plus: Inter-Co. Sales
Less: Inter-Co. Collections
Less: Collections
Less: Net Write-Offs
Less: Total Dilution Adjustments
Plus/Less: A/R Adjustments
Less: Repurchased Receivables
Ending Receivables Balance
Less: Defaulted Receivables
Less: Total Ineligible Receivables
Total Eligible Receivables
Less: Overconcentration Amount
Aggregate Receivables Amount
Invested Amount #N/A #N/A #N/A
Adjusted Invested Amount #N/A #N/A #N/A
Required Subordinated Amount #N/A #N/A #N/A
Target Receivables Amount #N/A #N/A #N/A
Allocated Receivables Amount #N/A #N/A #N/A #N/A
Collateral Compliance #N/A #N/A #N/A
Ending Invested % #N/A #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Transferred to Collection Account
(Aggregate Daily Collections)
B) Transfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A #N/A #N/A
C) Transfer to Company Collection
Subaccount (from A) #N/A
D) Transfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A #N/A #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
H) Transfer to Company
Collection Subaccount (from B) #N/A #N/A #N/A
I) Transfer to Company Collection
Subaccount (from F) -
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily)
J) Total Transfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A #N/A #N/A
-----------------------------------------------------------------------
TOTAL HELD AT TRUST #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
REPORT DATE
6-Mar-00 ACTIVITY DATE
- ----------------------------------------------------------------------------
Series 2000-1
------------------- Pool
Investor Interest Balance
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance #N/A
Plus: Gross Credit Sales #N/A
Plus: Inter-Co. Sales #N/A
Less: Inter-Co. Collections #N/A
Less: Collections #N/A
Less: Net Write-Offs #N/A
Less: Total Dilution Adjustments #N/A
Plus/Less: A/R Adjustments #N/A
Less: Repurchased Receivables #N/A
-----------
Ending Receivables Balance #N/A
#N/A
Less: Defaulted Receivables #N/A
Less: Total Ineligible Receivables #N/A
-----------
Total Eligible Receivables #N/A
Less: Overconcentration Amount #N/A
-----------
Aggregate Receivables Amount #N/A
#N/A
Invested Amount #N/A
Adjusted Invested Amount #N/A
Required Subordinated Amount #N/A
Target Receivables Amount #N/A
Allocated Receivables Amount #N/A #N/A
Collateral Compliance #N/A
Ending Invested % #N/A #N/A
- ----------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Transferred to Collection Account
(Aggregate Daily Collections) #N/A
B) Transfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A
C) Transfer to Company Collection
Subaccount (from A)
D) Transfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A
H) Transfer to Company
Collection Subaccount (from B) #N/A
I) Transfer to Company Collection
Subaccount (from F)
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily) -
---
J) Total Transfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A
-------------------------------------
Total Held at Trust #N/A #N/A
- ----------------------------------------------------------------------------
#N/A
</TABLE>
The undersigned, an Officer of Ingram Micro, as Master Servicer, certifies that
the information set forth above is true and correct and it has performed in all
material respects all of its obligations as Servicer under the Pooling and
Servicing Agreements required to be performed as of the date hereof.
Signature: Name: Title: Date:
- --------------------------------------------------------------------------------
1
<PAGE> 102
EXHIBIT E
TO
SERIES 2000-1 SUPPLEMENT
FORM OF MONTHLY SETTLEMENT REPORT
Attached.
E-1
<PAGE> 103
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00 Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(Non-Inter-Co.)
Beginning Gross Gross Credit Inter-Co. Inter-Co. (Non-Inter-Co.)
Receivable Balance Sales Sales Collections Collections Net Write-Offs
==================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Dilutative Items
----------------------
Defective Non-
Product Resellable
========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals : 0.00 0.00
</TABLE>
Index-> #N/A
2
<PAGE> 104
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
Dilutative Items
------------------------------------------------------------------ Total
Stock A/P Wrong Daily Credits Other Dilutative A/R
Balancing Adjustments Shipment In Other A/R Dilutive Adjustments Adjustments
==============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Ending
Repurchased Receivables
Receivables Balance
===========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
=====
Totals : 0.00
</TABLE>
Index-> #N/A
3
<PAGE> 105
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
DEFAULTED RECEIVABLES INELIGIBLE RECEIVABLES
------------------------------------------------------------------------------------------------
61-90 Days 91-120 Days 121+ Days Credits Over 60 35% Cross Aged Federal
Past Due Past Due Past Due Past Due >121 Days Government Inter-Company
------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
</TABLE>
<TABLE>
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------
Foreign Contra
Select Source Receivables Balances
-------------------------------------
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
4
<PAGE> 106
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------------------------------------------------------------------------------
Non Qualifying Customers with Trade Litigation & Unaplied Cash Accured
ChargeBacks DIP Obligor Terms > 90 Days Discounts Collection Adjustment Pricing Credits Other
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
</TABLE>
<TABLE>
<CAPTION>
Total Total
Ineligible Eligible
Receivables Receivables
--------------------------
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
5
<PAGE> 107
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(EARLY) AMORTIZATION PERIOD ONLY
----------------------------------------------
Repurchase Repurchase Overconcentration Aggregate
Overconcentration Obligation for Obligation for plus Ineligible Receivables
Amount Defaulted Receivables Ineligible Receivables Receivables Amount
========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00
Totals :
<CAPTION>
---------------
Series 1993-2
Invested Amount
===============
<S> <C>
1-Apr-00 -
2-Apr-00 -
3-Apr-00 -
4-Apr-00 -
5-Apr-00 -
6-Apr-00 -
7-Apr-00 -
8-Apr-00 -
9-Apr-00 -
10-Apr-00 -
11-Apr-00 -
12-Apr-00 -
13-Apr-00 -
14-Apr-00 -
15-Apr-00 -
16-Apr-00 -
17-Apr-00 -
18-Apr-00 -
19-Apr-00 -
20-Apr-00 -
21-Apr-00 -
22-Apr-00 -
23-Apr-00 -
24-Apr-00 -
25-Apr-00 -
26-Apr-00 -
27-Apr-00 -
28-Apr-00 -
29-Apr-00 -
30-Apr-00 -
1-May-00 -
2-May-00 -
3-May-00 -
4-May-00 -
</TABLE>
Index-> #N/A
6
<PAGE> 108
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-----------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Sub-Acct. Principal Invested Subordinated Required
Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 - - - #DIV/0! 0.00%
Sunday 2-Apr-00 - - - #DIV/0! 0.00%
Monday 3-Apr-00 - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 - - - #DIV/0! 0.00%
Thursday 6-Apr-00 - - - #DIV/0! 0.00%
Friday 7-Apr-00 - - - #DIV/0! 0.00%
Saturday 8-Apr-00 - - - #DIV/0! 0.00%
Sunday 9-Apr-00 - - - #DIV/0! 0.00%
Monday 10-Apr-00 - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 - - - #DIV/0! 0.00%
Thursday 13-Apr-00 - - - #DIV/0! 0.00%
Friday 14-Apr-00 - - - #DIV/0! 0.00%
Saturday 15-Apr-00 - - - #DIV/0! 0.00%
Sunday 16-Apr-00 - - - #DIV/0! 0.00%
Monday 17-Apr-00 - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 - - - #DIV/0! 0.00%
Thursday 20-Apr-00 - - - #DIV/0! 0.00%
Friday 21-Apr-00 - - - #DIV/0! 0.00%
Saturday 22-Apr-00 - - - #DIV/0! 0.00%
Sunday 23-Apr-00 - - - #DIV/0! 0.00%
Monday 24-Apr-00 - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 - - - #DIV/0! 0.00%
Thursday 27-Apr-00 - - - #DIV/0! 0.00%
Friday 28-Apr-00 - - - #DIV/0! 0.00%
Saturday 29-Apr-00 - - - #DIV/0! 0.00%
Sunday 30-Apr-00 - - - #DIV/0! 0.00%
Monday 1-May-00 - - - #DIV/0! 0.00%
Tuesday 2-May-00 - - - #DIV/0! 0.00%
Wednesday 3-May-00 - - - #DIV/0! 0.00%
Thursday 4-May-00 - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-------------------------------
Series 1993-2
Carrying Cost Servicing
Reserve % Reserve %
===============================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 0.00% 0.00%
Monday 1-May-00 0.00% 0.00%
Tuesday 2-May-00 0.00% 0.00%
Wednesday 3-May-00 0.00% 0.00%
Thursday 4-May-00 0.00% 0.00%
Totals:
</TABLE>
Index-> #N/A
7
<PAGE> 109
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-2 MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-2 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
-----------------------------------
Series 1994-2
Carrying Cost Servicing
Reserve % Reserve %
===================================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
8
<PAGE> 110
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-3 MEDIUM TERM NOTES
------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-3 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
==========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
<CAPTION>
---------------------------
Series 1994-3
Carrying Cost Servicing
Reserve % Reserve %
===========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
9
<PAGE> 111
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
----------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 2000-1 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
--------------------------
Carrying Cost Servicing
Reserve % Reserve %
=========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
10
<PAGE> 112
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 ESTIMATED ESTIMATED
Maximum 2000-1 Allocated Maximum 2000-1
Target Receivables Receivables Required Maximum 2000-1
Amount Amount Subordinated Amount Invested Amount
<S> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Totals :
<CAPTION>
MTN MTN MTN VFC
1993-2 1994-2 1994-3 2000-1
Invested Invested Invested Invested
% % % %
==========================================================
<S> <C> <C> <C> <C> <C>
31-Mar-00 0.00% 0.00% 0.00% 0.00%
1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Totals :
</TABLE>
Index-> #N/A
11
<PAGE> 113
Overconcentration
OVERCONCENTRATION GRID:
<TABLE>
<CAPTION>
SHORT-TERM LONG-TERM
<S> <C> <C>
A-1+,F-1+,P-1 AA-, AA-, AA3 15.00%
A-1,F-1,P-1 A+, A+, A1 15.00%
A-2,F-2,P-2 BBB+, BBB+, BAA1 7.50%
A-3,F-3,P-3 BBB-, BBB-, BAA3 5.00%
UNRATED UNRATED 3.00%
ELIGIBLE RECEIVABLES:
REPORT CHECK: 0.00
</TABLE>
REPORT DATE ACTIVITY DATE
6-Mar-00
S&P RATING DESK: (212) 438-2400
MOODY'S RATING DESK: (212) 553-0377
FITCH RATING DESK: (800) 853-4824 FAX: (307) 754-3721
(Total Eligible Receivables per Daily Statement - Cell F24)
<TABLE>
<CAPTION>
RATING ELIGIBLE CONCENTRATION EXCESS
CUSTOMER S&P/MOODY'S/FITCH A/R BALANCE % OF ELIGIBLES $ THRESHOLD % CONCENTRATION
--------------------------------------------- -------------- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 #DIV/0! - #DIV/0! -
2 #DIV/0! - #DIV/0! -
3 #DIV/0! - #DIV/0! -
4 #DIV/0! - #DIV/0! -
5 #DIV/0! - #DIV/0! -
6 #DIV/0! - #DIV/0! -
7 #DIV/0! - #DIV/0! -
8 #DIV/0! - #DIV/0! -
9 #DIV/0! - #DIV/0! -
10 #DIV/0! - #DIV/0! -
11 #DIV/0! - #DIV/0! -
12 #DIV/0! - #DIV/0! -
13 #DIV/0! - #DIV/0! -
14 #DIV/0! - #DIV/0! -
15 #DIV/0! - #DIV/0! -
16 #DIV/0! - #DIV/0! -
17 #DIV/0! - #DIV/0! -
18 #DIV/0! - #DIV/0! -
19 #DIV/0! - #DIV/0! -
20 #DIV/0! - #DIV/0! -
---
$ -
===
</TABLE>
12
<PAGE> 114
INGRAM MICRO MASTER TRUST
MONTHLY RESERVES
($ in thousands)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------
Aggregate
Principal Total Total Dollar Receivables
Non-I/C Amount of Dilutive A/R Weighted Amount Weighted
Sales Receivables Items Gross Written-Off Average (as of Mth end Ave.
Period Per Per Per A/R Prior Dilution on the daily Pay.
Ended Rollforward Rollforward Rollforward 91 - 120 to 91 Days Horizon statement) Terms
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0 0 0 0.00 - 0.0
Feb-97 0 0 0 0 0 0.00 - 0.0
Mar-97 0 0 0 0 0 0.00 - 0.0
Apr-97 0 0 0 0 0 0.00 - 0.0
May-97 0 0 0 0 0 0.00 - 0.0
Jun-97 0 0 0 0 0 0.00 - 0.0
Jul-97 0 0 0 0 0 0.00 - 0.0
Aug-97 0 0 0 0 0 0.00 - 0.0
Sep-97 0 0 0 0 0 0.00 - 0.0
Oct-97 0 0 0 0 0 0.00 - 0.0
Nov-97 0 0 0 0 0 0.00 - 0.0
Dec-97 0 0 0 0 0 0.00 - 0.0
Jan-98 0 0 0 0 0 0.00 - 0.0
Feb-98 0 0 0 0 0 0.00 - 0.0
Mar-98 0 0 0 0 0 0.00 - 0.0
Apr-98 0 0 0 0 0 0.00 - 0.0
May-98 0 0 0 0 0 0.00 - 0.0
Jun-98 0 0 0 0 0 0.00 - 0.0
Jul-98 0 0 0 0 0 0.00 - 0.0
Aug-98 0 0 0 0 0 0.00 - 0.0
Sep-98 0 0 0 0 0 0.00 - 0.0
Oct-98 0 0 0 0 0 0.00 - 0.0
Nov-98 0 0 0 0 0 0.00 - 0.0
Dec-98 0 0 0 0 0 0.00 - 0.0
Jan-99 0 0 0 0 0 0.00 - 0.0
Feb-99 0 0 0 0 0 0.00 - 0.0
Mar-99 0 0 0 0 0 0.00 - 0.0
Apr-99 0 0 0 0 0 0.00 - 0.0
May-99 0 0 0 0 0 0.00 - 0.0
Jun-99 0 0 0 0 0 0.00 - 0.0
Jul-99 0 0 0 0 0 0.00 - 0.0
Aug-99 0 0 0 0 0 0.00 - 0.0
Sep-99 0 0 0 0 0 0.00 - 0.0
Oct-99 0 0 0 0 0 0.00 - 0.0
Nov-99 0 0 0 0 0 0.00 - 0.0
Dec-99 0 0 0 0 0 0.00 - 0.0
Jan-00 0 0 0 0 0 0.00 - 0.0
Feb-00 0 0 0 0 0 0.00 - 0.0
Mar-00 0 0 0 0 0 0.00 - 0.0
Apr-00 0 0 0 0 0 0.00 - 0.0
<CAPTION>
Series Series Series Base
1993-2 1994-2 1994-3 Rate
Period Discount Discount Discount (Prime
Ended Rate Rate Rate Rate)
---------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97 6.61% 6.91% 7.17% 0.00%
Feb-97 6.61% 6.91% 7.17% 0.00%
Mar-97 6.61% 6.91% 7.17% 0.00%
Apr-97 6.61% 6.91% 7.17% 0.00%
May-97 6.61% 6.91% 7.17% 0.00%
Jun-97 6.61% 6.91% 7.17% 0.00%
Jul-97 6.61% 6.91% 7.17% 0.00%
Aug-97 6.61% 6.91% 7.17% 0.00%
Sep-97 6.61% 6.91% 7.17% 0.00%
Oct-97 6.61% 6.91% 7.17% 0.00%
Nov-97 6.61% 6.91% 7.17% 0.00%
Dec-97 6.61% 6.91% 7.17% 0.00%
Jan-98 6.61% 6.91% 7.17% 0.00%
Feb-98 6.61% 6.91% 7.17% 0.00%
Mar-98 6.61% 6.91% 7.17% 0.00%
Apr-98 6.61% 6.91% 7.17% 0.00%
May-98 6.61% 6.91% 7.17% 0.00%
Jun-98 6.61% 6.91% 7.17% 0.00%
Jul-98 6.61% 6.91% 7.17% 0.00%
Aug-98 6.61% 6.91% 7.17% 0.00%
Sep-98 6.61% 6.91% 7.17% 0.00%
Oct-98 6.61% 6.91% 7.17% 0.00%
Nov-98 6.61% 6.91% 7.17% 0.00%
Dec-98 6.61% 6.91% 7.17% 0.00%
Jan-99 6.61% 6.91% 7.17% 0.00%
Feb-99 6.61% 6.91% 7.17% 0.00%
Mar-99 6.61% 6.91% 7.17% 0.00%
Apr-99 6.61% 6.91% 7.17% 0.00%
May-99 6.61% 6.91% 7.17% 0.00%
Jun-99 6.61% 6.91% 7.17% 0.00%
Jul-99 6.61% 6.91% 7.17% 0.00%
Aug-99 6.61% 6.91% 7.17% 0.00%
Sep-99 6.61% 6.91% 7.17% 0.00%
Oct-99 6.61% 6.91% 7.17% 0.00%
Nov-99 6.61% 6.91% 7.17% 0.00%
Dec-99 6.61% 6.91% 7.17% 0.00%
Jan-00 6.61% 6.91% 7.17% 0.00%
Feb-00 6.61% 6.91% 7.17% 0.00%
Mar-00 6.61% 6.91% 7.17% 0.00%
Apr-00 6.61% 6.91% 7.17% 0.00%
</TABLE>
<PAGE> 115
<TABLE>
<CAPTION>
Three
Month Max.
Dilution Max. Average 12 Mth.
Servicing 12-month 12 Mth. Dilution Aged Aged Aged Payment
Period Fee Dilution Rolling Rolling Horizon Dilution A/R A/R A/R Terms
Ended Rate Ratio Average Avg. Factor Period Ratio Ratio Ratio Factor
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00%
Feb-97 0.00%
Mar-97 0.00% #DIV/0!
Apr-97 0.00% #DIV/0!
May-97 0.00% #DIV/0!
Jun-97 0.00% #DIV/0! #DIV/0!
Jul-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0!
Aug-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Sep-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Oct-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Nov-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Dec-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Jan-98 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Feb-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
<CAPTION>
Minimum
Payment Days
Period Terms Sales
Ended Factor Out
-----------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0!
Jun-97 #DIV/0!
Jul-97 #DIV/0!
Aug-97 #DIV/0!
Sep-97 #DIV/0!
Oct-97 #DIV/0!
Nov-97 #DIV/0!
Dec-97 #DIV/0!
Jan-98 #DIV/0!
Feb-98 0.00 #DIV/0!
Mar-98 0.00 #DIV/0!
Apr-98 0.00 #DIV/0!
May-98 0.00 #DIV/0!
Jun-98 0.00 #DIV/0!
Jul-98 0.00 #DIV/0!
Aug-98 0.00 #DIV/0!
Sep-98 0.00 #DIV/0!
Oct-98 0.00 #DIV/0!
Nov-98 0.00 #DIV/0!
Dec-98 0.00 #DIV/0!
Jan-99 0.00 #DIV/0!
Feb-99 0.00 #DIV/0!
Mar-99 0.00 #DIV/0!
Apr-99 0.00 #DIV/0!
May-99 0.00 #DIV/0!
Jun-99 0.00 #DIV/0!
Jul-99 0.00 #DIV/0!
Aug-99 0.00 #DIV/0!
Sep-99 0.00 #DIV/0!
Oct-99 0.00 #DIV/0!
Nov-99 0.00 #DIV/0!
Dec-99 0.00 #DIV/0!
Jan-00 0.00 #DIV/0!
Feb-00 0.00 #DIV/0!
Mar-00 0.00 #DIV/0!
Apr-00 0.00 #DIV/0!
</TABLE>
<PAGE> 116
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------------------
MAX
(a) (b) (c) (a+b) OR (c)
aa bb cc Max
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
-------------------------------------------------------
SERIES SERIES SERIES
1993-2 1994-2 1994-3
CARRYING CARRYING CARRYING
COST COST COST SERVICING
Period RESERVE RESERVE RESERVE FEE
Ended RATIO RATIO RATIO RATIO
-----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0! #DIV/0! #DIV/0!
May-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
<PAGE> 117
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
--------------------------------------------------------------------------------------------------------
(a) (b) (c) MAX
aa bb cc Max (a+b) OR (c)
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
------------------------------------
CARRYING
COST SERVICING
Period RESERVE FEE
Ended RATIO RATIO
- ------------------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0!
</TABLE>
<PAGE> 118
INGRAM MICRO
OVERCOLLATERALIZATION SUMMARY
- --------------------------------------------------------------------------------
($ in thousands)
ASSUMPTIONS:
AGING TYPE Due To Date
CREDIT MEMO LAG 30 30
DILUTION HORIZON 30 30
DEFAULT HORIZON 90 90
DEEMED DEFAULTS 91-120 91-120
FIRST PERIOD OF DATA JAN-97
RATING FACTOR 2.00=A 2
PROJECTED ADV. RATE 75%
The Company's method of aging its receivables.
Lag from the original invoice date to the credit memo date.
This represents the number of days of sales GE Capital/Redwood is exposed to
dilution. This is based on the maximum of how many days of sales are in our
borrowing or A/R turnover.
This represents the number of days of sales GE Capital/Redwood is lending on.
(i.e. If we are lending up to 90 days past invoice date, we would have 90 days
of sales in our borrowing base or 3 months).
Represents the next aging category outside of our borrowing base window (i.e. If
we are lending up to 90 days past invoice date, our deemed default would be the
91-120 aging category).
The beginning period of our historical data.
The rating factor is the stress factor used to underwrite a pool to a certain
credit level. (AAA = 2.5, AA=2.25, A=2.00, BBB=1.75).
Projected advance rate based on ((2 times dilution) plus 5%).
<TABLE>
<CAPTION>
0.00% Max O/C
4/SALES AVG. OF LAST PRIOR 3 7X8
5 MONTHS AGO 3 MOS OF #5 OF 1 XFACTOR
1 2 3 4 5 6 7 8 9
91-120 Monthly 3 Month Highest Prior Default Rating
Month Sales A/R Dilutions Bucket Def. Ratio Average 12 mos of #6 Horizon Factor
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - -
Feb-97 - - - -
Mar-97 - - - -
Apr-97 - - - -
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-98 - - - - #DIV/0! 0.00% 0.00% 0 0
May-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-99 - - - - #DIV/0! 0.00% 0.00% 0 0
May-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-99 - - - - #DIV/0! 0.00% 0.00% 0 0
<CAPTION>
3/1,1 SUM 12 MOS. PRIOR 1 HIGHEST PRIOR 4
MOS. AGO 10/TWELVE MOS. OF 1 11x12xFACT. TWELVE OF 10 14-11 14/11 12x15x16
10 11 12 13 14 15 16 17
Dilution 12 Month Avg Dilution Normal "Spike" Spike Less Spike Divided Spike
Month Percent Dil/Sales Horizon Dilution 12 Mos Avg 12 Month Avg Impact
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97 0.00%
Jun-97 0.00%
Jul-97 0.00%
Aug-97 0.00%
Sep-97 0.00%
Oct-97 0.00%
Nov-97 0.00%
Dec-97 0.00%
Jan-98 0.00%
Feb-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jan-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Feb-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
<CAPTION>
12x15x16 (13+17)/2 9/2 18+19
17 18 19 20 21
Spike Dilution Default Total GECC
Month Impact Coverage Coverage O/C LOC
-------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97
Jun-97
Jul-97
Aug-97
Sep-97
Oct-97
Nov-97
Dec-97
Jan-98
Feb-98 0 0.00% 0.00% 0.00% 0.00%
Mar-98 0 0.00% 0.00% 0.00% 0.00%
Apr-98 0 0.00% 0.00% 0.00% 0.00%
May-98 0 0.00% 0.00% 0.00% 0.00%
Jun-98 0 0.00% 0.00% 0.00% 0.00%
Jul-98 0 0.00% 0.00% 0.00% 0.00%
Aug-98 0 0.00% 0.00% 0.00% 0.00%
Sep-98 0 0.00% 0.00% 0.00% 0.00%
Oct-98 0 0.00% 0.00% 0.00% 0.00%
Nov-98 0 0.00% 0.00% 0.00% 0.00%
Dec-98 0 0.00% 0.00% 0.00% 0.00%
Jan-99 0 0.00% 0.00% 0.00% 0.00%
Feb-99 0 0.00% 0.00% 0.00% 0.00%
Mar-99 0 0.00% 0.00% 0.00% 0.00%
Apr-99 0 0.00% 0.00% 0.00% 0.00%
May-99 0 0.00% 0.00% 0.00% 0.00%
Jun-99 0 0.00% 0.00% 0.00% 0.00%
Jul-99 0 0.00% 0.00% 0.00% 0.00%
Aug-99 0 0.00% 0.00% 0.00% 0.00%
Sep-99 0 0.00% 0.00% 0.00% 0.00%
Oct-99 0 0.00% 0.00% 0.00% 0.00%
Nov-99 0 0.00% 0.00% 0.00% 0.00%
Dec-99 0 0.00% 0.00% 0.00% 0.00%
</TABLE>
1
<PAGE> 119
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
18
<PAGE> 120
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (SELECT SOURCE ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - -
Feb-97 - - - - - - - - -
Mar-97 - - - - - - - - -
Apr-97 - - - - - - - - -
May-97 - - - - - - - - -
Jun-97 - - - - - - - - -
Jul-97 - - - - - - - - -
Aug-97 - - - - - - - - -
Sep-97 - - - - - - - - -
Oct-97 - - - - - - - - -
Nov-97 - - - - - - - - -
Dec-97 - - - - - - - - -
Jan-98 - - - - - - - - -
Feb-98 - - - - - - - - -
Mar-98 - - - - - - - - -
Apr-98 - - - - - - - - -
May-98 - - - - - - - - -
Jun-98 - - - - - - - - -
Jul-98 - - - - - - - - -
Aug-98 - - - - - - - - -
Sep-98 - - - - - - - - -
Oct-98 - - - - - - - - -
Nov-98 - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - 0.0%
Jan-98 - - - - 28 - 0.0%
Feb-98 - - - - 28 - 0.0%
Mar-98 - - - - 35 - 0.0%
Apr-98 - - - - 28 - 0.0%
May-98 - - - - 28 - 0.0%
Jun-98 - - - - 35 - 0.0%
Jul-98 - - - - 28 - 0.0%
Aug-98 - - - - 28 - 0.0%
Sep-98 - - - - 35 - 0.0%
Oct-98 - - - - 28 - 0.0%
Nov-98 - - - - 28 - 0.0%
Dec-98 - - - - 35 - 0.0%
Jan-99 - - - - 28 - 0.0%
Feb-99 - - - - 28 - 0.0%
Mar-99 - - - - 35 - 0.0%
Apr-99 - - - - 28 - 0.0%
May-99 - - - - 28 - 0.0%
Jun-99 - - - - 35 - 0.0%
Jul-99 - - - - 28 - 0.0%
Aug-99 - - - - 28 - 0.0%
Sep-99 - - - - 35 - 0.0%
Oct-99 - - - - 28 - 0.0%
Nov-99 - - - - 28 - 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
19
<PAGE> 121
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
20
<PAGE> 122
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST
(NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
21
<PAGE> 123
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST (SELECT SOURCE
ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date 13,196 12,649
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
22
<PAGE> 124
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL CHECK S/B=0
------ ---- ----- ----- ------ ---- ----- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
23
<PAGE> 125
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0.0% 0.0
Feb-97 0 0 0.0% 0.0
Mar-97 0 0 0.0% 0.0
Apr-97 0 0 0.0% 0.0
May-97 0 0 0.0% 0.0
Jun-97 0 0 0.0% 0.0% 0.0 -
Jul-97 0 0 0.0% 0.0% 0.0 -
Aug-97 0 0 0.0% 0.0% 0.0 -
Sep-97 0 0 0.0% 0.0% 0.0 -
Oct-97 0 0 0.0% 0.0% 0.0 -
Nov-97 0 0 0.0% 0.0% 0.0 -
Dec-97 0 0 0.0% 0.0% 0.0 -
Jan-98 0 0 0.0% 0.0% 0.0 -
Feb-98 0 0 0.0% 0.0% 0.0 -
Mar-98 0 0 0.0% 0.0% 0.0 -
Apr-98 0 0 0.0% 0.0% 0.0 -
May-98 0 0 0.0% 0.0% 0.0 -
Jun-98 0 0 0.0% 0.0% 0.0 -
Jul-98 0 0 0.0% 0.0% 0.0 -
Aug-98 0 0 0.0% 0.0% 0.0 -
Sep-98 0 0 0.0% 0.0% 0.0 -
Oct-98 0 0 0.0% 0.0% 0.0 -
Nov-98 0 0 0.0% 0.0% 0.0 -
Dec-98 0 0 0.0% 0.0% 0.0 -
Jan-99 0 0 0.0% 0.0% 0.0 -
Feb-99 0 0 0.0% 0.0% 0.0 -
Mar-99 0 0 0.0% 0.0% 0.0 -
Apr-99 0 0 0.0% 0.0% 0.0 -
May-99 0 0 0.0% 0.0% 0.0 -
Jun-99 0 0 0.0% 0.0% 0.0 -
Jul-99 0 0 0.0% 0.0% 0.0 -
Aug-99 0 0 0.0% 0.0% 0.0 -
Sep-99 0 0 0.0% 0.0% 0.0 -
Oct-99 0 0 0.0% 0.0% 0.0 -
Nov-99 0 0 0.0% 0.0% 0.0 -
Dec-99 0 0 0.0% 0.0% OK 0.0 - OK
Jan-00 0 0 0.0% 0.0% OK 0.0 - OK
Feb-00 0 0 0.0% 0.0% OK 0.0 - OK
CALCULATION
High 0.0% -
Low 0.0% -
Average 0.0% -
STD Deviation 0.0% -
High + 1 std deviations 0.0% -
<CAPTION>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - #DIV/0!
Feb-97 - - - - #DIV/0!
Mar-97 - - - - #DIV/0!
Apr-97 - - - - #DIV/0!
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.0%
Jul-97 - - - - #DIV/0! 0.0%
Aug-97 - - - - #DIV/0! 0.0%
Sep-97 - - - - #DIV/0! 0.0%
Oct-97 - - - - #DIV/0! 0.0%
Nov-97 - - - - #DIV/0! 0.0%
Dec-97 - - - - #DIV/0! 0.0%
Jan-98 - - - - #DIV/0! 0.0%
Feb-98 - - - - #DIV/0! 0.0%
Mar-98 - - - - #DIV/0! 0.0%
Apr-98 - - - - #DIV/0! 0.0%
May-98 - - - - #DIV/0! 0.0%
Jun-98 - - - - #DIV/0! 0.0%
Jul-98 - - - - #DIV/0! 0.0%
Aug-98 - - - - #DIV/0! 0.0%
Sep-98 - - - - #DIV/0! 0.0%
Oct-98 - - - - #DIV/0! 0.0%
Nov-98 - - - - #DIV/0! 0.0%
Dec-98 - - - - #DIV/0! 0.0%
Jan-99 - - - - #DIV/0! 0.0%
Feb-99 - - - - #DIV/0! 0.0%
Mar-99 - - - - #DIV/0! 0.0%
Apr-99 - - - - #DIV/0! 0.0%
May-99 - - - - #DIV/0! 0.0%
Jun-99 - - - - #DIV/0! 0.0%
Jul-99 - - - - #DIV/0! 0.0%
Aug-99 - - - - #DIV/0! 0.0%
Sep-99 - - - - #DIV/0! 0.0%
Oct-99 - - - - #DIV/0! 0.0%
Nov-99 - - - - #DIV/0! 0.0%
Dec-99 - - - - #DIV/0! 0.0% OK
Jan-00 - - - - #DIV/0! 0.0% OK
Feb-00 - - - - #DIV/0! 0.0% OK
CALCULATION
High 0.0%
Low 0.0%
Average 0.0%
STD Deviation 0.0%
High + 1 std deviations 0.0%
</TABLE>
24
<PAGE> 126
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
25
<PAGE> 127
EXHIBIT F
TO
SERIES 2000-1 SUPPLEMENT
FORM OF ISSUANCE/INCREASE NOTICE
_______ ,20__
THE CHASE MANHATTAN BANK
[450 West 33rd Street, 14th Floor
New York, New York 10001]
Telecopier: (212) 946-8302
Attention: Capital Markets Fiduciary Services-Ingram Funding
Master Trust
Ladies and Gentlemen:
Reference is hereby made to the Series 2000-1 Supplement, dated as of
March 8, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "Supplement"), among Ingram Funding Inc. (the "Company"),
Ingram Micro Inc. as Master Servicer (in such capacity, the "Master Servicer"),
General Electric Capital Corporation, as agent (the "Agent"), Redwood
Receivables Corporation, as the initial purchaser (the "Initial Purchaser"), the
financial institutions from time to time party thereto, as liquidity banks and
The Chase Manhattan Bank, as Trustee. Capitalized terms used in this Notice and
not otherwise defined herein shall have the meanings assigned thereto in the
Supplement.
This Notice constitutes the notice required in connection with [the
initial issuance] [an Increase] pursuant to Section 2.05(a) of the Supplement.
The [Master Servicer] [Company] hereby requests [a purchase in respect
of the initial issuance of the VFC Certificate] [an Increase] be made by the
Purchasers on _________, _____ in the aggregate amount of $_______.
The [Master Service] [Company] hereby represents and warrants, as of
the date of such [initial issuance] [Increase] after giving effect thereto, that
the conditions set forth in Section 2.05 of the Supplement with respect to such
[initial issuance] [Increase] have been satisfied.
F-1
<PAGE> 128
IN WITNESS WHEREOF, the undersigned has caused this Notice to be
executed by its duly authorized officer as of the date first above written.
[INGRAM MICRO INC., as Master
Servicer] [INGRAM FUNDING INC.]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
F-2
<PAGE> 129
SCHEDULE 1
TO
SERIES 2000-1 SUPPLEMENT
COMMITMENTS
Redwood Receivables Corporation $700,000,000
<PAGE> 130
SCHEDULE 2
TO
SERIES 2000-1 SUPPLEMENT
TRUST ACCOUNTS
<TABLE>
<CAPTION>
DDA # Account Name
----- ------------
<S> <C>
507-893867 Ingram Series 2000-1 Coll Subaccount
507-893875 Ingram Ser 2000-1 Princ Coll Sub-Sub A/C
507-893883 Ingram Ser 2000-1 NonPrin Coll Sb-sb A/C
507-893905 Ingram Ser 2000-1 Acc Int Sub-Sub A/C
</TABLE>
<PAGE> 1
EXHIBIT 10.60
EXECUTION COPY
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED SERIES 1994-2 SUPPLEMENT
Dated as of March 8, 2000
to
AMENDED AND RESTATED
POOLING AGREEMENT
Dated as of March 8, 2000
Among
INGRAM FUNDING INC.,
INGRAM MICRO INC.,
as Master Servicer
and
THE CHASE MANHATTAN BANK,
as Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Definitions........................................................2
SECTION 1.01. Definitions...............................................2
ARTICLE II Designation of Term Certificates; Purchase and Sale
of the Term Certificates.........................................12
SECTION 2.01. Designation..............................................12
SECTION 2.02. The Term Certificates and Series 1994-2
Subordinated Interest....................................13
SECTION 2.03. Delivery.................................................13
SECTION 2.04. Restrictions on Transfer.................................13
SECTION 2.05. Representations of the Purchasers........................14
SECTION 2.06. Application of Proceeds..................................16
SECTION 2.07. Sale of Additional Term Certificates.....................16
ARTICLE III Article III of the Agreement....................................17
SECTION 3.01. Establishment of Trust Accounts..........................17
SECTION 3.02. Daily Allocations........................................18
SECTION 3.03. Determination of Interest................................20
SECTION 3.04. Determination of Series 1994-2 Principal.................21
SECTION 3.05. Applications.............................................21
SECTION 3.06. Make-Whole Amount........................................23
ARTICLE IV Distributions and Reports........................................24
SECTION 4.01. Distributions............................................24
SECTION 4.02. Statements and Notices...................................25
SECTION 4.03. Notices..................................................27
SECTION 4.04. Audit and Inspection Rights..............................27
ARTICLE V Additional Early Amortization Events..............................28
SECTION 5.01. Additional Early Amortization Events.....................28
ARTICLE VI Servicing Fee....................................................31
SECTION 6.01. Servicing Compensation...................................31
ARTICLE VII Covenants, Representations and Warranties.......................31
SECTION 7.01. Representations and Warranties of the Company
and the Master Servicer..................................31
</TABLE>
i
<PAGE> 3
SECTION 7.02. Covenants of the Company and the Master Servicer.........32
SECTION 7.03. Negative Covenant of the Company; Covenants of the
Master Servicer..........................................32
ARTICLE VIII Miscellaneous..................................................32
SECTION 8.01. Ratification of Agreement................................32
SECTION 8.02. Governing Law............................................33
SECTION 8.03. Further Assurances.......................................33
SECTION 8.04. No Waiver; Cumulative Remedies...........................33
SECTION 8.05. Amendments...............................................33
SECTION 8.06. Notices..................................................34
SECTION 8.07. Counterparts.............................................34
SECTION 8.08. No Bankruptcy Petition...................................34
SECTION 8.09. Limitation on Addition and Termination of Sellers........35
SECTION 8.10. Certificateholder List...................................36
SECTION 8.11. Late Charge..............................................36
SECTION 8.12. Final Payment; Surrender of Certificates.................36
SECTION 8.13. Rights of the Trustee....................................37
SECTION 8.14. Waiver of Past Defaults..................................37
SECTION 8.15. Amendment of Policies....................................37
ARTICLE IX Final Distributions..............................................38
SECTION 9.01. Certain Distributions....................................38
EXHIBITS
Exhibit A Form of Class A Certificate, Series 1994-2
Exhibit B Form of Daily Report
Exhibit C Form of Monthly Settlement Statement
Exhibit D Form of Purchaser Letter
SCHEDULES
Schedule 1 Trust Accounts
ii
<PAGE> 4
AMENDED AND RESTATED SERIES 1994-2 SUPPLEMENT dated as of March 8, 2000
(this "Supplement"), among INGRAM FUNDING, INC., a Delaware corporation (the
"Company"), INGRAM MICRO INC., a Delaware corporation, as Master Servicer (the
"Master Servicer") and THE CHASE MANHATTAN BANK, a New York banking corporation,
as trustee (together with its successors in such capacity, the "Trustee") under
the Agreement.
W I T N E S S E T H :
WHEREAS, on March 24, 1994 the Company, the predecessor to the Master
Servicer and the Trustee entered into that certain Series 1994-2 Supplement to
the Ingram Funding Master Trust Pooling and Servicing Agreement dated as of
February 12, 1993 (the Series 1994-2 Supplement as amended to date, the
"Existing 1994-2 Supplement" and the Ingram Funding Master Trust Pooling and
Servicing Agreement as amended to date, the "Existing Pooling Agreement");
WHEREAS, the parties hereto have entered into the Amended and Restated
Pooling Agreement, dated as of March 8, 2000 which amends and restates the
Existing Pooling Agreement (the "Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
1994-2 Supplement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
General
From and after the date hereof the terms of this amended and restated
1994-2 Supplement shall be effective with respect to the various certificates
issued under the Existing 1994-2 Supplement. As a part of the amendments made
hereby, the names of such certificates are also being amended as follows.
The Certificates referred to under the Existing 1994-2 Supplement as:
"6.91% Asset-Backed Certificates, Series 1994-2, Class A" shall
henceforth be named "Class A Certificates, Series 1994-2" and shall be
in the form of Exhibit A to this Supplement.
Upon return of the existing certificates referred to above, the Trustee
shall authenticate and deliver replacement certificates in the corresponding
form to each holder of such existing certificates, or their nominee as
designated in writing to the Trustee.
<PAGE> 5
ARTICLE I
Definitions
SECTION 1.01. Definitions.
(a) The following words and phrases shall have the following meanings
with respect to Series 1994-2 and the definitions of such terms are applicable
to the singular as well as the plural form of such terms and to the masculine as
well as the feminine and neuter genders of such terms:
"Accrual Period" shall mean, with respect to Series 1994-2, the period
from and including a Payment Date to but excluding the succeeding Payment Date.
"Accrued Expense Amount" shall mean, for each Business Day during an
Accrual Period, the sum of (a) the Series 1994-2 Daily Interest Expense
determined as of such Business Day, (b) in the case of each of the first ten
Business Days in the Accrual Period, one-tenth of the Series 1994-2 Monthly
Servicing Fee (up to the amount thereof due and payable on the succeeding
Payment Date, and (c) all Program Costs that have accrued since the preceding
Business Day.
"Aged Receivables Ratio" shall mean, as of the last day of each
Settlement Period and calculated as provided in Section 1.01(f), the percentage
equivalent of a fraction, the numerator of which shall be the sum of (a) the
aggregate unpaid balance of Receivables originated by the Seller that were 91 to
120 days past due and (b) the aggregate amount of Charged-Off Receivables of the
Seller that were charged off as uncollectible prior to the day that is 91 days
after its original due date during such Settlement Period, and the denominator
of which shall be the aggregate Principal Amount of Receivables originated by
the Seller during the fourth prior Settlement Period.
"Aggregate Commitment Amount" shall have the meaning set forth in
Section 1.01 of the Series 2000-1 Supplement.
"Applicable Early Amortization Event" shall have the meaning set forth
in Section 3.06.
"Call Date" shall mean the first Payment Date following the commencement
of the Series 1994-2 Amortization Period which results from an Applicable Early
Amortization Event and on which principal is payable on the Class A
Certificates.
"Carrying Cost Reserve Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) equal to (a) the product of (i) 2.0 times
Days Sales Outstanding as of such day and (ii) 1.50 times the Discount Rate as
of such day, divided by (b) 360.
"Change in Control" shall mean the occurrence of any event the result of
which causes the Company not to be a direct or indirect, wholly owned Subsidiary
of Ingram Micro Inc.
2
<PAGE> 6
"Chase's Prime Rate" shall mean the rate per annum announced by Chase
from time to time as its prime rate in effect at its principal office on a
365/66 day basis; each change in Chase's Prime Rate shall be effective on the
date such change is announced to become effective.
"Class A Additional Interest" shall have the meaning assigned in
subsection 3.03(b).
"Class A Adjusted Invested Amount" shall mean, on any date of
determination, the Class A Invested Amount minus the amount on deposit in the
Series 1994-2 Principal Collection Sub-subaccount up to a maximum of the Class A
Invested Amount.
"Class A Certificate" shall mean a Class A Certificate, Series 1994-2,
executed by the Company and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A.
"Class A Certificateholder" shall mean each holder of a Class A
Certificate.
"Class A Certificate Rate" shall mean 6.91% per annum.
"Class A Initial Invested Amount" shall mean $25,000,000.
"Class A Interest Shortfall" shall have the meaning assigned in
subsection 3.03(b).
"Class A Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (i) the Class A Initial Invested Amount minus
(ii) the aggregate amount of distributions to the Class A Certificateholders
(including the holders of any such subsequently issued Class A Certificates)
made in respect of principal on or prior to such date minus (iii) the aggregate
Series 1994-2 Allocable Charged-Off Amount applied to the Class A Certificates
on or prior to such date pursuant to subsection 3.04(b)(iv) plus (iv) (but only
to the extent of any unreimbursed reductions made pursuant to clause (iii)
above) the aggregate Series 1994-2 Allocable Recoveries Amount applied to the
Class A Certificates on or prior to such date pursuant to subsection 3.04
(c)(i).
"Class A Monthly Interest" shall have the meaning assigned in subsection
3.03(a).
"Class A Ratio" shall mean, on any date of determination with respect to
the Class A Certificates, the greater of (i) the sum of the Loss Reserve Ratio
and the Dilution Reserve Ratio and (ii) the Minimum Ratio, in each case
applicable to Class A Certificates.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Daily Report" shall mean a report prepared by the Master Servicer on
each Business Day for the period specified therein, in substantially the form of
Exhibit B.
"Days Sales Outstanding" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, the
number of days equal to the product of (i) 91 and (ii) the amount obtained by
dividing (A) the aggregate Principal
3
<PAGE> 7
Amount of Eligible Receivables as at the last day of the Settlement Period
immediately preceding such earlier Settlement Report Date, by (B) the aggregate
Principal Amount of Receivables generated by the Sellers for the three
Settlement Periods immediately preceding such earlier Settlement Report Date.
"Dilution Horizon" shall mean the number of days from the invoicing of a
Receivable until a Dilution Adjustment with respect to such Receivable is issued
by the Seller or the Seller receives notice that a Dilution Adjustment will have
to be issued in respect of such Receivable.
"Dilution Horizon Factor" shall mean for the period beginning on the
Effective Date through and until the sixth Settlement Report Date to occur
thereafter, 1.28 and for any six-month period thereafter (beginning and ending
on a Settlement Report Date), a fraction, the numerator of which is the dollar
weighted average Dilution Horizon of the Sellers (based upon the Dilution
Adjustment of the selected Receivables) for such period (which shall be
calculated by the Master Servicer, in accordance with its past procedures for
such calculations, selecting a random sample of approximately 1000 Dilution
Adjustment memos from the Seller created during such period and determining the
dollar weighted average Dilution Horizon therefrom) and the denominator of which
is 30.
"Dilution Period" shall mean as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date), the
quotient of (i) the product of (A) the aggregate Principal Amount of Receivables
that were originated by the Seller during the Settlement Period preceding such
earlier Settlement Report Date and (B) the Dilution Horizon Factor and (ii) the
Aggregate Receivables Amount as of the last day of the Settlement Period
preceding such earlier Settlement Report Date.
"Dilution Ratio" shall mean, as of the last day of each Settlement
Period, an amount (expressed as a percentage) equal to the aggregate amount of
Dilution Adjustments made during such Settlement Period divided by the aggregate
Principal Amount of Receivables that were originated by the Seller during the
immediately preceding Settlement Period.
"Dilution Reserve Ratio" shall mean, as of any Settlement Report Date
and calculated as provided in Section 1.01(f) and continuing until (but not
including) the next Settlement Report Date, an amount (expressed as a
percentage) that is calculated as follows:
DRR = [(c * d) + [(e-d) * (e/d)]] * f
Where:
DRR = Dilution Reserve Ratio;
c = 2.5;
d = the twelve-month rolling average of the Dilution Ratio that
occurred during the period of twelve consecutive Settlement
Periods ending immediately prior to such earlier Settlement
Report Date;
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<PAGE> 8
e = the highest Dilution Ratio that occurred during the period of
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date; and
f = the Dilution Period.
"Discount Rate" shall mean, as of any date of determination, the sum of
(a) the Class A Certificate Rate in effect with respect to the outstanding Class
A Certificates and (b) an amount equal to (i) the aggregate amount of fees
(other than the Servicing Fee and Program Costs) accrued with respect to the
outstanding Term Certificates during the Settlement Period immediately preceding
the most recent Settlement Report Date divided by (ii) the average daily Series
1994-2 Invested Amount during such Settlement Period.
"Discounted Value" shall mean, with respect to any Class A Certificate,
the amount obtained by discounting all Remaining Scheduled Payments with respect
to such Class A Certificate from their respective scheduled due dates (assuming
that the scheduled due date of the principal amount of such Class A Certificate
is the Scheduled Payment Date) to the Call Date, in accordance with accepted
financial practice and at a discount factor (applied on the same periodic basis
as that on which interest on the Class A Certificates is payable) equal to the
Reinvestment Yield.
"Early Amortization Event" shall have the meanings assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"Early Amortization Period" shall have the meaning assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"ERISA Entity" shall mean (i) an "employee benefit plan" within the
meaning of Section 3(3) of ERISA or other retirement arrangement, individual
retirement account or Keogh plan, whether or not it is subject to the provisions
of Title I thereto,(ii)any plan described in Section 4975 (e)(1) of the Code or
(iii) any other entity that would be deemed to be a "benefit plan investor"
within the meaning of Department of Labor Regulation Section 2510.3-101(f)(2).
"Excess Program Costs" shall have the meaning assigned to such term
within the definition of "Program Costs".
"Foreign Investor" means any Term Certificateholder who is not a "United
States person".
"Initial Purchaser" shall have the meaning set forth in Section 4.04.
"Institutional Accredited Investor" shall mean an institutional
accredited investor, within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Issuance Date" shall mean March 24, 1994.
"Late Charge" shall have the meaning assigned in Section 8.11.
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<PAGE> 9
"Loss Reserve Ratio" shall mean, as of any Settlement Report Date and
calculated as provided in Section 1.01(f) and continuing until (but not
including) the next Settlement Report Date, an amount (expressed as a
percentage) that is calculated as follows:
LRR = [(a * b)/c] * d * e
Where:
LRR = Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables originated by the
Seller during the three Settlement Periods immediately preceding
such earlier Settlement Report Date;
b = the highest three-month rolling average of the Aged Receivables
Ratio that occurred during the period of twelve consecutive
Settlement Periods ending prior to such earlier Settlement Report
Date;
c = the Aggregate Receivables Amount as of the last day of the
Settlement Period preceding such earlier Settlement Report Date;
d = 2.5; and
e = Payment Terms Factor.
"Majority Term Certificateholders" shall mean, on any day, Term
Certificateholders having, in the aggregate, more than 50% of the Series 1994-2
Invested Amount.
"Minimum Ratio" shall mean as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) equal to the greater of:
(a) (a*b) + c
Where:
a = the average of the Dilution Ratios during the period of the
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date;
b = the Dilution Period; and
c = 15%;
and
(b) 25%.
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<PAGE> 10
"Payment Date" shall mean (i) during the Series 1994-2 Revolving Period,
the 15th day of each March, June, September and December (or if such day is not
a Business Day, the next succeeding Business Day) or (ii) during the Series
1994-2 Amortization Period, the 15th day of each month (or if such day is not a
Business Day, the next succeeding Business Day).
"Payment Terms Factor" shall mean (a) for the period from the date
hereof until the third Settlement Report Date to occur thereafter, 0.89 and (b)
for each three-month period to occur after such initial period, a fraction, the
numerator of which is the sum of (i) the weighted average payment terms (based
upon the Principal Amount of the Receivables and expressed as a number of days)
for the Receivables originated during such period and (ii) 60 and the
denominator of which is 90; provided, however, that if the Payment Terms Factor
for any period is less than the Payment Terms Factor for the immediately
preceding period, then the actual Payment Terms Factor for such current period
shall be recalculated to equal a fraction, the numerator of which is equal to
the average of the numerators used to calculate the Payment Terms Factor for
such current period and the three immediately preceding periods and the
denominator of which is 90.
"Program Costs" shall mean, for any Business Day, the sum of (i) the
product of (A) all unpaid fees and expenses due and payable to counsel to, and
independent auditors of, the Company (other than fees and expenses payable on or
in connection with the closing of the issuance of any Term Certificates) on such
Business Day and (B) a fraction, the numerator of which is the Series 1994-2
Invested Amount on such Business Day and the denominator of which is the sum of
(1) the Aggregate Commitment Amount (as defined in the Supplement for Series
2000-1) on such Business Day and (2) the Invested Amounts with respect to all
other Series then Outstanding (excluding Series 2000-1, and (ii) all unpaid fees
and expenses due and payable to Rating Agencies rating the Term Certificates;
provided, however, that Program Costs shall not exceed $100,000 in the aggregate
in any fiscal year of the Master Servicer (any amount of the foregoing expenses,
indemnities and fees in excess of $100,000 shall be referred to herein as
"Excess Program Costs").
"Purchase Termination Event" shall have the meaning assigned in Section
7.01 of the Receivables Sale Agreement.
"Purchaser" means a holder of a certificate issued pursuant to the
Existing 1994-2 Supplement that is surrendering such certificate as
consideration for the issuance of a Class A Certificate Series 1994-2 of like
tenor and coupon.
"Qualified Institutional Buyer" has the meaning ascribed to such term in
Rule 144A(a) under the Securities Act.
"Rating Agency" shall mean the collective reference to S&P and Fitch
IBCA.
"Record Date" shall mean, with respect to the initial Payment Date, the
Business Day immediately preceding such Payment Date and, with respect to any
other Payment Date, the last Business Day of the immediately preceding
Settlement Period.
"Reinvestment Yield" shall mean, with respect to any Class A
Certificate, the Spread Amount, if any, plus the yield to maturity implied by
(i) the yields reported, as of 10 a.m.
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<PAGE> 11
(New York City time) on the Business Day next following the date on which the
Master Servicer has actual knowledge of the declaration of an Applicable Early
Amortization Event (the "Make-Whole Calculation Date"), on the display
designated as "Page 678" on the Telerate Service (or such other display as may
replace Page 678 on the Telerate Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of such Class A
Certificate as of such Make-Whole Calculation Date, or if such yields shall not
be reported as of such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury constant Maturity Series yields reported, for
the latest day for which such yields shall have been so reported as of such
Make-Whole Calculation Date, in Federal Reserve Statistical Release H.15(519)
(or any comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life of
such Class A Certificate, as of such Make-Whole Calculation Date. Such implied
yield shall be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported for various
maturities.
"Remaining Average Life" shall mean, with respect to any Class A
Certificate, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) the Invested Amount for such Class A Certificate into
(ii) the product obtaining by multiplying (a) the Invested Amount (but not
interest thereon) by (b) the number of years (calculated to the nearest
one-twelfth year) which will elapse between the Call Date and the Scheduled
Payment Date.
"Remaining Scheduled Payments" shall mean, with respect to any Class A
Certificate, all payments of principal and interest thereon that would be due on
or after the Call Date if no payment of principal on such Class A Certificate
were made prior to the Scheduled Payment Date.
"Scheduled Payment Date" shall mean, with respect to any Class A
Certificate, the first Payment Date following the Scheduled Revolving
Termination Date.
"Scheduled Revolving Termination Date" shall mean February 1, 2001.
"Seller Addition Date" shall have the meaning assigned in Section 3.05
of the Receivables Sale Agreement.
"Series 1994-2" shall mean the Series of Investor Certificates and
Subordinated Company Interest, the Principal Terms of which are set forth in
this Supplement.
"Series 1994-2 Accrued Interest Sub-subaccount" shall have the meaning
assigned in subsection 3.01(a).
"Series 1994-2 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 1994-2 Invested Amount on such date, minus (ii)
the amount on deposit in the Series 1994-2 Principal Collection Sub-subaccount
in excess of amounts then payable from such account under Sections 3.05(c)(i)
and (ii) on such date.
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<PAGE> 12
"Series 1994-2 Allocable Charged-Off Amount" shall mean, with respect to
any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, that has been allocated to Series 1994-2.
"Series 1994-2 Allocable Recoveries Amount" shall mean, with respect to
any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, that has been allocated to Series 1994-2.
"Series 1994-2 Allocated Receivables Amount" shall mean, on any date of
determination, the lower of (i) the Series 1994-2 Target Receivables Amount on
such day and (ii) the Aggregate Receivables Amount on such day times the
percentage equivalent of a fraction the numerator of which is the Series 1994-2
Target Receivables Amount on such day and the denominator of which is the
Aggregate Target Receivables Amount on such day.
"Series 1994-2 Amortization Period" shall mean the period commencing on
the next Business Day following the earliest to occur of (i) the date on which
an Early Amortization Period is declared to commence or automatically commences
and (ii) the Scheduled Revolving Termination Date and ending on the earlier of
(a) the date when the Series 1994-2 Invested Amount shall have been reduced to
zero and all accrued interest on the Term Certificates shall have been paid and
(b) the Series 1994-2 Termination Date.
"Series 1994-2 Collections" shall mean, with respect to any Business
Day, an amount equal to the product of (i) the Series 1994-2 Invested Percentage
on such Business Day and (ii) Aggregate Daily Collections.
"Series 1994-2 Collection Subaccount" shall have the meaning assigned in
subsection 3.01(a).
"Series 1994-2 Daily Interest Expense" shall mean, for any Business Day
during any Accrual Period, the sum of (a) in the case of each of the first ten
Business Days in the Accrual Period, one-tenth of the Series 1994-2 Monthly
Interest to be distributed on the next succeeding Payment Date (up to but not
exceeding the full amount thereof), (b) the aggregate amount of all previously
accrued and unpaid Series 1994-2 Daily Interest Expense (up to but not exceeding
the full amount thereof) and (c) the aggregate amount of all accrued and unpaid
Class A Additional Interest (up to but not exceeding the full amount thereof).
"Series 1994-2 Initial Invested Amount" shall mean the Class A Initial
Invested Amount.
"Series 1994-2 Invested Amount" shall mean the Class A Invested Amount.
"Series 1994-2 Invested Percentage" shall mean, with respect to any
Business Day (i) during the Series 1994-2 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 1994-2 Allocated
Receivables Amount as of the end of the immediately preceding Business Day and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined and (ii) during the
Series
9
<PAGE> 13
1994-2 Amortization Period, the percentage equivalent of a fraction, the
numerator of which is the Series 1994-2 Allocated Receivables Amount as of the
end of the last Business Day of the Series 1994-2 Revolving Period (provided
that if during the Series 1994-2 Amortization Period, the Amortization Periods
of all other Outstanding Series which were outstanding prior to the commencement
of the Series 1994-2 Amortization Period commence, then, from and after the date
the last of such Series commences its Amortization Period, the numerator shall
be the Series 1994-2 Allocated Receivables Amount on such date) and the
denominator of which is the greater of (A) the Aggregate Receivables Amount as
of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined.
"Series 1994-2 Monthly Interest" shall mean the Class A Monthly
Interest.
"Series 1994-2 Monthly Principal Payment" shall have the meaning
assigned in Section 3.04.
"Series 1994-2 Monthly Servicing Fee" shall have the meaning assigned in
Section 6.01.
"Series 1994-2 Non-Principal Collection Sub-subaccount" shall have the
meaning assigned in subsection 3.01(a).
"Series 1994-2 Principal Collection Sub-subaccount" shall have the
meaning assigned in subsection 3.01(a).
"Series 1994-2 Required Subordinated Amount" shall mean, (a) on any date
of determination during the Series 1994-2 Revolving Period, an amount equal to
the sum of:
(i) an amount equal to the product of (x) the Class A Adjusted Invested
Amount on such day and (y) a fraction, the numerator of which is the
Class A Ratio and the denominator of which is one minus the Class A
Ratio;
(ii) the product of (A) the Series 1994-2 Invested Amount on such day
and (B) a fraction, the numerator of which is the Carrying Cost Reserve
Ratio and the denominator of which is one minus the Class A Ratio; and
(iii) the product of (A) the Principal Amount of Receivables in the
Trust on such day, (B) a fraction, the numerator of which is the Series
1994-2 Adjusted Invested Amount and the denominator of which is the sum
of (1) the Series 2000-1 Aggregate Commitment Amount and (2) the sum of
the Series 1994-2 Invested Amount and the Invested Amounts for all other
Series then outstanding (excluding Series 2000-1 on such day and (C) a
fraction, the numerator of which is the Servicing Reserve Ratio and the
denominator of which is one minus the Class A Ratio.
and (b) on any date of determination during the Series 1994-2 Amortization
Period, an amount equal to the Series 1994-2 Required Subordinated Amount on the
last Business Day of the Series 1994-2 Revolving Period; provided that such
amount shall be adjusted on each Special
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<PAGE> 14
Allocation Settlement Report Date, if any, as set forth in Section 3.04(b)(i)
and Section 3.04(c)(iv).
"Series 1994-2 Revolving Period" shall mean the period commencing on the
Issuance Date and terminating on the earliest to occur of the close of business
on (i) the date on which an Early Amortization Period is declared to commence or
automatically commences and (ii) the Scheduled Revolving Termination Date.
"Series 1994-2 Subordinated Interest" shall have the meaning specified
in subsection 2.02(b).
"Series 1994-2 Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Series 1994-2 Adjusted Invested Amount on such
day and (ii) the Series 1994-2 Required Subordinated Amount on such day.
"Series 1994-2 Termination Date" shall mean the Payment Date that occurs
in August, 2002.
"Servicing Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing (but not including) until the next Settlement Report Date, an
amount (expressed as a percentage) equal to (i) the product of (A) the Servicing
Fee Percentage and (B) 2.0 times Days Sales Outstanding as of such earlier
Settlement Report Date divided by (ii) 360.
"Spread" shall mean (i) 0% if the related Applicable Early Amortization
Event for the Class A Certificates occurs within twelve months of the removal of
a Seller as an originator of Receivables that is not a Third Party Sale, (ii) 0%
if the related Applicable Early Amortization Event occurs within nine months of
the removal of a Seller as an originator of Receivables that is a Third Party
Sale and (iii) .25% if the related Applicable Early Amortization Event occurs
between nine and twelve months of the removal of a Seller as an originator of
Receivables that is a Third Party Sale.
"Term Certificateholders" shall mean the Class A Certificateholders.
"Term Certificateholders' Interest" shall have the meaning assigned in
subsection 2.02(a).
"Term Certificates" shall mean those Investor Certificates designated as
the Class A Certificates.
"Third Party Sale" shall mean a sale or other disposition of an interest
in a Seller sufficient such that such Seller may no longer be consolidated with
Ingram Micro Inc. for accounting purposes in accordance with GAAP.
"Trust Accounts" shall have the meaning assigned in subsection 3.01(a).
"United States person" means an individual who is a citizen or resident
of the United States, or a corporation, partnership or other entity created or
organized in or under the
11
<PAGE> 15
laws of the United States or any political subdivision thereof, or an estate or
trust the income of which is subject to U.S. federal income taxation regardless
of its source.
(b) If any term, definition or provision contained herein conflicts with
or is inconsistent with any term, definition or provision contained in the
Agreement, the terms and provisions of this Supplement shall govern. All
capitalized terms not otherwise defined herein are defined in the Agreement. All
Article, Section, subsection, Exhibit and Schedule references herein shall mean
Article, Section or subsection of or Exhibit or Schedule to this Supplement,
except as otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the
Agreement, each capitalized term used or defined herein shall relate only to the
Term Certificates and the Series 1994-2 Subordinated Interest and to no other
Series of Investor Certificates or Subordinated Company Interest issued by the
Trust.
(c) Any reference herein to a Schedule or Exhibit to this Supplement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(d) Any reference in this Supplement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Supplement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(e) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
(f) For purposes of calculating the Aged Receivables Ratio and the
Dilution Ratio, the aggregate Principal Amount of Receivables originated during
the third Settlement Period of each calendar quarter and Dilution Adjustments
reported in the third Settlement Period shall be adjusted by dividing the dollar
amount of Receivables in each category by the number of weeks in such Settlement
Period and multiplying by 4.3.
ARTICLE II
Designation of
Term Certificates; Purchase and Sale
of the Term Certificates
SECTION 2.01. Designation. The Investor Certificates created and
authorized pursuant to the Agreement and this Supplement shall be in one class,
the "Class A Certificates, Series 1994-2".
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<PAGE> 16
SECTION 2.02. The Term Certificates and Series 1994-2 Subordinated
Interest.
(a) The Term Certificates shall represent fractional undivided interests
in the Trust Assets, consisting of the right of the Term Certificateholders to
receive the distributions specified herein out of (i) the Series 1994-2 Invested
Percentage (expressed as a decimal) of Collections received with respect to the
Receivables and of all other funds on deposit in the Collection Account and (ii)
to the extent such interests appear herein, all other funds on deposit in the
Series 1994-2 Collection Subaccount and any subaccounts thereof (collectively,
the "Term Certificateholders' Interest").
(b) The Company shall retain a fractional undivided interest in the
Trust Assets, consisting of the right to receive the distributions specified
herein out of (i) the Series 1994-2 Invested Percentage (expressed as a decimal)
of Collections received with respect to the Receivables and all other funds on
deposit in the Collection Account and (ii) to the extent such interests appear
herein, all other funds on deposit in the Series 1994-2 Collection Subaccount
and any subaccounts thereof, in each case to the extent not required to be
distributed to or for the benefit of the Term Certificateholders (the "Series
1994-2 Subordinated Interest"). The Exchangeable Company Interest and any other
Series of Investor Certificates or Subordinated Company Interest outstanding
shall represent the fractional undivided interests in the remainder of the Trust
Assets not allocated pursuant hereto to the Term Certificateholders' Interest or
the Series 1994-2 Subordinated Interest.
(c) The Class A Certificates shall be issued in registered form in
substantially the form of Exhibit A, and shall, upon issue, be executed and
delivered by the Company to the Trustee for authentication and redelivery as
provided in Section 2.03 hereof and Section 5.02 of the Agreement.
SECTION 2.03. Delivery. On the Issuance Date, the Company shall sign on
behalf of the Trust and shall direct the Trustee in writing pursuant to Section
5.02 of the Agreement to duly authenticate, and the Trustee, upon receiving such
direction, shall so authenticate, the Class A Certificates in such names and
such denominations in accordance with such directions of the Company. Term
Certificates shall be issued in minimum denominations of $2,000,000 and in
integral multiples of $100,000 in excess thereof.
SECTION 2.04. Restrictions on Transfer. On the Issuance Date, the
Company shall deliver the Term Certificates to the Purchaser. Thereafter, the
Term Certificates may not be transferred except as follows: (A) to Qualified
Institutional Buyers in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144A thereunder, (B) to
other Institutional Accredited Investors who take delivery of such Term
Certificates in definitive form and who deliver a Purchaser Letter to the
Trustee in the form attached hereto as Exhibit D or (C) to a person who takes
delivery of such Term Certificate in definitive form pursuant to a transaction
that is otherwise exempt from the registration requirements of the Securities
Act, as confirmed in an opinion of counsel addressed to the Trustee and the
Company, which counsel and opinion are satisfactory to the Trustee and the
Company.
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<PAGE> 17
The Trustee shall have no obligations or duties with respect to determining
whether any transfers of the Term Certificates are made in accordance with the
Securities Act or any other Requirements of Law; provided that with respect to
Definitive Certificates, the Trustee shall enforce such transfer restrictions in
accordance with the terms set forth on the related Term Certificate and the
provisions of the Agreement and this Supplement.
SECTION 2.05. Representations of the Purchasers.
(a) Each purchaser (other than the Initial Purchaser) of the Term
Certificates (including, without limitation, any purchaser of an interest in the
Book-Entry Certificates) will be deemed to have represented and agreed as
follows:
(i) it is (A) a Qualified Institutional Buyer as defined in Rule
144A(a) and is acquiring the Term Certificates for its own institutional
account or for the account or accounts of a Qualified Institutional
Buyer or (B) purchasing Term Certificates being delivered in the form of
Definitive Certificates in a transaction exempt from registration under
the Securities Act and in compliance with the provisions of the
Agreement and in compliance with the legends set forth in clause (vi)
below;
(ii) it is purchasing one or more Term Certificates in an amount
of at least $2,000,000 and it understands that such Term Certificate may
be resold, pledged or otherwise transferred only in an amount of at
least $2,000,000;
(iii) (A) it is not an ERISA Entity and (B) it is not acquiring
or holding any Term Certificate, directly or indirectly, for or on
behalf of an ERISA Entity;
(iv) it understands that the Term Certificates are being
transferred to it in a transaction not involving any public offering
within the meaning of the Securities Act, and that, if in the future it
decides to resell, pledge or otherwise transfer any Term Certificates,
such Term Certificates may be resold, pledged or transferred only (A) in
a transaction meeting the requirements of Rule 144A to a person who the
seller reasonably believes is a Qualified Institutional Buyer that
purchases for its own account or for the account or accounts of a
Qualified Institutional Buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A or (B) to
purchasers of Term Certificates being delivered in the form of
Definitive Certificates, pursuant to a transaction otherwise exempt from
registration under the Securities Act and in compliance with the
provisions of the Agreement and in compliance with the legends set forth
in clause (vi) below; and
(v) it understands that each Term Certificate will bear a legend
substantially to the following effect:
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS TERM CERTIFICATE, AGREES THAT SUCH TERM
CERTIFICATE
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<PAGE> 18
MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN ACCORDANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS IN AN AMOUNT OF AT LEAST
$2,000,000 AND (1) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE ACT ("RULE 144A"), TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OR
ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (2) TO A PERSON (A) WHO IS AN
"INSTITUTIONAL ACCREDITED INVESTOR", WITHIN THE MEANING OF RULE
501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, AND
WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM
ATTACHED TO THE SERIES 1994-2 SUPPLEMENT OR (B) WHO IS TAKING
DELIVERY OF SUCH TERM CERTIFICATE PURSUANT TO A TRANSACTION THAT
IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
ACT, AS CONFIRMED IN AN OPINION OF COUNSEL ADDRESSED TO THE
TRUSTEE AND THE COMPANY, WHICH COUNSEL AND OPINION ARE
SATISFACTORY TO THE COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON
BEHALF OF (1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR OTHER RETIREMENT ARRANGEMENT, INDIVIDUAL
RETIREMENT ACCOUNT OR KEOGH PLAN, WHETHER OR NOT IT IS SUBJECT
TO THE PROVISIONS OF TITLE I THERETO, (2) ANY PLAN DESCRIBED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") OR (3) ANY OTHER ENTITY THAT WOULD BE
DEEMED TO BE A "BENEFIT PLAN INVESTOR" WITHIN THE MEANING OF
DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101(f)(2) (ANY OF
THE FOREGOING, AN "ERISA ENTITY")
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
(b) The Transfer Agent and Registrar shall not permit the transfer of
any Term Certificates unless such transfer complies with the terms of the
foregoing legends and, in the case of a transfer (i) to an Institutional
Accredited Investor (other than a Qualified Institutional
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Buyer), the transferee delivers a completed Purchaser Letter in the form
attached to this supplement as Exhibit D or (ii) to a person other than a
Qualified Institutional Buyer or an Institutional Accredited Investor, upon
delivery of an opinion of counsel selected by the Company, satisfactory to the
Trustee and the Company, to the effect that the transferee is taking delivery of
the Term Certificates in a transaction that is otherwise exempt from the
registration requirements of the Securities Act.
SECTION 2.06. Application of Proceeds. On the Effective Date, the Term
Certificateholders shall deliver to the Trustee the existing Class A
Certificates, Series 1994-2 issued on the Issuance Date in exchange for Class A
Certificates, Series 1994-2 issued on the Effective Date.
SECTION 2.07. Sale of Additional Term Certificates.
(a) The Company may, upon written notice to the Trustee, the Master
Servicer and the Term Certificateholders and upon satisfaction of each of the
conditions set forth in subsection (b) of this Section 2.06, direct the Trustee
in writing to issue on the following Payment Date (each such date a "Subsequent
Issuance Date") additional Class A Certificates, identical in all respects to
the existing Class A Certificates, in an aggregate principal amount specified by
the Company (pro rata based on the initial invested amount of each Class)
(except that the Certificate Rate applicable to such additional Class A
Certificates may differ from the Certificate Rate applicable to existing Class A
Certificates; provided that the Series 1994-2 Target Receivables Amount does not
exceed the Series 1994-2 Allocated Receivables Amount, after giving effect to
any increase in the Invested Amount on such Subsequent Issuance Date.
The Company may arrange for the sale of such additional Class A
Certificates, pursuant to a private placement or any other sale arrangement;
provided that the Company agrees that it shall first offer to the existing Term
Certificateholders the opportunity to purchase such additional Class A
Certificates on substantially the same terms and conditions that such additional
Class A Certificates are to be offered to other purchasers. If existing Class A
Certificateholders elect not to purchase all such additional Class A
Certificates within 10 Business Days following their receipt of a written offer
therefor (which written offer is accompanied by information sufficient to enable
a prudent investor to make such purchase) the Company may proceed with its
arrangements to sell all such additional Class A Certificates to any other
eligible purchasers. In the event that the existing Class A Certificateholders
subscribe to purchase more additional Class A Certificates than are being
offered by the Company at such time, then each such existing Class A
Certificateholder shall be entitled to purchase a pro rata portion of such
additional Class A Certificates based on the aggregate principal amount of Class
A Certificates then held by such holder. On each Subsequent Issuance Date, if
any, the Series 1994-2 Invested Amount (and each other amount set forth herein,
the calculation of which is based on such amount) shall be recalculated by the
Company to include the additional initial invested amounts with respect to the
Class A Certificates issued on such date.
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(b) On the Subsequent Issuance Date, the Trustee shall only authenticate
and deliver any additional Class A Certificates, upon satisfaction of the
following on or prior to such Subsequent Issuance Date:
(i) the Rating Agencies shall have been notified by the Company
of the proposed issuance of additional Class A Certificates at least 10
days prior to the proposed Subsequent Issuance Date, each Rating Agency
shall have issued a rating (as confirmed in a letter delivered to the
Trustee) on the additional Class A Certificates that is equivalent to
the rating issued by such Rating Agency on the Issuance Date and the
Rating Agency Condition shall have been satisfied on or prior to such
Subsequent Issuance Date;
(ii) the Trustee shall have received an Officer's Certificate
certifying that no Early Amortization Event or Potential Early
Amortization Event shall have occurred and be continuing with respect to
Series 1994-2 or would occur as a result of such issuance upon which the
Trustee may conclusively rely;
(iii) a Tax Opinion (including the opinion set forth in clause
(a)(ii) of the definition thereof) addressed to the Trust and the
Trustee shall have been delivered to the Trustee (the costs and expenses
associated with such opinion shall constitute Program Costs); and
(iv) an Opinion of Counsel addressed to the Trust and the
Trustee shall have been delivered to the Trustee stating that all of the
conditions to the issuance of such additional Class A Certificates shall
have been satisfied (the costs and expenses associated with such opinion
shall constitute Program Costs).
(c) On each Subsequent Issuance Date, the Company in a written order
shall direct the Trustee to authenticate and deliver additional Class A
Certificates in accordance with Section 2.03.
ARTICLE III
Article III of the Agreement
Section 3.01 of the Agreement and each other section of Article III of
the Agreement relating to another Series shall be read in its entirety as
provided in the Agreement. Article III of the Agreement (except for Section 3.01
thereof and any portion thereof relating to another Series) shall read in its
entirety as follows and shall be exclusively applicable to the Term Certificates
and the Series 1994-2 Subordinated Interest:
SECTION 3.01. Establishment of Trust Accounts.
(a) The Trustee shall cause to be established and maintained in the name
of the Trustee, on behalf of the Trust, (i) for the benefit of the Class A
Certificateholders and, (ii) in the case of clauses (A) and (B) below, for the
benefit, subject to the prior and senior interests of the Term
Certificateholders, of the holder of the Series 1994-2 Subordinated Interest,
(A) a subaccount of
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the Collection Account (the "Series 1994-2 Collection Subaccount"), which
subaccount is the Series Collection Subaccount with respect to Series 1994-2;
(B) two subaccounts of the Series 1994-2 Collection Subaccount: (1) the Series
1994-2 Principal Collection Sub-subaccount and (2) the Series 1994-2
Non-Principal Collection Sub-subaccount (respectively, the "Series 1994-2
Principal Collection Sub-subaccount" and the "Series 1994-2 Non-Principal
Collection Sub-subaccount"); and (C) a subaccount of the Series 1994-2
Non-Principal Collection Sub-subaccount (the "Series 1994-2 Accrued Interest
Sub-subaccount"; all accounts established pursuant to this subsection 3.01(a)
and listed on Schedule 1, collectively, the "Trust Accounts"), each Trust
Account to bear a designation indicating that the funds deposited therein are
held for the benefit of the Persons (and, for each such Person, to the extent)
set forth in clauses (i) and (ii) above. The Trustee, on behalf of the Holders,
shall possess all right, title and interest in all funds from time to time on
deposit in, and all Eligible Investments credited to, the Trust Accounts and in
all proceeds thereof. The Trust Accounts shall be under the sole dominion and
control of the Trustee for the exclusive benefit of the Persons (and, for each
such Person to the extent) set forth in clauses (i) and (ii) above. In any case
where the Company has not provided applicable written direction as to Eligible
Investments to the Trustee, the Trustee shall invest in demand deposits or money
market funds that constitute Eligible Investments.
(b) All Eligible Investments in the Trust Accounts shall be held by the
Trustee, on behalf of the Holders, for the benefit of the Persons (and, for each
such Person, to the extent) set forth in clauses (i) and (ii) of subsection (a)
above. Funds on deposit in a Trust Account that is a Sub-subaccount of the
Collection Account shall, at the direction of the Company, be invested together
with funds held in other Sub-subaccounts of the Collection Account. After giving
effect to any distribution to the Company pursuant to subsection 3.02(c),
amounts on deposit and available for investment in the Series 1994-2 Principal
Collection Sub-subaccount shall be invested by the Trustee, at the written
direction of the Company, in Eligible Investments that mature, or that are
payable or redeemable upon demand of the holder thereof, (i) in the case of any
such investment made during the Series 1994-2 Revolving Period, on or prior to
the next Business Day and (ii) in the case of any such investment made during
the Series 1994-2 Amortization Period, on or prior to the Business Day
immediately preceding the next Payment Date. Amounts on deposit and available
for investment in the Series 1994-2 Non-Principal Collection Sub-subaccount and
the Series 1994-2 Accrued Interest Sub-subaccount shall be invested by the
Trustee at the written direction of the Company in Eligible Investments that
mature, or that are payable or redeemable upon demand of the holder thereof, on
or prior to the Business Day immediately preceding the subsequent Payment Date.
As of the Business Day immediately preceding the Settlement Report Date, all
interest and other investment earnings (net of losses and investment expenses)
on funds deposited in the Series 1994-2 Accrued Interest Sub-subaccount shall be
deposited in the Series 1994-2 Non-Principal Collection Sub-subaccount and all
interest and investment earnings (net of losses and investment expenses) on
funds deposited in the Series 1994-2 Principal Collection Sub-subaccount shall
be deposited in the Series 1994-2 Non-Principal Collection Sub-subaccount.
SECTION 3.02. Daily Allocations.
(a) The portion of Aggregate Daily Collections allocated to the Term
Certificates and the Series 1994-2 Subordinated Interest pursuant to Article III
of the Agreement shall be allocated
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and distributed as set forth in this Article III by the Trustee based solely on
the information provided it by the Master Servicer in the Daily Report (upon
which the Trustee may conclusively rely).
(b) (i) On each Business Day, an amount equal to the Accrued Expense
Amount for such day (or, during the Series 1994-2 Revolving Period, such
greater amount as the Company may request in writing) shall be
transferred by the Trustee from the Series 1994-2 Collection Subaccount
to the Series 1994-2 Non-Principal Collection Sub-subaccount; and
(ii) on each Business Day (including Payment Dates), following
the transfers pursuant to clause (i) above, any remaining funds on
deposit in the Series 1994-2 Collection Subaccount shall be transferred
by the Trustee to the Series 1994-2 Principal Collection Sub-subaccount.
(c) (i) On each Business Day during the Series 1994-2 Revolving Period
(including Payment Dates), after giving effect to all allocations of
Aggregate Daily Collections referred to in subparagraphs (b)(i) and
(b)(ii) on such Business Day, amounts on deposit in the Series 1994-2
Principal Collection Sub-subaccount shall be distributed or transferred
by the Trustee, based solely on the information provided to the Trustee
by the Master Servicer in the Daily Report (upon which the Trustee may
conclusively rely), (A) first, to pay Excess Program Costs and (B)
second, (I) to the Company as the holder of the Series 1994-2
Subordinated Interest in accordance with the directions contained in the
Daily Report, (II) at the election of the Company as the holder of the
Series 1994-2 Subordinated Interest, by written notice to the Master
Servicer and the Trustee, to such accounts or to such Persons as the
Company may direct in writing (which directions may consist of standing
instructions provided by the Company that shall remain in effect until
changed by the Company in writing) or (III) at the election of the
Company as the holder of the Series 1994-2 Subordinated Interest, by
written notice to the Master Servicer and the Trustee, to one or more
VFC Principal Collection Sub-subaccounts or any other Outstanding
Series; provided that such distributions or transfers, as the case may
be, shall be made only if no Early Amortization Event or Potential Early
Amortization Event relating to an Early Amortization Event set forth in
subsections (a), (d) (but only with respect to a Servicer Default set
forth in subsection 6.01(e) of the Servicing Agreement relating to the
Master Servicer or to one or more Servicers that are responsible for
Servicing Receivables representing 15% or more of the Aggregate
Receivables Amount) or (e), (j) or (k) of Section 5.01 of this
Supplement has occurred and is continuing and only to the extent that,
if, after giving effect to such distributions or transfers, the Series
1994-2 Target Receivables Amount would not exceed the Series 1994-2
Allocated Receivables Amount. Amounts distributed to the Company
hereunder shall be deemed to be paid first from Collections received
directly by the Master Servicer and second from Collections received in
the Lockboxes.
(ii) During the Series 1994-2 Amortization Period, amounts on
deposit in the Series 1994-2 Principal Collection Sub-subaccount on each
Payment Date shall be
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distributed on such Payment Date in accordance with subsection 3.05(c).
No amounts on deposit in the Series 1994-2 Principal Collection
Sub-subaccount shall be distributed by the Trustee to the Company during
the Series 1994-2 Amortization Period.
(d) On each Business Day an amount equal to the Series 1994-2 Daily
Interest Expense for such day shall be transferred by the Trustee, based solely
on the information provided to the Trustee by the Master Servicer in the Daily
Report (upon which the Trustee may conclusively rely), from the Series 1994-2
Non-Principal Collection Sub-subaccount to the Series 1994-2 Accrued Interest
Sub-subaccount.
(e) The allocations to be made pursuant to this Section 3.02 are subject
to the provisions of Sections 2.05, 7.02, 9.01 and 9.03 of the Agreement.
SECTION 3.03. Determination of Interest.
(a) The amount of interest distributable with respect to the Term
Certificates on each Payment Date for the Accrual Period then ending shall be
determined as follows:
(i) for the Class A Certificates, an amount (the "Class A
Monthly Interest") equal to (x) the product of (A) the Class A
Certificate Rate; (B) the Class A Invested Amount on the first day of
such Accrual Period (after giving effect to any distributions of
principal on such date); and (C) the actual number of days in such
Accrual Period divided by 360; provided that if any additional Class A
Certificates have been issued on any Subsequent Issuance Date, the Class
A Monthly Interest shall equal the sum of the monthly interest amount
for each outstanding tranche of Class A Certificates (based on the
outstanding Invested Amount and the applicable Class A Certificate Rate
in respect of such tranche) plus (y) the Late Charge, if any, payable
pursuant to Section 8.11;
(ii) the Master Servicer shall notify the Trustee in writing
(upon which the Trustee may conclusively rely) on each Settlement Report
Date of the amount calculated pursuant to clause (i) above.
(b) On each Payment Date, the Master Servicer shall determine the
excess, if any (the "Class A Interest Shortfall"), of (A) the Class A Monthly
Interest for the Accrual Period ending on such Payment Date over (B) the amount
that is available to be distributed to the Class A Certificateholders on such
Payment Date in respect thereof pursuant to this Supplement. If the Class A
Interest Shortfall with respect to any Payment Date is greater than zero, an
additional amount ("Class A Additional Interest") equal to the product, for the
next Accrual Period (or portion thereof) until such Class A Interest Shortfall
is repaid, of (A) a rate per annum equal to the Class A Certificate Rate; (B)
such Class A Interest Shortfall (or the portion thereof that has not been paid
to the Class A Certificateholders); and (C) the actual number of days in the
next Accrual Period divided by 360, shall be payable as provided herein with
respect to the Class A Certificates on each Payment Date following such Payment
Date to and including the Payment Date on which such Class A Interest Shortfall
is paid in full to the Class A Certificateholders.
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SECTION 3.04. Determination of Series 1994-2 Principal.
(a) Payments of Series 1994-2 Monthly Principal. The amount (the "Series
1994-2 Monthly Principal Payment") distributable from the Series 1994-2
Principal Collection Sub-subaccount on each Payment Date during the Series
1994-2 Amortization Period shall be equal to the amount on deposit in such
account on the immediately preceding Settlement Report Date; provided that the
Series 1994-2 Monthly Principal Payment on any Payment Date shall not exceed the
Series 1994-2 Invested Amount on such Payment Date after giving effect to the
reductions and increases pursuant to paragraphs (b) and (c) below.
(b) Reductions to Series 1994-2 Principal. If, on any Special Allocation
Settlement Report Date, the Series 1994-2 Allocable Charged-Off Amount is
greater than zero for the related Settlement Period, the Trustee shall in
accordance with the written directions of the Master Servicer (upon which the
Trustee may conclusively rely), make the following applications of such amounts
in the following order of priority:
(i) the Series 1994-2 Required Subordinated Amount shall be
reduced (but not below zero) by an amount equal to the Series 1994-2
Allocable Charged-Off Amount (which shall also be reduced by the amount
so applied); and
(ii) then, to the extent that the Series 1994-2 Allocable
Charged-Off Amount is greater than zero following the application in
clause (i) above, the Class A Invested Amount shall be reduced (but not
below zero) by an amount equal to such remaining Series 1994-2 Allocable
Charged-Off Amount (which shall also be reduced by the amount so
applied).
(c) Increases to Series 1994-2 Principal. If, on any Special Allocation
Settlement Report Date, the Series 1994-2 Allocable Recoveries Amount is greater
than zero for the related Settlement Period, the Trustee shall in accordance
with the written directions of the Master Servicer (upon which the Trustee may
conclusively rely) make the following applications (after giving effect to the
applications in paragraph (b) of such amount in the following order of
priority):
(i) the Class A Invested Amount shall be increased (but only to
the extent of any previous reductions of the Class A Invested Amount
pursuant to subsection 3.04(b)(ii)) by the amount of the Series 1994-2
Allocable Recoveries Amount (which shall also be reduced by the amount
so applied); and
(ii) then, to the extent that the Series 1994-2 Allocable
Recoveries Amount is greater than zero following the application in
clause (i) above, the Series 1994-2 Required Subordinated Amount shall
be increased (but only to the extent of any previous reductions of the
Series 1994-2 Required Subordinated Amount pursuant to subsection
3.04(b)(i)) by such remaining Series 1994-2 Allocable Recoveries Amount
(which shall also be reduced by the amount so applied).
SECTION 3.05. Applications.
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(a) The Trustee shall distribute, based solely on the information
provided to the Trustee by the Master Servicer in the Daily Report (upon which
the Trustee may conclusively rely), on each Payment Date, from amounts on
deposit in the Series 1994-2 Accrued Interest Sub-subaccount to the extent funds
are available (but if funds therein are insufficient to make all such
applications, then also from any funds on deposit in the Series 1994-2 Principal
Collection Sub-subaccount): an amount equal to the Class A Monthly Interest
payable on such Payment Date, plus any Class A Interest Shortfall on a prior
Payment Date, plus the amount of any Class A Additional Interest for such
Payment Date and any Class A Additional Interest previously due but not
distributed to the Class A Certificateholders on a prior Payment Date, to the
Class A Certificateholders; provided, however, that during the Series 1994-2
Amortization Period, no Class A Additional Interest will be paid until repayment
in full of the Series 1994-2 Invested Amount and all Class A Monthly Interest
has been paid.
(b) On each Payment Date, the Trustee shall apply, based solely on the
information provided to the Trustee by the Master Servicer in the Daily Report
(upon which the Trustee may conclusively rely), funds on deposit in the Series
1994-2 Non-Principal Collection Sub-subaccount in the following order of
priority to the extent funds are available:
(i) an amount equal to the Series 1994-2 Monthly Servicing Fee
for the Accrual Period ending on such Payment Date shall be withdrawn
from the Series 1994-2 Non-Principal Collection Sub-subaccount by the
Trustee and paid to the Master Servicer (less any amount payable to the
Trustee pursuant to Section 8.05 of the Agreement which shall be paid to
the Trustee); and
(ii) an amount equal to any Program Costs due and payable shall
be withdrawn from the Series 1994-2 Non-Principal Collection
Sub-subaccount by the Trustee and paid (a) first to the Persons owed any
such amounts that are Company Unsubordinated Obligations (first, to the
Purchasers ratably in accordance with the amounts owed, and second, to
any other Persons to whom such Program Costs are owed, ratably in
accordance with the amounts owed) and (b) second to the Persons owed any
such amounts that are Company Subordinated Obligations (first, to the
Purchasers ratably in accordance with the amounts owed, and second, to
any other Persons to whom such Program Costs are owed, ratably in
accordance with the amounts owed).
Any remaining amount on deposit in the Series 1994-2 Non-Principal Collection
Sub-subaccount (in excess of the Accrued Expense Amount as of such day) not
allocated pursuant to clauses (i) and (ii) above shall be paid to the holder of
the Series 1994-2 Subordinated Interest; provided, however, that during the
Series 1994-2 Amortization Period, such remaining amounts shall be deposited in
the Series 1994-2 Principal Collection Sub-subaccount for distribution in
accordance with subsection 3.05(c).
(c) During the Series 1994-2 Amortization Period, the Trustee shall
apply, based solely on the information provided to the Trustee by the Master
Servicer in the Daily Report (upon which the Trustee may conclusively rely), on
each Payment Date, amounts on deposit in the Series 1994-2 Principal Collection
Sub-subaccount in the following order of priority:
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(i) to the extent required, to application under Section
3.05(a);
(ii) if any amounts are owed to the Trustee or any other Person,
on account of the Series 1994-2 Monthly Servicing Fees incurred in
respect of the performance of its responsibilities as Successor Master
Servicer or amounts are owing to the Trustee (whether as Trustee or as
Successor Master Servicer) by the Master Servicer pursuant to Section
8.05 of the Agreement out of the Series 1994-2 Monthly Servicing Fees,
and the Master Servicer has failed to pay such amounts an amount equal
to the product of (a) the aggregate amounts so owed to such Trustee or
other Person and (b) the Series 1994-2 Invested Percentage as of the end
of the immediately preceding Settlement Period and the denominator of
which shall be equal to the Aggregate Invested Amount as of the end of
the immediately preceding Settlement Period shall be transferred from
the Series 1994-2 Principal Collection Sub-subaccount to the Trustee or
such other Person; provided that no amount payable under this Section
3.05(c)(ii) shall exceed the Series 1994-2 Monthly Servicing Fee (after
giving effect to the amount paid under Section 3.05(b));
(iii) following the repayment in full of all amounts set forth
in clauses (i) and (ii) above, an amount equal to the Series 1994-2
Monthly Principal Payment for such Payment Date shall be distributed
from the Series 1994-2 Principal Collection Sub-subaccount pro rata to
the Class A Certificateholders until repayment in full of the Class A
Invested Amount;
(iv) following the repayment in full of all amounts set forth in
clauses (i) through (iii) above, the remaining amount on deposit in the
Series 1994-2 Principal Collection Sub-subaccount on such Payment Date,
if any, shall be distributed first, to the Class A Certificateholders in
an amount not to exceed the unpaid Make-Whole Amount, if any, and
second, to the Class A Certificateholders of Series 1993-2 and Series
1994-3 in an amount not to exceed the unpaid Make-Whole Amount (the
"Other Series Make-Whole Amount") owed to such Class A
Certificateholders under the Series 1993-2 Supplement and the Series
1994-3 Supplement, if any;
(v) if, following the repayment in full of all amounts set forth
in clauses (i) through (iv), above, any amounts are owed to the Trustee
on account of its fees, expenses and disbursements incurred in respect
of the performance of its responsibilities hereunder (other than amounts
paid pursuant to clause (ii) above), such amounts shall be transferred
from the Series 1994-2 Principal Collection Sub-subaccount and paid to
the Trustee; and
(vi) following the repayment in full of all amounts set forth in
clauses (i) through (v) above, the remaining amount on deposit in the
Series 1994-2 Principal Collection Sub-subaccount on such Payment Date,
if any, shall be distributed to the holder of the Series 1994-2
Subordinated Interest.
SECTION 3.06. Make-Whole Amount.
(a) Subject to the Agreement and Section 9.13 of the Receivables Sales
Agreement, a Seller may be terminated as an originator of Receivables (whether
by reason of sale or other
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<PAGE> 27
disposition of such Seller or otherwise), provided, that in the event that
within twelve months following any such removal of a Seller as an originator of
Receivables an Early Amortization Event arising under Sections 5.01(a), (e) or
(g) (any such Early Amortization Event, an "Applicable Early Amortization
Event") shall occur and, as a result thereof, the Series 1994-2 Amortization
Period with respect to the Class A Certificates shall occur, then in addition to
all other amounts required to be paid to the Class A Certificateholders under
the Agreement, the Class A Certificateholders shall be entitled to receive an
additional Make-Whole Amount (as hereinafter defined). The Make-Whole Amount
shall be payable pursuant to Section 3.05(c) of the Agreement as set forth in
this Supplement. The Trustee agrees that if any of the events described in the
provisions of Section 5.01 which are not included as a basis for an Applicable
Early Amortization Event as set forth above in the definition of such term shall
occur within twelve months following the voluntary removal of a Seller as an
originator of Receivables, then unless the occurrence of such event shall
automatically result in an Early Amortization Event in accordance with Section
5.01, the Trustee will not give notice or otherwise declare an Early
Amortization Event with respect to this Series without obtaining the consent of
the Holders of not less than 65% of the Class A Invested Amount.
(b) The "Make-Whole Amount" shall mean, with respect to any Class A
Certificate, an amount equal to the excess, if any, of the Discounted Value of
such Class A Certificate over the sum of (i) the Class A Invested Amount of such
Class A Certificate on the day preceding the Call Date plus (ii) interest
accrued thereon as of (including interest due on) the Call Date. The Make-Whole
Amount shall be calculated on the Make-Whole Calculation Date and shall in no
event be less than zero. From and after the Make-Whole Calculation Date, if
either the Make-Whole Amount or Other Series Make-Whole Amount is greater than
zero no amounts held in the Trust Accounts shall be distributed to the Series
1994-2 Subordinated Interest until the Make-Whole Amount and the Other Series
Make Whole Amount have been fully paid to the Class A Certificateholders and the
Class A Certificateholders of Series 1993-2 and of Series 1994-3, as applicable.
ARTICLE IV
Distributions and Reports
Article IV of the Agreement (except for any portion thereof relating to
another Series) shall read in its entirety as follows and the following shall be
exclusively applicable to the Term Certificates issued pursuant to this
Supplement:
SECTION 4.01. Distributions.
(a) The final distribution of principal in respect of the Term
Certificates or portions thereof will be made after due notice by the Trustee of
the pendency of such distribution (subject to at least five Business Days' prior
written notice from the Master Servicer to the Trustee containing all
information required for the Trustee's notice, upon which the Trustee may
conclusively rely), by check drawn on, or by transfer to an account maintained
by the holder with, a bank in New York City. Any other distribution of principal
in respect of the Term Certificates or on account of interest or fees on the
Term Certificates on each Payment Date will
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be made or caused to be made by the Paying Agent or the Trustee to the persons
in whose name the Term Certificates are registered at the close of business on
the related Record Date. Such payment will be made by a check mailed to the Term
Certificateholders at such Term Certificateholders, registered addresses or,
upon application by any Term Certificateholder of at least $5,000,000 in
original principal amount thereof to the Trustee not later than five Business
Days prior to the related Payment Date, by transfer to an account maintained by
the Term Certificateholder with a bank in New York City.
(b) All allocations and distributions hereunder shall be in accordance
with the Daily Reports and the Monthly Settlement Statements and subject to
Section 3.01(h) of the Agreement.
SECTION 4.02. Statements and Notices.
(a) Monthly Settlement Statements. On each Settlement Report Date
(commencing with the first Settlement Report Date occurring in April, 2000, the
Master Servicer shall deliver to the Trustee and each Rating Agency a Monthly
Settlement Statement in the Form of Exhibit C setting forth, among other things,
the Loss Reserve Ratio, the Dilution Reserve Ratio, the Minimum Ratio, in each
case, where applicable, with respect to the Class A Certificates and the
Carrying Cost Reserve Ratio and the Servicing Reserve Ratio, each as
recalculated for the next succeeding Settlement Period.
(b) Annual Certificateholders' Tax Statement. On or before April 1 of
each calendar year (or such earlier date as required by applicable law),
beginning with calendar year 2000, the Company shall furnish, or cause to be
furnished, to each Person who at any time during the preceding calendar year was
a Term Certificateholder, a statement prepared by the Company containing the
aggregate amount distributed to such Person for such preceding calendar year or
the applicable portion thereof during which such Person was a Term
Certificateholder, together with such other information as is required to be
provided by an issuer of indebtedness under the Code and such other customary
information as the Company deems necessary to enable the Term Certificateholders
to prepare their tax returns. Such obligation of the Company shall be deemed to
have been satisfied to the extent that substantially comparable information
shall have been provided by the Trustee pursuant to any requirements of the Code
as from time to time in effect. The Trustee shall be under no obligation to
prepare tax returns for the Trust.
(c) Early Amortization Event Notices. As promptly as reasonably
practicable after its receipt of notice of the occurrence of an Early
Amortization Event with respect to Series 1994-2, the Trustee shall give notice
of such occurrence to each Rating Agency (which notice shall in any event be
given, by telephone or otherwise, not later than the second Business Day after
such receipt).
(d) The Trustee agrees that it will furnish to each Holder of a Class A
Certificate all notices, reports and certificates that are either prepared or
received by the Trustee pursuant to the Agreement, without any need for request
for any such materials by any such Holder, on the same date as any such
materials are otherwise distributed, in the case of materials prepared by the
Trustee, or within one Business Day of receipt by the Trustee, in the case of
materials prepared by others, including without limitation, the Monthly
Settlement Statement, the Officer's
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Certificate contemplated by Section 4.03 of the Servicing Agreement and the
reports contemplated by Section 4.04 of the Servicing Agreement, provided,
however, that this sentence shall not apply to the Daily Report delivered by the
Master Servicer to the Trustee. Materials furnished by the Trustee pursuant to
this paragraph (d) will be sent by first class mail, postage prepaid, to each
such Holder at the address shown for it in the Certificate Register maintained
by the Trustee.
(e) In order to enable the Trustee to furnish materials to each Holder
of a Class A Certificate in accordance with paragraph (d) above, the Master
Servicer agrees that it will furnish to the Trustee all notices, reports and
certificates that are either prepared or received by the Master Servicer under
the Agreement and are not otherwise required to be delivered to the Trustee.
(f) If, on any day on which the Daily Report is delivered to the Trustee
the Master Servicer is unable to make the certification called for therein
without exception thereto, then the Master Servicer shall also provide a copy of
such Daily Report to each Class A Certificateholder by means of either (i)
Federal Express or similar overnight courier service, (ii) certified mail,
return receipt requested, or (iii) facsimile transmission (subject to
confirmation of receipt by an authorized officer of such Class A
Certificateholder), in any case dispatched by the Master Servicer on the same
day as such Daily Report is delivered to the Trustee to the address of such
Holder shown for it in the Certificate Register maintained by the Trustee. The
Company also shall furnish to each Class A Certificateholder the statement
contemplated by Section 2.07(h) of the Agreement within the time permitted under
such Section by one of the means described in the preceding sentence. In the
event that the Master Servicer does not provide the Daily Report to the Class A
Certificateholders on a timely basis if required to do so by this Section
4.02(f), then for each day that elapses from the date on which such Daily Report
was required to be provided to Class A Certificateholders until and including
the date on which such Daily Report is in fact provided, the grace or cure
period provided to the Company under Section 5.01(b) (to the extent that a grace
or cure period is applicable to the matters disclosed in such Daily Report)
before a Potential Early Amortization Event becomes an Early Amortization Event
or the grace or cure period provided to the Servicer under clauses (a) and (c)
and Section 6.01 of the Servicing Agreement (to the extent that a grace or cure
period is applicable to the matters disclosed in such Daily Report) before a
prospective Servicer Default becomes a Servicer Default shall, as applicable, be
reduced by each day of such delay.
(g) The Master Servicer agrees that as soon as available and, in any
case, within 100 days after the end of each fiscal year, it will provide to each
Holder of a Class A Certificate the audited consolidated financial statements of
the Master Servicer and its consolidated subsidiaries, consisting of the audited
consolidated balance sheet of the Master Servicer and its consolidated
subsidiaries as of the end of such fiscal year and the audited consolidated
statements of income, changes in stockholders' equity and cash flows of the
Master Servicer and its consolidated subsidiaries for such fiscal year,
certified by the independent public accountants of the Master Servicer and its
consolidated subsidiaries.
(h) The Master Servicer agrees that as soon as available and, in any
case, within 50 days after the end of each fiscal month in each fiscal quarter
in each fiscal year (or, if the Master
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Servicer elects to provide quarterly information as hereinafter described,
within 50 days after the end of each fiscal quarter), it will provide to each
Holder of a Class A Certificate the consolidated financial statements of the
Master Servicer consisting of the unaudited consolidated balance sheet of the
Master Servicer and its consolidated subsidiaries as of the end of such fiscal
month (or, at the option of the Master Servicer and upon written notice to the
Class A Certificateholders, as of the end of each fiscal quarter) and the
unaudited consolidated statements of income, changes in stockholders' equity and
cash flows of the Master Servicer and its consolidated subsidiaries for such
fiscal month (or, at the option of the Master Servicer and upon written notice
to the Class A Certificateholders, as of the end of each such quarter) and for
the fiscal year to date, setting forth in each case in comparative form, the
figures for the corresponding periods of the preceding fiscal year, all in
reasonable detail and certified by the Chief Financial Officer or the Treasurer
of the Master Servicer as being a complete and correct copy of the Master
Servicer's financial statements which have been prepared in accordance with
generally accepted accounting principals consistently applied (except as
otherwise disclosed therein and without the information normally provided in the
accompanying footnotes), and which present fairly the financial position of the
Master Servicer and its consolidated subsidiaries and the results of operation
and cash flows thereof subject, in each case, to changes resulting from year-end
audit adjustments; provided, however, that at such time and so long as the
Master Servicer shall be required to file reports with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
the delivery of its Quarterly Report on Form 10-Q shall satisfy the requirements
of this Section 4.02 with respect to consolidated financial statements.
SECTION 4.03. Notices. Unless otherwise provided, notices required to be
given to the Holders hereunder shall be given by first class mail to the address
of such Holders as they appear in the Certificate Register or the Subordinated
Interest Register, as applicable. The Company and the Master Servicer shall
deliver copies of all notices, reports, statements and other documents delivered
by it pursuant to the Pooling and Servicing Agreements to each Rating Agency.
SECTION 4.04. Audit and Inspection Rights.
(a) The Company agrees that the audit rights of the Trustee provided for
in Section 2.07(d) of the Agreement may be exercised by the Class A
Certificateholders, and the Master Servicer or Servicer agrees that the
inspection rights of the Trustee provided for in Section 4.09 of the Servicing
Agreement may be exercised by the Class A Certificateholders, subject in each
case, however, to each of the following conditions:
(i) for purposes of this Section 4.04, references to the Class A
Certificateholders shall mean, collectively, the Holders of Class A
Certificates of Series 1994-2 together with the Holders of Class A
Certificates of Series 1993-2 and the Holders of Class A Certificates of
Series 1994-3, and a Holder of Class A Certificates of more than one of
the foregoing Series will be treated as only one Class A
Certificateholder;
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(ii) such rights may not be exercised more than one time in any
consecutive 12 month period by (A) each Class A Certificateholder that
is an Initial Purchaser or (B) Class A Certificateholders, in the
aggregate, that are not Initial Purchasers in accordance with clause
(iv) below, provided, that the foregoing limitation shall not apply if
and for so long as a prospective Servicer Default (i.e., a condition
that with the giving of notice and/or the passage of time would
constitute a Servicer Default), Servicer Default, Potential Early
Amortization Event or Early Amortization Event shall have occurred and
shall be continuing under the Agreement;
(iii) for purposes of clause (ii) above, multiple Class A
Certificateholders under common management shall be treated collectively
as only one Class A Certificateholder;
(iv) for purposes of clause (ii) above, all transferees of (A)
any of the "Initial Purchasers" named in the Series 1993-2 Supplement,
(B) any of The Prudential Insurance Company of America, Pacific Mutual
Life Insurance, or The Great West Life & Annuity Insurance Company, or
(C) any Class A Certificateholder managed by any thereof and treated
collectively therewith in accordance with clause (iii) above
(collectively, the "Initial Purchasers"), and successive transferees
thereafter, shall be treated collectively as one Class A
Certificateholder and, in order to exercise the rights provided for in
paragraph (a), must act collectively through an agent or representative
appointed to act for all by a vote of not less than 65% of the Invested
Amount of all Class A Certificateholders excluding the Initial
Purchasers and must hold, in aggregate, not less than 25% of the
aggregate Invested Amount of the Class A Certificates of Series 1993-2,
Series 1994-2 and Series 1994-3; and
(v) such rights may not be exercised (and the Company or the
Servicer, as applicable, may deny access to the relevant information) by
any Holder reasonably believed by the Company, the Master Servicer or
the Servicer in good faith to be a competitor of the Master Servicer or
Servicer or any Subsidiary, or by any Holder which the Company, the
Master Servicer or the Servicer reasonably believes in good faith might
violate or otherwise undermine the confidentiality of the materials to
be reviewed, provided, that the Company, the Master Servicer and the
Servicer each hereby acknowledge that none of the Initial Purchasers
will be subject to objection by the Company, the Master Servicer or the
Servicer for reasons of competition or confidentiality.
ARTICLE V
Additional Early Amortization Events
SECTION 5.01. Additional Early Amortization Events. If any one of the
events specified in Section 7.01 of the Agreement (after any grace periods or
consents applicable thereto) or any one of the following events (each, an "Early
Amortization Event"), shall occur:
(a) (i) failure on the part of the Company or the Master
Servicer to direct any payment or deposit to be made, or failure of any
payment or deposit required by the terms
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of the Agreement or any Supplement to be made, in respect of interest
owing on any Term Certificates within five days of the date such payment
or deposit is required to be made;
(b) failure on the part of the Company duly to observe or
perform in any material respect any covenant or agreement of the Company
set forth in any Pooling and Servicing Agreement (including each
covenant contained in Sections 2.07 and 2.08 of the Agreement) that
continues unremedied 30 days after the earlier of (i) the date on which
a Responsible Officer of the Company or, so long as the Master Servicer
is an Affiliate of the Company, a Responsible Officer of the Master
Servicer has knowledge of such failure and (ii) the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Company by the Trustee, or to the Company and the
Trustee by holders of the Term Certificates evidencing 10% or more of
the Series 1994-2 Invested Amount;
(c) any representation or warranty made or deemed made by the
Company in any Pooling and Servicing Agreement to or for the benefit of
the Term Certificateholders shall prove to have been incorrect in any
material respect when made or when deemed made that continues to be
incorrect 30 days after the earlier of (i) the date on which a
Responsible Officer of the Company or, so long as the Master Servicer is
an Affiliate of the Company, a Responsible Officer of the Master
Servicer has knowledge of such failure and (ii) the date on which notice
of such failure, requiring the same to be remedied, shall have been
given to the Company by the Trustee or to the Company and the Trustee by
holders of the Term Certificates evidencing 10% or more of the Series
1994-2 Invested Amount and as a result of such incorrectness, the
interests, rights or remedies of the Term Certificateholders have been
materially and adversely affected; provided, however, that an Early
Amortization Event with respect to Series 1994-2 shall not be deemed to
have occurred under this paragraph if the incorrectness of such
representation or warranty gives rise to an obligation to repurchase or
make a Dilution Adjustment in respect of the related Receivables and the
Company has repurchased or made a Dilution Adjustment in respect of the
related Receivable or all such Receivables, if applicable, in accordance
with the provisions of any Pooling and Servicing Agreement;
(d) a Servicer Default other than any Servicer Default that is
within subsection 5.01(a) above shall have occurred and be continuing;
or
(e) the Series 1994-2 Allocated Receivables Amount shall be less
than the Series 1994-2 Target Receivables Amount for any period of five
consecutive Business Days;
(f) a Purchase Termination Event shall have occurred and be
continuing;
(g) a Change in Control shall have occurred;
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(h) any of the Agreement, the Servicing Agreement, this
Supplement or the Receivables Sale Agreement shall cease, for any
reason, to be in full force and effect, or the Company, the Seller, the
Servicer or any Affiliate thereof shall so assert in writing;
(i) the Lien created in favor of the Trust on all the Trust
Assets shall cease to be a perfected, first priority enforceable Lien
thereon, or the Company or Ingram Micro Inc. shall so assert in writing
(and such Receivables are not repurchased pursuant to the Agreement);
(j) a Federal tax notice of Lien shall have been filed against
the Company or the Trust unless there shall have been delivered to the
Trustee and the Rating Agencies proof of release of such Lien;
(k) 15 days shall have elapsed after a Responsible Officer of
the Company receives notice as to, or becomes aware of, a notice of Lien
having been filed by the Pension Benefit Guaranty Corporation against
the Company or the Trust under Section 412 (n) 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 unless there shall have been delivered to the
Trustee and the Rating Agencies proof of the release of such Lien;
(l) (i) one or more judgments for the payment of money (to the
extent not bonded or covered by insurance to the reasonable satisfaction
of the Trustee) shall be rendered against the Company (A) in an
aggregate amount greater than $100,000 or (B) that, individually or in
the aggregate, have resulted or could reasonably be expected to result
in a Company Material Adverse Effect or (ii) one or more judgments for
the payment of money (to the extent not bonded or covered by insurance
to the reasonable satisfaction of the Trustee) shall be rendered against
the Servicer, the Seller or any combination thereof in an aggregate
amount greater than (i) 7.25% of the Consolidated Tangible Net Worth of
Ingram Micro Inc. at the end of the most recently ended Fiscal Quarter
or (ii) $80,000,000 whichever is less and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to levy upon the assets or properties of the
Company, the Servicer or the Seller to enforce any such judgment and no
stay of enforcement shall be in effect;
(m) Payment of interest with respect to the Class A Certificates
is not made on the Payment Date (without regard to any grace period)
more than three times prior to the Scheduled Revolving Termination Date
when the full amount of funds that would be required to make such
payment are not on deposit in the Series 1994-2 Accrued Interest
Sub-subaccount on such Payment Date; provided, however that failure to
make payment on a Payment Date will not be a cause of an Early
Amortization Event under this subsection (n) if such delay or failure is
reasonably attributable to any action taken or not taken by the Trustee
in respect of such payment, unless the Trustee's action or lack of
action was the direct result of misdirection, or lack of required
direction, by Ingram Micro Inc.
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then, in the case of (x) any event described in Section 7.01 of the
Agreement (other than the event described in Section 7.01(a)(vi) of the
Agreement), automatically without any notice or action on the part of
the Trustee or the holders of the Term Certificates, an early
amortization period shall immediately commence or (y) an event described
above (or the event described in Section 7.01(a)(vi) of the Agreement),
after the applicable grace period (if any) set forth in the applicable
subsection, the Trustee may, and at the written direction of 65% of the
Series 1994-2 Invested Amount shall, by written notice then given to the
Company and the Master Servicer, declare that an early amortization
period has commenced as of the date of such notice with respect to
Series 1994-2 (any such period under clause (x) or (y) above an "Early
Amortization Period"); provided, however, that in the case of the event
described in clause (e) above, if an Early Amortization Period has not
been declared within 10 Business Days from the occurrence of such event,
then an Early Amortization Period shall occur automatically unless, (i)
prior to the end of such 10 Business Day period, the Series 1994-2
Allocated Receivables Amount shall no longer be less than the Series
1994-2 Target Receivables Amount and (ii) so long as the Series 1994-2
Allocated Receivables Amount continues to be equal to or greater than
the Series 1994-2 Target Receivables Amount, Term Certificateholders
evidencing 66-2/3% or more of the Series 1994-2 Invested Amount voting
as a single class shall have waived the occurrence of such event.
ARTICLE VI
Servicing Fee
SECTION 6.01. Servicing Compensation. A monthly servicing fee (the
"Series 1994-2 Monthly Servicing Fee") shall be payable to the Master Servicer
on each Payment Date for the preceding Settlement Period, in an amount equal to
the product of (a) the Servicing Fee and (b) the Series 1994-2 Invested
Percentage as of the end of the preceding Settlement Period. To the extent that
funds on deposit in the Series 1994-2 Non-Principal Collection Sub-subaccount at
any such date are insufficient to pay the Series 1994-2 Monthly Servicing Fee
due on such date as set forth in the Monthly Settlement Statement delivered by
the Master Servicer to the Trustee, the Trustee shall so notify the Company and
the Company shall immediately pay the Master Servicer the amount of any such
deficiency; provided, however that any payments to be made by the Company
pursuant to this Section shall, if the Master Servicer is Ingram Micro Inc. or
an Affiliate thereto, (i) be Company Subordinated Obligations, (ii) be made
solely from funds available to the Company that are not required to be applied
to the Company Unsubordinated Obligations then due and (iii) not constitute a
general recourse claim against the Company but only a claim against the Company
to the extent of funds available after satisfying all Company Unsubordinated
Obligations then due.
ARTICLE VII
Covenants, Representations and Warranties
SECTION 7.01. Representations and Warranties of the Company and the
Master Servicer. The Company and the Master Servicer each hereby represents and
warrants to the Trustee and each of the Term Certificateholders that each and
every of their respective representations and warranties contained in the
Agreement and the Servicing Agreement is true and correct as of the Issuance
Date and any Subsequent Issuance Date.
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SECTION 7.02. Covenants of the Company and the Master Servicer. The
Company and the Master Servicer each hereby agree, in addition to their
obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance
with the terms of the Agreement and the supplements relating to each
Outstanding Series;
(b) they will (i) provide the Trustee with evidence, reasonably
satisfactory to the Trustee, of (A) the establishment of a disaster
recovery plan, (B) the establishment of computer back-up systems and (C)
the operational readiness of an off-site disaster recovery facility;
(c) for so long as any Term Certificates are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will cause to be provided to any holder of
Term Certificates and any prospective purchaser of Term Certificates or
an interest therein, upon the request of such holder or prospective
purchaser, the information required to be provided to such holder or
prospective purchaser by Rule 144A(d)(4) under the Securities Act;
(d) it shall observe in all material respects each of its
respective covenants (both affirmative and negative) contained in the
Agreement, the Servicing Agreement, this Supplement and all other
Transaction Documents to which it is a party.
SECTION 7.03. Negative Covenant of the Company; Covenants of the Master
Servicer.
(a) The Company shall not make any Restricted Payment while Series
1994-2 is an Outstanding Series, except (i) from amounts distributed to the
Company (x) in respect of the Exchangeable Company Interest, provided that on
the date any such Restricted Payment is made, the Company is in compliance with
its payment obligations under Section 2.05 of the Agreement or (y) pursuant to
subsection 3.02(c); (ii) in compliance with all terms of the Transaction
Documents, including the Company's covenant as to net worth set forth in
subsection 2.07(m) of the Agreement and (iii) such Restricted Payment is made in
accordance with all corporate and legal formalities applicable to the Company;
provided that no Restricted Payment shall be made if an Early Amortization Event
has occurred and is continuing (or would occur as a result of making such
Restricted Payment).
(b) The Master Servicer hereby agrees that it shall observe each and all
of its respective covenants (both affirmative and negative) contained in each
Pooling and Servicing Agreement in all material respects.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Ratification of Agreement. As modified and supplemented by
this Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so
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supplemented by this Supplement shall be read, taken and construed as one and
the same instrument.
SECTION 8.02. Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ANY CONFLICT OF LAW PRINCIPLES, EXCEPT TO THE EXTENT ISSUES OF PERFECTION ARE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 8.03. Further Assurances. Each of the Company, the Master
Servicer and the Trustee agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments required or reasonably
requested by the other more fully to effect the purposes of this Supplement and
the sale of the Term Certificates hereunder, including, without limitation, in
the case of the Company and the Master Servicer, the execution of any financing
or registration statements or similar documents or notices or continuation
statements relating to the Receivables and the other Trust Assets for filing or
registration under the provisions of the UCC or similar legislation of any
applicable jurisdiction provided that, in the case of the Trustee, in
furtherance and without limiting the generality of subsection 8.01(d) of the
Agreement, the Trustee shall have received reasonable assurance of adequate
reimbursement and indemnity in connection with taking such action before the
Trustee shall be required to take any such action.
SECTION 8.04. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Trustee or any Term
Certificateholder, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 8.05. Amendments.
(a) This Supplement may only be amended, supplemented or otherwise
modified from time to time if (i) such amendment, supplement or modification is
effected in accordance with the provisions of Section 10.01 of the Agreement and
(ii) the Rating Agency Condition is satisfied; provided that any amendment,
supplement or modification which is governed by Section 10.01(a) of the
Agreement will be subject to the delivery of an Opinion of Counsel delivered to
the Trustee, that such action shall not have a Material Adverse Effect, and
further, any such amendment, supplement or modification will not be subject to
the second proviso of the first sentence set forth in Section 10.01(a) of the
Agreement; provided further that any amendment, supplement or modification which
is governed by Section 10.01(b) of the Agreement and relates to an amendment,
supplement or modification of Article III, Article IV, the definition of the
Class A Ratio, Series 1994-2 Required Subordinated Amount and any defined terms
used therein shall require the consent of Class A Certificateholders evidencing
more than 65% of the Series 1994-2 Invested Amount, unless such amendment,
supplement or modification increases the Class A Ratio or the Series 1994-2
Required Subordinated Amount, in which case, no consent of the Class A
Certificateholders shall be required so long as the Rating
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Agency Condition has been satisfied. Prior to consenting to any amendment the
Trustee shall be entitled to obtain and rely on an Opinion of Counsel from the
Company stating that such amendment is authorized and permitted pursuant to the
Agreement and this Supplement.
(b) The Receivables Sale Agreement may only be amended, supplemented or
modified, and any provision thereof may only be waived, with the consent of the
Class A Certificateholders evidencing more than 65% of the Aggregate Invested
Amount of all Series of Investor Certificates that (i) were outstanding prior to
the Effective Date and (ii) are adversely affected in any material respect by
such amendment, supplement, modification or waiver.
SECTION 8.06. Notices. All notices, requests and demands to or upon any
party hereto to be effective shall be given in the manner set forth in the case
of the Company, the Servicer and the Trustee, in Section 10.05 of the Agreement,
and in the case of any other party, in writing (including a confirmed
transmission by telecopy), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand or three
days after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows in the case of the Rating
Agencies or to such other address as may be hereafter notified by the respective
parties hereto:
Fitch: Fitch IBCA, Inc.
One State Street Plaza
New York, NY 10004
Telecopier (212) 968-8839
Attention: Asset-Backed Surveillance
S&P: Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Attention: Asset-Backed Surveillance Group
Telecopier: (212) 438-2664
Any notice required or permitted to be mailed to a Term Certificateholder shall
be given as provided in Section 4.03.
SECTION 8.07. Counterparts. This Supplement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same Agreement.
SECTION 8.08. No Bankruptcy Petition. Each Term Certificateholder shall
be deemed to have agreed by its acceptance of a Term Certificate (or a
beneficial interest therein) that, prior to the date which is one year and one
day after the later of (i) the last day of the Series 1994-2 Amortization Period
and (ii) the date that all Investor Certificates of each other Outstanding
Series are repaid in full, it will not institute against, or join any other
Person in instituting against, the Company any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other similar proceedings
under any Federal or state bankruptcy or similar law.
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SECTION 8.09. Limitation on Addition and Termination of Sellers.
(a) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement or the Agreement, the Company shall not consent to
the addition of a Seller thereunder unless each of the following conditions
shall have been satisfied:
(i) Each of the conditions set forth in Section 3.05 of the
Receivables Sale Agreement shall have been satisfied and the Trustee
shall have received evidence in the form of an appropriate Officer's
Certificate as to that fact.
(ii) The Company and the Trustee shall have received evidence
that the Rating Agency Condition shall have been satisfied with respect
to the addition of such Seller; provided that satisfaction of the Rating
Agency Condition (and such receipt of evidence thereof) shall not be
required with respect to the addition of up to three additional Sellers
during any calendar year, each of which meets the following criteria:
(x) such proposed additional Seller is, in the judgment of the Company
as certified by the Company to the Trustee in an Officer's Certificate,
in the same line of business as the existing Sellers as of the related
Seller Addition Date (as defined in the Receivables Sale Agreement) and
(y) as of the Seller Addition Date, immediately prior to giving effect
to such addition, the ratio (as determined by the Company and expressed
as a percentage) of (I) the aggregate Principal Amount of what would
constitute all Eligible Receivables of the proposed Seller if it were a
Seller at the end of the Business Day immediately preceding the Seller
Addition Date minus the amount which would constitute the
Overconcentration Amount applicable to such Receivables on the Seller
Addition Date if the proposed Seller were a Seller to (II) the Aggregate
Receivables Amount on the Seller Addition Date (before giving effect to
such addition), is less than five percent; provided, however, that in no
event may additional Sellers be added without satisfaction of the Rating
Agency Condition and the consent of the holders of 65% of the Aggregate
Invested Amount of all Series of Investor Certificates that were
outstanding prior to the Effective Date if the aggregate Principal
Amount of what would constitute all Eligible Receivables of all
additional Sellers would exceed fifteen percent of the aggregate
Principal Amount of Receivables on the date upon which the first
additional Seller is added.
(iii) The Company and the Trustee shall have received a
certificate prepared by a Responsible Officer of the Master Servicer
certifying that after giving effect to the addition of such Seller, the
Aggregate Allocated Receivables Amount shall not be less than the
Aggregate Target Receivables Amount on the related Seller Addition Date
and setting forth a re-calculation of the Series 1994-2 Required
Subordinated Amount (including Receivables originated by the additional
Sellers).
(iv) The Trustee shall have notified the Company and each Rating
Agency that a Standby Liquidation System is in place for such proposed
additional Seller.
(b) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement, the Company shall not consent to any request made
pursuant to Section 9.13(b) thereof, nor shall any Seller which is the subject
of such request be terminated under the
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Receivables Sale Agreement, in each case unless (i) no Early Amortization Event,
Potential Early Amortization Event or Potential Purchase Termination Event (as
defined in the Receivables Sale Agreement) (other than with respect to the
Seller to be so terminated) has occurred and is continuing (both before and
after giving effect to such termination) and (ii) the Trustee shall have
received prior written notice of such termination (which notice shall be
accompanied by a pro forma Daily Report confirming that the Aggregate Allocated
Receivables Amount shall not be less than the Aggregate Target Receivables
Amount, each calculated after giving effect to such termination and excluding
all Receivables originated by the Seller to be terminated).
(c) Upon the termination of a Seller pursuant to Section 9.13(b) of the
Receivables Sale Agreement and the foregoing paragraph (c), the calculation
(including, without limitation, for purposes of the pro forma calculations
pursuant to paragraph (c) above) of the Aggregate Target Receivables Amount, the
Aggregate Allocated Receivables Amount, the Series 1994-2 Required Subordinated
Amount and all other amounts from which each such amount is directly or
indirectly derived shall exclude in each case the Receivables originated by such
terminated Seller.
SECTION 8.10. Certificateholder List. Notwithstanding Section 5.07 of
the Agreement, each Class A Certificateholder shall have access to (a) the list
of Holders of Series 1994-2 Certificates without regard to the requirement set
forth in such Section that otherwise would require application by three or more
Holders or by Holders representing not less than 10% of the Invested Amount of
the Investor Certificates of any Series and (b) the list of Holders of any other
Series if three or more Holders or Holders representing not less than 5% of the
Invested Amount of the Investor Certificates of any Series apply in writing to
the Trustee, in each case subject to the terms and conditions of Section 5.07.
SECTION 8.11. Late Charge. In the event that payment of interest or
principal with respect to the Class A Certificates is not made on the Payment
Date (without regard to any grace period) when the funds required to make such
payment are then on deposit in the Series 1994-2 Accrued Interest Sub-subaccount
or the Series 1994-2 Principal Collection Sub-subaccount, as applicable, then
unless such failure to pay is attributable to the circumstances described in
subsection (m) of Section 5.01, the Company shall pay to each Class A
Certificateholder a late charge (the "Late Charge") calculated on a per diem
basis on the amount of such late payment for each day following the Payment Date
until and including the date on which paid, at a rate equal to the greater of
(i) the Class A Certificate Rate plus 200 basis points per annum and (ii)
Chase's Prime Rate then in effect, such Late Charge to be payable pursuant to
Section 3.03 of the Agreement as set forth in this Supplement.
SECTION 8.12. Final Payment; Surrender of Certificates. Final payment on
the Series 1994-2 Certificates shall be made to each Holder in the same manner
in which prior payments are made to such Holder and without any need for such
Holder to physically surrender its Class A Certificate(s) to the Trustee;
provided, that at such time as final payment or provision for final payment, of
the Series 1994-2 Certificates shall have been made, such Certificates shall be
deemed canceled and of no effect and shall not represent any further claim on or
interest in the
36
<PAGE> 40
Trust Assets notwithstanding any failure on the part of the Holder thereof to
physically surrender its Class A Certificate(s).
SECTION 8.13. Rights of the Trustee. The Trustee shall not be bound to
make any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
direction, order, approval, bond, note or other paper or document, unless
requested in writing so to do by the Holders of Investor Certificates evidencing
more than 10% of the Series 1994-2 Invested Amount if the Class A
Certificateholders under this Supplement could be materially and adversely
affected if the Trustee does not perform such acts; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
shall be, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Master Servicer (or, if Ingram Micro Inc. is no longer the
Master Servicer, by Ingram Micro Inc.) or, if paid by the Trustee, shall be
reimbursed by the Master Servicer (or if Ingram Micro Inc. is no longer the
Master Servicer, by Ingram Micro Inc.) upon demand. The Trustee shall be
entitled to make such further inquiry or investigation into such facts or
matters as it may reasonably see fit, and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books
and records of the Company, personally or by agent or attorney, at the sole cost
and expense of the Company.
In any case in which security or indemnity is required to be provided by
a Class A Certificateholder under any provision of the Pooling and Servicing
Agreements to either the Trustee, the Transfer Agent and Registrar, the Company,
the Master Servicer or any Servicer (an "Indemnified Party") as a condition to
such Indemnified Party taking, or not taking, any action, the unsecured
indemnity of any such Class A Certificateholder that is an Initial Purchaser or
is an institutional purchaser with an unsecured debt rating or claims paying
ability of at least "BBB" or its equivalent shall be deemed to satisfy such
requirement for security or indemnity.
SECTION 8.14. Waiver of Past Defaults. Without reference to Section 6.03
of the Servicing Agreement, Holders of Investor Certificates evidencing more
than 65% of the Series 1994-2 Invested Amount adversely affected in any material
respect may waive any continuing default by the Master Servicer, a Servicer or
the Company in the performance of its respective obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any default arising therefrom shall be deemed to have been
remedied for every purpose of the Pooling and Servicing Agreements. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived. Either the Company,
the Master Servicer or the Servicer shall provide notice to each Rating Agency
of any such waiver.
SECTION 8.15. Amendment of Policies. Neither the Master Servicer, any
Servicer, nor any Seller shall without the consent of 65% of the Aggregate
Invested Amount of all Series of Investor Certificates that were outstanding
prior to the Effective Date, make any change in the
37
<PAGE> 41
Policies that could reasonably be expected to have a material adverse effect on
the collectibility of the Receivables taken as a whole, or the ability of the
Master Servicer to perform its obligations under the Transaction Documents. The
Master Servicer shall provide written notice to each Rating Agency of any such
change in the Policies.
ARTICLE IX
Final Distributions
SECTION 9.01. Certain Distributions.
(a) Not later than 2:00 p.m., New York City time, on the Payment Date
following the date on which the proceeds from the disposition of the Receivables
pursuant to subsection 7.02(b) of the Agreement are deposited into the Series
1994-2 Non-Principal Collection Sub-subaccount and the Series 1994-2 Principal
Collection Sub-subaccount, the Trustee shall distribute such amounts pursuant to
Article III of this Supplement.
(b) Notwithstanding anything to the contrary in this Supplement or the
Agreement, any distribution made pursuant to this Section shall be deemed to be
a final distribution pursuant to Section 9.03 of the Agreement with respect to
the Term Certificates.
38
<PAGE> 42
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Amended and Restated Series 1994-2 Supplement to be duly
executed by their respective officers as of the day and year first above
written.
INGRAM FUNDING INC.
By: /s/ P. Kurt Preising
------------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as Master Servicer
By: /s/ P. Kurt Preising
------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee
By: /s/ Melissa J. Adelson
------------------------------------
Title: Vice President
Signature Page
to
Series 1994-2 Supplement
<PAGE> 43
EXHIBIT A TO
SERIES 1994-2 SUPPLEMENT
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED FORM OF CLASS A CERTIFICATE, SERIES 1994-2
REGISTERED
NO. $________ (of
$__________ issued)
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY PURCHASING THIS TERM CERTIFICATE,
AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS IN AN AMOUNT OF AT LEAST
$2,000,000 AND (1) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
OR (2) TO A PERSON WHO (A) IS AN INSTITUTIONAL "ACCREDITED INVESTOR", WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, AND
WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM ATTACHED TO THE
SERIES 1994-2 SUPPLEMENT OR (B) IS TAKING DELIVERY OF SUCH CERTIFICATE PURSUANT
TO A TRANSACTION THAT IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, AS CONFIRMED IN AN OPINION OF COUNSEL ADDRESSED TO THE TRUSTEE AND THE
COMPANY WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE COMPANY AND THE
TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF OF (1)
AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR OTHER RETIREMENT
ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH PLAN, WHETHER OR NOT IT IS
SUBJECT TO THE PROVISIONS OF TITLE I THERETO, (2) ANY PLAN DESCRIBED IN SECTION
4975(e) (1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR (3)
ANY OTHER ENTITY THAT WOULD BE DEEMED TO BE A "BENEFIT PLAN INVESTOR" WITHIN THE
MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101(f) (2) (ANY OF THE
FOREGOING, AN "ERISA ENTITY").
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
A-1
<PAGE> 44
Purchasers of this Term Certificate will be deemed to have made certain
representations and warranties set forth in the Supplement (it being understood
that the Initial Purchaser named herein shall not be deemed to have made any
representation or warranty pursuant to Section 2.05 of the Supplement).
This Class A Certificate evidences a fractional
undivided interest in the assets of the
INGRAM FUNDING MASTER TRUST
the corpus of which consists of receivables representing amounts payable for
goods or services, which receivables have been purchased by Ingram Funding Inc.,
a Delaware corporation, which in turn transferred and assigned such receivables
to the Ingram Micro Master Trust.
(Not an interest in or recourse obligation of
Ingram Micro Inc., Ingram Funding Inc.,
or any of their respective Affiliates)
This certifies that
[NAME OF CERTIFICATEHOLDER]
(the "Class A Certificateholder") is the registered owner of a fractional
undivided interest in the assets of Ingram Funding Master Trust (the "Trust"),
originally created pursuant to the Pooling and Servicing Agreement, dated as of
February 12, 1993 (as amended and restated on March 8, 2000 and as the same may
from time to time be amended, restated, supplemented or otherwise modified
thereafter, the "Pooling Agreement"), by and among Ingram Funding Inc., a
Delaware corporation (the "Company"), Ingram Micro Inc., a California
corporation, as master servicer (the "Master Servicer") and The Chase Manhattan
Bank, a New York banking corporation, not in its individual capacity but solely
as trustee (in such capacity, the "Trustee") for the Trust, as supplemented by
the Amended and Restated Series 1994-2 Supplement, dated as of March 8, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Supplement",
collectively with the Pooling Agreement, the "Agreement"), by and among the
Company, the Master Servicer and the Trustee. The corpus of the Trust consists
of receivables (the "Receivables") representing amounts payable for goods or
services and all other Trust Assets referred to in the Agreement. Although a
summary of certain provisions of the Agreement is set forth below, this Class A
Certificate does not purport to summarize the Agreement, is qualified in its
entirety by the terms and provisions of the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee. A copy of the Agreement may be requested by writing
to the Trustee at The Chase Manhattan Bank, 450 W. 33rd Street, 15th Floor, New
York, New York 10011, Attention: Advanced Structured Products Group. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreement.
This Class A Certificate is issued under, is entitled to the benefits
of, and is subject to, the terms, provisions and conditions of the Agreement, to
which Agreement the Class A Certificateholder by virtue of the acceptance hereof
assents and is bound.
A-2
<PAGE> 45
The Master Servicer, the Company, each Class A Certificateholder and the
Trustee intend, for federal, state and local income and franchise tax purposes
only, that the Class A Certificates be evidence of indebtedness of the Company
secured by the Trust Assets and that the Trust not be characterized as an
association or publicly traded partnership taxable as a corporation. The Class A
Certificateholder, by the acceptance hereof, agrees to treat the Class A
Certificates for federal, state and local income and franchise tax purposes as
indebtedness of the Company.
This Class A Certificate is one of a Class of Investor Certificates
entitled "Ingram Micro Master Trust, Class A Certificates, Series 1994-2" (the
"Class A Certificates" and also referred to as the "Term Certificates"). The
Term Certificates represent fractional undivided interests in the Trust Assets,
consisting of the right to receive distributions specified in the Supplement out
of (i) the Series 1994-2 Invested Percentage (expressed as a decimal) of the
Collections received with respect to the Receivables and of all other funds on
deposit in the Collection Account and (ii) to the extent such interests appear
in the Supplement, all other funds on deposit in the Series 1994-2 Collection
Subaccount and any subaccounts thereof (the "Series 1994-2 Certificateholders'
Interest"). Concurrent with the issuance of the Term Certificates, the Trust
shall also issue a Subordinated Company Interest to the Company representing a
fractional undivided interest in the Trust Assets, consisting of the right to
receive the distributions specified in the Supplement out of (i) the Series
1994-2 Invested Percentage (expressed as a decimal) of Collections received with
respect to the Receivables and all other funds on deposit in the Collection
Account and (ii) to the extent such interests appear in the Supplement, all
other funds on deposit in the Series 1994-2 Collection Subaccount and any
subaccounts thereof, in each case to the extent not required to be distributed
to or for the benefit of the Term Certificateholders (the "Series 1994-2
Subordinated Interest"). The Trust Assets are allocated in part to the Term
Certificateholders and the holders of the Series 1994-2 Subordinated Interest
with the remainder allocated to the Investor Certificateholders and the holders
of the Subordinated Company Interest of other Series and to the Company. An
Exchangeable Company Interest representing the Company's interest in the Trust
was issued to the Company pursuant to the Pooling Agreement on March 8, 2000.
The Exchangeable Company Interest represents the interest in the Trust Assets
not represented by the Investor Certificates and Subordinated Company Interest
of each Outstanding Series. The Exchangeable Company Interest may be decreased
by the Company pursuant to the Pooling Agreement in exchange for an increase in
the Invested Amount of a Class of Investor Certificates of an Outstanding Series
and an increase in the related Series Subordinated Company Interest, or one or
more newly issued Series of Investor Certificates and the related newly issued
Series Subordinated Company Interest, upon the conditions set forth in the
Pooling Agreement.
Interest on the Class A Invested Amount will be distributed to the Class
A Certificateholders on each Payment Date. The interest payable on each Payment
Date shall be an amount equal to the product of (i) the Class A Certificate
Rate, (ii) the Class A Invested Amount on the first day of such Accrual Period
(after giving effect to any distributions of principal on such date) and (iii)
the actual number of days in such Accrual Period divided by 360. Interest due
but not paid on any Payment Date (the "Class-A Interest Shortfall") will be due
on the next Payment Date, together with interest on such amount equal to the
product, for the Accrual Period succeeding such Accrual Period (or portion
thereof) until such Class A Interest Shortfall is paid, of (i) a rate per annum
equal to the Class A Certificate Rate, (ii) such Class A Interest Shortfall
A-3
<PAGE> 46
(or the portion thereof which has not been paid to the Class A
Certificateholders) and (iii) the actual number of days in such succeeding
Accrual Period divided by 360.
On each Payment Date during the Series 1994-2 Amortization Period, a
Series 1994-2 Monthly Principal Payment shall be made from amounts deposited
into the Series 1994-2 Principal Collection Subsubaccount during the preceding
Accrual Period (after the payment of any Servicing Fees due to the Successor
Servicer), pro rata to the Class A Certificateholders until repayment in full of
the Class A Invested Amount on such date. The Class A Invested Amount may be
otherwise reduced by distributions to the Class A Certificateholders as set
forth in the Agreement.
Distributions with respect to this Class A Certificate shall be paid by
the Trustee or its agent in immediately available funds to the Class A
Certificateholder at the registered address of the Class A Certificateholder as
provided to the Trustee. Final payment of this Class A Certificate shall be made
after due notice of such final distribution delivered by the Trustee to the
Class A Certificateholders in accordance with the Agreement. The Class A
Invested Amount may be prepaid by the Company in accordance with the Agreement.
This Class A Certificate does not represent an obligation of, or an
interest in, the Company, the Servicer or any Affiliate of either of them.
Subject to the provisions of the Agreement, the transfer of this Class A
Certificate shall be registered in the Certificate Register upon surrender of
this Class A Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee and the Transfer
Agent and Registrar, duly executed by the Class A Certificateholder or the Class
A Certificateholder's attorney-in-fact duly authorized in writing, and thereupon
one or more Class A Certificates of authorized denominations and of like
Investor Certificateholders' Interests will be issued to the designated
transferee or transferees.
The Trustee, the Company, the Paying Agent, the Transfer Agent and
Registrar and any agent of either of them, may treat the person in whose name
this Class A Certificate is registered as the owner hereof for all purposes.
It is expressly understood and agreed by the Company and the Class A
Certificateholder that (i) the Agreement is executed and delivered by the
Trustee, not individually or personally but solely as Trustee of the Trust, in
the exercise of the powers and authority conferred and vested in it, (ii) except
as set forth in the Agreement, the representations, undertakings and agreements
made on the part of the Trust in the Agreement are made and intended not as
personal representations, undertakings and agreements by the Trustee, but are
made and intended for the purpose of binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability of the Trustee,
individually or personally, to perform any covenant either expressed or implied
made on the part of the Trust in the Agreement, all such liability, if any,
being expressly waived by the parties who are signatories to the Agreement and
by any Person claiming by, through or under such parties; provided, however, the
Trustee shall be liable in its individual capacity for its own willful
misconduct or negligence and for any tax assessed against the Trustee based on
or measured by any fees, commission or compensation received by it for
A-4
<PAGE> 47
acting as Trustee and (iv) under no circumstances shall the Trustee be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement.
This Class A Certificate shall be construed in accordance with and
governed by the laws of the State of New York without reference to any conflict
of law principles.
The Class A Certificateholder hereby agrees that, prior to the date
which is one year and one day after the later of (i) the last day of the Series
1994-2 Amortization Period and (ii) the date that any Investor Certificates of
any other Outstanding Series are paid in full, it will not institute against, or
join any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
similar proceedings under any federal or state bankruptcy or similar law.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Class A Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-5
<PAGE> 48
IN WITNESS WHEREOF, the Company has caused this Amended and Restated
Class A Certificate to be duly executed.
Dated:_____________, 20__
INGRAM FUNDING INC., as
authorized pursuant to Section 5.01
of the Pooling Agreement
By:___________________________________
Title:
A-6
<PAGE> 49
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the
within-mentioned Agreement.
The Chase Manhattan Bank,
not in its individual
capacity but solely
as Trustee,
By:_________________________ OR By:_______________________________
Authorized Signatory Authenticating Agent
By:_______________________________
Authorized Signatory
A-7
<PAGE> 50
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE(S)
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- --------------------------------------------------------------------
- --------------------------------------------------------------------
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints
- ---------------------------------------------------------------------
attorney, with full power of substitution in the premises, to transfer said
certificate on the books kept for registration thereof.
The undersigned certifies that:
(check one)
[ ] The undersigned is transferring this Term Certificate to a Person
it reasonably believes is a "Qualified Institutional Buyer" (as
defined in Rule 144A under the Act) who has been informed that the
sale is being made in reliance upon Rule 144A.
[ ] The undersigned is transferring this Term Certificate in
accordance with the other provisions of the legends set forth
herein.
Dated:______________
-----------------------------------------
Note: The signature(s) to this Assignment
must correspond with the name(s) as
written on the face of the within
certificate in every particular, without
alteration or any change whatsoever.
A-8
<PAGE> 51
EXHIBIT B TO
SERIES 1994-2 SUPPLEMENT
FORM OF DAILY REPORT
Attached.
<PAGE> 52
INGRAM FUNDING MASTER TRUST
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Company Interest Series 1993-2 Series 1994-2 Series 1994-3
-----------------------------------------------------------------------------
Investor Interest Investor Interest Investor Interest Investor Interest
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance
Plus: Gross Credit Sales
Plus: Inter-Co. Sales
Less: Inter-Co. Collections
Less: Collections
Less: Net Write-Offs
Less: Total Dilution Adjustments
Plus/Less: A/R Adjustments
Less: Repurchased Receivables
Ending Receivables Balance
Less: Defaulted Receivables
Less: Total Ineligible Receivables
Total Eligible Receivables
Less: Overconcentration Amount
Aggregate Receivables Amount
Invested Amount #N/A #N/A #N/A
Adjusted Invested Amount #N/A #N/A #N/A
Required Subordinated Amount #N/A #N/A #N/A
Target Receivables Amount #N/A #N/A #N/A
Allocated Receivables Amount #N/A #N/A #N/A #N/A
Collateral Compliance #N/A #N/A #N/A
Ending Invested % #N/A #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Trasfered to Collection Account
(Aggregate Daily Collections)
B) Trasfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A #N/A #N/A
C) Trasfer to Company Collection
Subaccount (from A) #N/A
D) Trasfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A #N/A #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
H) Trasfer to Company
Collection Subaccount (from B) #N/A #N/A #N/A
I) Trasfer to Company Collection
Subaccount (from F) -
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily)
J) Total Trasfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A #N/A #N/A
-----------------------------------------------------------------------
Total Held at Trust #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
REPORT DATE
6-Mar-00 ACTIVITY DATE
- ----------------------------------------------------------------------------
Series 2000-1
------------------- Pool
Investor Interest Balance
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance #N/A
Plus: Gross Credit Sales #N/A
Plus: Inter-Co. Sales #N/A
Less: Inter-Co. Collections #N/A
Less: Collections #N/A
Less: Net Write-Offs #N/A
Less: Total Dilution Adjustments #N/A
Plus/Less: A/R Adjustments #N/A
Less: Repurchased Receivables #N/A
-----------
Ending Receivables Balance #N/A
#N/A
Less: Defaulted Receivables #N/A
Less: Total Ineligible Receivables #N/A
-----------
Total Eligible Receivables #N/A
Less: Overconcentration Amount #N/A
-----------
Aggregate Receivables Amount #N/A
#N/A
Invested Amount #N/A
Adjusted Invested Amount #N/A
Required Subordinated Amount #N/A
Target Receivables Amount #N/A
Allocated Receivables Amount #N/A #N/A
Collateral Compliance #N/A
Ending Invested % #N/A #N/A
- ----------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Trasfered to Collection Account
(Aggregate Daily Collections) #N/A
B) Trasfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A
C) Trasfer to Company Collection
Subaccount (from A)
D) Trasfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A
H) Trasfer to Company
Collection Subaccount (from B) #N/A
I) Trasfer to Company Collection
Subaccount (from F)
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily) -
---
J) Total Trasfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A
-------------------------------------
Total Held at Trust #N/A #N/A
- ----------------------------------------------------------------------------
#N/A
</TABLE>
The undersigned, an Officer of Ingram Micro, as Master Servicer, certifies that
the information set forth above is true and correct and it has performed in all
material respects all of its obligations as Servicer under the Pooling and
Servicing Agreements required to be performed as of the date hereof.
Signature: Name: Title: Date:
- --------------------------------------------------------------------------------
1
<PAGE> 53
EXHIBIT C TO
SERIES 1994-2 SUPPLEMENT
FORM OF MONTHLY SETTLEMENT STATEMENT
Attached.
<PAGE> 54
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00 Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(Non-Inter-Co.)
Beginning Gross Gross Credit Inter-Co. Inter-Co. (Non-Inter-Co.)
Receivable Balance Sales Sales Collections Collections Net Write-Offs
==================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Dilutative Items
----------------------
Defective Non-
Product Resellable
========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals : 0.00 0.00
</TABLE>
Index-> #N/A
2
<PAGE> 55
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
Dilutative Items
------------------------------------------------------------------ Total
Stock A/P Wrong Daily Credits Other Dilutative A/R
Balancing Adjustments Shipment In Other A/R Dilutive Adjustments Adjustments
==============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Ending
Repurchased Receivables
Receivables Balance
===========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
=====
Totals : 0.00
</TABLE>
Index-> #N/A
3
<PAGE> 56
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
DEFAULTED RECEIVABLES INELIGIBLE RECEIVABLES
----------------------------------------------------------------------------------------------------
61-90 Days 91-120 Days 121+ Days Credits Over 60 35% Cross Aged Federal
Past Due Past Due Past Due Past Due >121 Days Government Inter-Company
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------
Foreign Contra
Select Source Receivables Balances
-------------------------------------
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
4
<PAGE> 57
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------------------------------------------------------------------------------
Non Qualifying Customers with Trade Litigation & Unaplied Cash Accured
ChargeBacks DIP Obligor Terms > 90 Days Discounts Collection Adjustment Pricing Credits Other
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
</TABLE>
<TABLE>
<CAPTION>
Total Total
Ineligible Eligible
Receivables Receivables
--------------------------
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
5
<PAGE> 58
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(EARLY) AMORTIZATION PERIOD ONLY
----------------------------------------------
Repurchase Repurchase Overconcentration Aggregate
Overconcentration Obligation for Obligation for plus Ineligible Receivables
Amount Defaulted Receivables Ineligible Receivables Receivables Amount
========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00
Totals :
<CAPTION>
---------------
Series 1993-2
Invested Amount
===============
<S> <C>
1-Apr-00 -
2-Apr-00 -
3-Apr-00 -
4-Apr-00 -
5-Apr-00 -
6-Apr-00 -
7-Apr-00 -
8-Apr-00 -
9-Apr-00 -
0-Apr-00 -
1-Apr-00 -
2-Apr-00 -
3-Apr-00 -
4-Apr-00 -
5-Apr-00 -
6-Apr-00 -
7-Apr-00 -
8-Apr-00 -
9-Apr-00 -
0-Apr-00 -
1-Apr-00 -
2-Apr-00 -
3-Apr-00 -
4-Apr-00 -
5-Apr-00 -
6-Apr-00 -
7-Apr-00 -
8-Apr-00 -
9-Apr-00 -
0-Apr-00 -
1-May-00 -
2-May-00 -
3-May-00 -
4-May-00 -
</TABLE>
Index-> #N/A
6
<PAGE> 59
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-----------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Sub-Acct. Principal Invested Subordinated Required
Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 - - - #DIV/0! 0.00%
Sunday 2-Apr-00 - - - #DIV/0! 0.00%
Monday 3-Apr-00 - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 - - - #DIV/0! 0.00%
Thursday 6-Apr-00 - - - #DIV/0! 0.00%
Friday 7-Apr-00 - - - #DIV/0! 0.00%
Saturday 8-Apr-00 - - - #DIV/0! 0.00%
Sunday 9-Apr-00 - - - #DIV/0! 0.00%
Monday 10-Apr-00 - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 - - - #DIV/0! 0.00%
Thursday 13-Apr-00 - - - #DIV/0! 0.00%
Friday 14-Apr-00 - - - #DIV/0! 0.00%
Saturday 15-Apr-00 - - - #DIV/0! 0.00%
Sunday 16-Apr-00 - - - #DIV/0! 0.00%
Monday 17-Apr-00 - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 - - - #DIV/0! 0.00%
Thursday 20-Apr-00 - - - #DIV/0! 0.00%
Friday 21-Apr-00 - - - #DIV/0! 0.00%
Saturday 22-Apr-00 - - - #DIV/0! 0.00%
Sunday 23-Apr-00 - - - #DIV/0! 0.00%
Monday 24-Apr-00 - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 - - - #DIV/0! 0.00%
Thursday 27-Apr-00 - - - #DIV/0! 0.00%
Friday 28-Apr-00 - - - #DIV/0! 0.00%
Saturday 29-Apr-00 - - - #DIV/0! 0.00%
Sunday 30-Apr-00 - - - #DIV/0! 0.00%
Monday 1-May-00 - - - #DIV/0! 0.00%
Tuesday 2-May-00 - - - #DIV/0! 0.00%
Wednesday 3-May-00 - - - #DIV/0! 0.00%
Thursday 4-May-00 - - - #DIV/0! 0.00%
Totals :
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-------------------------------
Series 1993-2
Carrying Cost Servicing
Reserve % Reserve %
===============================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 0.00% 0.00%
Monday 1-May-00 0.00% 0.00%
Tuesday 2-May-00 0.00% 0.00%
Wednesday 3-May-00 0.00% 0.00%
Thursday 4-May-00 0.00% 0.00%
</TABLE>
Index -> # N/A
7
<PAGE> 60
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-2 MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-2 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
-----------------------------------
Series 1994-2
Carrying Cost Servicing
Reserve % Reserve %
===================================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
8
<PAGE> 61
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
SERIES 1994-3 MEDIUM TERM NOTES
<TABLE>
<CAPTION>
SERIES 1994-3 MEDIUM TERM NOTES
------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-3 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
==========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
---------------------------
Series 1994-3
Carrying Cost Servicing
Reserve % Reserve %
===========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
9
<PAGE> 62
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
----------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 2000-1 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
--------------------------
Carrying Cost Servicing
Reserve % Reserve %
=========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
10
<PAGE> 63
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 ESTIMATED ESTIMATED
Maximum 2000-1 Allocated Maximum 2000-1
Target Receivables Receivables Required Maximum 2000-1
Amount Amount Subordinated Amount Invested Amount
<S> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Totals :
MTN MTN MTN VFC
1993-2 1994-2 1994-3 2000-1
Invested Invested Invested Invested
% % % %
==========================================================
<S> <C> <C> <C> <C> <C>
31-Mar-00 0.00% 0.00% 0.00% 0.00%
1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
Index-> #NA
11
<PAGE> 64
Overconcentration
OVERCONCENTRATION GRID:
<TABLE>
<CAPTION>
SHORT-TERM LONG-TERM
<S> <C> <C>
A-1+,F-1+,P-1 AA-, AA-, Aa3 15.00%
A-1,F-1,P-1 A+, A+, A1 15.00%
A-2,F-2,P-2 BBB+, BBB+, Baa1 7.50%
A-3,F-3,P-3 BBB-, BBB-, Baa3 5.00%
UNRATED UNRATED 3.00%
ELIGIBLE RECEIVABLES:
REPORT CHECK: 0.00
REPORT DATE ACTIVITY DATE
6-Mar-00
S&P RATING DESK: (212) 438-2400
MOODY'S RATING DESK: (212) 553-0377
FITCH RATING DESK: (800) 853-4824 FAX: (307) 754-3721
(Total Eligible Receivables per Daily Statement - Cell F24)
RATING ELIGIBLE CONCENTRATION EXCESS
CUSTOMER S&P/MOODY'S/FITCH A/R BALANCE % OF ELIGIBLES $ THRESHOLD % CONCENTRATION
--------------------------------------------- -------------- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 #DIV/0! - #DIV/0! -
2 #DIV/0! - #DIV/0! -
3 #DIV/0! - #DIV/0! -
4 #DIV/0! - #DIV/0! -
5 #DIV/0! - #DIV/0! -
6 #DIV/0! - #DIV/0! -
7 #DIV/0! - #DIV/0! -
8 #DIV/0! - #DIV/0! -
9 #DIV/0! - #DIV/0! -
10 #DIV/0! - #DIV/0! -
11 #DIV/0! - #DIV/0! -
12 #DIV/0! - #DIV/0! -
13 #DIV/0! - #DIV/0! -
14 #DIV/0! - #DIV/0! -
15 #DIV/0! - #DIV/0! -
16 #DIV/0! - #DIV/0! -
17 #DIV/0! - #DIV/0! -
18 #DIV/0! - #DIV/0! -
19 #DIV/0! - #DIV/0! -
20 #DIV/0! - #DIV/0! -
---
$ -
===
</TABLE>
<PAGE> 65
INGRAM MICRO MASTER TRUST
MONTHLY RESERVES
($ in thousands)
<TABLE>
<CAPTION>
Aggregate
Principal Total Total Dollar Receivables
Non-I/C Amount of Dilutive A/R Weighted Amount Weighted
Sales Receivables Items Gross Written-Off Average (as of Mth end Ave.
Period Per Per Per A/R Prior Dilution on the daily Pay.
Ended Rollforward Rollforward Rollforward 91 - 120 to 91 Days Horizon statement) Terms
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0 0 0 0.00 - 0.0
Feb-97 0 0 0 0 0 0.00 - 0.0
Mar-97 0 0 0 0 0 0.00 - 0.0
Apr-97 0 0 0 0 0 0.00 - 0.0
May-97 0 0 0 0 0 0.00 - 0.0
Jun-97 0 0 0 0 0 0.00 - 0.0
Jul-97 0 0 0 0 0 0.00 - 0.0
Aug-97 0 0 0 0 0 0.00 - 0.0
Sep-97 0 0 0 0 0 0.00 - 0.0
Oct-97 0 0 0 0 0 0.00 - 0.0
Nov-97 0 0 0 0 0 0.00 - 0.0
Dec-97 0 0 0 0 0 0.00 - 0.0
Jan-98 0 0 0 0 0 0.00 - 0.0
Feb-98 0 0 0 0 0 0.00 - 0.0
Mar-98 0 0 0 0 0 0.00 - 0.0
Apr-98 0 0 0 0 0 0.00 - 0.0
May-98 0 0 0 0 0 0.00 - 0.0
Jun-98 0 0 0 0 0 0.00 - 0.0
Jul-98 0 0 0 0 0 0.00 - 0.0
Aug-98 0 0 0 0 0 0.00 - 0.0
Sep-98 0 0 0 0 0 0.00 - 0.0
Oct-98 0 0 0 0 0 0.00 - 0.0
Nov-98 0 0 0 0 0 0.00 - 0.0
Dec-98 0 0 0 0 0 0.00 - 0.0
Jan-99 0 0 0 0 0 0.00 - 0.0
Feb-99 0 0 0 0 0 0.00 - 0.0
Mar-99 0 0 0 0 0 0.00 - 0.0
Apr-99 0 0 0 0 0 0.00 - 0.0
May-99 0 0 0 0 0 0.00 - 0.0
Jun-99 0 0 0 0 0 0.00 - 0.0
Jul-99 0 0 0 0 0 0.00 - 0.0
Aug-99 0 0 0 0 0 0.00 - 0.0
Sep-99 0 0 0 0 0 0.00 - 0.0
Oct-99 0 0 0 0 0 0.00 - 0.0
Nov-99 0 0 0 0 0 0.00 - 0.0
Dec-99 0 0 0 0 0 0.00 - 0.0
Jan-00 0 0 0 0 0 0.00 - 0.0
Feb-00 0 0 0 0 0 0.00 - 0.0
Mar-00 0 0 0 0 0 0.00 - 0.0
Apr-00 0 0 0 0 0 0.00 - 0.0
<CAPTION>
Series Series Series Base
1993-2 1994-2 1994-3 Rate
Period Discount Discount Discount (Prime
Ended Rate Rate Rate Rate)
---------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97 6.61% 6.91% 7.17% 0.00%
Feb-97 6.61% 6.91% 7.17% 0.00%
Mar-97 6.61% 6.91% 7.17% 0.00%
Apr-97 6.61% 6.91% 7.17% 0.00%
May-97 6.61% 6.91% 7.17% 0.00%
Jun-97 6.61% 6.91% 7.17% 0.00%
Jul-97 6.61% 6.91% 7.17% 0.00%
Aug-97 6.61% 6.91% 7.17% 0.00%
Sep-97 6.61% 6.91% 7.17% 0.00%
Oct-97 6.61% 6.91% 7.17% 0.00%
Nov-97 6.61% 6.91% 7.17% 0.00%
Dec-97 6.61% 6.91% 7.17% 0.00%
Jan-98 6.61% 6.91% 7.17% 0.00%
Feb-98 6.61% 6.91% 7.17% 0.00%
Mar-98 6.61% 6.91% 7.17% 0.00%
Apr-98 6.61% 6.91% 7.17% 0.00%
May-98 6.61% 6.91% 7.17% 0.00%
Jun-98 6.61% 6.91% 7.17% 0.00%
Jul-98 6.61% 6.91% 7.17% 0.00%
Aug-98 6.61% 6.91% 7.17% 0.00%
Sep-98 6.61% 6.91% 7.17% 0.00%
Oct-98 6.61% 6.91% 7.17% 0.00%
Nov-98 6.61% 6.91% 7.17% 0.00%
Dec-98 6.61% 6.91% 7.17% 0.00%
Jan-99 6.61% 6.91% 7.17% 0.00%
Feb-99 6.61% 6.91% 7.17% 0.00%
Mar-99 6.61% 6.91% 7.17% 0.00%
Apr-99 6.61% 6.91% 7.17% 0.00%
May-99 6.61% 6.91% 7.17% 0.00%
Jun-99 6.61% 6.91% 7.17% 0.00%
Jul-99 6.61% 6.91% 7.17% 0.00%
Aug-99 6.61% 6.91% 7.17% 0.00%
Sep-99 6.61% 6.91% 7.17% 0.00%
Oct-99 6.61% 6.91% 7.17% 0.00%
Nov-99 6.61% 6.91% 7.17% 0.00%
Dec-99 6.61% 6.91% 7.17% 0.00%
Jan-00 6.61% 6.91% 7.17% 0.00%
Feb-00 6.61% 6.91% 7.17% 0.00%
Mar-00 6.61% 6.91% 7.17% 0.00%
Apr-00 6.61% 6.91% 7.17% 0.00%
</TABLE>
<PAGE> 66
<TABLE>
<CAPTION>
Three
Month Max.
Dilution Max. Average 12 Mth.
Servicing 12-month 12 Mth. Dilution Aged Aged Aged Payment
Period Fee Dilution Rolling Rolling Horizon Dilution A/R A/R A/R Terms
Ended Rate Ratio Average Avg. Factor Period Ratio Ratio Ratio Factor
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00%
Feb-97 0.00%
Mar-97 0.00% #DIV/0!
Apr-97 0.00% #DIV/0!
May-97 0.00% #DIV/0!
Jun-97 0.00% #DIV/0! #DIV/0!
Jul-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0!
Aug-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Sep-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Oct-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Nov-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Dec-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Jan-98 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Feb-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
</TABLE>
<TABLE>
<CAPTION>
Minimum
Payment Days
Period Terms Sales
Ended Factor Out.
-----------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0!
Jun-97 #DIV/0!
Jul-97 #DIV/0!
Aug-97 #DIV/0!
Sep-97 #DIV/0!
Oct-97 #DIV/0!
Nov-97 #DIV/0!
Dec-97 #DIV/0!
Jan-98 #DIV/0!
Feb-98 0.00 #DIV/0!
Mar-98 0.00 #DIV/0!
Apr-98 0.00 #DIV/0!
May-98 0.00 #DIV/0!
Jun-98 0.00 #DIV/0!
Jul-98 0.00 #DIV/0!
Aug-98 0.00 #DIV/0!
Sep-98 0.00 #DIV/0!
Oct-98 0.00 #DIV/0!
Nov-98 0.00 #DIV/0!
Dec-98 0.00 #DIV/0!
Jan-99 0.00 #DIV/0!
Feb-99 0.00 #DIV/0!
Mar-99 0.00 #DIV/0!
Apr-99 0.00 #DIV/0!
May-99 0.00 #DIV/0!
Jun-99 0.00 #DIV/0!
Jul-99 0.00 #DIV/0!
Aug-99 0.00 #DIV/0!
Sep-99 0.00 #DIV/0!
Oct-99 0.00 #DIV/0!
Nov-99 0.00 #DIV/0!
Dec-99 0.00 #DIV/0!
Jan-00 0.00 #DIV/0!
Feb-00 0.00 #DIV/0!
Mar-00 0.00 #DIV/0!
Apr-00 0.00 #DIV/0!
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------------------
MAX
(a) (b) (c) (A+B) OR (C)
aa bb cc Max
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
</TABLE>
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
-------------------------------------------------------
SERIES SERIES SERIES
1993-2 1994-2 1994-3
CARRYING CARRYING CARRYING
COST COST COST SERVICING
Period RESERVE RESERVE RESERVE FEE
Ended RATIO RATIO RATIO RATIO
-----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0! #DIV/0! #DIV/0!
May-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
<PAGE> 68
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
--------------------------------------------------------------------------------------------------------
(a) (b) (c) MAX
aa bb cc Max (A+B) OR (C)
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
</TABLE>
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
------------------------------------
CARRYING
COST SERVICING
Period RESERVE FEE
Ended RATIO RATIO
- ------------------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0!
</TABLE>
<PAGE> 69
INGRAM MICRO
OVERCOLLATERALIZATION SUMMARY
- --------------------------------------------------------------------------------
($ in thousands)
ASSUMPTIONS:
AGING TYPE Due To Date
CREDIT MEMO LAG 30 30
DILUTION HORIZON 30 30
DEFAULT HORIZON 90 90
DEEMED DEFAULTS 90-120 91-120
FIRST PERIOD OF DATA JAN-97
RATING FACTOR 2.00=A 2
PROJECTED ADV. RATE 75%
The Company's method of aging its receivables.
Lag from the original invoice date to the credit memo date.
This represents the number of days of sales GE Capital/Redwood is exposed to
dilution. This is based on the maximum of how many days of sales are in our
borrowing or A/R turnover.
This represents the number of days of sales GE Capital/Redwood is lending on.
(i.e. If we are lending up to 90 days past invoice date, we would have 90 days
of sales in our borrowing base or 3 months).
Represents the next aging category outside of our borrowing base window (i.e. If
we are lending up to 90 days past invoice date, our deemed default would be the
91-120 aging category).
The beginning period of our historical data.
The rating factor is the stress factor used to underwrite a pool to a certain
credit level. (AAA = 2.5, AA=2.25, A=2.00, BBB=1.75).
Projected advance rate based on ((2 times dilution) plus 5%).
<TABLE>
<CAPTION>
0.00% Max O/C
4/SALES AVG. OF LAST PRIOR 3 7X8
5 MONTHS AGO 3 MOS OF #5 OF 1 XFACTOR
1 2 3 4 5 6 7 8 9
91-120 Monthly 3 Month Highest Prior Default Rating
Month Sales A/R Dilutions Bucket Def. Ratio Average 12 mos of #6 Horizon Factor
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - -
Feb-97 - - - -
Mar-97 - - - -
Apr-97 - - - -
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-98 - - - - #DIV/0! 0.00% 0.00% 0 0
May-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-99 - - - - #DIV/0! 0.00% 0.00% 0 0
May-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-99 - - - - #DIV/0! 0.00% 0.00% 0 0
<CAPTION>
3/1,1 SUM 12 MOS. PRIOR 1 HIGHEST PRIOR 4
MOS. AGO 10/TWELVE MOS. OF 1 11x12xFACT. TWELVE OF 10 14-11 14/11 12x15x16
10 11 12 13 14 15 16 17
Dilution 12 Month Avg Dilution Normal "Spike" Spike Less Spike Divided Spike
Month Percent Dil/Sales Horizon Dilution 12 Mos Avg 12 Month Avg Impact
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97 0.00%
Jun-97 0.00%
Jul-97 0.00%
Aug-97 0.00%
Sep-97 0.00%
Oct-97 0.00%
Nov-97 0.00%
Dec-97 0.00%
Jan-98 0.00%
Feb-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jan-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Feb-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
<CAPTION>
(13+17)/2 9/2 18+19
18 19 20 21
Dilution Default Total GECC
Month Coverage Coverage O/C LOC
--------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97
Jun-97
Jul-97
Aug-97
Sep-97
Oct-97
Nov-97
Dec-97
Jan-98
Feb-98 0.00% 0.00% 0.00% 0.00%
Mar-98 0.00% 0.00% 0.00% 0.00%
Apr-98 0.00% 0.00% 0.00% 0.00%
May-98 0.00% 0.00% 0.00% 0.00%
Jun-98 0.00% 0.00% 0.00% 0.00%
Jul-98 0.00% 0.00% 0.00% 0.00%
Aug-98 0.00% 0.00% 0.00% 0.00%
Sep-98 0.00% 0.00% 0.00% 0.00%
Oct-98 0.00% 0.00% 0.00% 0.00%
Nov-98 0.00% 0.00% 0.00% 0.00%
Dec-98 0.00% 0.00% 0.00% 0.00%
Jan-99 0.00% 0.00% 0.00% 0.00%
Feb-99 0.00% 0.00% 0.00% 0.00%
Mar-99 0.00% 0.00% 0.00% 0.00%
Apr-99 0.00% 0.00% 0.00% 0.00%
May-99 0.00% 0.00% 0.00% 0.00%
Jun-99 0.00% 0.00% 0.00% 0.00%
Jul-99 0.00% 0.00% 0.00% 0.00%
Aug-99 0.00% 0.00% 0.00% 0.00%
Sep-99 0.00% 0.00% 0.00% 0.00%
Oct-99 0.00% 0.00% 0.00% 0.00%
Nov-99 0.00% 0.00% 0.00% 0.00%
Dec-99 0.00% 0.00% 0.00% 0.00%
</TABLE>
17
<PAGE> 70
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
18
<PAGE> 71
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (SELECT SOURCE ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - -
Feb-97 - - - - - - - - -
Mar-97 - - - - - - - - -
Apr-97 - - - - - - - - -
May-97 - - - - - - - - -
Jun-97 - - - - - - - - -
Jul-97 - - - - - - - - -
Aug-97 - - - - - - - - -
Sep-97 - - - - - - - - -
Oct-97 - - - - - - - - -
Nov-97 - - - - - - - - -
Dec-97 - - - - - - - - -
Jan-98 - - - - - - - - -
Feb-98 - - - - - - - - -
Mar-98 - - - - - - - - -
Apr-98 - - - - - - - - -
May-98 - - - - - - - - -
Jun-98 - - - - - - - - -
Jul-98 - - - - - - - - -
Aug-98 - - - - - - - - -
Sep-98 - - - - - - - - -
Oct-98 - - - - - - - - -
Nov-98 - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - 0.0%
Jan-98 - - - - 28 - 0.0%
Feb-98 - - - - 28 - 0.0%
Mar-98 - - - - 35 - 0.0%
Apr-98 - - - - 28 - 0.0%
May-98 - - - - 28 - 0.0%
Jun-98 - - - - 35 - 0.0%
Jul-98 - - - - 28 - 0.0%
Aug-98 - - - - 28 - 0.0%
Sep-98 - - - - 35 - 0.0%
Oct-98 - - - - 28 - 0.0%
Nov-98 - - - - 28 - 0.0%
Dec-98 - - - - 35 - 0.0%
Jan-99 - - - - 28 - 0.0%
Feb-99 - - - - 28 - 0.0%
Mar-99 - - - - 35 - 0.0%
Apr-99 - - - - 28 - 0.0%
May-99 - - - - 28 - 0.0%
Jun-99 - - - - 35 - 0.0%
Jul-99 - - - - 28 - 0.0%
Aug-99 - - - - 28 - 0.0%
Sep-99 - - - - 35 - 0.0%
Oct-99 - - - - 28 - 0.0%
Nov-99 - - - - 28 - 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
19
<PAGE> 72
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
20
<PAGE> 73
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST
(NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
21
<PAGE> 74
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST (SELECT SOURCE
ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date 13,196 12,649
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
22
<PAGE> 75
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL Check S/B=0
------ ---- ----- ----- ------ ---- ----- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
23
<PAGE> 76
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0.0% 0.0
Feb-97 0 0 0.0% 0.0
Mar-97 0 0 0.0% 0.0
Apr-97 0 0 0.0% 0.0
May-97 0 0 0.0% 0.0
Jun-97 0 0 0.0% 0.0% 0.0 -
Jul-97 0 0 0.0% 0.0% 0.0 -
Aug-97 0 0 0.0% 0.0% 0.0 -
Sep-97 0 0 0.0% 0.0% 0.0 -
Oct-97 0 0 0.0% 0.0% 0.0 -
Nov-97 0 0 0.0% 0.0% 0.0 -
Dec-97 0 0 0.0% 0.0% 0.0 -
Jan-98 0 0 0.0% 0.0% 0.0 -
Feb-98 0 0 0.0% 0.0% 0.0 -
Mar-98 0 0 0.0% 0.0% 0.0 -
Apr-98 0 0 0.0% 0.0% 0.0 -
May-98 0 0 0.0% 0.0% 0.0 -
Jun-98 0 0 0.0% 0.0% 0.0 -
Jul-98 0 0 0.0% 0.0% 0.0 -
Aug-98 0 0 0.0% 0.0% 0.0 -
Sep-98 0 0 0.0% 0.0% 0.0 -
Oct-98 0 0 0.0% 0.0% 0.0 -
Nov-98 0 0 0.0% 0.0% 0.0 -
Dec-98 0 0 0.0% 0.0% 0.0 -
Jan-99 0 0 0.0% 0.0% 0.0 -
Feb-99 0 0 0.0% 0.0% 0.0 -
Mar-99 0 0 0.0% 0.0% 0.0 -
Apr-99 0 0 0.0% 0.0% 0.0 -
May-99 0 0 0.0% 0.0% 0.0 -
Jun-99 0 0 0.0% 0.0% 0.0 -
Jul-99 0 0 0.0% 0.0% 0.0 -
Aug-99 0 0 0.0% 0.0% 0.0 -
Sep-99 0 0 0.0% 0.0% 0.0 -
Oct-99 0 0 0.0% 0.0% 0.0 -
Nov-99 0 0 0.0% 0.0% 0.0 -
Dec-99 0 0 0.0% 0.0% OK 0.0 - OK
Jan-00 0 0 0.0% 0.0% OK 0.0 - OK
Feb-00 0 0 0.0% 0.0% OK 0.0 - OK
CALCULATION
High 0.0% -
Low 0.0% -
Average 0.0% -
STD Deviation 0.0% -
High + 1 std deviations 0.0% -
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - #DIV/0!
Feb-97 - - - - #DIV/0!
Mar-97 - - - - #DIV/0!
Apr-97 - - - - #DIV/0!
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.0%
Jul-97 - - - - #DIV/0! 0.0%
Aug-97 - - - - #DIV/0! 0.0%
Sep-97 - - - - #DIV/0! 0.0%
Oct-97 - - - - #DIV/0! 0.0%
Nov-97 - - - - #DIV/0! 0.0%
Dec-97 - - - - #DIV/0! 0.0%
Jan-98 - - - - #DIV/0! 0.0%
Feb-98 - - - - #DIV/0! 0.0%
Mar-98 - - - - #DIV/0! 0.0%
Apr-98 - - - - #DIV/0! 0.0%
May-98 - - - - #DIV/0! 0.0%
Jun-98 - - - - #DIV/0! 0.0%
Jul-98 - - - - #DIV/0! 0.0%
Aug-98 - - - - #DIV/0! 0.0%
Sep-98 - - - - #DIV/0! 0.0%
Oct-98 - - - - #DIV/0! 0.0%
Nov-98 - - - - #DIV/0! 0.0%
Dec-98 - - - - #DIV/0! 0.0%
Jan-99 - - - - #DIV/0! 0.0%
Feb-99 - - - - #DIV/0! 0.0%
Mar-99 - - - - #DIV/0! 0.0%
Apr-99 - - - - #DIV/0! 0.0%
May-99 - - - - #DIV/0! 0.0%
Jun-99 - - - - #DIV/0! 0.0%
Jul-99 - - - - #DIV/0! 0.0%
Aug-99 - - - - #DIV/0! 0.0%
Sep-99 - - - - #DIV/0! 0.0%
Oct-99 - - - - #DIV/0! 0.0%
Nov-99 - - - - #DIV/0! 0.0%
Dec-99 - - - - #DIV/0! 0.0% OK
Jan-00 - - - - #DIV/0! 0.0% OK
Feb-00 - - - - #DIV/0! 0.0% OK
CALCULATION
High 0.0%
Low 0.0%
Average 0.0%
STD Deviation 0.0%
High + 1 std deviations 0.0%
</TABLE>
24
<PAGE> 77
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ -------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
25
<PAGE> 78
EXHIBIT D TO
SERIES 1994-2 SUPPLEMENT
FORM OF PURCHASER LETTER
[Month] [Day], 20__
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Re: Class A Certificate, Series 1994-2
Ladies and Gentlemen:
This letter (the "Purchaser Letter") is delivered by the undersigned
(the "Transferee") pursuant to the Amended and Restated Series 1994-2 Supplement
to the Amended and Restated Pooling Agreement dated as of March 8, 2000, among
Ingram Funding Inc. ("Funding"), Ingram Micro Inc. and The Chase Manhattan Bank,
as trustee (the "Trustee") (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Supplement"). Capitalized terms
used herein without definition shall have the meanings set forth in the
Supplement. The Transferee represents and covenants to the Trustee as follows:
1. It is (A) a Qualified Institutional Buyer as defined in Rule 144A(a)
and is acquiring the Term Certificates for its own institutional account or for
the account or accounts of a Qualified Institutional Buyer or (B) purchasing
Term Certificates being delivered in the form of Definitive Certificates in a
transaction exempt from registration under the Securities Act and in compliance
with the provisions of the Agreement and in compliance with the legends set
forth in paragraph 4 below.
2. It is purchasing one or more Term Certificates in an amount of at
least $2,000,000 and it understands that such Term Certificate may be resold,
pledged or otherwise transferred only in an amount of at least $2,000,000;
3. It understands that the Term Certificates are being transferred to
it in a transaction not involving any public offering within the meaning of the
Securities Act, and that, if in the future it decides to resell, pledge or
otherwise transfer any Term Certificates, such Term Certificates may be resold,
pledged or transferred only (A) in a transaction meeting the requirements of
Rule 144A to a person who the seller reasonably believes is a Qualified
Institutional Buyer that purchases for its own account or for the account or
accounts of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A or (B) to
purchasers of Term Certificates being delivered in the form of Definitive
Certificates, pursuant to a transaction otherwise exempt from registration under
the Securities Act and in compliance with the provisions of the Agreement and in
compliance with the legends set forth in paragraph 4 below.
D-1
<PAGE> 79
4. It understands that each Term Certificate will bear a legend
substantially to the following effect:
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY PURCHASING THIS TERM
CERTIFICATE, AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED
OR TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS IN AN AMOUNT OF AT LEAST $2,000,000 AND (1) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE 144A"), TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (2) TO A PERSON (A) WHO IS AN "INSTITUTIONAL
ACCREDITED INVESTOR", WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE ACT, AND WHO DELIVERS A PURCHASER
LETTER TO THE TRUSTEE IN THE FORM ATTACHED TO THE SERIES 1994-2
SUPPLEMENT OR (B) WHO IS TAKING DELIVERY OF SUCH TERM CERTIFICATE
PURSUANT TO A TRANSACTION THAT IS OTHERWISE EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT, AS CONFIRMED IN AN OPINION OF
COUNSEL ADDRESSED TO THE TRUSTEE AND THE COMPANY, WHICH COUNSEL AND
OPINION ARE SATISFACTORY TO THE COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF OF
(1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
OTHER RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH
PLAN, WHETHER OR NOT IT IS SUBJECT TO THE PROVISIONS OF TITLE I
THERETO, (2) ANY PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR (3) ANY OTHER ENTITY
THAT WOULD BE DEEMED TO BE A "BENEFIT PLAN INVESTOR" WITHIN THE
MEANING OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101(f)(2)
(ANY OF THE FOREGOING, AN "ERISA ENTITY")
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
D-2
<PAGE> 80
5. The Transferee understands that there may be restrictions on the
ability of certain investors, including, without limitation, depository
institutions, either to purchase the Term Certificate or to purchase investments
having characteristics similar to those of the Term Certificate representing
more than a specified percentage of the investor's assets, and the Transferee
further represents and warrants that it has not relied on the Trustee in
determining whether and to what extent the Term Certificate constitutes a legal
investment for the Transferee.
6. Notwithstanding anything to the contrary contained herein, in no
event shall any interest in the Term Certificates be sold or transferred to an
employee benefit plan, trust or account subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or described in Section
4975(e)(1) of the Internal Revenue Code. The Transferee hereby covenants with
you that by its acceptance thereof, the Transferee represents and warrants that
it is not (1) an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to the provisions of ERISA, (ii) a plan (as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, other than a
governmental or church plan described in Section 4975(g)(2) or (3) of the Code)
or (iii) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (unless registered under the Investment Company
Act of 1940, as amended).
7. The Transferee agrees that in selling the Term Certificate (or any
interest therein) purchased pursuant hereto, it will comply with the applicable
requirements of the 1933 Act.
8. The Transferee acknowledges that it has been afforded the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of Funding or the Trustee concerning the terms and
conditions of the offering of the Term Certificate and the merits and risks of
investing in the Term Certificate.
In addition, the Transferee hereby acknowledges that by its execution
and delivery of this Purchaser Letter, the Transferee agrees to make the
representations, warranties and covenants set forth in, and otherwise to be
bound by, each and every provision of the Supplement that by its terms applies
to the "Purchaser" (as defined in the Supplement).
D-3
<PAGE> 81
To the extent not defined herein, capitalized terms used herein have
the meanings assigned to them in the Supplement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------------
Name:
Title:
D-4
<PAGE> 82
SCHEDULE 1 TO
SERIES 1994-2 SUPPLEMENT
TRUST ACCOUNTS
<TABLE>
<CAPTION>
DDA # Account Name
----- ------------
<S> <C>
323-309925 Ingram Series 1994-2 Coll Subaccount
507-941470 Ingram Ser 1994-2 Princ Coll Sub-Sub A/C
507-941489 Ingram Ser 1994-2 NonPrin Coll Sb-sb A/C
507-941497 Ingram Ser 1994-2 Acc Int Sub-Sub A/C
</TABLE>
<PAGE> 1
EXHIBIT 10.61
EXECUTION COPY
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED SERIES 1994-3 SUPPLEMENT
Dated as of March 8, 2000
to
AMENDED AND RESTATED
POOLING AGREEMENT
Dated as of March 8, 2000
Among
INGRAM FUNDING INC.,
INGRAM MICRO INC.,
as Master Servicer
and
THE CHASE MANHATTAN BANK,
as Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Definitions........................................................2
SECTION 1.01. Definitions...............................................2
ARTICLE II Designation of Term Certificates; Purchase and Sale
of the Term Certificates.........................................13
SECTION 2.01. Designation..............................................13
SECTION 2.02. The Term Certificates and Series 1994-3
Subordinated Interest....................................13
SECTION 2.03. Delivery.................................................13
SECTION 2.04. Restrictions on Transfer.................................13
SECTION 2.05. Representations of the Purchasers........................14
SECTION 2.06. Application of Proceeds..................................16
SECTION 2.07. Sale of Additional Term Certificates.....................16
ARTICLE III Article III of the Agreement....................................17
SECTION 3.01. Establishment of Trust Accounts..........................18
SECTION 3.02. Daily Allocations........................................19
SECTION 3.03. Determination of Interest................................20
SECTION 3.04. Determination of Series 1994-3 Principal.................21
SECTION 3.05. Applications.............................................22
SECTION 3.06. Make-Whole Amount........................................24
ARTICLE IV Distributions and Reports........................................24
SECTION 4.01. Distributions............................................25
SECTION 4.02. Statements and Notices...................................25
SECTION 4.03. Notices..................................................27
SECTION 4.04. Audit and Inspection Rights..............................27
ARTICLE V Additional Early Amortization Events..............................29
SECTION 5.01. Additional Early Amortization Events.....................29
ARTICLE VI Servicing Fee....................................................31
SECTION 6.01. Servicing Compensation...................................31
ARTICLE VII Covenants, Representations and Warranties.......................32
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 7.01. Representations and Warranties of the Company
and the Master Servicer..................................32
SECTION 7.02. Covenants of the Company and the Master Servicer.........32
SECTION 7.03. Negative Covenant of the Company; Covenants
of the Master Servicer...................................32
ARTICLE VIII Miscellaneous..................................................33
SECTION 8.01. Ratification of Agreement................................33
SECTION 8.02. Governing Law............................................33
SECTION 8.03. Further Assurances.......................................33
SECTION 8.04. No Waiver; Cumulative Remedies...........................33
SECTION 8.05. Amendments...............................................33
SECTION 8.06. Notices..................................................34
SECTION 8.07. Counterparts.............................................34
SECTION 8.08. No Bankruptcy Petition...................................35
SECTION 8.09. Limitation on Addition and Termination of Sellers........35
SECTION 8.10. Certificateholder List...................................36
SECTION 8.11. Late Charge..............................................36
SECTION 8.12. Final Payment; Surrender of Certificates.................37
SECTION 8.13. Rights of the Trustee....................................37
SECTION 8.14. Waiver of Past Defaults..................................37
SECTION 8.15. Amendment of Policies....................................38
ARTICLE IX Final Distributions..............................................38
SECTION 9.01. Certain Distributions....................................38
</TABLE>
EXHIBITS
Exhibit A Form of Class A Certificate, Series 1994-3
Exhibit B Form of Daily Report
Exhibit C Form of Monthly Settlement Statement
Exhibit D Form of Purchaser Letter
SCHEDULES
Schedule 1 Trust Accounts
ii
<PAGE> 4
AMENDED AND RESTATED SERIES 1994-3 SUPPLEMENT dated as of March 8, 2000
(this "Supplement"), among INGRAM FUNDING, INC., a Delaware corporation (the
"Company"), INGRAM MICRO INC., a Delaware corporation, as Master Servicer (the
"Master Servicer") and THE CHASE MANHATTAN BANK, a New York banking corporation,
as trustee (together with its successors in such capacity, the "Trustee") under
the Agreement.
W I T N E S S E T H :
WHEREAS, on March 24, 1994 the Company, the predecessor to the Master
Servicer and the Trustee entered into that certain Series 1994-3 Supplement to
the Ingram Funding Master Trust Pooling and Servicing Agreement dated as of
February 12, 1993 (the Series 1994-3 Supplement as amended to date, the
"Existing 1994-3 Supplement" and the Ingram Funding Master Trust Pooling and
Servicing Agreement as amended to date, the "Existing Pooling Agreement");
WHEREAS, the parties hereto have entered into the Amended and Restated
Pooling Agreement, dated as of March 8, 2000 which amends and restates the
Existing Pooling Agreement (the "Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
1994-3 Supplement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
General
From and after the date hereof the terms of this amended and restated
1994-3 Supplement shall be effective with respect to the various certificates
issued under the Existing 1994-3 Supplement. As a part of the amendments made
hereby, the names of such certificates are also being amended as follows.
The Certificates referred to under the Existing 1994-3 Supplement as:
"7.17% Asset-Backed Certificates, Series 1994-3, Class A" shall
henceforth be named "Class A Certificates, Series 1994-3" and shall
be in the form of Exhibit A to this Supplement.
Upon return of the existing certificates referred to above, the
Trustee shall authenticate and deliver replacement certificates in the
corresponding form to each holder of such existing certificates, or their
nominee as designated in writing to the Trustee.
<PAGE> 5
ARTICLE I
Definitions
SECTION 1.01. Definitions.
(a) The following words and phrases shall have the following meanings
with respect to Series 1994-3 and the definitions of such terms are applicable
to the singular as well as the plural form of such terms and to the masculine
as well as the feminine and neuter genders of such terms:
"Accrual Period" shall mean, with respect to Series 1994-3, the period
from and including a Payment Date to but excluding the succeeding Payment Date.
"Accrued Expense Amount" shall mean, for each Business Day during an
Accrual Period, the sum of (a) the Series 1994-3 Daily Interest Expense
determined as of such Business Day, (b) in the case of each of the first ten
Business Days in the Accrual Period, one-tenth of the Series 1994-3 Monthly
Servicing Fee (up to the amount thereof due and payable on the succeeding
Payment Date, and (c) all Program Costs that have accrued since the preceding
Business Day.
"Aged Receivables Ratio" shall mean, as of the last day of each
Settlement Period and calculated as provided in Section 1.01(f), the percentage
equivalent of a fraction, the numerator of which shall be the sum of (a) the
aggregate unpaid balance of Receivables originated by the Seller that were 91
to 120 days past due and (b) the aggregate amount of Charged-Off Receivables of
the Seller that were charged off as uncollectible prior to the day that is 91
days after its original due date during such Settlement Period, and the
denominator of which shall be the aggregate Principal Amount of Receivables
originated by the Seller during the fourth prior Settlement Period.
"Aggregate Commitment Amount" shall have the meaning set forth in
Section 1.01 of the Series 2000-1 Supplement.
"Applicable Early Amortization Event" shall have the meaning set forth
in Section 3.06.
"Call Date" shall mean the first Payment Date following the
commencement of the Series 1994-3 Amortization Period which results from an
Applicable Early Amortization Event and on which principal is payable on the
Class A Certificates.
"Carrying Cost Reserve Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) equal to (a) the product of (i) 2.0 times
Days Sales Outstanding as of such day and (ii) 1.50 times the Discount Rate as
of such day, divided by (b) 360.
"Change in Control" shall mean the occurrence of any event the result
of which causes the Company not to be a direct or indirect, wholly owned
Subsidiary of Ingram Micro Inc.
2
<PAGE> 6
"Chase's Prime Rate" shall mean the rate per annum announced by Chase
from time to time as its prime rate in effect at its principal office on a
365/66 day basis; each change in Chase's Prime Rate shall be effective on the
date such change is announced to become effective.
"Class A Additional Interest" shall have the meaning assigned in
subsection 3.03(b).
"Class A Adjusted Invested Amount" shall mean, on any date of
determination, the Class A Invested Amount minus the amount on deposit in the
Series 1994-3 Principal Collection Sub-subaccount up to a maximum of the Class
A Invested Amount.
"Class A Certificate" shall mean a Class A Certificate, Series 1994-3,
executed by the Company and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A.
"Class A Certificateholder" shall mean each holder of a Class A
Certificate.
"Class A Certificate Rate" shall mean 7.17% per annum.
"Class A Initial Invested Amount" shall mean $25,000,000.
"Class A Interest Shortfall" shall have the meaning assigned in
subsection 3.03(b).
"Class A Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (i) the Class A Initial Invested Amount minus
(ii) the aggregate amount of distributions to the Class A Certificateholders
(including the holders of any such subsequently issued Class A Certificates)
made in respect of principal on or prior to such date minus (iii) the aggregate
Series 1994-3 Allocable Charged-Off Amount applied to the Class A Certificates
on or prior to such date pursuant to subsection 3.04(b)(iv) plus (iv) (but only
to the extent of any unreimbursed reductions made pursuant to clause (iii)
above) the aggregate Series 1994-3 Allocable Recoveries Amount applied to the
Class A Certificates on or prior to such date pursuant to subsection 3.04
(c)(i).
"Class A Monthly Interest" shall have the meaning assigned in
subsection 3.03(a).
"Class A Ratio" shall mean, on any date of determination with respect
to the Class A Certificates, the greater of (i) the sum of the Loss Reserve
Ratio and the Dilution Reserve Ratio and (ii) the Minimum Ratio, in each case
applicable to Class A Certificates. "Code" shall mean the Internal Revenue Code
of 1986, as amended.
"Daily Report" shall mean a report prepared by the Master Servicer on
each Business Day for the period specified therein, in substantially the form
of Exhibit B.
"Days Sales Outstanding" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, the
number of days equal to the product of (i) 91 and (ii) the amount obtained by
dividing (A) the aggregate Principal Amount of Eligible Receivables as at the
last day of the Settlement Period immediately
3
<PAGE> 7
preceding such earlier Settlement Report Date, by (B) the aggregate Principal
Amount of Receivables generated by the Sellers for the three Settlement Periods
immediately preceding such earlier Settlement Report Date.
"Dilution Horizon" shall mean the number of days from the invoicing of
a Receivable until a Dilution Adjustment with respect to such Receivable is
issued by the Seller or the Seller receives notice that a Dilution Adjustment
will have to be issued in respect of such Receivable.
"Dilution Horizon Factor" shall mean for the period beginning on the
Effective Date through and until the sixth Settlement Report Date to occur
thereafter, 1.28 and for any six-month period thereafter (beginning and ending
on a Settlement Report Date), a fraction, the numerator of which is the dollar
weighted average Dilution Horizon of the Sellers (based upon the Dilution
Adjustment of the selected Receivables) for such period (which shall be
calculated by the Master Servicer, in accordance with its past procedures for
such calculations, selecting a random sample of approximately 1000 Dilution
Adjustment memos from the Seller created during such period and determining the
dollar weighted average Dilution Horizon therefrom) and the denominator of
which is 30.
"Dilution Period" shall mean as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date), the
quotient of (i) the product of (A) the aggregate Principal Amount of
Receivables that were originated by the Seller during the Settlement Period
preceding such earlier Settlement Report Date and (B) the Dilution Horizon
Factor and (ii) the Aggregate Receivables Amount as of the last day of the
Settlement Period preceding such earlier Settlement Report Date.
"Dilution Ratio" shall mean, as of the last day of each Settlement
Period, an amount (expressed as a percentage) equal to the aggregate amount of
Dilution Adjustments made during such Settlement Period divided by the
aggregate Principal Amount of Receivables that were originated by the Seller
during the immediately preceding Settlement Period.
"Dilution Reserve Ratio" shall mean, as of any Settlement Report Date
and calculated as provided in Section 1.01(f) and continuing until (but not
including) the next Settlement Report Date, an amount (expressed as a
percentage) that is calculated as follows:
DRR = [(c * d) + [(e-d) * (e/d)]] * f
Where:
DRR = Dilution Reserve Ratio;
c = 2.5;
d = the twelve-month rolling average of the Dilution Ratio that
occurred during the period of twelve consecutive Settlement
Periods ending immediately prior to such earlier Settlement
Report Date;
4
<PAGE> 8
e = the highest Dilution Ratio that occurred during the period
of twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date; and
f = the Dilution Period.
"Discount Rate" shall mean, as of any date of determination, the sum
of (a) the Class A Certificate Rate in effect with respect to the outstanding
Class A Certificates and (b) an amount equal to (i) the aggregate amount of
fees (other than the Servicing Fee and Program Costs) accrued with respect to
the outstanding Term Certificates during the Settlement Period immediately
preceding the most recent Settlement Report Date divided by (ii) the average
daily Series 1994-3 Invested Amount during such Settlement Period.
"Discounted Value" shall mean, with respect to any Class A
Certificate, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Class A Certificate from their respective
scheduled due dates (assuming that the scheduled due date of the principal
amount of such Class A Certificate is the Scheduled Payment Date) to the Call
Date, in accordance with accepted financial practice and at a discount factor
(applied on the same periodic basis as that on which interest on the Class A
Certificates is payable) equal to the Reinvestment Yield.
"Early Amortization Event" shall have the meanings assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"Early Amortization Period" shall have the meaning assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"ERISA Entity" shall mean (i) an "employee benefit plan" within the
meaning of Section 3(3) of ERISA or other retirement arrangement, individual
retirement account or Keogh plan, whether or not it is subject to the
provisions of Title I thereto,(ii)any plan described in Section 4975 (e)(1) of
the Code or (iii) any other entity that would be deemed to be a "benefit plan
investor" within the meaning of Department of Labor Regulation Section
2510.3-101(f)(2).
"Excess Program Costs" shall have the meaning assigned to such term
within the definition of "Program Costs".
"Foreign Investor" means any Term Certificateholder who is not a
"United States person".
"Initial Purchaser" shall have the meaning set forth in Section 4.04.
"Institutional Accredited Investor" shall mean an institutional
accredited investor, within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Issuance Date" shall mean March 24, 1994.
"Late Charge" shall have the meaning assigned in Section 8.11.
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<PAGE> 9
"Loss Reserve Ratio" shall mean, as of any Settlement Report Date and
calculated as provided in Section 1.01(f) and continuing until (but not
including) the next Settlement Report Date, an amount (expressed as a
percentage) that is calculated as follows:
LRR = [(a * b)/c] * d * e
Where:
LRR = Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables originated by
the Seller during the three Settlement Periods immediately
preceding such earlier Settlement Report Date;
b = the highest three-month rolling average of the Aged
Receivables Ratio that occurred during the period of twelve
consecutive Settlement Periods ending prior to such earlier
Settlement Report Date;
c = the Aggregate Receivables Amount as of the last day of the
Settlement Period preceding such earlier Settlement Report Date;
d = 2.5; and
e = Payment Terms Factor.
"Majority Term Certificateholders" shall mean, on any day, Term
Certificateholders having, in the aggregate, more than 50% of the Series 1994-3
Invested Amount.
"Minimum Ratio" shall mean, as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) equal to the greater of:
(a) (a * b) + c
Where:
a = the average of the Dilution Ratios during the period of the
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date;
b = the Dilution Period; and
c = 15%;
and
(b) 25%.
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<PAGE> 10
"Payment Date" shall mean (i) during the Series 1994-3 Revolving
Period, the 15th day of each March, June, September and December (or if such
day is not a Business Day, the next succeeding Business Day) or (ii) during the
Series 1994-3 Amortization Period, the 15th day of each month (or if such day
is not a Business Day, the next succeeding Business Day).
"Payment Terms Factor" shall mean (a) for the period from the date
hereof until the third Settlement Report Date to occur thereafter, 0.89 and (b)
for each three-month period to occur after such initial period, a fraction, the
numerator of which is the sum of (i) the weighted average payment terms (based
upon the Principal Amount of the Receivables and expressed as a number of days)
for the Receivables originated during such period and (ii) 60 and the
denominator of which is 90; provided, however, that if the Payment Terms Factor
for any period is less than the Payment Terms Factor for the immediately
preceding period, then the actual Payment Terms Factor for such current period
shall be recalculated to equal a fraction, the numerator of which is equal to
the average of the numerators used to calculate the Payment Terms Factor for
such current period and the three immediately preceding periods and the
denominator of which is 90.
"Program Costs" shall mean, for any Business Day, the sum of (i) the
product of (A) all unpaid fees and expenses due and payable to counsel to, and
independent auditors of, the Company (other than fees and expenses payable on
or in connection with the closing of the issuance of any Term Certificates) on
such Business Day and (B) a fraction, the numerator of which is the Series
1994-3 Invested Amount on such Business Day and the denominator of which is the
sum of (1) the Aggregate Commitment Amount (as defined in the Supplement for
Series 2000-1) on such Business Day and (2) the Invested Amounts with respect
to all other Series then Outstanding (excluding Series 2000-1) and (ii) all
unpaid fees and expenses due and payable to Rating Agencies rating the Term
Certificates; provided, however, that Program Costs shall not exceed $100,000
in the aggregate in any fiscal year of the Master Servicer (any amount of the
foregoing expenses, indemnities and fees in excess of $100,000 shall be
referred to herein as "Excess Program Costs").
"Purchase Termination Event" shall have the meaning assigned in
Section 7.01 of the Receivables Sale Agreement.
"Purchaser" means a holder of a certificate issued pursuant to the
Existing 1994-3 Supplement that is surrendering such certificate as
consideration for the issuance of a Class A Certificate Series 1994-3 of like
tenor and coupon.
"Qualified Institutional Buyer" has the meaning ascribed to such term
in Rule 144A(a) under the Securities Act.
"Rating Agency" shall mean the collective reference to S&P and Fitch
IBCA.
"Record Date" shall mean, with respect to the initial Payment Date, the
Business Day immediately preceding such Payment Date and, with respect to any
other Payment Date, the last Business Day of the immediately preceding
Settlement Period.
"Reinvestment Yield" shall mean, with respect to any Class A
Certificate, the Spread Amount, if any, plus the yield to maturity implied by
(i) the yields reported, as of 10 a.m.
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<PAGE> 11
(New York City time) on the Business Day next following the date on which the
Master Servicer has actual knowledge of the declaration of an Applicable Early
Amortization Event (the "Make-Whole Calculation Date"), on the display
designated as "Page 678" on the Telerate Service (or such other display as may
replace Page 678 on the Telerate Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of such Class A
Certificate as of such Make-Whole Calculation Date, or if such yields shall not
be reported as of such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury constant Maturity Series yields reported, for
the latest day for which such yields shall have been so reported as of such
Make-Whole Calculation Date, in Federal Reserve Statistical Release H.15(519)
(or any comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life of
such Class A Certificate, as of such Make-Whole Calculation Date. Such implied
yield shall be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported for various
maturities.
"Remaining Average Life" shall mean, with respect to any Class A
Certificate, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) the Invested Amount for such Class A Certificate into
(ii) the product obtaining by multiplying (a) the Invested Amount (but not
interest thereon) by (b) the number of years (calculated to the nearest
one-twelfth year) which will elapse between the Call Date and the Scheduled
Payment Date.
"Remaining Scheduled Payments" shall mean, with respect to any Class A
Certificate, all payments of principal and interest thereon that would be due on
or after the Call Date if no payment of principal on such Class A Certificate
were made prior to the Scheduled Payment Date.
"Scheduled Payment Date" shall mean, with respect to any Class A
Certificate, the first Payment Date following the Scheduled Revolving
Termination Date.
"Scheduled Revolving Termination Date" shall mean February 1, 2004.
"Seller Addition Date" shall have the meaning assigned in Section 3.05
of the Receivables Sale Agreement.
"Series 1994-3" shall mean the Series of Investor Certificates and
Subordinated Company Interest, the Principal Terms of which are set forth in
this Supplement.
"Series 1994-3 Accrued Interest Sub-subaccount" shall have the meaning
assigned in subsection 3.01(a).
"Series 1994-3 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 1994-3 Invested Amount on such date, minus (ii)
the amount on deposit in the Series 1994-3 Principal Collection Sub-subaccount
in excess of amounts then payable from such account under Sections 3.05(d)(i)
and (ii) on such date.
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<PAGE> 12
"Series 1994-3 Allocable Charged-Off Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, that has been allocated to Series 1994-3.
"Series 1994-3 Allocable Recoveries Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, that has been allocated to Series 1994-3.
"Series 1994-3 Allocated Receivables Amount" shall mean, on any date
of determination, the lower of (i) the Series 1994-3 Target Receivables Amount
on such day and (ii) the Aggregate Receivables Amount on such day times the
percentage equivalent of a fraction the numerator of which is the Series 1994-3
Target Receivables Amount on such day and the denominator of which is the
Aggregate Target Receivables Amount on such day.
"Series 1994-3 Amortization Period" shall mean the period commencing
on the next Business Day following the earliest to occur of (i) the date on
which an Early Amortization Period is declared to commence or automatically
commences and (ii) the Scheduled Revolving Termination Date and ending on the
earlier of (a) the date when the Series 1994-3 Invested Amount shall have been
reduced to zero and all accrued interest on the Term Certificates shall have
been paid and (b) the Series 1994-3 Termination Date.
"Series 1994-3 Collections" shall mean, with respect to any Business
Day, an amount equal to the product of (i) the Series 1994-3 Invested
Percentage on such Business Day and (ii) Aggregate Daily Collections.
"Series 1994-3 Collection Subaccount" shall have the meaning assigned
in subsection 3.01(a).
"Series 1994-3 Daily Interest Expense" shall mean, for any Business
Day during any Accrual Period, the sum of (a) in the case of each of the first
ten Business Days in the Accrual Period, one-tenth of the Series 1994-3 Monthly
Interest to be distributed on the next succeeding Payment Date (up to but not
exceeding the full amount thereof), (b) the aggregate amount of all previously
accrued and unpaid Series 1994-3 Daily Interest Expense (up to but not
exceeding the full amount thereof) and (c) the aggregate amount of all accrued
and unpaid Class A Additional Interest (up to but not exceeding the full amount
thereof).
"Series 1994-3 Initial Invested Amount" shall mean the Class A Initial
Invested Amount.
"Series 1994-3 Invested Amount" shall mean the Class A Invested
Amount.
"Series 1994-3 Invested Percentage" shall mean, with respect to any
Business Day (i) during the Series 1994-3 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 1994-3 Allocated
Receivables Amount as of the end of the immediately preceding Business Day and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined and (ii) during the
Series
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<PAGE> 13
1994-3 Amortization Period, the percentage equivalent of a fraction, the
numerator of which is the Series 1994-3 Allocated Receivables Amount as of the
end of the last Business Day of the Series 1994-3 Revolving Period (provided
that if during the Series 1994-3 Amortization Period, the Amortization Periods
of all other Outstanding Series which were outstanding prior to the
commencement of the Series 1994-3 Amortization Period commence, then, from and
after the date the last of such Series commences its Amortization Period, the
numerator shall be the Series 1994-3 Allocated Receivables Amount on such date)
and the denominator of which is the greater of (A) the Aggregate Receivables
Amount as of the end of the immediately preceding Business Day and (B) the sum
of the numerators used to calculate the Invested Percentage for all Outstanding
Series on the Business Day for which such percentage is determined.
"Series 1994-3 Monthly Interest" shall mean the Class A Monthly
Interest.
"Series 1994-3 Monthly Principal Payment" shall have the meaning
assigned in Section 3.04.
"Series 1994-3 Monthly Servicing Fee" shall have the meaning assigned
in Section 6.01.
"Series 1994-3 Non-Principal Collection Sub-subaccount" shall have the
meaning assigned in subsection 3.01(a).
"Series 1994-3 Principal Collection Sub-subaccount" shall have the
meaning assigned in subsection 3.01(a).
"Series 1994-3 Required Subordinated Amount" shall mean, (a) on any
date of determination during the Series 1994-3 Revolving Period, an amount
equal to the sum of:
(i) an amount equal to the product of (x) the Class A Adjusted
Invested Amount on such day and (y) a fraction, the numerator of which is
the Class A Ratio and the denominator of which is one minus the Class A
Ratio;
(ii) the product of (A) the Series 1994-3 Invested Amount on such day
and (B) a fraction, the numerator of which is the Carrying Cost Reserve
Ratio and the denominator of which is one minus the Class A Ratio; and
(iii) the product of (A) the Principal Amount of Receivables in the
Trust on such day, (B) a fraction, the numerator of which is the Series
1994-3 Adjusted Invested Amount and the denominator of which is the sum of
(1) the Series 2000-1 Aggregate Commitment Amount and (2) the sum of the
Series 1994-3 Invested Amount and the Invested Amounts for all other
Series then outstanding (excluding Series 2000-1) on such day and (C) a
fraction, the numerator of which is the Servicing Reserve Ratio and the
denominator of which is one minus the Class A Ratio;
and (b) on any date of determination during the Series 1994-3 Amortization
Period, an amount equal to the Series 1994-3 Required Subordinated Amount on
the last Business Day of the Series
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<PAGE> 14
1994-3 Revolving Period; provided that such amount shall be adjusted on each
Special Allocation Settlement Report Date, if any, as set forth in Section
3.04(b)(i) and Section 3.04(c)(iv).
"Series 1994-3 Revolving Period" shall mean the period commencing on
the Issuance Date and terminating on the earliest to occur of the close of
business on (i) the date on which an Early Amortization Period is declared to
commence or automatically commences and (ii) the Scheduled Revolving
Termination Date.
"Series 1994-3 Subordinated Interest" shall have the meaning specified
in subsection 2.02(b).
"Series 1994-3 Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Series 1994-3 Adjusted Invested Amount on
such day and (ii) the Series 1994-3 Required Subordinated Amount on such day.
"Series 1994-3 Termination Date" shall mean the Payment Date that
occurs in August, 2005.
"Servicing Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing (but not including) until the next Settlement Report Date, an
amount (expressed as a percentage) equal to (i) the product of (A) the
Servicing Fee Percentage and (B) 2.0 times Days Sales Outstanding as of such
earlier Settlement Report Date divided by (ii) 360.
"Spread" shall mean (i) 0% if the related Applicable Early
Amortization Event for the Class A Certificates occurs within twelve months of
the removal of a Seller as an originator of Receivables that is not a Third
Party Sale, (ii) 0% if the related Applicable Early Amortization Event occurs
within nine months of the removal of a Seller as an originator of Receivables
that is a Third Party Sale and (iii) .25% if the related Applicable Early
Amortization Event occurs between nine and twelve months of the removal of a
Seller as an originator of Receivables that is a Third Party Sale.
"Term Certificateholders" shall mean the Class A Certificateholders.
"Term Certificateholders' Interest" shall have the meaning assigned in
subsection 2.02(a).
"Term Certificates" shall mean those Investor Certificates designated
as the Class A Certificates.
"Third Party Sale" shall mean a sale or other disposition of an
interest in a Seller sufficient such that such Seller may no longer be
consolidated with Ingram Micro Inc. for accounting purposes in accordance with
GAAP.
"Trust Accounts" shall have the meaning assigned in subsection
3.01(a).
"United States person" means an individual who is a citizen or
resident of the United States, or a corporation, partnership or other entity
created or organized in or under the
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<PAGE> 15
laws of the United States or any political subdivision thereof, or an estate or
trust the income of which is subject to U.S. federal income taxation regardless
of its source.
(b) If any term, definition or provision contained herein conflicts
with or is inconsistent with any term, definition or provision contained in the
Agreement, the terms and provisions of this Supplement shall govern. All
capitalized terms not otherwise defined herein are defined in the Agreement.
All Article, Section, subsection, Exhibit and Schedule references herein shall
mean Article, Section or subsection of or Exhibit or Schedule to this
Supplement, except as otherwise provided herein. Unless otherwise stated
herein, as the context otherwise requires or if such term is otherwise defined
in the Agreement, each capitalized term used or defined herein shall relate
only to the Term Certificates and the Series 1994-3 Subordinated Interest and
to no other Series of Investor Certificates or Subordinated Company Interest
issued by the Trust.
(c) Any reference herein to a Schedule or Exhibit to this Supplement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(d) Any reference in this Supplement to any representation, warranty
or covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Supplement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(e) The words "include", "includes" or "including" shall be
interpreted as if followed, in each case, by the phrase "without limitation".
(f) For purposes of calculating the Aged Receivables Ratio and the
Dilution Ratio, the aggregate Principal Amount of Receivables originated during
the third Settlement Period of each calendar quarter and Dilution Adjustments
reported in the third Settlement Period shall be adjusted by dividing the
dollar amount of Receivables in each category by the number of weeks in such
Settlement Period and multiplying by 4.3.
ARTICLE II
Designation of Term Certificates; Purchase and Sale
of the Term Certificates
SECTION 2.01. Designation. The Investor Certificates created and
authorized pursuant to the Agreement and this Supplement shall be in one class,
the "Class A Certificates, Series 1994-3".
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<PAGE> 16
SECTION 2.02. The Term Certificates and Series 1994-3 Subordinated
Interest.
(a) The Term Certificates shall represent fractional undivided
interests in the Trust Assets, consisting of the right of the Term
Certificateholders to receive the distributions specified herein out of (i) the
Series 1994-3 Invested Percentage (expressed as a decimal) of Collections
received with respect to the Receivables and of all other funds on deposit in
the Collection Account and (ii) to the extent such interests appear herein, all
other funds on deposit in the Series 1994-3 Collection Subaccount and any
subaccounts thereof (collectively, the "Term Certificateholders' Interest").
(b) The Company shall retain a fractional undivided interest in the
Trust Assets, consisting of the right to receive the distributions specified
herein out of (i) the Series 1994-3 Invested Percentage (expressed as a
decimal) of Collections received with respect to the Receivables and all other
funds on deposit in the Collection Account and (ii) to the extent such
interests appear herein, all other funds on deposit in the Series 1994-3
Collection Subaccount and any subaccounts thereof, in each case to the extent
not required to be distributed to or for the benefit of the Term
Certificateholders (the "Series 1994-3 Subordinated Interest"). The
Exchangeable Company Interest and any other Series of Investor Certificates or
Subordinated Company Interest outstanding shall represent the fractional
undivided interests in the remainder of the Trust Assets not allocated pursuant
hereto to the Term Certificateholders' Interest or the Series 1994-3
Subordinated Interest.
(c) The Class A Certificates shall be issued in registered form in
substantially the form of Exhibit A, and shall, upon issue, be executed and
delivered by the Company to the Trustee for authentication and redelivery as
provided in Section 2.03 hereof and Section 5.02 of the Agreement.
SECTION 2.03. Delivery. On the Issuance Date, the Company shall sign
on behalf of the Trust and shall direct the Trustee in writing pursuant to
Section 5.02 of the Agreement to duly authenticate, and the Trustee, upon
receiving such direction, shall so authenticate, the Class A Certificates in
such names and such denominations in accordance with such directions of the
Company. Term Certificates shall be issued in minimum denominations of
$2,000,000 and in integral multiples of $100,000 in excess thereof.
SECTION 2.04. Restrictions on Transfer. On the Issuance Date, the
Company shall deliver the Term Certificates to the Purchaser. Thereafter, the
Term Certificates may not be transferred except as follows: (A) to Qualified
Institutional Buyers in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144A thereunder, (B) to
other Institutional Accredited Investors who take delivery of such Term
Certificates in definitive form and who deliver a Purchaser Letter to the
Trustee in the form attached hereto as Exhibit D or (C) to a person who takes
delivery of such Term Certificate in definitive form pursuant to a transaction
that is otherwise exempt from the registration requirements of the Securities
Act, as confirmed in an opinion of counsel addressed to the Trustee and the
Company, which counsel and opinion are satisfactory to the Trustee and the
Company.
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<PAGE> 17
The Trustee shall have no obligations or duties with respect to determining
whether any transfers of the Term Certificates are made in accordance with the
Securities Act or any other Requirements of Law; provided that with respect to
Definitive Certificates, the Trustee shall enforce such transfer restrictions
in accordance with the terms set forth on the related Term Certificate and the
provisions of the Agreement and this Supplement.
SECTION 2.05. Representations of the Purchasers.
(a) Each purchaser (other than the Initial Purchaser) of the Term
Certificates (including, without limitation, any purchaser of an interest in
the Book-Entry Certificates) will be deemed to have represented and agreed as
follows:
(i) it is (A) a Qualified Institutional Buyer as defined in Rule
144A(a) and is acquiring the Term Certificates for its own institutional
account or for the account or accounts of a Qualified Institutional Buyer
or (B) purchasing Term Certificates being delivered in the form of
Definitive Certificates in a transaction exempt from registration under
the Securities Act and in compliance with the provisions of the Agreement
and in compliance with the legends set forth in clause (vi) below;
(ii) it is purchasing one or more Term Certificates in an amount of
at least $2,000,000 and it understands that such Term Certificate may be
resold, pledged or otherwise transferred only in an amount of at least
$2,000,000;
(iii) (A) it is not an ERISA Entity and (B) it is not acquiring or
holding any Term Certificate, directly or indirectly, for or on behalf of
an ERISA Entity;
(iv) it understands that the Term Certificates are being transferred
to it in a transaction not involving any public offering within the
meaning of the Securities Act, and that, if in the future it decides to
resell, pledge or otherwise transfer any Term Certificates, such Term
Certificates may be resold, pledged or transferred only (A) in a
transaction meeting the requirements of Rule 144A to a person who the
seller reasonably believes is a Qualified Institutional Buyer that
purchases for its own account or for the account or accounts of a
Qualified Institutional Buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A or (B) to
purchasers of Term Certificates being delivered in the form of Definitive
Certificates, pursuant to a transaction otherwise exempt from registration
under the Securities Act and in compliance with the provisions of the
Agreement and in compliance with the legends set forth in clause (vi)
below; and
(v) it understands that each Term Certificate will bear a legend
substantially to the following effect:
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY PURCHASING THIS TERM
CERTIFICATE, AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED
OR
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<PAGE> 18
TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS IN AN AMOUNT OF AT LEAST $2,000,000 AND (1) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE 144A"), TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (2) TO A PERSON (A) WHO IS AN "INSTITUTIONAL
ACCREDITED INVESTOR", WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE ACT, AND WHO DELIVERS A PURCHASER
LETTER TO THE TRUSTEE IN THE FORM ATTACHED TO THE SERIES 1994-3
SUPPLEMENT OR (B) WHO IS TAKING DELIVERY OF SUCH TERM CERTIFICATE
PURSUANT TO A TRANSACTION THAT IS OTHERWISE EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT, AS CONFIRMED IN AN OPINION OF
COUNSEL ADDRESSED TO THE TRUSTEE AND THE COMPANY, WHICH COUNSEL AND
OPINION ARE SATISFACTORY TO THE COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF OF
(1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
OTHER RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH
PLAN, WHETHER OR NOT IT IS SUBJECT TO THE PROVISIONS OF TITLE I
THERETO, (2) ANY PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR (3) ANY OTHER ENTITY
THAT WOULD BE DEEMED TO BE A "BENEFIT PLAN INVESTOR" WITHIN THE
MEANING OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101(f)(2)
(ANY OF THE FOREGOING, AN "ERISA ENTITY")
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
(b) The Transfer Agent and Registrar shall not permit the transfer of
any Term Certificates unless such transfer complies with the terms of the
foregoing legends and, in the case of a transfer (i) to an Institutional
Accredited Investor (other than a Qualified Institutional Buyer), the
transferee delivers a completed Purchaser Letter in the form attached to this
supplement as Exhibit D or (ii) to a person other than a Qualified
Institutional Buyer or an Institutional Accredited Investor, upon delivery of
an opinion of counsel selected by the
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<PAGE> 19
Company, satisfactory to the Trustee and the Company, to the effect that the
transferee is taking delivery of the Term Certificates in a transaction that is
otherwise exempt from the registration requirements of the Securities Act.
SECTION 2.06. Application of Proceeds. On the Effective Date, the Term
Certificateholders shall deliver to the Trustee the existing Class A
Certificates, Series 1994-3 issued on the Issuance Date in exchange for Class A
Certificates, Series 1994-3 issued on the Effective Date.
SECTION 2.07. Sale of Additional Term Certificates.
(a) The Company may, upon written notice to the Trustee, the Master
Servicer and the Term Certificateholders and upon satisfaction of each of the
conditions set forth in subsection (b) of this Section 2.06, direct the Trustee
in writing to issue on the following Payment Date (each such date a "Subsequent
Issuance Date") additional Class A Certificates, identical in all respects to
the existing Class A Certificates, in an aggregate principal amount specified
by the Company (pro rata based on the initial invested amount of each Class)
(except that the Certificate Rate applicable to such additional Class A
Certificates may differ from the Certificate Rate applicable to existing Class
A Certificates; provided that the Series 1994-3 Target Receivables Amount does
not exceed the Series 1994-3 Allocated Receivables Amount, after giving effect
to any increase in the Invested Amount on such Subsequent Issuance Date.
The Company may arrange for the sale of such additional Class A
Certificates, pursuant to a private placement or any other sale arrangement;
provided that the Company agrees that it shall first offer to the existing Term
Certificateholders the opportunity to purchase such additional Class A
Certificates on substantially the same terms and conditions that such
additional Class A Certificates are to be offered to other purchasers. If
existing Class A Certificateholders elect not to purchase all such additional
Class A Certificates within 10 Business Days following their receipt of a
written offer therefor (which written offer is accompanied by information
sufficient to enable a prudent investor to make such purchase), the Company may
proceed with its arrangements to sell all such additional Class A Certificates
to any other eligible purchasers. In the event that the existing Class A
Certificateholders subscribe to purchase more additional Class A Certificates
than are being offered by the Company at such time, then each such existing
Class A Certificateholder shall be entitled to purchase a pro rata portion of
such additional Class A Certificates based on the aggregate principal amount of
Class A Certificates then held by such holder. On each Subsequent Issuance
Date, if any, the Series 1994-3 Invested Amount (and each other amount set
forth herein, the calculation of which is based on such amount) shall be
recalculated by the Company to include the additional initial invested amounts
with respect to the Class A Certificates issued on such date.
(b) On the Subsequent Issuance Date, the Trustee shall only
authenticate and deliver any additional Class A Certificates, upon satisfaction
of the following on or prior to such Subsequent Issuance Date:
(i) the Rating Agencies shall have been notified by the Company of
the proposed issuance of additional Class A Certificates at least 10 days
prior to the proposed
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Subsequent Issuance Date, each Rating Agency shall have issued a rating
(as confirmed in a letter delivered to the Trustee) on the additional
Class A Certificates that is equivalent to the rating issued by such
Rating Agency on the Issuance Date and the Rating Agency Condition shall
have been satisfied on or prior to such Subsequent Issuance Date;
(ii) the Trustee shall have received an Officer's Certificate
certifying that no Early Amortization Event or Potential Early
Amortization Event shall have occurred and be continuing with respect to
Series 1994-3 or would occur as a result of such issuance upon which the
Trustee may conclusively rely;
(iii) a Tax Opinion (including the opinion set forth in clause
(a)(ii) of the definition thereof) addressed to the Trust and the Trustee
shall have been delivered to the Trustee (the costs and expenses
associated with such opinion shall constitute Program Costs); and
(iv) an Opinion of Counsel addressed to the Trust and the Trustee
shall have been delivered to the Trustee stating that all of the
conditions to the issuance of such additional Class A Certificates shall
have been satisfied (the costs and expenses associated with such opinion
shall constitute Program Costs).
(c) On each Subsequent Issuance Date, the Company in a written order
shall direct the Trustee to authenticate and deliver additional Class A
Certificates in accordance with Section 2.03.
ARTICLE III
Article III of the Agreement
Section 3.01 of the Agreement and each other section of Article III of
the Agreement relating to another Series shall be read in its entirety as
provided in the Agreement. Article III of the Agreement (except for Section
3.01 thereof and any portion thereof relating to another Series) shall read in
its entirety as follows and shall be exclusively applicable to the Term
Certificates and the Series 1994-3 Subordinated Interest:
SECTION 3.01. Establishment of Trust Accounts.
(a) The Trustee shall cause to be established and maintained in the
name of the Trustee, on behalf of the Trust, (i) for the benefit of the Class A
Certificateholders and, (ii) in the case of clauses (A) and (B) below, for the
benefit, subject to the prior and senior interests of the Term
Certificateholders, of the holder of the Series 1994-3 Subordinated Interest,
(A) a subaccount of the Collection Account (the "Series 1994-3 Collection
Subaccount"), which subaccount is the Series Collection Subaccount with respect
to Series 1994-3; (B) two subaccounts of the Series 1994-3 Collection
Subaccount: (1) the Series 1994-3 Principal Collection Sub-subaccount and (2)
the Series 1994-3 Non-Principal Collection Sub-subaccount (respectively, the
"Series 1994-3 Principal Collection Sub-subaccount" and the "Series 1994-3
Non-Principal Collection Sub-subaccount"); and (C) a subaccount of the Series
1994-3 Non-
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Principal Collection Sub-subaccount (the "Series 1994-3 Accrued Interest
Sub-subaccount"; all accounts established pursuant to this subsection 3.01(a)
and listed on Schedule 1, collectively, the "Trust Accounts"), each Trust
Account to bear a designation indicating that the funds deposited therein are
held for the benefit of the Persons (and, for each such Person, to the extent)
set forth in clauses (i) and (ii) above. The Trustee, on behalf of the Holders,
shall possess all right, title and interest in all funds from time to time on
deposit in, and all Eligible Investments credited to, the Trust Accounts and in
all proceeds thereof. The Trust Accounts shall be under the sole dominion and
control of the Trustee for the exclusive benefit of the Persons (and, for each
such Person to the extent) set forth in clauses (i) and (ii) above. In any case
where the Company has not provided applicable written direction as to Eligible
Investments to the Trustee, the Trustee shall invest in demand deposits or
money market funds that constitute Eligible Investments.
(b) All Eligible Investments in the Trust Accounts shall be held by
the Trustee, on behalf of the Holders, for the benefit of the Persons (and, for
each such Person, to the extent) set forth in clauses (i) and (ii) of
subsection (a) above. Funds on deposit in a Trust Account that is a
Sub-subaccount of the Collection Account shall, at the direction of the
Company, be invested together with funds held in other Sub-subaccounts of the
Collection Account. After giving effect to any distribution to the Company
pursuant to subsection 3.02(c), amounts on deposit and available for investment
in the Series 1994-3 Principal Collection Sub-subaccount shall be invested by
the Trustee, at the written direction of the Company, in Eligible Investments
that mature, or that are payable or redeemable upon demand of the holder
thereof, (i) in the case of any such investment made during the Series 1994-3
Revolving Period, on or prior to the next Business Day and (ii) in the case of
any such investment made during the Series 1994-3 Amortization Period, on or
prior to the Business Day immediately preceding the next Payment Date. Amounts
on deposit and available for investment in the Series 1994-3 Non-Principal
Collection Sub-subaccount and the Series 1994-3 Accrued Interest Sub-subaccount
shall be invested by the Trustee at the written direction of the Company in
Eligible Investments that mature, or that are payable or redeemable upon demand
of the holder thereof, on or prior to the Business Day immediately preceding
the subsequent Payment Date. As of the Business Day immediately preceding the
Settlement Report Date, all interest and other investment earnings (net of
losses and investment expenses) on funds deposited in the Series 1994-3 Accrued
Interest Sub-subaccount shall be deposited in the Series 1994-3 Non-Principal
Collection Sub-subaccount and all interest and investment earnings (net of
losses and investment expenses) on funds deposited in the Series 1994-3
Principal Collection Sub-subaccount shall be deposited in the Series 1994-3
Non-Principal Collection Sub-subaccount.
SECTION 3.02. Daily Allocations.
(a) The portion of Aggregate Daily Collections allocated to the Term
Certificates and the Series 1994-3 Subordinated Interest pursuant to Article
III of the Agreement shall be allocated and distributed as set forth in this
Article III by the Trustee based solely on the information provided it by the
Master Servicer in the Daily Report (upon which the Trustee may conclusively
rely).
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(b) (i) On each Business Day, an amount equal to the Accrued Expense
Amount for such day (or, during the Series 1994-3 Revolving Period, such
greater amount as the Company may request in writing) shall be transferred by
the Trustee from the Series 1994-3 Collection Subaccount to the Series 1994-3
Non-Principal Collection Sub-subaccount; and
(ii) on each Business Day (including Payment Dates), following the
transfers pursuant to clause (i) above, any remaining funds on deposit in
the Series 1994-3 Collection Subaccount shall be transferred by the
Trustee to the Series 1994-3 Principal Collection Sub-subaccount.
(c) (i) On each Business Day during the Series 1994-3 Revolving Period
(including Payment Dates), after giving effect to all allocations of Aggregate
Daily Collections referred to in subparagraphs (b)(i) and (b)(ii) on such
Business Day, amounts on deposit in the Series 1994-3 Principal Collection
Sub-subaccount shall be distributed or transferred by the Trustee, based solely
on the information provided to the Trustee by the Master Servicer in the Daily
Report (upon which the Trustee may conclusively rely, (A) first, to pay Excess
Program Costs and (B) second, (I) to the Company as the holder of the Series
1994-3 Subordinated Interest in accordance with the directions contained in the
Daily Report, (II) at the election of the Company as the holder of the Series
1994-3 Subordinated Interest, by written notice to the Master Servicer and the
Trustee, to such accounts or to such Persons as the Company may direct in
writing (which directions may consist of standing instructions provided by the
Company that shall remain in effect until changed by the Company in writing) or
(III) at the election of the Company as the holder of the Series 1994-3
Subordinated Interest, by written notice to the Master Servicer and the
Trustee, to one or more VFC Principal Collection Sub-subaccounts or any other
Outstanding Series; provided that such distributions or transfers, as the case
may be, shall be made only if no Early Amortization Event or Potential Early
Amortization Event relating to an Early Amortization Event set forth in
subsections (a), (d) (but only with respect to a Servicer Default set forth in
subsection 6.01(e) of the Servicing Agreement relating to the Master Servicer
or to one or more Servicers that are responsible for Servicing Receivables
representing 15% or more of the Aggregate Receivables Amount) or (e), (j) or
(k) of Section 5.01 of this Supplement has occurred and is continuing and only
to the extent that, if, after giving effect to such distributions or transfers,
the Series 1994-3 Target Receivables Amount would not exceed the Series 1994-3
Allocated Receivables Amount. Amounts distributed to the Company hereunder
shall be deemed to be paid first from Collections received directly by the
Master Servicer and second from Collections received in the Lockboxes.
(ii) During the Series 1994-3 Amortization Period, amounts on deposit
in the Series 1994-3 Principal Collection Sub-subaccount on each Payment
Date shall be distributed on such Payment Date in accordance with
subsection 3.05(c). No amounts on deposit in the Series 1994-3 Principal
Collection Sub-subaccount shall be distributed by the Trustee to the
Company during the Series 1994-3 Amortization Period.
(d) On each Business Day an amount equal to the Series 1994-3 Daily
Interest Expense for such day shall be transferred by the Trustee, based solely
on the information provided to the Trustee by the Master Servicer in the Daily
Report (upon which the Trustee may
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conclusively rely) from the Series 1994-3 Non-Principal Collection
Sub-subaccount to the Series 1994-3 Accrued Interest Sub-subaccount.
(e) The allocations to be made pursuant to this Section 3.02 are
subject to the provisions of Sections 2.05, 7.02, 9.01 and 9.03 of the
Agreement.
SECTION 3.03. Determination of Interest.
(a) The amount of interest distributable with respect to the Term
Certificates on each Payment Date for the Accrual Period then ending shall be
determined as follows:
(i) for the Class A Certificates, an amount (the "Class A Monthly
Interest") equal to (x) the product of (A) the Class A Certificate Rate;
(B) the Class A Invested Amount on the first day of such Accrual Period
(after giving effect to any distributions of principal on such date); and
(C) the actual number of days in such Accrual Period divided by 360;
provided that if any additional Class A Certificates have been issued on
any Subsequent Issuance Date, the Class A Monthly Interest shall equal the
sum of the monthly interest amount for each outstanding tranche of Class A
Certificates (based on the outstanding Invested Amount and the applicable
Class A Certificate Rate in respect of such tranche) plus (y) the Late
Charge, if any, payable pursuant to Section 8.11;
(ii) the Master Servicer shall notify the Trustee in writing (upon
which the Trustee may conclusively rely) on each Settlement Report Date of
the amount calculated pursuant to clause (i) above.
(b) On each Payment Date, the Master Servicer shall determine the
excess, if any (the "Class A Interest Shortfall"), of (A) the Class A Monthly
Interest for the Accrual Period ending on such Payment Date over (B) the amount
that is available to be distributed to the Class A Certificateholders on such
Payment Date in respect thereof pursuant to this Supplement. If the Class A
Interest Shortfall with respect to any Payment Date is greater than zero, an
additional amount ("Class A Additional Interest") equal to the product, for the
next Accrual Period (or portion thereof) until such Class A Interest Shortfall
is repaid, of (A) a rate per annum equal to the Class A Certificate Rate; (B)
such Class A Interest Shortfall (or the portion thereof that has not been paid
to the Class A Certificateholders); and (C) the actual number of days in the
next Accrual Period divided by 360, shall be payable as provided herein with
respect to the Class A Certificates on each Payment Date following such Payment
Date to and including the Payment Date on which such Class A Interest Shortfall
is paid in full to the Class A Certificateholders.
SECTION 3.04. Determination of Series 1994-3 Principal.
(a) Payments of Series 1994-3 Monthly Principal. The amount (the
"Series 1994-3 Monthly Principal Payment") distributable from the Series 1994-3
Principal Collection Sub-subaccount on each Payment Date during the Series
1994-3 Amortization Period shall be equal to the amount on deposit in such
account on the immediately preceding Settlement Report Date; provided that the
Series 1994-3 Monthly Principal Payment on any Payment Date shall not
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exceed the Series 1994-3 Invested Amount on such Payment Date after giving
effect to the reductions and increases pursuant to paragraphs (b) and (c)
below.
(b) Reductions to Series 1994-3 Principal. If, on any Special
Allocation Settlement Report Date, the Series 1994-3 Allocable Charged-Off
Amount is greater than zero for the related Settlement Period, the Trustee
shall in accordance with the written directions of the Master Servicer (upon
which the Trustee may conclusively rely) make the following applications of
such amounts in the following order of priority:
(i) the Series 1994-3 Required Subordinated Amount shall be reduced
(but not below zero) by an amount equal to the Series 1994-3 Allocable
Charged-Off Amount (which shall also be reduced by the amount so applied);
and
(ii) then, to the extent that the Series 1994-3 Allocable Charged-Off
Amount is greater than zero following the application in clause (i) above,
the Class A Invested Amount shall be reduced (but not below zero) by an
amount equal to such remaining Series 1994-3 Allocable Charged-Off Amount
(which shall also be reduced by the amount so applied).
(c) Increases to Series 1994-3 Principal. If, on any Special
Allocation Settlement Report Date, the Series 1994-3 Allocable Recoveries
Amount is greater than zero for the related Settlement Period, the Trustee
shall in accordance with the written directions of the Master Servicer (upon
which the Trustee may conclusively rely) make the following applications (after
giving effect to the applications in paragraph (b) of such amount in the
following order of priority):
(i) the Class A Invested Amount shall be increased (but only to the
extent of any previous reductions of the Class A Invested Amount pursuant
to subsection 3.04(b)(ii)) by the amount of the Series 1994-3 Allocable
Recoveries Amount (which shall also be reduced by the amount so applied);
and
(ii) then, to the extent that the Series 1994-3 Allocable Recoveries
Amount is greater than zero following the application in clause (i) above,
the Series 1994-3 Required Subordinated Amount shall be increased (but
only to the extent of any previous reductions of the Series 1994-3
Required Subordinated Amount pursuant to subsection 3.04(b)(i)) by such
remaining Series 1994-3 Allocable Recoveries Amount (which shall also be
reduced by the amount so applied).
SECTION 3.05. Applications.
(a) The Trustee shall distribute, based solely on the information
provided to the Trustee by the Master Servicer in the Daily Report (upon which
the Trustee may conclusively rely), on each Payment Date, from amounts on
deposit in the Series 1994-3 Accrued Interest Sub-subaccount to the extent
funds are available (but if funds therein are insufficient to make all such
applications, then also from any funds on deposit in the Series 1994-3
Principal Collection Sub-subaccount): an amount equal to the Class A Monthly
Interest payable on such Payment
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Date, plus any Class A Interest Shortfall on a prior Payment Date, plus the
amount of any Class A Additional Interest for such Payment Date and any Class A
Additional Interest previously due but not distributed to the Class A
Certificateholders on a prior Payment Date, to the Class A Certificateholders;
provided, however, that during the Series 1994-3 Amortization Period, no Class
A Additional Interest will be paid until repayment in full of the Series 1994-3
Invested Amount and all Class A Monthly Interest has been paid.
(b) On each Payment Date, the Trustee shall apply, based solely on the
information provided to the Trustee by the Master Servicer in the Daily Report
(upon which the Trustee may conclusively rely), funds on deposit in the Series
1994-3 Non-Principal Collection Sub-subaccount in the following order of
priority to the extent funds are available:
(i) an amount equal to the Series 1994-3 Monthly Servicing Fee for
the Accrual Period ending on such Payment Date shall be withdrawn from the
Series 1994-3 Non-Principal Collection Sub-subaccount by the Trustee and
paid to the Master Servicer (less any amount payable to the Trustee
pursuant to Section 8.05 of the Agreement which shall be paid to the
Trustee); and
(ii) an amount equal to any Program Costs due and payable shall be
withdrawn from the Series 1994-3 Non-Principal Collection Sub-subaccount
by the Trustee and paid (a) first to the Persons owed any such amounts
that are Company Unsubordinated Obligations (first, to Purchasers ratably
in accordance with the amounts owed, and second, to any other Persons to
which such Program Costs are owed, ratably in accordance with the amounts
owed) and (b) second to the Persons owed any such amount that are Company
Subordinated Obligations (first, to the Purchasers ratably in accordance
with the amounts owed, and second, to any other Persons to whom such
Program Costs are owed, ratably in accordance with the amounts owed).
Any remaining amount on deposit in the Series 1994-3 Non-Principal Collection
Sub-subaccount (in excess of the Accrued Expense Amount as of such day) not
allocated pursuant to clauses (i) and (ii) above shall be paid to the holder of
the Series 1994-3 Subordinated Interest; provided, however, that during the
Series 1994-3 Amortization Period, such remaining amounts shall be deposited in
the Series 1994-3 Principal Collection Sub-subaccount for distribution in
accordance with subsection 3.05(c).
(c) During the Series 1994-3 Amortization Period, the Trustee shall
apply, based solely on the information provided to the Trustee by the Master
Servicer in the Daily Report (upon which the Trustee may conclusively rely), on
each Payment Date, amounts on deposit in the Series 1994-3 Principal Collection
Sub-subaccount in the following order of priority:
(i) to the extent required, to application under Section 3.05(a);
(ii) if any amounts are owed to the Trustee or any other Person, on
account of the Series 1994-3 Monthly Servicing Fees incurred in respect of
the performance of its responsibilities as Successor Master Servicer or
amounts are owing to the Trustee
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(whether as Trustee or as Successor Master Servicer) by the Master
Servicer pursuant to Section 8.05 of the Agreement out of the Series
1994-3 Monthly Servicing Fees and the Master Servicer has failed to pay
such amounts an amount equal to the product of (a) the aggregate amounts
so owed to such Trustee or other Person and (b) the Series 1994-3 Invested
Percentage as of the end of the immediately preceding Settlement Period
and the denominator of which shall be equal to the Aggregate Invested
Amount as of the end of the immediately preceding Settlement Period shall
be transferred from the Series 1994-3 Principal Collection Sub-subaccount
to the Trustee or such other Person; provided that no amount payable under
this Section 3.05(c)(ii) shall exceed the Series 1994-3 Monthly Servicing
Fee (after giving effect to the amount paid under Section 3.05(b));
(iii) following the repayment in full of all amounts set forth in
clauses (i) and (ii) above, an amount equal to the Series 1994-3 Monthly
Principal Payment for such Payment Date shall be distributed from the
Series 1994-3 Principal Collection Sub-subaccount pro rata to the Class A
Certificateholders until repayment in full of the Class A Invested Amount;
(iv) following the repayment in full of all amounts set forth in
clauses (i) through (iii) above, the remaining amount on deposit in the
Series 1994-3 Principal Collection Sub-subaccount on such Payment Date, if
any, shall be distributed first, to the Class A Certificateholders in an
amount not to exceed the unpaid Make-Whole Amount, if any, and second, to
the Class A Certificateholders of Series 1993-2 and Series 1994-2 in an
amount not to exceed the unpaid Make-Whole Amount (the "Other Series
Make-Whole Amount") owed to such Class A Certificateholders under the
Series 1993-2 Supplement and the Series 1994-2 Supplement, if any;
(v) if, following the repayment in full of all amounts set forth in
clauses (i) through (iv) above, any amounts are owed to the Trustee on
account of its fees, expenses and disbursements incurred in respect of the
performance of its responsibilities hereunder (other than payments made
pursuant to clause (ii) above), such amounts shall be transferred from the
Series 1994-3 Principal Collection Sub-subaccount and paid to the Trustee;
and
(vi) following the repayment in full of all amounts set forth in
clauses (i) through (v) above, the remaining amount on deposit in the
Series 1994-3 Principal Collection Sub-subaccount on such Payment Date, if
any, shall be distributed to the holder of the Series 1994-3 Subordinated
Interest.
SECTION 3.06. Make-Whole Amount.
(a) Subject to the Agreement and Section 9.13 of the Receivables Sales
Agreement, a Seller may be terminated as an originator of Receivables (whether
by reason of sale or other disposition of such Seller or otherwise), provided,
that in the event that within twelve months following any such removal of a
Seller as an originator of Receivables an Early Amortization Event arising
under Sections 5.01(a) or (e) (any such Early Amortization Event, an
"Applicable Early Amortization Event") shall occur and, as a result thereof,
the Series 1994-3 Amortization
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Period with respect to the Class A Certificates shall occur, then in addition
to all other amounts required to be paid to the Class A Certificateholders
under the Agreement, the Class A Certificateholders shall be entitled to
receive an additional Make-Whole Amount (as hereinafter defined). The
Make-Whole Amount shall be payable pursuant to Section 3.05(c) of the Agreement
as set forth in this Supplement. The Trustee agrees that if any of the events
described in the provisions of Section 5.01 which are not included as a basis
for an Applicable Early Amortization Event as set forth above in the definition
of such term shall occur within twelve months following the voluntary removal
of a Seller as an originator of Receivables, then unless the occurrence of such
event shall automatically result in an Early Amortization Event in accordance
with Section 5.01, the Trustee will not give notice or otherwise declare an
Early Amortization Event with respect to this Series without obtaining the
consent of the Holders of not less than 65% of the Class A Invested Amount.
(b) The "Make-Whole Amount" shall mean, with respect to any Class A
Certificate, an amount equal to the excess, if any, of the Discounted Value of
such Class A Certificate over the sum of (i) the Class A Invested Amount of
such Class A Certificate on the day preceding the Call Date plus (ii) interest
accrued thereon as of (including interest due on) the Call Date. The Make-Whole
Amount shall be calculated on the Make-Whole Calculation Date and shall in no
event be less than zero. From and after the Make-Whole Calculation Date, if
either the Make-Whole Amount or Other Series Make-Whole Amount is greater than
zero no amounts held in the Trust Accounts shall be distributed to the Series
1994-3 Subordinated Interest until the Make-Whole Amount and the Other Series
Make Whole Amount have been fully paid to the Class A Certificateholders and
the Class A Certificateholders of Series 1993-2 and of Series 1994-2, as
applicable.
ARTICLE IV
Distributions and Reports
Article IV of the Agreement (except for any portion thereof relating
to another Series) shall read in its entirety as follows and the following
shall be exclusively applicable to the Term Certificates issued pursuant to
this Supplement:
SECTION 4.01. Distributions.
(a) The final distribution of principal in respect of the Term
Certificates or portions thereof will be made after due notice by the Trustee
of the pendency of such distribution (subject to at least five Business Days'
prior written notice from the Master Servicer to the Trustee containing all
information required for the Trustee's notice, upon which the Trustee may
conclusively rely) by check drawn on, or by transfer to an account maintained
by the holder with, a bank in New York City. Any other distribution of
principal in respect of the Term Certificates or on account of interest or fees
on the Term Certificates on each Payment Date will be made or caused to be made
by the Paying Agent or the Trustee to the persons in whose name the Term
Certificates are registered at the close of business on the related Record
Date. Such payment will be made by a check mailed to the Term
Certificateholders at such Term Certificateholders, registered addresses or,
upon application by any Term Certificateholder of at least $5,000,000 in
original principal amount thereof to the Trustee not later than five Business
Days prior to the
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related Payment Date, by transfer to an account maintained by the Term
Certificateholder with a bank in New York City.
(b) All allocations and distributions hereunder shall be in accordance
with the Daily Reports and the Monthly Settlement Statements and subject to
Section 3.01(h) of the Agreement.
SECTION 4.02. Statements and Notices.
(a) Monthly Settlement Statements. On each Settlement Report Date
(commencing with the first Settlement Report Date occurring in April, 2000),
the Master Servicer shall deliver to the Trustee and each Rating Agency a
Monthly Settlement Statement in the Form of Exhibit C setting forth, among
other things, the Loss Reserve Ratio, the Dilution Reserve Ratio, the Minimum
Ratio, in each case, where applicable, with respect to the Class A Certificates
and the Carrying Cost Reserve Ratio and the Servicing Reserve Ratio, each as
recalculated for the next succeeding Settlement Period.
(b) Annual Certificateholders' Tax Statement. On or before April 1 of
each calendar year (or such earlier date as required by applicable law),
beginning with calendar year 2000, the Company shall furnish, or cause to be
furnished, to each Person who at any time during the preceding calendar year
was a Term Certificateholder, a statement prepared by the Company containing
the aggregate amount distributed to such Person for such preceding calendar
year or the applicable portion thereof during which such Person was a Term
Certificateholder, together with such other information as is required to be
provided by an issuer of indebtedness under the Code and such other customary
information as the Company deems necessary to enable the Term
Certificateholders to prepare their tax returns. Such obligation of the Company
shall be deemed to have been satisfied to the extent that substantially
comparable information shall have been provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect. The Trustee shall be
under no obligation to prepare tax returns for the Trust.
(c) Early Amortization Event Notices. As promptly as reasonably
practicable after its receipt of notice of the occurrence of an Early
Amortization Event with respect to Series 1994-3, the Trustee shall give notice
of such occurrence to each Rating Agency (which notice shall in any event be
given, by telephone or otherwise, not later than the second Business Day after
such receipt).
(d) The Trustee agrees that it will furnish to each Holder of a Class
A Certificate all notices, reports and certificates that are either prepared or
received by the Trustee pursuant to the Agreement, without any need for request
for any such materials by any such Holder, on the same date as any such
materials are otherwise distributed, in the case of materials prepared by the
Trustee, or within one Business Day of receipt by the Trustee, in the case of
materials prepared by others, including without limitation, the Monthly
Settlement Statement, the Officer's Certificate contemplated by Section 4.03 of
the Servicing Agreement and the reports contemplated by Section 4.04 of the
Servicing Agreement, provided, however, that this sentence shall not apply to
the Daily Report delivered by the Master Servicer to the Trustee. Materials
furnished by the Trustee pursuant to this paragraph (d) will be sent by first
class mail, postage
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prepaid, to each such Holder at the address shown for it in the Certificate
Register maintained by the Trustee.
(e) In order to enable the Trustee to furnish materials to each Holder
of a Class A Certificate in accordance with paragraph (d) above, the Master
Servicer agrees that it will furnish to the Trustee all notices, reports and
certificates that are either prepared or received by the Master Servicer under
the Agreement and are not otherwise required to be delivered to the Trustee.
(f) If, on any day on which the Daily Report is delivered to the
Trustee the Master Servicer is unable to make the certification called for
therein without exception thereto, then the Master Servicer shall also provide
a copy of such Daily Report to each Class A Certificateholder by means of
either (i) Federal Express or similar overnight courier service, (ii) certified
mail, return receipt requested, or (iii) facsimile transmission (subject to
confirmation of receipt by an authorized officer of such Class A
Certificateholder), in any case dispatched by the Master Servicer on the same
day as such Daily Report is delivered to the Trustee to the address of such
Holder shown for it in the Certificate Register maintained by the Trustee. The
Company also shall furnish to each Class A Certificateholder the statement
contemplated by Section 2.07(h) of the Agreement within the time permitted
under such Section by one of the means described in the preceding sentence. In
the event that the Master Servicer does not provide the Daily Report to the
Class A Certificateholders on a timely basis if required to do so by this
Section 4.02(f), then for each day that elapses from the date on which such
Daily Report was required to be provided to Class A Certificateholders until
and including the date on which such Daily Report is in fact provided, the
grace or cure period provided to the Company under Section 5.01(b) (to the
extent that a grace or cure period is applicable to the matters disclosed in
such Daily Report) before a Potential Early Amortization Event becomes an Early
Amortization Event or the grace or cure period provided to the Servicer under
clauses (a) and (c) and Section 6.01 of the Servicing Agreement (to the extent
that a grace or cure period is applicable to the matters disclosed in such
Daily Report) before a prospective Servicer Default becomes a Servicer Default
shall, as applicable, be reduced by each day of such delay.
(g) The Master Servicer agrees that as soon as available and, in any
case, within 100 days after the end of each fiscal year, it will provide to
each Holder of a Class A Certificate the audited consolidated financial
statements of the Master Servicer and its consolidated subsidiaries, consisting
of the audited consolidated balance sheet of the Master Servicer and its
consolidated subsidiaries as of the end of such fiscal year and the audited
consolidated statements of income, changes in stockholders' equity and cash
flows of the Master Servicer and its consolidated subsidiaries for such fiscal
year, certified by the independent public accountants of the Master Servicer
and its consolidated subsidiaries.
(h) The Master Servicer agrees that as soon as available and, in any
case, within 50 days after the end of each fiscal month in each fiscal quarter
in each fiscal year (or, if the Master Servicer elects to provide quarterly
information as hereinafter described, within 50 days after the end of each
fiscal quarter), it will provide to each Holder of a Class A Certificate the
consolidated financial statements of the Master Servicer consisting of the
unaudited consolidated balance sheet of the Master Servicer and its
consolidated subsidiaries as of the end of such fiscal month (or, at the option
of the Master Servicer and upon written notice to the Class A
Certificateholders, as of the end of each fiscal quarter) and the unaudited
consolidated statements of income, changes in stockholders' equity and cash
flows of the Master Servicer and its consolidated subsidiaries for such fiscal
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month (or, at the option of the Master Servicer and upon written notice to the
Class A Certificateholders, as of the end of each such quarter) and for the
fiscal year to date, setting forth in each case in comparative form, the figures
for the corresponding periods of the preceding fiscal year, all in reasonable
detail and certified by the Chief Financial Officer or the Treasurer of the
Master Servicer as being a complete and correct copy of the Master Servicer's
financial statements which have been prepared in accordance with generally
accepted accounting principals consistently applied (except as otherwise
disclosed therein and without the information normally provided in the
accompanying footnotes), and which present fairly the financial position of the
Master Servicer and its consolidated subsidiaries and the results of operation
and cash flows thereof subject, in each case, to changes resulting from year-end
audit adjustments; provided, however, that at such time and so long as the
Master Servicer shall be required to file reports with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
the delivery of its Quarterly Report on Form 10-Q shall satisfy the requirements
of this Section 4.02 with respect to consolidated financial statements.
SECTION 4.03. Notices. Unless otherwise provided, notices required to
be given to the Holders hereunder shall be given by first class mail to the
address of such Holders as they appear in the Certificate Register or the
Subordinated Interest Register, as applicable. The Company and the Master
Servicer shall deliver copies of all notices, reports, statements and other
documents delivered by it pursuant to the Pooling and Servicing Agreements to
each Rating Agency.
SECTION 4.04. Audit and Inspection Rights.
(a) The Company agrees that the audit rights of the Trustee provided
for in Section 2.07(d) of the Agreement may be exercised by the Class A
Certificateholders, and the Master Servicer or Servicer agrees that the
inspection rights of the Trustee provided for in Section 4.09 of the Servicing
Agreement may be exercised by the Class A Certificateholders, subject in each
case, however, to each of the following conditions:
(i) for purposes of this Section 4.04, references to the Class A
Certificateholders shall mean, collectively, the Holders of Class A
Certificates of Series 1994-3 together with the Holders of Class A
Certificates of Series 1993-2 and the Holders of Class A Certificates of
Series 1994-2, and a Holder of Class A Certificates of more than one of
the foregoing Series will be treated as only one Class A
Certificateholder;
(ii) such rights may not be exercised more than one time in any
consecutive 12 month period by (A) each Class A Certificateholder that is
an Initial Purchaser or (B) Class A Certificateholders, in the aggregate,
that are not Initial Purchasers in accordance with clause (iv) below,
provided, that the foregoing limitation shall not apply if and for so long
as a prospective Servicer Default (i.e., a condition that with the giving
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of notice and/or the passage of time would constitute a Servicer Default),
Servicer Default, Potential Early Amortization Event or Early Amortization
Event shall have occurred and shall be continuing under the Agreement;
(iii) for purposes of clause (ii) above, multiple Class A
Certificateholders under common management shall be treated collectively
as only one Class A Certificateholder;
(iv) for purposes of clause (ii) above, all transferees of (A) any of
the "Initial Purchasers" named in the Series 1993-2 Supplement, (B) any of
The Prudential Insurance Company of America, Pacific Mutual Life
Insurance, or The Great West Life & Annuity Insurance Company, or (C) any
Class A Certificateholder managed by any thereof and treated collectively
therewith in accordance with clause (iii) above (collectively, the
"Initial Purchasers"), and successive transferees thereafter, shall be
treated collectively as one Class A Certificateholder and, in order to
exercise the rights provided for in paragraph (a), must act collectively
through an agent or representative appointed to act for all by a vote of
not less than 65% of the Invested Amount of all Class A Certificateholders
excluding the Initial Purchasers and must hold, in aggregate, not less
than 25% of the aggregate Invested Amount of the Class A Certificates of
Series 1993-2, Series 1994-2 and Series 1994-3; and
(v) such rights may not be exercised (and the Company or the
Servicer, as applicable, may deny access to the relevant information) by
any Holder reasonably believed by the Company, the Master Servicer or the
Servicer in good faith to be a competitor of the Master Servicer or
Servicer or any Subsidiary, or by any Holder which the Company, the Master
Servicer or the Servicer reasonably believes in good faith might violate
or otherwise undermine the confidentiality of the materials to be
reviewed, provided, that the Company, the Master Servicer and the Servicer
each hereby acknowledge that none of the Initial Purchasers will be
subject to objection by the Company, the Master Servicer or the Servicer
for reasons of competition or confidentiality.
ARTICLE V
Additional Early Amortization Events
SECTION 5.01. Additional Early Amortization Events. If any one of the
events specified in Section 7.01 of the Agreement (after any grace periods or
consents applicable thereto) or any one of the following events (each, an
"Early Amortization Event"), shall occur:
(a) (i) failure on the part of the Company or the Master Servicer to
direct any payment or deposit to be made, or failure of any payment or deposit
required by the terms of the Agreement or any Supplement to be made, in respect
of interest owing on any Term Certificates within five days of the date such
payment or deposit is required to be made;
(b) failure on the part of the Company duly to observe or perform in
any material respect any covenant or agreement of the Company set forth in any
Pooling and Servicing
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Agreement (including each covenant contained in Sections 2.07 and 2.08 of the
Agreement) that continues unremedied 30 days after the earlier of (i) the date
on which a Responsible Officer of the Company or, so long as the Master
Servicer is an Affiliate of the Company, a Responsible Officer of the Master
Servicer has knowledge of such failure and (ii) the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Company by the Trustee, or to the Company and the Trustee by
holders of the Term Certificates evidencing 10% or more of the Series 1994-3
Invested Amount;
(c) any representation or warranty made or deemed made by the Company
in any Pooling and Servicing Agreement to or for the benefit of the Term
Certificateholders shall prove to have been incorrect in any material respect
when made or when deemed made that continues to be incorrect 30 days after the
earlier of (i) the date on which a Responsible Officer of the Company or, so
long as the Master Servicer is an Affiliate of the Company, a Responsible
Officer of the Master Servicer has knowledge of such failure and (ii) the date
on which notice of such failure, requiring the same to be remedied, shall have
been given to the Company by the Trustee or to the Company and the Trustee by
holders of the Term Certificates evidencing 10% or more of the Series 1994-3
Invested Amount and as a result of such incorrectness, the interests, rights or
remedies of the Term Certificateholders have been materially and adversely
affected; provided, however, that an Early Amortization Event with respect to
Series 1994-3 shall not be deemed to have occurred under this paragraph if the
incorrectness of such representation or warranty gives rise to an obligation to
repurchase or make a Dilution Adjustment in respect of the related Receivables
and the Company has repurchased or made a Dilution Adjustment in respect of the
related Receivable or all such Receivables, if applicable, in accordance with
the provisions of any Pooling and Servicing Agreement;
(d) a Servicer Default other than any Servicer Default that is within
subsection 5.01(a) above shall have occurred and be continuing; or
(e) the Series 1994-3 Allocated Receivables Amount shall be less than
the Series 1994-3 Target Receivables Amount for any period of five consecutive
Business Days;
(f) a Purchase Termination Event shall have occurred and be
continuing;
(g) a Change in Control shall have occurred;
(h) any of the Agreement, the Servicing Agreement, this Supplement or
the Receivables Sale Agreement shall cease, for any reason, to be in full force
and effect, or the Company, the Seller, the Servicer or any Affiliate thereof
shall so assert in writing;
(i) the Lien created in favor of the Trust on all the Trust Assets
shall cease to be a perfected, first priority enforceable Lien thereon, or the
Company or Ingram Micro Inc. shall so assert in writing (and such Receivables
are not repurchased pursuant to the Agreement);
(j) a Federal tax notice of Lien shall have been filed against the
Company or the Trust unless there shall have been delivered to the Trustee and
the Rating Agencies proof of release of such Lien;
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(k) 15 days shall have elapsed after a Responsible Officer of the
Company receives notice as to, or becomes aware of, a notice of Lien having
been filed by the Pension Benefit Guaranty Corporation against the Company or
the Trust under Section 412 (n) 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 unless there
shall have been delivered to the Trustee and the Rating Agencies proof of the
release of such Lien;
(l) (i) one or more judgments for the payment of money (to the extent
not bonded or covered by insurance to the reasonable satisfaction of the
Trustee) shall be rendered against the Company (A) in an aggregate amount
greater than $100,000 or (B) that, individually or in the aggregate, have
resulted or could reasonably be expected to result in a Company Material
Adverse Effect or (ii) one or more judgments for the payment of money (to the
extent not bonded or covered by insurance to the reasonable satisfaction of the
Trustee) shall be rendered against the Servicer, the Seller or any combination
thereof in an aggregate amount greater than (i) 7.25% of the Consolidated
Tangible Net Worth of Ingram Micro Inc. at the end of the most recently ended
Fiscal Quarter or (ii) $80,000,000 whichever is less and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon the assets or properties of the Company, the Servicer or
the Seller to enforce any such judgment and no stay of enforcement shall be in
effect;
(m) Payment of interest with respect to the Class A Certificates is
not made on the Payment Date (without regard to any grace period) more than
three times prior to the Scheduled Revolving Termination Date when the full
amount of funds that would be required to make such payment are not on deposit
in the Series 1994-3 Accrued Interest Sub-subaccount on such Payment Date;
provided, however that failure to make payment on a Payment Date will not be a
cause of an Early Amortization Event under this subsection (n) if such delay or
failure is reasonably attributable to any action taken or not taken by the
Trustee in respect of such payment, unless the Trustee's action or lack of
action was the direct result of misdirection, or lack of required direction, by
Ingram Micro Inc.
then, in the case of (x) any event described in Section 7.01 of the Agreement
(other than the event described in Section 7.01(a)(vi) of the Agreement),
automatically without any notice or action on the part of the Trustee or the
holders of the Term Certificates, an early amortization period shall
immediately commence or (y) an event described above (or the event described in
Section 7.01(a)(vi) of the Agreement, after the applicable grace period (if
any) set forth in the applicable subsection, the Trustee may, and at the
written direction of 65% of the Series 1994-3 Invested Amount shall, by written
notice then given to the Company and the Master Servicer, declare that an early
amortization period has commenced as of the date of such notice with respect to
Series 1994-3 (any such period under clause (x) or (y) above an "Early
Amortization Period"); provided, however, that in the case of the event
described in clause (e) above, if an Early Amortization Period has not been
declared within 10 Business Days from the occurrence of such event, then an
Early Amortization Period shall occur automatically unless, (i) prior to the
end of such 10 Business Day period, the Series 1994-3 Allocated Receivables
Amount shall no longer be less than the Series 1994-3 Target Receivables Amount
and (ii) so long as the Series 1994-3 Allocated Receivables Amount continues to
be equal to or greater than the Series 1994-3
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Target Receivables Amount, Term Certificateholders evidencing 66-2/3% or more
of the Series 1994-3 Invested Amount voting as a single class shall have waived
the occurrence of such event.
ARTICLE VI
Servicing Fee
SECTION 6.01. Servicing Compensation.. A monthly servicing fee (the
"Series 1994-3 Monthly Servicing Fee") shall be payable to the Master Servicer
on each Payment Date for the preceding Settlement Period, in an amount equal to
the product of (a) the Servicing Fee and (b) the Series 1994-3 Invested
Percentage as of the end of the preceding Settlement Period. To the extent that
funds on deposit in the Series 1994-3 Non-Principal Collection Sub-subaccount
at any such date are insufficient to pay the Series 1994-3 Monthly Servicing
Fee due on such date as set forth in the Monthly Settlement Statement delivered
by the Master Servicer to the Trustee, the Trustee shall so notify the Company
and the Company shall immediately pay the Master Servicer the amount of any
such deficiency; provided, however that any payments to be made by the Company
pursuant to this Section shall, if the Master Servicer is Ingram Micro Inc. or
an Affiliate thereto, (i) be Company Subordinated Obligations, (ii) be made
solely from funds available to the Company that are not required to be applied
to the Company Unsubordinated Obligations then due and (iii) not constitute a
general recourse claim against the Company but only a claim against the Company
to the extent of funds available after satisfying all Company Unsubordinated
Obligations then due.
ARTICLE VII
Covenants, Representations and Warranties
SECTION 7.01. Representations and Warranties of the Company and the
Master Servicer. The Company and the Master Servicer each hereby represents and
warrants to the Trustee and each of the Term Certificateholders that each and
every of their respective representations and warranties contained in the
Agreement and the Servicing Agreement is true and correct as of the Issuance
Date and any Subsequent Issuance Date.
SECTION 7.02. Covenants of the Company and the Master Servicer. The
Company and the Master Servicer each hereby agree, in addition to their
obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance with
the terms of the Agreement and the supplements relating to each Outstanding
Series;
(b) they will (i) provide the Trustee with evidence, reasonably
satisfactory to the Trustee, of (A) the establishment of a disaster recovery
plan, (B) the establishment of computer back-up systems and (C) the operational
readiness of an off-site disaster recovery facility;
(c) for so long as any Term Certificates are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will cause to be provided to any holder of Term
Certificates and any prospective purchaser of Term Certificates or an interest
therein, upon the request of such holder or prospective purchaser, the
information
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required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act;
(d) it shall observe in all material respects each of its respective
covenants (both affirmative and negative) contained in the Agreement, the
Servicing Agreement, this Supplement and all other Transaction Documents to
which it is a party.
SECTION 7.03. Negative Covenant of the Company; Covenants of the
Master Servicer.
(a) The Company shall not make any Restricted Payment while Series
1994-3 is an Outstanding Series, except (i) from amounts distributed to the
Company (x) in respect of the Exchangeable Company Interest, provided that on
the date any such Restricted Payment is made, the Company is in compliance with
its payment obligations under Section 2.05 of the Agreement or (y) pursuant to
subsection 3.02(c); (ii) in compliance with all terms of the Transaction
Documents, including the Company's covenant as to net worth set forth in
subsection 2.07(m) of the Agreement and (iii) such Restricted Payment is made
in accordance with all corporate and legal formalities applicable to the
Company; provided that no Restricted Payment shall be made if an Early
Amortization Event has occurred and is continuing (or would occur as a result
of making such Restricted Payment).
(b) The Master Servicer hereby agrees that it shall observe each and
all of its respective covenants (both affirmative and negative) contained in
each Pooling and Servicing Agreement in all material respects.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Ratification of Agreement. As modified and supplemented
by this Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 8.02. Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ANY CONFLICT OF LAW PRINCIPLES, EXCEPT TO THE EXTENT ISSUES OF PERFECTION
ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 8.03. Further Assurances. Each of the Company, the Master
Servicer and the Trustee agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments required or reasonably
requested by the other more fully to effect the purposes of this Supplement and
the sale of the Term Certificates hereunder, including, without limitation, in
the case of the Company and the Master Servicer, the execution of any financing
or registration statements or similar documents or notices or continuation
statements relating to the Receivables and the other Trust Assets for filing or
registration under the provisions of the UCC or similar legislation of any
applicable jurisdiction provided that, in the case of the Trustee, in
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furtherance and without limiting the generality of subsection 8.01(d) of the
Agreement, the Trustee shall have received reasonable assurance of adequate
reimbursement and indemnity in connection with taking such action before the
Trustee shall be required to take any such action.
SECTION 8.04. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee or any Term
Certificateholder, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 8.05. Amendments.
(a) This Supplement may only be amended, supplemented or otherwise
modified from time to time if (i) such amendment, supplement or modification is
effected in accordance with the provisions of Section 10.01 of the Agreement
and (ii) the Rating Agency Condition is satisfied; provided that any amendment,
supplement or modification which is governed by Section 10.01(a) of the
Agreement will be subject to the delivery of an Opinion of Counsel delivered to
the Trustee, that such action shall not have a Material Adverse Effect, and
further, any such amendment, supplement or modification will not be subject to
the second proviso of the first sentence set forth in Section 10.01(a) of the
Agreement; provided further that any amendment, supplement or modification
which is governed by Section 10.01(b) of the Agreement and relates to an
amendment, supplement or modification of Article III, Article IV, the
definition of the Class A Ratio, Series 1994-3 Required Subordinated Amount and
any defined terms used therein shall require the consent of Class A
Certificateholders evidencing more than 65% of the Series 1994-3 Invested
Amount, unless such amendment, supplement or modification increases the Class A
Ratio or the Series 1994-3 Required Subordinated Amount, in which case, no
consent of the Class A Certificateholders shall be required so long as the
Rating Agency Condition has been satisfied. Prior to consenting to any
amendment the Trustee shall be entitled to obtain and rely on an Opinion of
Counsel from the Company stating that such amendment is authorized and
permitted pursuant to the Agreement and this Supplement.
(b) The Receivables Sale Agreement may only be amended, supplemented
or modified, and any provision thereof may only be waived, with the consent of
the Class A Certificateholders evidencing more than 65% of the Aggregate
Invested Amount of all Series of Investor Certificates that (i) were
outstanding prior to the Effective Date and (ii) are adversely affected in any
material respect by such amendment, supplement, modification or waiver.
SECTION 8.06. Notices. All notices, requests and demands to or upon
any party hereto to be effective shall be given in the manner set forth in the
case of the Company, the Servicer and the Trustee, in Section 10.05 of the
Agreement, and in the case of any other party, in writing (including a
confirmed transmission by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand
or three days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when
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received, addressed as follows in the case of the Rating Agencies or to such
other address as may be hereafter notified by the respective parties hereto:
Fitch: Fitch IBCA, Inc.
One State Street Plaza
New York, NY 10004
Telecopier (212) 968-8839
Attention: Asset-Backed Surveillance
S&P: Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Attention: Asset-Backed Surveillance Group
Telecopier: (212) 438-2664
Any notice required or permitted to be mailed to a Term Certificateholder shall
be given as provided in Section 4.03.
SECTION 8.07. Counterparts. This Supplement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same Agreement.
SECTION 8.08. No Bankruptcy Petition. Each Term Certificateholder
shall be deemed to have agreed by its acceptance of a Term Certificate (or a
beneficial interest therein) that, prior to the date which is one year and one
day after the later of (i) the last day of the Series 1994-3 Amortization
Period and (ii) the date that all Investor Certificates of each other
Outstanding Series are repaid in full, it will not institute against, or join
any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
similar proceedings under any Federal or state bankruptcy or similar law.
SECTION 8.09. Limitation on Addition and Termination of Sellers.
(a) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement or the Agreement, the Company shall not consent to
the addition of a Seller thereunder unless each of the following conditions
shall have been satisfied:
(i) Each of the conditions set forth in Section 3.05 of the
Receivables Sale Agreement shall have been satisfied and the Trustee shall
have received evidence in the form of an appropriate Officer's Certificate
as to that fact.
(ii) The Company and the Trustee shall have received evidence that
the Rating Agency Condition shall have been satisfied with respect to the
addition of such Seller; provided that satisfaction of the Rating Agency
Condition (and such receipt of evidence thereof) shall not be required
with respect to the addition of up to three additional Sellers during any
calendar year, each of which meets the following criteria: (x) such
proposed
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additional Seller is, in the judgment of the Company as certified by the
Company to the Trustee in an Officer's Certificate, in the same line of
business as the existing Sellers as of the related Seller Addition Date
(as defined in the Receivables Sale Agreement) and (y) as of the Seller
Addition Date, immediately prior to giving effect to such addition, the
ratio (as determined by the Company and expressed as a percentage) of (I)
the aggregate Principal Amount of what would constitute all Eligible
Receivables of the proposed Seller if it were a Seller at the end of the
Business Day immediately preceding the Seller Addition Date minus the
amount which would constitute the Overconcentration Amount applicable to
such Receivables on the Seller Addition Date if the proposed Seller were a
Seller to (II) the Aggregate Receivables Amount on the Seller Addition
Date (before giving effect to such addition), is less than five percent;
provided, however, that in no event may additional Sellers be added
without satisfaction of the Rating Agency Condition and the consent of the
holders of 65% of the Aggregate Invested Amount of all Series of Investor
Certificates that were outstanding prior to the Effective Date if the
aggregate Principal Amount of what would constitute all Eligible
Receivables of all additional Sellers would exceed fifteen percent of the
aggregate Principal Amount of Receivables on the date upon which the first
additional Seller is added.
(iii) The Company and the Trustee shall have received a certificate
prepared by a Responsible Officer of the Master Servicer certifying that
after giving effect to the addition of such Seller, the Aggregate
Allocated Receivables Amount shall not be less than the Aggregate Target
Receivables Amount on the related Seller Addition Date and setting forth a
re-calculation of the Series 1994-3 Required Subordinated Amount
(including Receivables originated by the additional Sellers).
(iv) The Trustee shall have notified the Company and each Rating
Agency that a Standby Liquidation System is in place for such proposed
additional Seller.
(b) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement, the Company shall not consent to any request made
pursuant to Section 9.13(b) thereof, nor shall any Seller which is the subject
of such request be terminated under the Receivables Sale Agreement, in each
case unless (i) no Early Amortization Event, Potential Early Amortization Event
or Potential Purchase Termination Event (as defined in the Receivables Sale
Agreement) (other than with respect to the Seller to be so terminated) has
occurred and is continuing (both before and after giving effect to such
termination) and (ii) the Trustee shall have received prior written notice of
such termination (which notice shall be accompanied by a pro forma Daily Report
confirming that the Aggregate Allocated Receivables Amount shall not be less
than the Aggregate Target Receivables Amount, each calculated after giving
effect to such termination and excluding all Receivables originated by the
Seller to be terminated).
(c) Upon the termination of a Seller pursuant to Section 9.13(b) of
the Receivables Sale Agreement and the foregoing paragraph (c), the calculation
(including, without limitation, for purposes of the pro forma calculations
pursuant to paragraph (c) above) of the Aggregate Target Receivables Amount,
the Aggregate Allocated Receivables Amount, the Series 1994-3 Required
Subordinated Amount and all other amounts from which each such amount is
directly
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or indirectly derived shall exclude in each case the Receivables originated by
such terminated Seller.
SECTION 8.10. Certificateholder List. Notwithstanding Section 5.07 of
the Agreement, each Class A Certificateholder shall have access to (a) the list
of Holders of Series 1994-3 Certificates without regard to the requirement set
forth in such Section that otherwise would require application by three or more
Holders or by Holders representing not less than 10% of the Invested Amount of
the Investor Certificates of any Series and (b) the list of Holders of any
other Series if three or more Holders or Holders representing not less than 5%
of the Invested Amount of the Investor Certificates of any Series apply in
writing to the Trustee, in each case subject to the terms and conditions of
Section 5.07.
SECTION 8.11. Late Charge. In the event that payment of interest or
principal with respect to the Class A Certificates is not made on the Payment
Date (without regard to any grace period) when the funds required to make such
payment are then on deposit in the Series 1994-3 Accrued Interest
Sub-subaccount or the Series 1994-3 Principal Collection Sub-subaccount, as
applicable, then unless such failure to pay is attributable to the
circumstances described in subsection (m) of Section 5.01, the Company shall
pay to each Class A Certificateholder a late charge (the "Late Charge")
calculated on a per diem basis on the amount of such late payment for each day
following the Payment Date until and including the date on which paid, at a
rate equal to the greater of (i) the Class A Certificate Rate plus 200 basis
points per annum and (ii) Chase's Prime Rate then in effect, such Late Charge
to be payable pursuant to Section 3.03 of the Agreement as set forth in this
Supplement.
SECTION 8.12. Final Payment; Surrender of Certificates. Final payment
on the Series 1994-3 Certificates shall be made to each Holder in the same
manner in which prior payments are made to such Holder and without any need for
such Holder to physically surrender its Class A Certificate(s) to the Trustee;
provided, that at such time as final payment or provision for final payment, of
the Series 1994-3 Certificates shall have been made, such Certificates shall be
deemed canceled and of no effect and shall not represent any further claim on
or interest in the Trust Assets notwithstanding any failure on the part of the
Holder thereof to physically surrender its Class A Certificate(s).
SECTION 8.13. Rights of the Trustee. The Trustee shall not be bound to
make any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
direction, order, approval, bond, note or other paper or document, unless
requested in writing so to do by the Holders of Investor Certificates
evidencing more than 10% of the Series 1994-3 Invested Amount if the Class A
Certificateholders under this Supplement could be materially and adversely
affected if the Trustee does not perform such acts; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
shall be, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Master Servicer (or, if Ingram Micro Inc. is no longer the
Master Servicer, by Ingram Micro Inc.) or, if paid by the Trustee, shall be
reimbursed by the
36
<PAGE> 40
Master Servicer (or if Ingram Micro Inc. is no longer the Master Servicer, by
Ingram Micro Inc.) upon demand. The Trustee shall be entitled to make such
further inquiry or investigation into such facts or matters as it may
reasonably see fit, and if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books and records
of the Company, personally or by agent or attorney, at the sole cost and
expense of the Company.
In any case in which security or indemnity is required to be provided
by a Class A Certificateholder under any provision of the Pooling and Servicing
Agreements to either the Trustee, the Transfer Agent and Registrar, the
Company, the Master Servicer or any Servicer (an "Indemnified Party") as a
condition to such Indemnified Party taking, or not taking, any action, the
unsecured indemnity of any such Class A Certificateholder that is an Initial
Purchaser or is an institutional purchaser with an unsecured debt rating or
claims paying ability of at least "BBB" or its equivalent shall be deemed to
satisfy such requirement for security or indemnity.
SECTION 8.14. Waiver of Past Defaults. Without reference to Section
6.03 of the Servicing Agreement, Holders of Investor Certificates evidencing
more than 65% of the Series 1994-3 Invested Amount adversely affected in any
material respect may waive any continuing default by the Master Servicer, a
Servicer or the Company in the performance of its respective obligations
hereunder and its consequences. Upon any such waiver of a past default, such
default shall cease to exist, and any default arising therefrom shall be deemed
to have been remedied for every purpose of the Pooling and Servicing
Agreements. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
Either the Company, the Master Servicer or the Servicer shall provide notice to
each Rating Agency of any such waiver.
SECTION 8.15. Amendment of Policies. Neither the Master Servicer, any
Servicer, nor any Seller shall without the consent of 65% of the Aggregate
Invested Amount of all Series of Investor Certificates that were outstanding
prior to the Effective Date, make any change in the Policies that could
reasonably be expected to have a material adverse effect on the collectibility
of the Receivables taken as a whole, or the ability of the Master Servicer to
perform its obligations under the Transaction Documents. The Master Servicer
shall provide written notice to each Rating Agency of any such change in the
Policies.
ARTICLE IX
Final Distributions
SECTION 9.01. Certain Distributions.
(a) Not later than 2:00 p.m., New York City time, on the Payment Date
following the date on which the proceeds from the disposition of the
Receivables pursuant to subsection 7.02(b) of the Agreement are deposited into
the Series 1994-3 Non-Principal Collection Sub-subaccount and the Series 1994-3
Principal Collection Sub-subaccount, the Trustee shall distribute such amounts
pursuant to Article III of this Supplement.
37
<PAGE> 41
(b) Notwithstanding anything to the contrary in this Supplement or the
Agreement, any distribution made pursuant to this Section shall be deemed to be
a final distribution pursuant to Section 9.03 of the Agreement with respect to
the Term Certificates.
<PAGE> 42
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Amended and Restated Series 1994-3 Supplement to be duly
executed by their respective officers as of the day and year first above
written.
INGRAM FUNDING INC.,
By: /s/ P. Kurt Preising
-------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as Master Servicer,
By: /s/ P. Kurt Preising
--------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee,
By: /s/ Melissa J. Adelson
-------------------------------
Title: Vice President
Signature Page
to
Series 1994-3 Supplement
<PAGE> 43
EXHIBIT A TO
SERIES 1994-3 SUPPLEMENT
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED FORM OF CLASS A CERTIFICATE, SERIES 1994-3
REGISTERED
NO. $__________(of
$__________issued)
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY PURCHASING THIS TERM CERTIFICATE,
AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS IN AN AMOUNT OF AT LEAST
$2,000,000 AND (1) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A OR (2) TO A PERSON WHO (A) IS AN INSTITUTIONAL "ACCREDITED INVESTOR",
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
ACT, AND WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM ATTACHED TO
THE SERIES 1994-3 SUPPLEMENT OR (B) IS TAKING DELIVERY OF SUCH CERTIFICATE
PURSUANT TO A TRANSACTION THAT IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT, AS CONFIRMED IN AN OPINION OF COUNSEL ADDRESSED TO THE
TRUSTEE AND THE COMPANY WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE
COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF OF
(1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR OTHER
RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH PLAN, WHETHER OR
NOT IT IS SUBJECT TO THE PROVISIONS OF TITLE I THERETO, (2) ANY PLAN DESCRIBED
IN SECTION 4975(e) (1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") OR (3) ANY OTHER ENTITY THAT WOULD BE DEEMED TO BE A "BENEFIT PLAN
INVESTOR" WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION
2510.3-101(f) (2) (ANY OF THE FOREGOING, AN "ERISA ENTITY").THIS TERM
CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR BY ANY OTHER PERSON.
Purchasers of this Term Certificate will be deemed to have made
certain representations and warranties set forth in the Supplement (it being
understood that the Initial Purchaser named
A-1
<PAGE> 44
herein shall not be deemed to have made any representation or warranty pursuant
to Section 2.05 of the Supplement).
This Class A Certificate evidences a fractional
undivided interest in the assets of the
INGRAM FUNDING MASTER TRUST
the corpus of which consists of receivables representing amounts payable for
goods or services, which receivables have been purchased by Ingram Funding
Inc., a Delaware corporation, which in turn transferred and assigned such
receivables to the Ingram Micro Master Trust.
(Not an interest in or recourse obligation of
Ingram Micro Inc., Ingram Funding Inc.,
or any of their respective Affiliates)
This certifies that
[NAME OF CERTIFICATEHOLDER]
(the "Class A Certificateholder") is the registered owner of a fractional
undivided interest in the assets of Ingram Funding Master Trust (the "Trust"),
originally created pursuant to the Pooling and Servicing Agreement, dated as of
February 12, 1993 (as amended and restated on March 8, 2000 and as the same may
from time to time be amended, restated, supplemented or otherwise modified
thereafter, the "Pooling Agreement"), by and among Ingram Funding Inc., a
Delaware corporation (the "Company"), Ingram Micro Inc., a California
corporation, as master servicer (the "Master Servicer") and The Chase Manhattan
Bank, a New York banking corporation, not in its individual capacity but solely
as trustee (in such capacity, the "Trustee") for the Trust, as supplemented by
the Amended and Restated Series 1994-3 Supplement, dated as of March 8, 2000
(as amended, supplemented or otherwise modified from time to time, the
"Supplement", collectively with the Pooling Agreement, the "Agreement"), by and
among the Company, the Master Servicer and the Trustee. The corpus of the Trust
consists of receivables (the "Receivables") representing amounts payable for
goods or services and all other Trust Assets referred to in the Agreement.
Although a summary of certain provisions of the Agreement is set forth below,
this Class A Certificate does not purport to summarize the Agreement, is
qualified in its entirety by the terms and provisions of the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Trustee. A copy of the Agreement
may be requested by writing to the Trustee at The Chase Manhattan Bank, 450 W.
33rd Street, 15th Floor, New York, New York 10011, Attention: Advanced
Structured Products Group. To the extent not defined herein, the capitalized
terms used herein have the meanings ascribed to them in the Agreement.
This Class A Certificate is issued under, is entitled to the benefits
of, and is subject to, the terms, provisions and conditions of the Agreement,
to which Agreement the Class A Certificateholder by virtue of the acceptance
hereof assents and is bound.
The Master Servicer, the Company, each Class A Certificateholder and
the Trustee intend, for federal, state and local income and franchise tax
purposes only, that the Class A Certificates be evidence of indebtedness of the
Company secured by the Trust Assets and that the
A-2
<PAGE> 45
Trust not be characterized as an association or publicly traded partnership
taxable as a corporation. The Class A Certificateholder, by the acceptance
hereof, agrees to treat the Class A Certificates for federal, state and local
income and franchise tax purposes as indebtedness of the Company.
This Class A Certificate is one of a Class of Investor Certificates
entitled "Ingram Micro Master Trust, Class A Certificates, Series 1994-3" (the
"Class A Certificates" and also referred to as the "Term Certificates"). The
Term Certificates represent fractional undivided interests in the Trust Assets,
consisting of the right to receive distributions specified in the Supplement
out of (i) the Series 1994-3 Invested Percentage (expressed as a decimal) of
the Collections received with respect to the Receivables and of all other funds
on deposit in the Collection Account and (ii) to the extent such interests
appear in the Supplement, all other funds on deposit in the Series 1994-3
Collection Subaccount and any subaccounts thereof (the "Series 1994-3
Certificateholders' Interest"). Concurrent with the issuance of the Term
Certificates, the Trust shall also issue a Subordinated Company Interest to the
Company representing a fractional undivided interest in the Trust Assets,
consisting of the right to receive the distributions specified in the
Supplement out of (i) the Series 1994-3 Invested Percentage (expressed as a
decimal) of Collections received with respect to the Receivables and all other
funds on deposit in the Collection Account and (ii) to the extent such
interests appear in the Supplement, all other funds on deposit in the Series
1994-3 Collection Subaccount and any subaccounts thereof, in each case to the
extent not required to be distributed to or for the benefit of the Term
Certificateholders (the "Series 1994-3 Subordinated Interest"). The Trust
Assets are allocated in part to the Term Certificateholders and the holders of
the Series 1994-3 Subordinated Interest with the remainder allocated to the
Investor Certificateholders and the holders of the Subordinated Company
Interest of other Series and to the Company. An Exchangeable Company Interest
representing the Company's interest in the Trust was issued to the Company
pursuant to the Pooling Agreement on March 8, 2000. The Exchangeable Company
Interest represents the interest in the Trust Assets not represented by the
Investor Certificates and Subordinated Company Interest of each Outstanding
Series. The Exchangeable Company Interest may be decreased by the Company
pursuant to the Pooling Agreement in exchange for an increase in the Invested
Amount of a Class of Investor Certificates of an Outstanding Series and an
increase in the related Series Subordinated Company Interest, or one or more
newly issued Series of Investor Certificates and the related newly issued
Series Subordinated Company Interest, upon the conditions set forth in the
Pooling Agreement.
Interest on the Class A Invested Amount will be distributed to the
Class A Certificateholders on each Payment Date. The interest payable on each
Payment Date shall be an amount equal to the product of (i) the Class A
Certificate Rate, (ii) the Class A Invested Amount on the first day of such
Accrual Period (after giving effect to any distributions of principal on such
date) and (iii) the actual number of days in such Accrual Period divided by
360. Interest due but not paid on any Payment Date (the "Class-A Interest
Shortfall") will be due on the next Payment Date, together with interest on
such amount equal to the product, for the Accrual Period succeeding such
Accrual Period (or portion thereof) until such Class A Interest Shortfall is
paid, of (i) a rate per annum equal to the Class A Certificate Rate, (ii) such
Class A Interest Shortfall (or the portion thereof which has not been paid to
the Class A Certificateholders) and (iii) the actual number of days in such
succeeding Accrual Period divided by 360.
A-3
<PAGE> 46
On each Payment Date during the Series 1994-3 Amortization Period, a
Series 1994-3 Monthly Principal Payment shall be made from amounts deposited
into the Series 1994-3 Principal Collection Subsubaccount during the preceding
Accrual Period (after the payment of any Servicing Fees due to the Successor
Servicer), pro rata to the Class A Certificateholders until repayment in full
of the Class A Invested Amount on such date. The Class A Invested Amount may be
otherwise reduced by distributions to the Class A Certificateholders as set
forth in the Agreement.
Distributions with respect to this Class A Certificate shall be paid
by the Trustee or its agent in immediately available funds to the Class A
Certificateholder at the registered address of the Class A Certificateholder as
provided to the Trustee. Final payment of this Class A Certificate shall be
made after due notice of such final distribution delivered by the Trustee to
the Class A Certificateholders in accordance with the Agreement. The Class A
Invested Amount may be prepaid by the Company in accordance with the Agreement.
This Class A Certificate does not represent an obligation of, or an
interest in, the Company, the Servicer or any Affiliate of either of them.
Subject to the provisions of the Agreement, the transfer of this Class
A Certificate shall be registered in the Certificate Register upon surrender of
this Class A Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee and the Transfer
Agent and Registrar, duly executed by the Class A Certificateholder or the
Class A Certificateholder's attorney-in-fact duly authorized in writing, and
thereupon one or more Class A Certificates of authorized denominations and of
like Investor Certificateholders' Interests will be issued to the designated
transferee or transferees.
The Trustee, the Company, the Paying Agent, the Transfer Agent and
Registrar and any agent of either of them, may treat the person in whose name
this Class A Certificate is registered as the owner hereof for all purposes.
It is expressly understood and agreed by the Company and the Class A
Certificateholder that (i) the Agreement is executed and delivered by the
Trustee, not individually or personally but solely as Trustee of the Trust, in
the exercise of the powers and authority conferred and vested in it, (ii)
except as set forth in the Agreement, the representations, undertakings and
agreements made on the part of the Trust in the Agreement are made and intended
not as personal representations, undertakings and agreements by the Trustee,
but are made and intended for the purpose of binding only the Trust, (iii)
nothing herein contained shall be construed as creating any liability of the
Trustee, individually or personally, to perform any covenant either expressed
or implied made on the part of the Trust in the Agreement, all such liability,
if any, being expressly waived by the parties who are signatories to the
Agreement and by any Person claiming by, through or under such parties;
provided, however, the Trustee shall be liable in its individual capacity for
its own willful misconduct or negligence and for any tax assessed against the
Trustee based on or measured by any fees, commission or compensation received
by it for acting as Trustee and (iv) under no circumstances shall the Trustee
be personally liable for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of any
A-4
<PAGE> 47
obligation, representation, warranty or covenant made or undertaken by the
Trust under the Agreement.
This Class A Certificate shall be construed in accordance with and
governed by the laws of the State of New York without reference to any conflict
of law principles.
The Class A Certificateholder hereby agrees that, prior to the date
which is one year and one day after the later of (i) the last day of the Series
1994-3 Amortization Period and (ii) the date that any Investor Certificates of
any other Outstanding Series are paid in full, it will not institute against,
or join any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
similar proceedings under any federal or state bankruptcy or similar law.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Class A Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
A-5
<PAGE> 48
IN WITNESS WHEREOF, the Company has caused this Amended and Restated
Class A Certificate to be duly executed.
Dated: , 20
INGRAM FUNDING INC., as
authorized pursuant to Section 5.01
of the Pooling Agreement
By:
-------------------------------
Title:
A-6
<PAGE> 49
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the
within-mentioned Agreement.
The Chase Manhattan Bank,
not in its individual
capacity but solely
as Trustee,
By: OR By:
------------------------ -------------------------
Authorized Signatory Authenticating Agent
By:
-------------------------
Authenticating Agent
A-7
<PAGE> 50
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE(S)
- --------------------------------------------------------------------
- --------------------------------------------------------------------
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
attorney, with full power of substitution in the premises, to transfer said
certificate on the books kept for registration thereof.
The undersigned certifies that:
(check one)
[ ] The undersigned is transferring this Term Certificate to a Person it
reasonably believes is a "Qualified Institutional Buyer" (as defined
in Rule 144A under the Act) who has been informed that the sale is
being made in reliance upon Rule 144A.
[ ] The undersigned is transferring this Term Certificate in
accordance with the other provisions of the legends set forth
herein.
Dated:
--------------
. . . . . . . . . . . . . . . . . . . .
Note: The signature(s) to this
Assignment must correspond with
the name(s) as written on the
face of the within certificate
in every particular, without
alteration or any change
whatsoever.
A-8
<PAGE> 51
EXHIBIT B TO
SERIES 1994-3 SUPPLEMENT
FORM OF DAILY REPORT
Attached.
<PAGE> 52
INGRAM FUNDING MASTER TRUST
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Company Interest Series 1993-2 Series 1994-2 Series 1994-3
-----------------------------------------------------------------------------
Investor Interest Investor Interest Investor Interest Investor Interest
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance
Plus: Gross Credit Sales
Plus: Inter-Co. Sales
Less: Inter-Co. Collections
Less: Collections
Less: Net Write-Offs
Less: Total Dilution Adjustments
Plus/Less: A/R Adjustments
Less: Repurchased Receivables
Ending Receivables Balance
Less: Defaulted Receivables
Less: Total Ineligible Receivables
Total Eligible Receivables
Less: Overconcentration Amount
Aggregate Receivables Amount
Invested Amount #N/A #N/A #N/A
Adjusted Invested Amount #N/A #N/A #N/A
Required Subordinated Amount #N/A #N/A #N/A
Target Receivables Amount #N/A #N/A #N/A
Allocated Receivables Amount #N/A #N/A #N/A #N/A
Collateral Compliance #N/A #N/A #N/A
Ending Invested % #N/A #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Transferred to Collection Account
(Aggregate Daily Collections)
B) Transfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A #N/A #N/A
C) Transfer to Company Collection
Subaccount (from A) #N/A
D) Transfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A #N/A #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
H) Transfer to Company
Collection Subaccount (from B) #N/A #N/A #N/A
I) Transfer to Company Collection
Subaccount (from F) -
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily)
J) Total Transfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A #N/A #N/A
-----------------------------------------------------------------------
Total Held at Trust #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
<CAPTION>
REPORT DATE ACTIVITY DATE
6-Mar-00
- ----------------------------------------------------------------------------
Series 2000-1
------------------- Pool
Investor Interest Balance
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance #N/A
Plus: Gross Credit Sales #N/A
Plus: Inter-Co. Sales #N/A
Less: Inter-Co. Collections #N/A
Less: Collections #N/A
Less: Net Write-Offs #N/A
Less: Total Dilution Adjustments #N/A
Plus/Less: A/R Adjustments #N/A
Less: Repurchased Receivables #N/A
-----------
Ending Receivables Balance #N/A
#N/A
Less: Defaulted Receivables #N/A
Less: Total Ineligible Receivables #N/A
-----------
Total Eligible Receivables #N/A
Less: Overconcentration Amount #N/A
-----------
Aggregate Receivables Amount #N/A
#N/A
Invested Amount #N/A
Adjusted Invested Amount #N/A
Required Subordinated Amount #N/A
Target Receivables Amount #N/A
Allocated Receivables Amount #N/A #N/A
Collateral Compliance #N/A
Ending Invested % #N/A #N/A
- ----------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Transferred to Collection Account
(Aggregate Daily Collections) #N/A
B) Transfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A
C) Transfer to Company Collection
Subaccount (from A)
D) Transfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A
H) Transfer to Company
Collection Subaccount (from B) #N/A
I) Transfer to Company Collection
Subaccount (from F)
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily) -
---
J) Total Transfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A
-------------------------------------
Total Held at Trust #N/A #N/A
- ----------------------------------------------------------------------------
#N/A
</TABLE>
The undersigned, an Officer of Ingram Micro, as Master Servicer, certifies that
the information set forth above is true and correct and it has performed in all
material respects all of its obligations as Servicer under the Pooling and
Servicing Agreements required to be performed as of the date hereof.
Signature: Name: Title: Date:
- --------------------------------------------------------------------------------
1
<PAGE> 53
EXHIBIT C TO
SERIES 1994-3 SUPPLEMENT
------------------------
FORM OF MONTHLY SETTLEMENT STATEMENT
Attached.
C-1
<PAGE> 54
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00 Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(Non-Inter-Co.)
Beginning Gross Gross Credit Inter-Co. Inter-Co. (Non-Inter-Co.)
Receivable Balance Sales Sales Collections Collections Net Write-Offs
==================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Dilutative Items
----------------------
Defective Non-
Product Resellable
========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals : 0.00 0.00
</TABLE>
Index-> #N/A
2
<PAGE> 55
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
Dilutative Items
------------------------------------------------------------------ Total
Stock A/P Wrong Daily Credits Other Dilutative A/R
Balancing Adjustments Shipment In Other A/R Dilutive Adjustments Adjustments
==============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Ending
Repurchased Receivables
Receivables Balance
===========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
=====
Totals : 0.00
</TABLE>
Index-> #N/A
3
<PAGE> 56
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
DEFAULTED RECEIVABLES INELIGIBLE RECEIVABLES
------------------------------------------------------------------------------------------------------
61-90 Days 91-120 Days 121+ Days Credits Over 60 35% Cross Aged Federal
Past Due Past Due Past Due Past Due >121 Days Government Inter-Company
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
</TABLE>
<TABLE>
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------
Foreign Contra
Select Source Receivables Balances
-------------------------------------
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
4
<PAGE> 57
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------------------------------------------------------------------------------
Non Qualifying Customers with Trade Litigation & Unaplied Cash Accured
ChargeBacks DIP Obligor Terms > 90 Days Discounts Collection Adjustment Pricing Credits Other
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
</TABLE>
<TABLE>
<CAPTION>
Total Total
Ineligible Eligible
Receivables Receivables
--------------------------
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
5
<PAGE> 58
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(EARLY) AMORTIZATION PERIOD ONLY
----------------------------------------------
Repurchase Repurchase Overconcentration Aggregate
Overconcentration Obligation for Obligation for plus Ineligible Receivables
Amount Defaulted Receivables Ineligible Receivables Receivables Amount
========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00
Totals :
<CAPTION>
---------------
Series 1993-2
Invested Amount
===============
<S> <C>
1-Apr-00 -
2-Apr-00 -
3-Apr-00 -
4-Apr-00 -
5-Apr-00 -
6-Apr-00 -
7-Apr-00 -
8-Apr-00 -
9-Apr-00 -
10-Apr-00 -
11-Apr-00 -
12-Apr-00 -
13-Apr-00 -
14-Apr-00 -
15-Apr-00 -
16-Apr-00 -
17-Apr-00 -
18-Apr-00 -
19-Apr-00 -
20-Apr-00 -
21-Apr-00 -
22-Apr-00 -
23-Apr-00 -
24-Apr-00 -
25-Apr-00 -
26-Apr-00 -
27-Apr-00 -
28-Apr-00 -
29-Apr-00 -
30-Apr-00 -
1-May-00 -
2-May-00 -
3-May-00 -
4-May-00 -
</TABLE>
Index-> #N/A
6
<PAGE> 59
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-----------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Sub-Acct. Principal Invested Subordinated Required
Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 - - - #DIV/0! 0.00%
Sunday 2-Apr-00 - - - #DIV/0! 0.00%
Monday 3-Apr-00 - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 - - - #DIV/0! 0.00%
Thursday 6-Apr-00 - - - #DIV/0! 0.00%
Friday 7-Apr-00 - - - #DIV/0! 0.00%
Saturday 8-Apr-00 - - - #DIV/0! 0.00%
Sunday 9-Apr-00 - - - #DIV/0! 0.00%
Monday 10-Apr-00 - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 - - - #DIV/0! 0.00%
Thursday 13-Apr-00 - - - #DIV/0! 0.00%
Friday 14-Apr-00 - - - #DIV/0! 0.00%
Saturday 15-Apr-00 - - - #DIV/0! 0.00%
Sunday 16-Apr-00 - - - #DIV/0! 0.00%
Monday 17-Apr-00 - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 - - - #DIV/0! 0.00%
Thursday 20-Apr-00 - - - #DIV/0! 0.00%
Friday 21-Apr-00 - - - #DIV/0! 0.00%
Saturday 22-Apr-00 - - - #DIV/0! 0.00%
Sunday 23-Apr-00 - - - #DIV/0! 0.00%
Monday 24-Apr-00 - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 - - - #DIV/0! 0.00%
Thursday 27-Apr-00 - - - #DIV/0! 0.00%
Friday 28-Apr-00 - - - #DIV/0! 0.00%
Saturday 29-Apr-00 - - - #DIV/0! 0.00%
Sunday 30-Apr-00 - - - #DIV/0! 0.00%
Monday 1-May-00 - - - #DIV/0! 0.00%
Tuesday 2-May-00 - - - #DIV/0! 0.00%
Wednesday 3-May-00 - - - #DIV/0! 0.00%
Thursday 4-May-00 - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-------------------------------
Series 1993-2
Carrying Cost Servicing
Reserve % Reserve %
===============================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 0.00% 0.00%
Monday 1-May-00 0.00% 0.00%
Tuesday 2-May-00 0.00% 0.00%
Wednesday 3-May-00 0.00% 0.00%
Thursday 4-May-00 0.00% 0.00%
Totals:
</TABLE>
Index-> #N/A
7
<PAGE> 60
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-2 MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-2 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
-----------------------------------
Series 1994-2
Carrying Cost Servicing
Reserve % Reserve %
===================================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
8
<PAGE> 61
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-3 MEDIUM TERM NOTES
------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-3 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
==========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
---------------------------
Series 1994-3
Carrying Cost Servicing
Reserve % Reserve %
===========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
9
<PAGE> 62
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
----------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 2000-1 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
--------------------------
Carrying Cost Servicing
Reserve % Reserve %
=========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
10
<PAGE> 63
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 ESTIMATED ESTIMATED
Maximum 2000-1 Allocated Maximum 2000-1
Target Receivables Receivables Required Maximum 2000-1
Amount Amount Subordinated Amount Invested Amount
<S> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Totals :
</TABLE>
<TABLE>
<CAPTION>
MTN MTN MTN VFC
1993-2 1994-2 1994-3 2000-1
Invested Invested Invested Invested
% % % %
==========================================================
<S> <C> <C> <C> <C> <C>
31-Mar-00 0.00% 0.00% 0.00% 0.00%
1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
Index-> #N/A
11
<PAGE> 64
Overconcentration
OVERCONCENTRATION GRID:
<TABLE>
<CAPTION>
SHORT-TERM LONG-TERM
<S> <C> <C>
A-1+,F-1+,P-1 AA-, AA-, Aa3 15.00%
A-1,F-1,P-1 A+, A+, A1 15.00%
A-2,F-2,P-2 BBB+, BBB+, Baa1 7.50%
A-3,F-3,P-3 BBB-, BBB-, Baa3 5.00%
UNRATED UNRATED 3.00%
ELIGIBLE RECEIVABLES:
REPORT CHECK: 0.00
</TABLE>
REPORT DATE ACTIVITY DATE
6-Mar-00
S&P RATING DESK: (212) 438-2400
MOODY'S RATING DESK: (212) 553-0377
FITCH RATING DESK: (800) 853-4824 FAX: (307) 754-3721
(Total Eligible Receivables per Daily Statement - Cell F24)
<TABLE>
<CAPTION>
RATING ELIGIBLE CONCENTRATION EXCESS
CUSTOMER S&P/MOODY'S/FITCH A/R BALANCE % OF ELIGIBLES $ THRESHOLD % CONCENTRATION
--------------------------------------------- -------------- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 #DIV/0! - #DIV/0! -
2 #DIV/0! - #DIV/0! -
3 #DIV/0! - #DIV/0! -
4 #DIV/0! - #DIV/0! -
5 #DIV/0! - #DIV/0! -
6 #DIV/0! - #DIV/0! -
7 #DIV/0! - #DIV/0! -
8 #DIV/0! - #DIV/0! -
9 #DIV/0! - #DIV/0! -
10 #DIV/0! - #DIV/0! -
11 #DIV/0! - #DIV/0! -
12 #DIV/0! - #DIV/0! -
13 #DIV/0! - #DIV/0! -
14 #DIV/0! - #DIV/0! -
15 #DIV/0! - #DIV/0! -
16 #DIV/0! - #DIV/0! -
17 #DIV/0! - #DIV/0! -
18 #DIV/0! - #DIV/0! -
19 #DIV/0! - #DIV/0! -
20 #DIV/0! - #DIV/0! -
---
$ -
===
</TABLE>
<PAGE> 65
INGRAM MICRO MASTER TRUST
MONTHLY RESERVES
($ in thousands)
<TABLE>
<CAPTION>
Aggregate
Principal Total Total Dollar Receivables
Non-I/C Amount of Dilutive A/R Weighted Amount Weighted
Sales Receivables Items Gross Written-Off Average (as of Mth end Ave.
Period Per Per Per A/R Prior Dilution on the daily Pay.
Ended Rollforward Rollforward Rollforward 91 - 120 to 91 Days Horizon statement) Terms
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0 0 0 0.00 - 0.0
Feb-97 0 0 0 0 0 0.00 - 0.0
Mar-97 0 0 0 0 0 0.00 - 0.0
Apr-97 0 0 0 0 0 0.00 - 0.0
May-97 0 0 0 0 0 0.00 - 0.0
Jun-97 0 0 0 0 0 0.00 - 0.0
Jul-97 0 0 0 0 0 0.00 - 0.0
Aug-97 0 0 0 0 0 0.00 - 0.0
Sep-97 0 0 0 0 0 0.00 - 0.0
Oct-97 0 0 0 0 0 0.00 - 0.0
Nov-97 0 0 0 0 0 0.00 - 0.0
Dec-97 0 0 0 0 0 0.00 - 0.0
Jan-98 0 0 0 0 0 0.00 - 0.0
Feb-98 0 0 0 0 0 0.00 - 0.0
Mar-98 0 0 0 0 0 0.00 - 0.0
Apr-98 0 0 0 0 0 0.00 - 0.0
May-98 0 0 0 0 0 0.00 - 0.0
Jun-98 0 0 0 0 0 0.00 - 0.0
Jul-98 0 0 0 0 0 0.00 - 0.0
Aug-98 0 0 0 0 0 0.00 - 0.0
Sep-98 0 0 0 0 0 0.00 - 0.0
Oct-98 0 0 0 0 0 0.00 - 0.0
Nov-98 0 0 0 0 0 0.00 - 0.0
Dec-98 0 0 0 0 0 0.00 - 0.0
Jan-99 0 0 0 0 0 0.00 - 0.0
Feb-99 0 0 0 0 0 0.00 - 0.0
Mar-99 0 0 0 0 0 0.00 - 0.0
Apr-99 0 0 0 0 0 0.00 - 0.0
May-99 0 0 0 0 0 0.00 - 0.0
Jun-99 0 0 0 0 0 0.00 - 0.0
Jul-99 0 0 0 0 0 0.00 - 0.0
Aug-99 0 0 0 0 0 0.00 - 0.0
Sep-99 0 0 0 0 0 0.00 - 0.0
Oct-99 0 0 0 0 0 0.00 - 0.0
Nov-99 0 0 0 0 0 0.00 - 0.0
Dec-99 0 0 0 0 0 0.00 - 0.0
Jan-00 0 0 0 0 0 0.00 - 0.0
Feb-00 0 0 0 0 0 0.00 - 0.0
Mar-00 0 0 0 0 0 0.00 - 0.0
Apr-00 0 0 0 0 0 0.00 - 0.0
<CAPTION>
Series Series Series Base
1993-2 1994-2 1994-3 Rate
Period Discount Discount Discount (Prime
Ended Rate Rate Rate Rate)
---------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97 6.61% 6.91% 7.17% 0.00%
Feb-97 6.61% 6.91% 7.17% 0.00%
Mar-97 6.61% 6.91% 7.17% 0.00%
Apr-97 6.61% 6.91% 7.17% 0.00%
May-97 6.61% 6.91% 7.17% 0.00%
Jun-97 6.61% 6.91% 7.17% 0.00%
Jul-97 6.61% 6.91% 7.17% 0.00%
Aug-97 6.61% 6.91% 7.17% 0.00%
Sep-97 6.61% 6.91% 7.17% 0.00%
Oct-97 6.61% 6.91% 7.17% 0.00%
Nov-97 6.61% 6.91% 7.17% 0.00%
Dec-97 6.61% 6.91% 7.17% 0.00%
Jan-98 6.61% 6.91% 7.17% 0.00%
Feb-98 6.61% 6.91% 7.17% 0.00%
Mar-98 6.61% 6.91% 7.17% 0.00%
Apr-98 6.61% 6.91% 7.17% 0.00%
May-98 6.61% 6.91% 7.17% 0.00%
Jun-98 6.61% 6.91% 7.17% 0.00%
Jul-98 6.61% 6.91% 7.17% 0.00%
Aug-98 6.61% 6.91% 7.17% 0.00%
Sep-98 6.61% 6.91% 7.17% 0.00%
Oct-98 6.61% 6.91% 7.17% 0.00%
Nov-98 6.61% 6.91% 7.17% 0.00%
Dec-98 6.61% 6.91% 7.17% 0.00%
Jan-99 6.61% 6.91% 7.17% 0.00%
Feb-99 6.61% 6.91% 7.17% 0.00%
Mar-99 6.61% 6.91% 7.17% 0.00%
Apr-99 6.61% 6.91% 7.17% 0.00%
May-99 6.61% 6.91% 7.17% 0.00%
Jun-99 6.61% 6.91% 7.17% 0.00%
Jul-99 6.61% 6.91% 7.17% 0.00%
Aug-99 6.61% 6.91% 7.17% 0.00%
Sep-99 6.61% 6.91% 7.17% 0.00%
Oct-99 6.61% 6.91% 7.17% 0.00%
Nov-99 6.61% 6.91% 7.17% 0.00%
Dec-99 6.61% 6.91% 7.17% 0.00%
Jan-00 6.61% 6.91% 7.17% 0.00%
Feb-00 6.61% 6.91% 7.17% 0.00%
Mar-00 6.61% 6.91% 7.17% 0.00%
Apr-00 6.61% 6.91% 7.17% 0.00%
</TABLE>
<PAGE> 66
<TABLE>
<CAPTION>
Three
Month Max.
Dilution Max. Average 12 Mth.
Servicing 12-month 12 Mth. Dilution Aged Aged Aged Payment
Period Fee Dilution Rolling Rolling Horizon Dilution A/R A/R A/R Terms
Ended Rate Ratio Average Avg. Factor Period Ratio Ratio Ratio Factor
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00%
Feb-97 0.00%
Mar-97 0.00% #DIV/0!
Apr-97 0.00% #DIV/0!
May-97 0.00% #DIV/0!
Jun-97 0.00% #DIV/0! #DIV/0!
Jul-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0!
Aug-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Sep-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Oct-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Nov-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Dec-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Jan-98 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Feb-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
</TABLE>
<TABLE>
<CAPTION>
Minimum
Payment Days
Period Terms Sales
Ended Factor Out.
-----------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0!
Jun-97 #DIV/0!
Jul-97 #DIV/0!
Aug-97 #DIV/0!
Sep-97 #DIV/0!
Oct-97 #DIV/0!
Nov-97 #DIV/0!
Dec-97 #DIV/0!
Jan-98 #DIV/0!
Feb-98 0.00 #DIV/0!
Mar-98 0.00 #DIV/0!
Apr-98 0.00 #DIV/0!
May-98 0.00 #DIV/0!
Jun-98 0.00 #DIV/0!
Jul-98 0.00 #DIV/0!
Aug-98 0.00 #DIV/0!
Sep-98 0.00 #DIV/0!
Oct-98 0.00 #DIV/0!
Nov-98 0.00 #DIV/0!
Dec-98 0.00 #DIV/0!
Jan-99 0.00 #DIV/0!
Feb-99 0.00 #DIV/0!
Mar-99 0.00 #DIV/0!
Apr-99 0.00 #DIV/0!
May-99 0.00 #DIV/0!
Jun-99 0.00 #DIV/0!
Jul-99 0.00 #DIV/0!
Aug-99 0.00 #DIV/0!
Sep-99 0.00 #DIV/0!
Oct-99 0.00 #DIV/0!
Nov-99 0.00 #DIV/0!
Dec-99 0.00 #DIV/0!
Jan-00 0.00 #DIV/0!
Feb-00 0.00 #DIV/0!
Mar-00 0.00 #DIV/0!
Apr-00 0.00 #DIV/0!
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------------------
MAX
(a) (b) (c) (A+B) OR (C)
aa bb cc Max
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
</TABLE>
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
-------------------------------------------------------
SERIES SERIES SERIES
1993-2 1994-2 1994-3
CARRYING CARRYING CARRYING
COST COST COST SERVICING
Period RESERVE RESERVE RESERVE FEE
Ended RATIO RATIO RATIO RATIO
-----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0! #DIV/0! #DIV/0!
May-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
<PAGE> 68
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
--------------------------------------------------------------------------------------------------------
(a) (b) (c) MAX
aa bb cc Max (A+B) OR (C)
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
</TABLE>
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
------------------------------------
CARRYING
COST SERVICING
Period RESERVE FEE
Ended RATIO RATIO
- ------------------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0!
</TABLE>
<PAGE> 69
INGRAM MICRO
OVERCOLLATERALIZATION SUMMARY
- --------------------------------------------------------------------------------
($ in thousands)
ASSUMPTIONS:
AGING TYPE Due To Date
CREDIT MEMO LAG 30 30
DILUTION HORIZON 30 30
DEFAULT HORIZON 90 90
DEEMED DEFAULTS 90-120 91-120
FIRST PERIOD OF DATA JAN-97
RATING FACTOR 2.00=A 2
PROJECTED ADV. RATE 75%
The Company's method of aging its receivables.
Lag from the original invoice date to the credit memo date.
This represents the number of days of sales GE Capital/Redwood is exposed to
dilution. This is based on the maximum of how many days of sales are in our
borrowing or A/R turnover.
This represents the number of days of sales GE Capital/Redwood is lending on.
(i.e. If we are lending up to 90 days past invoice date, we would have 90 days
of sales in our borrowing base or 3 months).
Represents the next aging category outside of our borrowing base window (i.e. If
we are lending up to 90 days past invoice date, our deemed default would be the
91-120 aging category).
The beginning period of our historical data.
The rating factor is the stress factor used to underwrite a pool to a certain
credit level. (AAA = 2.5, AA=2.25, A=2.00, BBB=1.75).
Projected advance rate based on ((2 times dilution) plus 5%).
<TABLE>
<CAPTION>
0.00% Max O/C
4/SALES AVG. OF LAST PRIOR 3 7X8
5 MONTHS AGO 3 MOS OF #5 OF 1 XFACTOR
1 2 3 4 5 6 7 8 9
91-120 Monthly 3 Month Highest Prior Default Rating
Month Sales A/R Dilutions Bucket Def. Ratio Average 12 mos of #6 Horizon Factor
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - -
Feb-97 - - - -
Mar-97 - - - -
Apr-97 - - - -
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-98 - - - - #DIV/0! 0.00% 0.00% 0 0
May-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-99 - - - - #DIV/0! 0.00% 0.00% 0 0
May-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-99 - - - - #DIV/0! 0.00% 0.00% 0 0
<CAPTION>
3/1,1 SUM 12 MOS. PRIOR 1 HIGHEST PRIOR 4
MOS. AGO 10/TWELVE MOS. OF 1 11x12xFACT. TWELVE OF 10 14-11 14/11 12x15x16
10 11 12 13 14 15 16 17
Dilution 12 Month Avg Dilution Normal "Spike" Spike Less Spike Divided Spike
Month Percent Dil/Sales Horizon Dilution 12 Mos Avg 12 Month Avg Impact
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97 0.00%
Jun-97 0.00%
Jul-97 0.00%
Aug-97 0.00%
Sep-97 0.00%
Oct-97 0.00%
Nov-97 0.00%
Dec-97 0.00%
Jan-98 0.00%
Feb-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jan-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Feb-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
<CAPTION>
(13+17)/2 9/2 18+19
18 19 20 21
Dilution Default Total GECC
Month Coverage Coverage O/C LOC
-----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97
Jun-97
Jul-97
Aug-97
Sep-97
Oct-97
Nov-97
Dec-97
Jan-98
Feb-98 0.00% 0.00% 0.00% 0.00%
Mar-98 0.00% 0.00% 0.00% 0.00%
Apr-98 0.00% 0.00% 0.00% 0.00%
May-98 0.00% 0.00% 0.00% 0.00%
Jun-98 0.00% 0.00% 0.00% 0.00%
Jul-98 0.00% 0.00% 0.00% 0.00%
Aug-98 0.00% 0.00% 0.00% 0.00%
Sep-98 0.00% 0.00% 0.00% 0.00%
Oct-98 0.00% 0.00% 0.00% 0.00%
Nov-98 0.00% 0.00% 0.00% 0.00%
Dec-98 0.00% 0.00% 0.00% 0.00%
Jan-99 0.00% 0.00% 0.00% 0.00%
Feb-99 0.00% 0.00% 0.00% 0.00%
Mar-99 0.00% 0.00% 0.00% 0.00%
Apr-99 0.00% 0.00% 0.00% 0.00%
May-99 0.00% 0.00% 0.00% 0.00%
Jun-99 0.00% 0.00% 0.00% 0.00%
Jul-99 0.00% 0.00% 0.00% 0.00%
Aug-99 0.00% 0.00% 0.00% 0.00%
Sep-99 0.00% 0.00% 0.00% 0.00%
Oct-99 0.00% 0.00% 0.00% 0.00%
Nov-99 0.00% 0.00% 0.00% 0.00%
Dec-99 0.00% 0.00% 0.00% 0.00%
</TABLE>
17
<PAGE> 70
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
18
<PAGE> 71
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (SELECT SOURCE ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - -
Feb-97 - - - - - - - - -
Mar-97 - - - - - - - - -
Apr-97 - - - - - - - - -
May-97 - - - - - - - - -
Jun-97 - - - - - - - - -
Jul-97 - - - - - - - - -
Aug-97 - - - - - - - - -
Sep-97 - - - - - - - - -
Oct-97 - - - - - - - - -
Nov-97 - - - - - - - - -
Dec-97 - - - - - - - - -
Jan-98 - - - - - - - - -
Feb-98 - - - - - - - - -
Mar-98 - - - - - - - - -
Apr-98 - - - - - - - - -
May-98 - - - - - - - - -
Jun-98 - - - - - - - - -
Jul-98 - - - - - - - - -
Aug-98 - - - - - - - - -
Sep-98 - - - - - - - - -
Oct-98 - - - - - - - - -
Nov-98 - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - 0.0%
Jan-98 - - - - 28 - 0.0%
Feb-98 - - - - 28 - 0.0%
Mar-98 - - - - 35 - 0.0%
Apr-98 - - - - 28 - 0.0%
May-98 - - - - 28 - 0.0%
Jun-98 - - - - 35 - 0.0%
Jul-98 - - - - 28 - 0.0%
Aug-98 - - - - 28 - 0.0%
Sep-98 - - - - 35 - 0.0%
Oct-98 - - - - 28 - 0.0%
Nov-98 - - - - 28 - 0.0%
Dec-98 - - - - 35 - 0.0%
Jan-99 - - - - 28 - 0.0%
Feb-99 - - - - 28 - 0.0%
Mar-99 - - - - 35 - 0.0%
Apr-99 - - - - 28 - 0.0%
May-99 - - - - 28 - 0.0%
Jun-99 - - - - 35 - 0.0%
Jul-99 - - - - 28 - 0.0%
Aug-99 - - - - 28 - 0.0%
Sep-99 - - - - 35 - 0.0%
Oct-99 - - - - 28 - 0.0%
Nov-99 - - - - 28 - 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
19
<PAGE> 72
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
20
<PAGE> 73
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST
(NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
21
<PAGE> 74
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST (SELECT SOURCE
ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date 13,196 12,649
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
22
<PAGE> 75
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL Check S/B=0
------ ---- ----- ----- ------ ---- ----- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
23
<PAGE> 76
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0.0% 0.0
Feb-97 0 0 0.0% 0.0
Mar-97 0 0 0.0% 0.0
Apr-97 0 0 0.0% 0.0
May-97 0 0 0.0% 0.0
Jun-97 0 0 0.0% 0.0% 0.0 -
Jul-97 0 0 0.0% 0.0% 0.0 -
Aug-97 0 0 0.0% 0.0% 0.0 -
Sep-97 0 0 0.0% 0.0% 0.0 -
Oct-97 0 0 0.0% 0.0% 0.0 -
Nov-97 0 0 0.0% 0.0% 0.0 -
Dec-97 0 0 0.0% 0.0% 0.0 -
Jan-98 0 0 0.0% 0.0% 0.0 -
Feb-98 0 0 0.0% 0.0% 0.0 -
Mar-98 0 0 0.0% 0.0% 0.0 -
Apr-98 0 0 0.0% 0.0% 0.0 -
May-98 0 0 0.0% 0.0% 0.0 -
Jun-98 0 0 0.0% 0.0% 0.0 -
Jul-98 0 0 0.0% 0.0% 0.0 -
Aug-98 0 0 0.0% 0.0% 0.0 -
Sep-98 0 0 0.0% 0.0% 0.0 -
Oct-98 0 0 0.0% 0.0% 0.0 -
Nov-98 0 0 0.0% 0.0% 0.0 -
Dec-98 0 0 0.0% 0.0% 0.0 -
Jan-99 0 0 0.0% 0.0% 0.0 -
Feb-99 0 0 0.0% 0.0% 0.0 -
Mar-99 0 0 0.0% 0.0% 0.0 -
Apr-99 0 0 0.0% 0.0% 0.0 -
May-99 0 0 0.0% 0.0% 0.0 -
Jun-99 0 0 0.0% 0.0% 0.0 -
Jul-99 0 0 0.0% 0.0% 0.0 -
Aug-99 0 0 0.0% 0.0% 0.0 -
Sep-99 0 0 0.0% 0.0% 0.0 -
Oct-99 0 0 0.0% 0.0% 0.0 -
Nov-99 0 0 0.0% 0.0% 0.0 -
Dec-99 0 0 0.0% 0.0% OK 0.0 - OK
Jan-00 0 0 0.0% 0.0% OK 0.0 - OK
Feb-00 0 0 0.0% 0.0% OK 0.0 - OK
CALCULATION
High 0.0% -
Low 0.0% -
Average 0.0% -
STD Deviation 0.0% -
High + 1 std deviations 0.0% -
</TABLE>
<TABLE>
<CAPTION>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - #DIV/0!
Feb-97 - - - - #DIV/0!
Mar-97 - - - - #DIV/0!
Apr-97 - - - - #DIV/0!
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.0%
Jul-97 - - - - #DIV/0! 0.0%
Aug-97 - - - - #DIV/0! 0.0%
Sep-97 - - - - #DIV/0! 0.0%
Oct-97 - - - - #DIV/0! 0.0%
Nov-97 - - - - #DIV/0! 0.0%
Dec-97 - - - - #DIV/0! 0.0%
Jan-98 - - - - #DIV/0! 0.0%
Feb-98 - - - - #DIV/0! 0.0%
Mar-98 - - - - #DIV/0! 0.0%
Apr-98 - - - - #DIV/0! 0.0%
May-98 - - - - #DIV/0! 0.0%
Jun-98 - - - - #DIV/0! 0.0%
Jul-98 - - - - #DIV/0! 0.0%
Aug-98 - - - - #DIV/0! 0.0%
Sep-98 - - - - #DIV/0! 0.0%
Oct-98 - - - - #DIV/0! 0.0%
Nov-98 - - - - #DIV/0! 0.0%
Dec-98 - - - - #DIV/0! 0.0%
Jan-99 - - - - #DIV/0! 0.0%
Feb-99 - - - - #DIV/0! 0.0%
Mar-99 - - - - #DIV/0! 0.0%
Apr-99 - - - - #DIV/0! 0.0%
May-99 - - - - #DIV/0! 0.0%
Jun-99 - - - - #DIV/0! 0.0%
Jul-99 - - - - #DIV/0! 0.0%
Aug-99 - - - - #DIV/0! 0.0%
Sep-99 - - - - #DIV/0! 0.0%
Oct-99 - - - - #DIV/0! 0.0%
Nov-99 - - - - #DIV/0! 0.0%
Dec-99 - - - - #DIV/0! 0.0% OK
Jan-00 - - - - #DIV/0! 0.0% OK
Feb-00 - - - - #DIV/0! 0.0% OK
CALCULATION
High 0.0%
Low 0.0%
Average 0.0%
STD Deviation 0.0%
High + 1 std deviations 0.0%
</TABLE>
24
<PAGE> 77
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
25
<PAGE> 78
EXHIBIT D TO
SERIES 1994-3 SUPPLEMENT
FORM OF PURCHASER LETTER
(Month] [Day], 20___
The Chase Manhattan Bank
450 West 33d Street, 14th Floor
New York, New York 10001
Re: Class A Certificate, Series 1994-3
Ladies and Gentlemen:
This letter (the "Purchaser Letter") is delivered by the
undersigned (the "Transferee") pursuant to the Amended and Restated Series
1994-3 Supplement to the Amended and Restated Pooling Agreement dated as of
March 8, 2000, among Ingram Funding Inc. ("Funding"), Ingram Micro Inc. and The
Chase Manhattan Bank, as trustee (the "Trustee") (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Supplement"). Capitalized terms used herein without definition shall have the
meanings set forth in the Supplement. The Transferee represents and covenants to
the Trustee as follows:
1. It is (A) a Qualified Institutional Buyer as defined in Rule
144A(a) and is acquiring the Term Certificates for its own institutional account
or for the account or accounts of a Qualified Institutional Buyer or (B)
purchasing Term Certificates being delivered in the form of Definitive
Certificates in a transaction exempt from registration under the Securities Act
and in compliance with the provisions of the Agreement and in compliance with
the legends set forth in paragraph 4 below.
2. It is purchasing one or more Term Certificates in an amount of
at least $2,000,000 and it understands that such Term Certificate may be resold,
pledged or otherwise transferred only in an amount of at least $2,000,000;
3. It understands that the Term Certificates are being
transferred to it in a transaction not involving any public offering within the
meaning of the Securities Act, and that, if in the future it decides to resell,
pledge or otherwise transfer any Term Certificates, such Term Certificates may
be resold, pledged or transferred only (A) in a transaction meeting the
requirements of Rule 144A to a person who the seller reasonably believes is a
Qualified Institutional Buyer that purchases for its own account or for the
account or accounts of a Qualified Institutional Buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A or
(B) to purchasers of Term Certificates being delivered in the form of Definitive
Certificates, pursuant to a transaction otherwise exempt from registration under
the Securities Act and in compliance with the provisions of the Agreement and in
compliance with the legends set forth in paragraph 4 below.
D-1
<PAGE> 79
4. It understands that each Term Certificate will bear a legend
substantially to the following effect:
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS TERM CERTIFICATE, AGREES THAT SUCH TERM
CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS IN AN AMOUNT
OF AT LEAST $2,000,000 AND (1) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE 144A"), TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR (2) TO A PERSON (A) WHO IS
AN "INSTITUTIONAL ACCREDITED INVESTOR", WITHIN THE MEANING OF
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT,
AND WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM
ATTACHED TO THE SERIES 1994-3 SUPPLEMENT OR (B) WHO IS TAKING
DELIVERY OF SUCH TERM CERTIFICATE PURSUANT TO A TRANSACTION THAT
IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
ACT, AS CONFIRMED IN AN OPINION OF COUNSEL ADDRESSED TO THE
TRUSTEE AND THE COMPANY, WHICH COUNSEL AND OPINION ARE
SATISFACTORY TO THE COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF
OF (1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION
3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR OTHER RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT
ACCOUNT OR KEOGH PLAN, WHETHER OR NOT IT IS SUBJECT TO THE
PROVISIONS OF TITLE I THERETO, (2) ANY PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") OR (3) ANY OTHER ENTITY THAT WOULD BE DEEMED TO BE A
"BENEFIT PLAN INVESTOR" WITHIN THE MEANING OF DEPARTMENT OF LABOR
REGULATION SECTION 2510.3-101(f)(2) (ANY OF THE FOREGOING, AN
"ERISA ENTITY")
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
D-2
<PAGE> 80
5. The Transferee understands that there may be restrictions on
the ability of certain investors, including, without limitation, depository
institutions, either to purchase the Term Certificate or to purchase investments
having characteristics similar to those of the Term Certificate representing
more than a specified percentage of the investor's assets, and the Transferee
further represents and warrants that it has not relied on the Trustee in
determining whether and to what extent the Term Certificate constitutes a legal
investment for the Transferee.
6. Notwithstanding anything to the contrary contained herein, in
no event shall any interest in the Term Certificates be sold or transferred to
an employee benefit plan, trust or account subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or described in Section
4975(e)(1) of the Internal Revenue Code. The Transferee hereby covenants with
you that by its acceptance thereof, the Transferee represents and warrants that
it is not (1) an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to the provisions of ERISA, (ii) a plan (as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, other than a
governmental or church plan described in Section 4975(g)(2) or (3) of the Code)
or (iii) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (unless registered under the Investment Company
Act of 1940, as amended).
7. The Transferee agrees that in selling the Term Certificate (or
any interest therein) purchased pursuant hereto, it will comply with the
applicable requirements of the 1933 Act.
8. The Transferee acknowledges that it has been afforded the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of Funding or the Trustee concerning the terms and
conditions of the offering of the Term Certificate and the merits and risks of
investing in the Term Certificate.
In addition, the Transferee hereby acknowledges that by its
execution and delivery of this Purchaser Letter, the Transferee agrees to make
the representations, warranties and covenants set forth in, and otherwise to be
bound by, each and every provision of the Supplement that by its terms applies
to the "Purchaser" (as defined in the Supplement).
D-3
<PAGE> 81
To the extent not defined herein, capitalized terms used herein
have the meanings assigned to them in the Supplement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
----------------------------------------
Name:
Title:
D-4
<PAGE> 82
SCHEDULE 1 TO
SERIES 1994-3 SUPPLEMENT
TRUST ACCOUNTS
<TABLE>
<CAPTION>
DDA # Account Name
----- ------------
<S> <C>
507-309933 Ingram Series 1994-3 Coll Subaccount
507-941500 Ingram Ser l994-3 Princ Coll Sub-Sub A/C
507-941527 Ingram Ser l994-3 NonPrin Coll Sb-sb A/C
507-941535 Ingram Ser l994-3 Acc Int Sub-Sub A/C
</TABLE>
<PAGE> 1
EXHIBIT 10.62
EXECUTION COPY
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED SERIES 1993-2 SUPPLEMENT
Dated as of March 8, 2000
to
AMENDED AND RESTATED
POOLING AGREEMENT
Dated as of March 8, 2000
Among
INGRAM FUNDING INC.,
INGRAM MICRO INC.,
as Master Servicer
and
THE CHASE MANHATTAN BANK,
as Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Definitions...................................................... 2
SECTION 1.01. Definitions............................................. 2
ARTICLE II Designation of Term Certificates; Purchase and Sale of the
Term Certificates............................................... 13
SECTION 2.01. Designation............................................. 13
SECTION 2.02. The Term Certificates and Series 1993-2
Subordinated Interest................................... 13
SECTION 2.03. Delivery................................................ 13
SECTION 2.04. Restrictions on Transfer................................ 13
SECTION 2.05. Representations of the Purchasers....................... 14
SECTION 2.06. Application of Proceeds................................. 16
SECTION 2.07. Sale of Additional Term Certificates.................... 16
ARTICLE III Article III of the Agreement................................... 17
SECTION 3.01. Establishment of Trust Accounts......................... 17
SECTION 3.02. Daily Allocations....................................... 19
SECTION 3.03. Determination of Interest............................... 20
SECTION 3.04. Determination of Series 1993-2 Principal................ 21
SECTION 3.05. Applications............................................ 22
SECTION 3.06. Make-Whole Amount....................................... 24
ARTICLE IV Distributions and Reports....................................... 24
SECTION 4.01. Distributions........................................... 25
SECTION 4.02. Statements and Notices.................................. 25
SECTION 4.03. Notices................................................. 27
SECTION 4.04. Audit and Inspection Rights............................. 27
ARTICLE V Additional Early Amortization Events............................. 29
SECTION 5.01. Additional Early Amortization Events.................... 29
ARTICLE VI Servicing Fee................................................... 31
SECTION 6.01. Servicing Compensation.................................. 31
ARTICLE VII Covenants, Representations and Warranties...................... 32
SECTION 7.01. Representations and Warranties of the Company
and the Master Servicer................................. 32
SECTION 7.02. Covenants of the Company and the Master Servicer........ 32
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 7.03. Negative Covenant of the Company; Covenants
of the Master Servicer.................................. 32
ARTICLE VIII Miscellaneous................................................. 33
SECTION 8.01. Ratification of Agreement............................... 33
SECTION 8.02. Governing Law........................................... 33
SECTION 8.03. Further Assurances...................................... 33
SECTION 8.04. No Waiver; Cumulative Remedies.......................... 33
SECTION 8.05. Amendments.............................................. 33
SECTION 8.06. Notices................................................. 34
SECTION 8.07. Counterparts............................................ 35
SECTION 8.08. No Bankruptcy Petition.................................. 35
SECTION 8.09. Limitation on Addition and Termination of Sellers....... 35
SECTION 8.10. Certificateholder List.................................. 36
SECTION 8.11. Late Charge............................................. 36
SECTION 8.12. Final Payment; Surrender of Certificates................ 37
SECTION 8.13. Rights of the Trustee................................... 37
SECTION 8.14. Waiver of Past Defaults................................. 37
SECTION 8.15. Amendment of Policies................................... 38
ARTICLE IX Final Distributions............................................. 38
SECTION 9.01. Certain Distributions................................... 38
</TABLE>
EXHIBITS
Exhibit A Form of Class A Certificate, Series 1993-2
Exhibit B Form of Daily Report
Exhibit C Form of Monthly Settlement Statement
Exhibit D Form of Purchaser Letter
SCHEDULES
Schedule 1 Trust Accounts
ii
<PAGE> 4
AMENDED AND RESTATED SERIES 1993-2 SUPPLEMENT dated as of March 8, 2000
(this "Supplement"), among INGRAM FUNDING, INC., a Delaware corporation (the
"Company"), INGRAM MICRO INC., a Delaware corporation, as Master Servicer (the
"Master Servicer") and THE CHASE MANHATTAN BANK, a New York banking corporation,
as trustee (together with its successors in such capacity, the "Trustee") under
the Agreement.
W I T N E S S E T H :
WHEREAS, on July 23, 1993 the Company, the predecessor to the Master
Servicer and the Trustee entered into that certain Series 1993-2 Supplement to
the Ingram Funding Master Trust Pooling and Servicing Agreement dated as of
February 12, 1993 (the Series 1993-2 Supplement as amended to date, the
"Existing 1993-2 Supplement" and the Ingram Funding Master Trust Pooling and
Servicing Agreement as amended to date, the "Existing Pooling Agreement");
WHEREAS, the parties hereto have entered into the Amended and Restated
Pooling Agreement, dated as of March 8, 2000 which amends and restates the
Existing Pooling Agreement (the "Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
1993-2 Supplement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
General
From and after the date hereof the terms of this amended and restated
1993-2 Supplement shall be effective with respect to the various certificates
issued under the Existing 1993-2 Supplement. As a part of the amendments made
hereby, the names of such certificates are also being amended as follows.
The Certificates referred to under the Existing 1993-2 Supplement as:
"6.61% Asset-Backed Certificates, Series 1993-2, Class A" shall
henceforth be named "Class A Certificates, Series 1993-2" and shall be
in the form of Exhibit A to this Supplement.
Upon return of the existing certificates referred to above, the Trustee
shall authenticate and deliver replacement certificates in the corresponding
form to each holder of such existing certificates, or their nominee as
designated in writing to the Trustee.
<PAGE> 5
ARTICLE I
Definitions
SECTION 1.01. Definitions.
(a) The following words and phrases shall have the following meanings
with respect to Series 1993-2 and the definitions of such terms are applicable
to the singular as well as the plural form of such terms and to the masculine as
well as the feminine and neuter genders of such terms:
"Accrual Period" shall mean, with respect to Series 1993-2, the period
from and including a Payment Date to but excluding the succeeding Payment Date.
"Accrued Expense Amount" shall mean, for each Business Day during an
Accrual Period, the sum of (a) the Series 1993-2 Daily Interest Expense
determined as of such Business Day, (b) in the case of each of the first ten
Business Days in the Accrual Period, one-tenth of the Series 1993-2 Monthly
Servicing Fee (up to the amount thereof due and payable on the succeeding
Payment Date, and (c) all Program Costs that have accrued since the preceding
Business Day.
"Aged Receivables Ratio" shall mean, as of the last day of each
Settlement Period and calculated as provided in Section 1.01(f), the percentage
equivalent of a fraction, the numerator of which shall be the sum of (a) the
aggregate unpaid balance of Receivables originated by the Seller that were 91 to
120 days past due and (b) the aggregate amount of Charged-Off Receivables of the
Seller that were charged off as uncollectible prior to the day that is 91 days
after its original due date during such Settlement Period, and the denominator
of which shall be the aggregate Principal Amount of Receivables originated by
the Seller during the fourth prior Settlement Period.
"Aggregate Commitment Amount" shall have the meaning set forth in
Section 1.01 of the Series 2000-1 Supplement.
"Applicable Early Amortization Event" shall have the meaning set forth
in Section 3.06.
"Call Date" shall mean the first Payment Date following the
commencement of the Series 1993-2 Amortization Period which results from an
Applicable Early Amortization Event and on which principal is payable on the
Class A Certificates.
"Carrying Cost Reserve Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) equal to (a) the product of (i) 2.0 times
Days Sales Outstanding as of such day and (ii) 1.50 times the Discount Rate as
of such day, divided by (b) 360.
"Change in Control" shall mean the occurrence of any event the result
of which causes the Company not to be a direct or indirect, wholly owned
Subsidiary of Ingram Micro Inc.
2
<PAGE> 6
"Chase's Prime Rate" shall mean the rate per annum announced by Chase
from time to time as its prime rate in effect at its principal office on a
365/66 day basis; each change in Chase's Prime Rate shall be effective on the
date such change is announced to become effective.
"Class A Additional Interest" shall have the meaning assigned in
subsection 3.03(b).
"Class A Adjusted Invested Amount" shall mean, on any date of
determination, the Class A Invested Amount minus the amount on deposit in the
Series 1993-2 Principal Collection Sub-subaccount up to a maximum of the Class A
Invested Amount.
"Class A Certificate" shall mean a Class A Certificate, Series 1993-2,
executed by the Company and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A.
"Class A Certificateholder" shall mean each holder of a Class A
Certificate.
"Class A Certificate Rate" shall mean 6.61% per annum.
"Class A Initial Invested Amount" shall mean $25,000,000.
"Class A Interest Shortfall" shall have the meaning assigned in
subsection 3A.04(b)(i).
"Class A Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (i) the Class A Initial Invested Amount minus
(ii) the aggregate amount of distributions to the Class A Certificateholders
(including the holders of any such subsequently issued Class A Certificates)
made in respect of principal on or prior to such date minus (iii) the aggregate
Series 1993-2 Allocable Charged-Off Amount applied to the Class A Certificates
on or prior to such date pursuant to subsection 3.04(b)(iv) plus (iv) (but only
to the extent of any unreimbursed reductions made pursuant to clause (iii)
above) the aggregate Series 1993-2 Allocable Recoveries Amount applied to the
Class A Certificates on or prior to such date pursuant to subsection 3.04.
"Class A Monthly Interest" shall have the meaning assigned in
subsection 3.03(a).
"Class A Ratio" shall mean, on any date of determination with respect
to the Class A Certificates, the greater of (i) the sum of the Loss Reserve
Ratio and the Dilution Reserve Ratio and (ii) the Minimum Ratio, in each case
applicable to Class A Certificates. "Code" shall mean the Internal Revenue Code
of 1986, as amended.
"Daily Report" shall mean a report prepared by the Master Servicer on
each Business Day for the period specified therein, in substantially the form of
Exhibit B.
"Days Sales Outstanding" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, the
number of days equal to the product of (i) 91 and (ii) the amount obtained by
dividing (A) the aggregate Principal Amount of Eligible Receivables as at the
last day of the Settlement Period immediately
3
<PAGE> 7
preceding such earlier Settlement Report Date, by (B) the aggregate Principal
Amount of Receivables generated by the Sellers for the three Settlement Periods
immediately preceding such earlier Settlement Report Date.
"Dilution Horizon" shall mean the number of days from the invoicing of
a Receivable until a Dilution Adjustment with respect to such Receivable is
issued by the Seller or the Seller receives notice that a Dilution Adjustment
will have to be issued in respect of such Receivable.
"Dilution Horizon Factor" shall mean for the period beginning on the
Effective Date through and until the sixth Settlement Report Date to occur
thereafter, 1.28 and for any six-month period thereafter (beginning and ending
on a Settlement Report Date), a fraction, the numerator of which is the dollar
weighted average Dilution Horizon of the Sellers (based upon the Dilution
Adjustment of the selected Receivables) for such period (which shall be
calculated by the Master Servicer, in accordance with its past procedures for
such calculations, selecting a random sample of approximately 1000 Dilution
Adjustment memos from the Seller created during such period and determining the
dollar weighted average Dilution Horizon therefrom) and the denominator of which
is 30.
"Dilution Period" shall mean as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date), the
quotient of (i) the product of (A) the aggregate Principal Amount of Receivables
that were originated by the Seller during the Settlement Period preceding such
earlier Settlement Report Date and (B) the Dilution Horizon Factor and (ii) the
Aggregate Receivables Amount as of the last day of the Settlement Period
preceding such earlier Settlement Report Date.
"Dilution Ratio" shall mean, as of the last day of each Settlement
Period, an amount (expressed as a percentage) equal to the aggregate amount of
Dilution Adjustments made during such Settlement Period divided by the aggregate
Principal Amount of Receivables that were originated by the Seller during the
immediately preceding Settlement Period.
"Dilution Reserve Ratio" shall mean, as of any Settlement Report Date
and calculated as provided in Section 1.01(f) and continuing until (but not
including) the next Settlement Report Date, an amount (expressed as a
percentage) that is calculated as follows:
DRR = [(c * d) + [(e-d) * (e/d)]] * f
Where:
DRR = Dilution Reserve Ratio;
c = 2.5;
d = the twelve-month rolling average of the Dilution Ratio that
occurred during the period of twelve consecutive Settlement
Periods ending immediately prior to such earlier Settlement
Report Date;
e = the highest Dilution Ratio that occurred during the period of
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date; and
4
<PAGE> 8
f = the Dilution Period.
"Discount Rate" shall mean, as of any date of determination, the sum of
(a) the Class A Certificate Rate in effect with respect to the outstanding Class
A Certificates and (b) an amount equal to (i) the aggregate amount of fees
(other than the Servicing Fee and Program Costs) accrued with respect to the
outstanding Term Certificates during the Settlement Period immediately preceding
the most recent Settlement Report Date divided by (ii) the average daily Series
1993-2 Invested Amount during such Settlement Period.
"Discounted Value" shall mean, with respect to any Class A Certificate,
the amount obtained by discounting all Remaining Scheduled Payments with respect
to such Class A Certificate from their respective scheduled due dates (assuming
that the scheduled due date of the principal amount of such Class A Certificate
is the Scheduled Payment Date) to the Call Date, in accordance with accepted
financial practice and at a discount factor (applied on the same periodic basis
as that on which interest on the Class A Certificates is payable) equal to the
Reinvestment Yield.
"Early Amortization Event" shall have the meanings assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"Early Amortization Period" shall have the meaning assigned in Section
5.01 of this Supplement and Section 7.01 of the Agreement.
"ERISA Entity" shall mean (i) an "employee benefit plan" within the
meaning of Section 3(3) of ERISA or other retirement arrangement, individual
retirement account or Keogh plan, whether or not it is subject to the provisions
of Title I thereto,(ii)any plan described in Section 4975 (e)(1) of the Code or
(iii) any other entity that would be deemed to be a "benefit plan investor"
within the meaning of Department of Labor Regulation Section 2510.3-101(f)(2).
"Excess Program Costs" shall have the meaning assigned to such term
within the definition of "Program Costs".
"Foreign Investor" means any Term Certificateholder who is not a
"United States person".
"Initial Purchaser" shall have the meaning set forth in Section 4.04.
"Institutional Accredited Investor" shall mean an institutional
accredited investor, within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Issuance Date" shall mean July 23, 1993.
"Late Charge" shall have the meaning assigned in Section 8.11.
"Loss Reserve Ratio" shall mean, as of any Settlement Report Date and
calculated as provided in Section 1.01(f) and continuing until (but not
including) the next Settlement Report Date, an amount (expressed as a
percentage) that is calculated as follows:
5
<PAGE> 9
LRR = [(a * b)/c] * d * e
Where:
LRR = Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables originated by
the Seller during the three Settlement Periods immediately
preceding such earlier Settlement Report Date;
b = the highest three-month rolling average of the Aged
Receivables Ratio that occurred during the period of twelve
consecutive Settlement Periods ending prior to such earlier
Settlement Report Date;
c = the Aggregate Receivables Amount as of the last day of the
Settlement Period immediately preceding such earlier Settlement
Report Date;
d = 2.5; and
e = Payment Terms Factor.
"Majority Term Certificateholders" shall mean, on any day, Term
Certificateholders having, in the aggregate, more than 50% of the Series 1993-2
Invested Amount.
"Minimum Ratio" shall mean as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) equal to the greater of:
(a) (a * b) + c
Where
a = the average of the Dilution Ratios during the period of the
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date;
b = the Dilution Period; and
c = 15%;
and
(b) 25%.
"Payment Date" shall mean (i) during the Series 1993-2 Revolving
Period, the 15th day of each March, June, September and December (or if such day
is not a Business Day, the next succeeding Business Day) or (ii) during the
Series 1993-2 Amortization Period, the 15th day of each month (or if such day is
not a Business Day, the next succeeding Business Day).
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<PAGE> 10
"Payment Terms Factor" shall mean (a) for the period from the date
hereof until the third Settlement Report Date to occur thereafter, 0.89 and (b)
for each three-month period to occur after such initial period, a fraction, the
numerator of which is the sum of (i) the weighted average payment terms (based
upon the Principal Amount of the Receivables and expressed as a number of days)
for the Receivables originated during such period and (ii) 60 and the
denominator of which is 90; provided, however, that if the Payment Terms Factor
for any period is less than the Payment Terms Factor for the immediately
preceding period, then the actual Payment Terms Factor for such current period
shall be recalculated to equal a fraction, the numerator of which is equal to
the average of the numerators used to calculate the Payment Terms Factor for
such current period and the three immediately preceding periods and the
denominator of which is 90.
"Program Costs" shall mean, for any Business Day, the sum of (i) the
product of (A) all unpaid fees and expenses due and payable to counsel to, and
independent auditors of, the Company (other than fees and expenses payable on or
in connection with the closing of the issuance of any Term Certificates) on such
Business Day and (B) a fraction, the numerator of which is the Series 1993-2
Invested Amount on such Business Day and the denominator of which is the sum of
(1) the Aggregate Commitment Amount (as defined in the Supplement for Series
2000-1) on such Business Day and (2) the Invested Amounts with respect to all
other Series then Outstanding (excluding Series 2000-1) and (ii) all unpaid fees
and expenses due and payable to Rating Agencies rating the Term Certificates;
provided, however, that Program Costs shall not exceed $100,000 in the aggregate
in any fiscal year of the Master Servicer (any amount of the foregoing expenses,
indemnities and fees in excess of $100,000 shall be referred to herein as
"Excess Program Costs").
"Purchase Termination Event" shall have the meaning assigned in Section
7.01 of the Receivables Sale Agreement.
"Purchaser" means a holder of a certificate issued pursuant to the
Existing 1993-2 Supplement that is surrendering such certificate as
consideration for the issuance of a Class A Certificate Series 1993-2 of like
tenor and coupon.
"Qualified Institutional Buyer" has the meaning ascribed to such term
in Rule 144A(a) under the Securities Act.
"Rating Agency" shall mean the collective reference to S&P and Fitch
IBCA.
"Record Date" shall mean, with respect to the initial Payment Date, the
Business Day immediately preceding such Payment Date and, with respect to any
other Payment Date, the last Business Day of the immediately preceding
Settlement Period.
"Reinvestment Yield" shall mean, with respect to any Class A
Certificate, the Spread Amount, if any, plus the yield to maturity implied by
(i) the yields reported, as of 10 a.m. (New York City time) on the Business Day
next following the date on which the Master Servicer has actual knowledge of the
declaration of an Applicable Early Amortization Event (the "Make-Whole
Calculation Date"), on the display designated as "Page 678" on the Telerate
Service (or such other display as may replace Page 678 on the Telerate Service)
for actively traded U.S.
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<PAGE> 11
Treasury securities having a maturity equal to the Remaining Average Life of
such Class A Certificate as of such Make-Whole Calculation Date, or if such
yields shall not be reported as of such time or the yields reported as of such
time shall not be ascertainable, (ii) the Treasury constant Maturity Series
yields reported, for the latest day for which such yields shall have been so
reported as of such Make-Whole Calculation Date, in Federal Reserve Statistical
Release H.15(519) (or any comparable successor publication) for actively traded
U.S. Treasury securities having a constant maturity equal to the Remaining
Average Life of such Class A Certificate, as of such Make-Whole Calculation
Date. Such implied yield shall be determined, if necessary, by (a) converting
U.S. Treasury bill quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly between yields
reported for various maturities.
"Remaining Average Life" shall mean, with respect to any Class A
Certificate, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) the Invested Amount for such Class A Certificate into
(ii) the product obtaining by multiplying (a) the Invested Amount (but not
interest thereon) by (b) the number of years (calculated to the nearest
one-twelfth year) which will elapse between the Call Date and the Scheduled
Payment Date.
"Remaining Scheduled Payments" shall mean, with respect to any Class A
Certificate, all payments of principal and interest thereon that would be due on
or after the Call Date if no payment of principal on such Class A Certificate
were made prior to the Scheduled Payment Date.
"Scheduled Payment Date" shall mean, with respect to any Class A
Certificate, the first Payment Date following the Scheduled Revolving
Termination Date.
"Scheduled Revolving Termination Date" shall mean June 1, 2000.
"Seller Addition Date" shall have the meaning assigned in Section 3.05
of the Receivables Sale Agreement.
"Series 1993-2" shall mean the Series of Investor Certificates and
Subordinated Company Interest, the Principal Terms of which are set forth in
this Supplement.
"Series 1993-2 Accrued Interest Sub-subaccount" shall have the meaning
assigned in subsection 3.01(a).
"Series 1993-2 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 1993-2 Invested Amount on such date, minus (ii)
the amount on deposit in the Series 1993-2 Principal Collection Sub-subaccount
in excess of amounts then payable from such account under Sections 3.05(c)(i)
and (ii) on such date.
"Series 1993-2 Allocable Charged-Off Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, that has been allocated to Series 1993-2.
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<PAGE> 12
"Series 1993-2 Allocable Recoveries Amount" shall mean, with respect to
any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, that has been allocated to Series 1993-2.
"Series 1993-2 Allocated Receivables Amount" shall mean, on any date of
determination, the lower of (i) the Series 1993-2 Target Receivables Amount on
such day and (ii) the Aggregate Receivables Amount on such day times the
percentage equivalent of a fraction the numerator of which is the Series 1993-2
Target Receivables Amount on such day and the denominator of which is the
Aggregate Target Receivables Amount on such day.
"Series 1993-2 Amortization Period" shall mean the period commencing on
the next Business Day following the earliest to occur of (i) the date on which
an Early Amortization Period is declared to commence or automatically commences
and (ii) the Scheduled Revolving Termination Date and ending on the earlier of
(a) the date when the Series 1993-2 Invested Amount shall have been reduced to
zero and all accrued interest on the Term Certificates shall have been paid and
(b) the Series 1993-2 Termination Date.
"Series 1993-2 Collections" shall mean, with respect to any Business
Day, an amount equal to the product of (i) the Series 1993-2 Invested Percentage
on such Business Day and (ii) Aggregate Daily Collections.
"Series 1993-2 Collection Subaccount" shall have the meaning assigned
in subsection 3.01(a).
"Series 1993-2 Daily Interest Expense" shall mean, for any Business Day
during any Accrual Period, the sum of (a) in the case of each of the first ten
Business Days in the Accrual Period, one-tenth of the Series 1993-2 Monthly
Interest to be distributed on the next succeeding Payment Date (up to but not
exceeding the full amount thereof), (b) the aggregate amount of all previously
accrued and unpaid Series 1993-2 Daily Interest Expense (up to but not exceeding
the full amount thereof) and (c) the aggregate amount of all accrued and unpaid
Class A Additional Interest (up to but not exceeding the full amount thereof).
"Series 1993-2 Initial Invested Amount" shall mean the Class A Initial
Invested Amount.
"Series 1993-2 Invested Amount" shall mean the Class A Invested Amount.
"Series 1993-2 Invested Percentage" shall mean, with respect to any
Business Day (i) during the Series 1993-2 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 1993-2 Allocated
Receivables Amount as of the end of the immediately preceding Business Day and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined and (ii) during the
Series 1993-2 Amortization Period, the percentage equivalent of a fraction, the
numerator of which is the Series 1993-2 Allocated Receivables Amount as of the
end of the last Business Day of the Series 1993-2 Revolving Period (provided
that if during the Series 1993-2 Amortization Period, the Amortization Periods
of all other Outstanding Series which were outstanding prior to the
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<PAGE> 13
commencement of the Series 1993-2 Amortization Period commence, then, from and
after the date the last of such Series commences its Amortization Period, the
numerator shall be the Series 1993-2 Allocated Receivables Amount on such date)
and the denominator of which is the greater of (A) the Aggregate Receivables
Amount as of the end of the immediately preceding Business Day and (B) the sum
of the numerators used to calculate the Invested Percentage for all Outstanding
Series on the Business Day for which such percentage is determined.
"Series 1993-2 Monthly Interest" shall mean the Class A Monthly
Interest.
"Series 1993-2 Monthly Principal Payment" shall have the meaning
assigned in Section 3.04.
"Series 1993-2 Monthly Servicing Fee" shall have the meaning assigned
in Section 6.01.
"Series 1993-2 Non-Principal Collection Sub-subaccount" shall have the
meaning assigned in subsection 3.01(a).
"Series 1993-2 Principal Collection Sub-subaccount" shall have the
meaning assigned in subsection 3.01(a).
"Series 1993-2 Required Subordinated Amount" shall mean, (a) on any
date of determination during the Series 1993-2 Revolving Period, an amount equal
to the sum of:
(i) an amount equal to the product of (x) the Class A Adjusted
Invested Amount on such day and (y) a fraction, the numerator of which is
the Class A Ratio and the denominator of which is one minus the Class A
Ratio;
(ii) the product of (A) the Series 1993-2 Invested Amount on such day
and (B) a fraction, the numerator of which is the Carrying Cost Reserve
Ratio and the denominator of which is one minus the Class A Ratio; and
(iii) the product of (A) the Principal Amount of Receivables in the
Trust on such day, (B) a fraction, the numerator of which is the Series
1993-2 Adjusted Invested Amount and the denominator of which is the sum of
(1) the Series 2000-1 Aggregate Commitment Amount and (2) the sum of the
Series 1993-2 Invested Amount and the Invested Amounts for all other Series
then outstanding (excluding Series 2000-1) on such day and (C) a fraction,
the numerator of which is the Servicing Reserve Ratio and the denominator
of which is one minus the Class A Ratio.
and (b) on any date of determination during the Series 1993-2 Amortization
Period, an amount equal to the Series 1993-2 Required Subordinated Amount on the
last Business Day of the Series 1993-2 Revolving Period; provided that such
amount shall be adjusted on each Special Allocation Settlement Report Date, if
any, as set forth in Section 3.04(b)(i) and Section 3.04(c)(iv).
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<PAGE> 14
"Series 1993-2 Revolving Period" shall mean the period commencing on
the Issuance Date and terminating on the earliest to occur of the close of
business on (i) the date on which an Early Amortization Period is declared to
commence or automatically commences and (ii) the Scheduled Revolving Termination
Date.
"Series 1993-2 Subordinated Interest" shall have the meaning specified
in subsection 2.02(b).
"Series 1993-2 Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Series 1993-2 Adjusted Invested Amount on such
day and (ii) the Series 1993-2 Required Subordinated Amount on such day.
"Series 1993-2 Termination Date" shall mean the Payment Date that
occurs in December, 2001.
"Servicing Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing (but not including) until the next Settlement Report Date, an
amount (expressed as a percentage) equal to (i) the product of (A) the Servicing
Fee Percentage and (B) 2.0 times Days Sales Outstanding as of such earlier
Settlement Report Date divided by (ii) 360.
"Spread" shall mean (i) 0% if the related Applicable Early Amortization
Event for the Class A Certificates occurs within twelve months of the removal of
a Seller as an originator of Receivables that is not a Third Party Sale, (ii) 0%
if the related Applicable Early Amortization Event occurs within nine months of
the removal of a Seller as an originator of Receivables that is a Third Party
Sale and (iii) .25% if the related Applicable Early Amortization Event occurs
between nine and twelve months of the removal of a Seller as an originator of
Receivables that is a Third Party Sale.
"Term Certificateholders" shall mean the Class A Certificateholders.
"Term Certificateholders' Interest" shall have the meaning assigned in
subsection 2.02(a).
"Term Certificates" shall mean those Investor Certificates designated
as the Class A Certificates.
"Third Party Sale" shall mean a sale or other disposition of an
interest in a Seller sufficient such that such Seller may no longer be
consolidated with Ingram Micro Inc. for accounting purposes in accordance with
GAAP.
"Trust Accounts" shall have the meaning assigned in subsection 3.01(a).
"United States person" means an individual who is a citizen or resident
of the United States, or a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or an estate or trust the income of which is subject to U.S. federal
income taxation regardless of its source.
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<PAGE> 15
(b) If any term, definition or provision contained herein conflicts
with or is inconsistent with any term, definition or provision contained in the
Agreement, the terms and provisions of this Supplement shall govern. All
capitalized terms not otherwise defined herein are defined in the Agreement. All
Article, Section, subsection, Exhibit and Schedule references herein shall mean
Article, Section or subsection of or Exhibit or Schedule to this Supplement,
except as otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the
Agreement, each capitalized term used or defined herein shall relate only to the
Term Certificates and the Series 1993-2 Subordinated Interest and to no other
Series of Investor Certificates or Subordinated Company Interest issued by the
Trust.
(c) Any reference herein to a Schedule or Exhibit to this Supplement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(d) Any reference in this Supplement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Supplement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(e) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
(f) For purposes of calculating the Aged Receivables Ratio and the
Dilution Ratio, the aggregate Principal Amount of Receivables originated during
the third Settlement Period of each calendar quarter and Dilution Adjustments
reported in the third Settlement Period shall be adjusted by dividing the dollar
amount of Receivables in each category by the number of weeks in such Settlement
Period and multiplying by 4.3.
ARTICLE II
Designation of Term Certificates; Purchase and Sale
of the Term Certificates
SECTION 2.01. Designation. The Investor Certificates created and
authorized pursuant to the Agreement and this Supplement shall be in one class,
the "Class A Certificates, Series 1993-2".
SECTION 2.02. The Term Certificates and Series 1993-2 Subordinated
Interest.
(a) The Term Certificates shall represent fractional undivided
interests in the Trust Assets, consisting of the right of the Term
Certificateholders to receive the distributions specified herein out of (i) the
Series 1993-2 Invested Percentage (expressed as a decimal) of Collections
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<PAGE> 16
received with respect to the Receivables and of all other funds on deposit in
the Collection Account and (ii) to the extent such interests appear herein, all
other funds on deposit in the Series 1993-2 Collection Subaccount and any
subaccounts thereof (collectively, the "Term Certificateholders' Interest").
(b) The Company shall retain a fractional undivided interest in the
Trust Assets, consisting of the right to receive the distributions specified
herein out of (i) the Series 1993-2 Invested Percentage (expressed as a decimal)
of Collections received with respect to the Receivables and all other funds on
deposit in the Collection Account and (ii) to the extent such interests appear
herein, all other funds on deposit in the Series 1993-2 Collection Subaccount
and any subaccounts thereof, in each case to the extent not required to be
distributed to or for the benefit of the Term Certificateholders (the "Series
1993-2 Subordinated Interest"). The Exchangeable Company Interest and any other
Series of Investor Certificates or Subordinated Company Interest outstanding
shall represent the fractional undivided interests in the remainder of the Trust
Assets not allocated pursuant hereto to the Term Certificateholders' Interest or
the Series 1993-2 Subordinated Interest.
(c) The Class A Certificates shall be issued in registered form in
substantially the form of Exhibit A, and shall, upon issue, be executed and
delivered by the Company to the Trustee for authentication and redelivery as
provided in Section 2.03 hereof and Section 5.02 of the Agreement.
SECTION 2.03. Delivery. On the Issuance Date, the Company shall sign on
behalf of the Trust and shall direct the Trustee in writing pursuant to Section
5.02 of the Agreement to duly authenticate, and the Trustee, upon receiving such
direction, shall so authenticate, the Class A Certificates in such names and
such denominations in accordance with such directions of the Company. Term
Certificates shall be issued in minimum denominations of $2,000,000 and in
integral multiples of $100,000 in excess thereof.
SECTION 2.04. Restrictions on Transfer. On the Issuance Date, the
Company shall deliver the Term Certificates to the Purchaser. Thereafter, the
Term Certificates may not be transferred except as follows: (A) to Qualified
Institutional Buyers in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144A thereunder, (B) to
other Institutional Accredited Investors who take delivery of such Term
Certificates in definitive form and who deliver a Purchaser Letter to the
Trustee in the form attached hereto as Exhibit D or (C) to a person who takes
delivery of such Term Certificate in definitive form pursuant to a transaction
that is otherwise exempt from the registration requirements of the Securities
Act, as confirmed in an opinion of counsel addressed to the Trustee and the
Company, which counsel and opinion are satisfactory to the Trustee and the
Company.
The Trustee shall have no obligations or duties with respect to determining
whether any transfers of the Term Certificates are made in accordance with the
Securities Act or any other Requirements of Law; provided that with respect to
Definitive Certificates, the Trustee shall enforce such transfer restrictions in
accordance with the terms set forth on the related Term Certificate and the
provisions of the Agreement and this Supplement.
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SECTION 2.05. Representations of the Purchasers.
(a) Each purchaser (other than the Initial Purchaser) of the Term
Certificates (including, without limitation, any purchaser of an interest in the
Book-Entry Certificates) will be deemed to have represented and agreed as
follows:
(i) it is (A) a Qualified Institutional Buyer as defined in Rule
144A(a) and is acquiring the Term Certificates for its own institutional
account or for the account or accounts of a Qualified Institutional Buyer
or (B) purchasing Term Certificates being delivered in the form of
Definitive Certificates in a transaction exempt from registration under the
Securities Act and in compliance with the provisions of the Agreement and
in compliance with the legends set forth in clause (vi) below;
(ii) it is purchasing one or more Term Certificates in an amount of at
least $2,000,000 and it understands that such Term Certificate may be
resold, pledged or otherwise transferred only in an amount of at least
$2,000,000;
(iii) (A) it is not an ERISA Entity and (B) it is not acquiring or
holding any Term Certificate, directly or indirectly, for or on behalf of
an ERISA Entity;
(iv) it understands that the Term Certificates are being transferred
to it in a transaction not involving any public offering within the meaning
of the Securities Act, and that, if in the future it decides to resell,
pledge or otherwise transfer any Term Certificates, such Term Certificates
may be resold, pledged or transferred only (A) in a transaction meeting the
requirements of Rule 144A to a person who the seller reasonably believes is
a Qualified Institutional Buyer that purchases for its own account or for
the account or accounts of a Qualified Institutional Buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on
Rule 144A or (B) to purchasers of Term Certificates being delivered in the
form of Definitive Certificates, pursuant to a transaction otherwise exempt
from registration under the Securities Act and in compliance with the
provisions of the Agreement and in compliance with the legends set forth in
clause (vi) below; and
(v) it understands that each Term Certificate will bear a legend
substantially to the following effect:
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY PURCHASING THIS TERM
CERTIFICATE, AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED
OR TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS IN AN AMOUNT OF AT LEAST $2,000,000 AND (1) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE 144A"), TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN
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<PAGE> 18
ACCOUNT OR FOR THE ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) TO A PERSON (A)
WHO IS AN "INSTITUTIONAL ACCREDITED INVESTOR", WITHIN THE MEANING OF
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, AND
WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM ATTACHED TO
THE SERIES 1993-2 SUPPLEMENT OR (B) WHO IS TAKING DELIVERY OF SUCH
TERM CERTIFICATE PURSUANT TO A TRANSACTION THAT IS OTHERWISE EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE ACT, AS CONFIRMED IN AN
OPINION OF COUNSEL ADDRESSED TO THE TRUSTEE AND THE COMPANY, WHICH
COUNSEL AND OPINION ARE SATISFACTORY TO THE COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF OF
(1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
OTHER RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH
PLAN, WHETHER OR NOT IT IS SUBJECT TO THE PROVISIONS OF TITLE I
THERETO, (2) ANY PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR (3) ANY OTHER ENTITY
THAT WOULD BE DEEMED TO BE A "BENEFIT PLAN INVESTOR" WITHIN THE
MEANING OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101(f)(2)
(ANY OF THE FOREGOING, AN "ERISA ENTITY")
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
(b) The Transfer Agent and Registrar shall not permit the transfer of
any Term Certificates unless such transfer complies with the terms of the
foregoing legends and, in the case of a transfer (i) to an Institutional
Accredited Investor (other than a Qualified Institutional Buyer), the transferee
delivers a completed Purchaser Letter in the form attached to this supplement as
Exhibit D or (ii) to a person other than a Qualified Institutional Buyer or an
Institutional Accredited Investor, upon delivery of an opinion of counsel
selected by the Company, satisfactory to the Trustee and the Company, to the
effect that the transferee is taking delivery of the Term Certificates in a
transaction that is otherwise exempt from the registration requirements of the
Securities Act.
SECTION 2.06. Application of Proceeds. On the Effective Date, the Term
Certificateholders shall deliver to the Trustee the existing Class A
Certificates, Series 1993-2
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<PAGE> 19
issued on the Issuance Date in exchange for Class A Certificates, Series 1993-2
issued on the Effective Date.
SECTION 2.07. Sale of Additional Term Certificates.
(a) The Company may, upon written notice to the Trustee, the Master
Servicer and the Term Certificateholders and upon satisfaction of each of the
conditions set forth in subsection (b) of this Section 2.06, direct the Trustee
in writing to issue on the following Payment Date (each such date a "Subsequent
Issuance Date") additional Class A Certificates, identical in all respects to
the existing Class A Certificates, in an aggregate principal amount specified by
the Company (pro rata based on the initial invested amount of each Class)
(except that the Certificate Rate applicable to such additional Class A
Certificates may differ from the Certificate Rate applicable to existing Class A
Certificates; provided that the Series 1993-2 Target Receivables Amount does not
exceed the Series 1993-2 Allocated Receivables Amount, after giving effect to
any increase in the Invested Amount on such Subsequent Issuance Date.
The Company may arrange for the sale of such additional Class A
Certificates, pursuant to a private placement or any other sale arrangement;
provided that the Company agrees that it shall first offer to the existing Term
Certificateholders the opportunity to purchase such additional Class A
Certificates on substantially the same terms and conditions that such additional
Class A Certificates are to be offered to other purchasers. If existing Class A
Certificateholders elect not to purchase all such additional Class A
Certificates within 10 Business Days following their receipt of a written offer
therefor (which written offer is accompanied by information sufficient to enable
a prudent investor to make such purchase) the Company may proceed with its
arrangements to sell all such additional Class A Certificates to any other
eligible purchasers. In the event that the existing Class A Certificateholders
subscribe to purchase more additional Class A Certificates than are being
offered by the Company at such time, then each such existing Class A
Certificateholder shall be entitled to purchase a pro rata portion of such
additional Class A Certificates based on the aggregate principal amount of Class
A Certificates then held by such holder. On each Subsequent Issuance Date, if
any, the Series 1993-2 Invested Amount (and each other amount set forth herein,
the calculation of which is based on such amount) shall be recalculated by the
Company to include the additional initial invested amounts with respect to the
Class A Certificates issued on such date.
(b) On the Subsequent Issuance Date, the Trustee shall only
authenticate and deliver any additional Class A Certificates, upon satisfaction
of the following on or prior to such Subsequent Issuance Date:
(i) the Rating Agencies shall have been notified by the Company of the
proposed issuance of additional Class A Certificates at least 10 days prior
to the proposed Subsequent Issuance Date, each Rating Agency shall have
issued a rating (as confirmed in a letter delivered to the Trustee) on the
additional Class A Certificates that is equivalent to the rating issued by
such Rating Agency on the Issuance Date and the Rating Agency Condition
shall have been satisfied on or prior to such Subsequent Issuance Date;
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(ii) the Trustee shall have received an Officer's Certificate
certifying that no Early Amortization Event or Potential Early Amortization
Event shall have occurred and be continuing with respect to Series 1993-2
or would occur as a result of such issuance upon which the Trustee may
conclusively rely;
(iii) a Tax Opinion (including the opinion set forth in clause (a)(ii)
of the definition thereof) addressed to the Trust and the Trustee shall
have been delivered to the Trustee (the costs and expenses associated with
such opinion shall constitute Program Costs); and
(iv) an Opinion of Counsel addressed to the Trust and the Trustee
shall have been delivered to the Trustee stating that all of the conditions
to the issuance of such additional Class A Certificates shall have been
satisfied (the costs and expenses associated with such opinion shall
constitute Program Costs).
(c) On each Subsequent Issuance Date, the Company in a written order
shall direct the Trustee to authenticate and deliver additional Class A
Certificates in accordance with Section 2.03.
ARTICLE III
Article III of the Agreement
Section 3.01 of the Agreement and each other section of Article III of
the Agreement relating to another Series shall be read in its entirety as
provided in the Agreement. Article III of the Agreement (except for Section 3.01
thereof and any portion thereof relating to another Series) shall read in its
entirety as follows and shall be exclusively applicable to the Term Certificates
and the Series 1993-2 Subordinated Interest:
SECTION 3.01. Establishment of Trust Accounts.
(a) The Trustee shall cause to be established and maintained in the
name of the Trustee, on behalf of the Trust, (i) for the benefit of the Class A
Certificateholders and, (ii) in the case of clauses (A) and (B) below, for the
benefit, subject to the prior and senior interests of the Term
Certificateholders, of the holder of the Series 1993-2 Subordinated Interest,
(A) a subaccount of the Collection Account (the "Series 1993-2 Collection
Subaccount"), which subaccount is the Series Collection Subaccount with respect
to Series 1993-2; (B) two subaccounts of the Series 1993-2 Collection
Subaccount: (1) the Series 1993-2 Principal Collection Sub-subaccount and (2)
the Series 1993-2 Non-Principal Collection Sub-subaccount (respectively, the
"Series 1993-2 Principal Collection Sub-subaccount" and the "Series 1993-2
Non-Principal Collection Sub-subaccount"); and (C) a subaccount of the Series
1993-2 Non-Principal Collection Sub-subaccount (the "Series 1993-2 Accrued
Interest Sub-subaccount"; all accounts established pursuant to this subsection
3.01(a) and listed on Schedule 1, collectively, the "Trust Accounts"), each
Trust Account to bear a designation indicating that the funds deposited therein
are held for the benefit of the Persons (and, for each such Person, to the
extent) set forth in clauses (i) and (ii) above. The Trustee, on behalf of the
Holders, shall possess all right, title and interest in all funds from time to
time on deposit in, and all Eligible Investments
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credited to, the Trust Accounts and in all proceeds thereof. The Trust Accounts
shall be under the sole dominion and control of the Trustee for the exclusive
benefit of the Persons (and, for each such Person to the extent) set forth in
clauses (i) and (ii) above. In any case where the Company has not provided
applicable written direction as to Eligible Investments to the Trustee, the
Trustee shall invest in demand deposits or money market funds that constitute
Eligible Investments.
(b) All Eligible Investments in the Trust Accounts shall be held by the
Trustee, on behalf of the Holders, for the benefit of the Persons (and, for each
such Person, to the extent) set forth in clauses (i) and (ii) of subsection (a)
above. Funds on deposit in a Trust Account that is a Sub-subaccount of the
Collection Account shall, at the direction of the Company, be invested together
with funds held in other Sub-subaccounts of the Collection Account. After giving
effect to any distribution to the Company pursuant to subsection 3.02(c),
amounts on deposit and available for investment in the Series 1993-2 Principal
Collection Sub-subaccount shall be invested by the Trustee, at the written
direction of the Company, in Eligible Investments that mature, or that are
payable or redeemable upon demand of the holder thereof, (i) in the case of any
such investment made during the Series 1993-2 Revolving Period, on or prior to
the next Business Day and (ii) in the case of any such investment made during
the Series 1993-2 Amortization Period, on or prior to the Business Day
immediately preceding the next Payment Date. Amounts on deposit and available
for investment in the Series 1993-2 Non-Principal Collection Sub-subaccount and
the Series 1993-2 Accrued Interest Sub-subaccount shall be invested by the
Trustee at the written direction of the Company in Eligible Investments that
mature, or that are payable or redeemable upon demand of the holder thereof, on
or prior to the Business Day immediately preceding the subsequent Payment Date.
As of the Business Day immediately preceding the Settlement Report Date, all
interest and other investment earnings (net of losses and investment expenses)
on funds deposited in the Series 1993-2 Accrued Interest Sub-subaccount shall be
deposited in the Series 1993-2 Non-Principal Collection Sub-subaccount and all
interest and investment earnings (net of losses and investment expenses) on
funds deposited in the Series 1993-2 Principal Collection Sub-subaccount shall
be deposited in the Series 1993-2 Non-Principal Collection Sub-subaccount.
SECTION 3.02. Daily Allocations.
(a) The portion of Aggregate Daily Collections allocated to the Term
Certificates and the Series 1993-2 Subordinated Interest pursuant to Article III
of the Agreement shall be allocated and distributed as set forth in this Article
III by the Trustee based solely on the information provided it by the Master
Servicer in the Daily Report (upon which the Trustee may conclusively rely).
(i) On each Business Day, an amount equal to the Accrued Expense
Amount for such day (or, during the Series 1993-2 Revolving Period, such
greater amount as the Company may request in writing) shall be transferred
by the Trustee from the Series 1993-2 Collection Subaccount to the Series
1993-2 Non-Principal Collection Sub-subaccount; and
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(ii) on each Business Day (including Payment Dates), following the
transfers pursuant to clause (i) above, any remaining funds on deposit in
the Series 1993-2 Collection Subaccount shall be transferred by the Trustee
to the Series 1993-2 Principal Collection Sub-subaccount.
(iii) On each Business Day during the Series 1993-2 Revolving Period
(including Payment Dates), after giving effect to all allocations of
Aggregate Daily Collections referred to in subparagraphs (b)(i) and (b)(ii)
on such Business Day, amounts on deposit in the Series 1993-2 Principal
Collection Sub-subaccount shall be distributed or transferred by the
Trustee, based solely on the information provided to the Trustee by the
Master Servicer in the Daily Report (upon which the Trustee may
conclusively rely, (A) first, to pay Excess Program Costs and (B) second,
(I) to the Company as the holder of the Series 1993-2 Subordinated Interest
in accordance with the directions contained in the Daily Report, (II) at
the election of the Company as the holder of the Series 1993-2 Subordinated
Interest, by written notice to the Master Servicer and the Trustee, to such
accounts or to such Persons as the Company may direct in writing (which
directions may consist of standing instructions provided by the Company
that shall remain in effect until changed by the Company in writing) or
(III) at the election of the Company as the holder of the Series 1993-2
Subordinated Interest, by written notice to the Master Servicer and the
Trustee, to one or more VFC Principal Collection Sub-subaccounts or any
other Outstanding Series; provided that such distributions or transfers, as
the case may be, shall be made only if no Early Amortization Event or
Potential Early Amortization Event relating to an Early Amortization Event
set forth in subsections (a), (d) (but only with respect to a Servicer
Default set forth in subsection 6.01(e) of the Servicing Agreement relating
to the Master Servicer or to one or more Servicers that are responsible for
Servicing Receivables representing 15% or more of the Aggregate Receivables
Amount) or (e), (j) or (k) of Section 5.01 of this Supplement has occurred
and is continuing and only to the extent that, if, after giving effect to
such distributions or transfers, the Series 1993-2 Target Receivables
Amount would not exceed the Series 1993-2 Allocated Receivables Amount.
Amounts distributed to the Company hereunder shall be deemed to be paid
first from Collections received directly by the Master Servicer and second
from Collections received in the Lockboxes.
(iv) During the Series 1993-2 Amortization Period, amounts on deposit
in the Series 1993-2 Principal Collection Sub-subaccount on each Payment
Date shall be distributed on such Payment Date in accordance with
subsection 3.05(c). No amounts on deposit in the Series 1993-2 Principal
Collection Sub-subaccount shall be distributed by the Trustee to the
Company during the Series 1993-2 Amortization Period.
(b) On each Business Day an amount equal to the Series 1993-2 Daily
Interest Expense for such day shall be transferred by the Trustee, based solely
on the information provided to the Trustee by the Master Servicer in the Daily
Report (upon which the Trustee may conclusively rely), from the Series 1993-2
Non-Principal Collection Sub-subaccount to the Series 1993-2 Accrued Interest
Sub-subaccount.
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(c) The allocations to be made pursuant to this Section 3.02 are
subject to the provisions of Sections 2.05, 7.02, 9.01 and 9.03 of the
Agreement.
SECTION 3.03. Determination of Interest.
(a) The amount of interest distributable with respect to the Term
Certificates on each Payment Date for the Accrual Period then ending shall be
determined as follows:
(i) for the Class A Certificates, an amount (the "Class A Monthly
Interest") equal to (x) the product of (A) the Class A Certificate Rate;
(B) the Class A Invested Amount on the first day of such Accrual Period
(after giving effect to any distributions of principal on such date); and
(C) the actual number of days in such Accrual Period divided by 360;
provided that if any additional Class A Certificates have been issued on
any Subsequent Issuance Date, the Class A Monthly Interest shall equal the
sum of the monthly interest amount for each outstanding tranche of Class A
Certificates (based on the outstanding Invested Amount and the applicable
Class A Certificate Rate in respect of such tranche) plus (y) the Late
Charge, if any, payable pursuant to Section 8.11;
(ii) the Master Servicer shall notify the Trustee in writing (upon
which the Trustee may conclusively rely) on each Settlement Report Date of
the amount calculated pursuant to clause (i) above.
(b) On each Payment Date, the Master Servicer shall determine the
excess, if any (the "Class A Interest Shortfall"), of (A) the Class A Monthly
Interest for the Accrual Period ending on such Payment Date over (B) the amount
that is available to be distributed to the Class A Certificateholders on such
Payment Date in respect thereof pursuant to this Supplement. If the Class A
Interest Shortfall with respect to any Payment Date is greater than zero, an
additional amount ("Class A Additional Interest") equal to the product, for the
next Accrual Period (or portion thereof) until such Class A Interest Shortfall
is repaid, of (A) a rate per annum equal to the Class A Certificate Rate; (B)
such Class A Interest Shortfall (or the portion thereof that has not been paid
to the Class A Certificateholders); and (C) the actual number of days in the
next Accrual Period divided by 360, shall be payable as provided herein with
respect to the Class A Certificates on each Payment Date following such Payment
Date to and including the Payment Date on which such Class A Interest Shortfall
is paid in full to the Class A Certificateholders.
SECTION 3.04. Determination of Series 1993-2 Principal.
(a) Payments of Series 1993-2 Monthly Principal. The amount (the
"Series 1993-2 Monthly Principal Payment") distributable from the Series 1993-2
Principal Collection Sub-subaccount on each Payment Date during the Series
1993-2 Amortization Period shall be equal to the amount on deposit in such
account on the immediately preceding Settlement Report Date; provided that the
Series 1993-2 Monthly Principal Payment on any Payment Date shall not exceed the
Series 1993-2 Invested Amount on such Payment Date after giving effect to the
reductions and increases pursuant to paragraphs (b) and (c) below.
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(b) Reductions to Series 1993-2 Principal. If, on any Special
Allocation Settlement Report Date, the Series 1993-2 Allocable Charged-Off
Amount is greater than zero for the related Settlement Period, the Trustee shall
in accordance with the written directions of the Master Servicer (upon which the
Trustee may conclusively rely) make the following applications of such amounts
in the following order of priority:
(i) the Series 1993-2 Required Subordinated Amount shall be reduced
(but not below zero) by an amount equal to the Series 1993-2 Allocable
Charged-Off Amount (which shall also be reduced by the amount so applied);
and
(ii) then, to the extent that the Series 1993-2 Allocable Charged-Off
Amount is greater than zero following the application in clause (i) above,
the Class A Invested Amount shall be reduced (but not below zero) by an
amount equal to such remaining Series 1993-2 Allocable Charged-Off Amount
(which shall also be reduced by the amount so applied).
(c) Increases to Series 1993-2 Principal. If, on any Special Allocation
Settlement Report Date, the Series 1993-2 Allocable Recoveries Amount is greater
than zero for the related Settlement Period, the Trustee shall in accordance
with the written directions of the Master Servicer (upon which the Trustee may
conclusively rely) make the following applications (after giving effect to the
applications in paragraph (b) of such amount in the following order of
priority):
(i) the Class A Invested Amount shall be increased (but only to the
extent of any previous reductions of the Class A Invested Amount pursuant
to subsection 3.04(b)(ii)) by the amount of the Series 1993-2 Allocable
Recoveries Amount (which shall also be reduced by the amount so applied);
and
(ii) then, to the extent that the Series 1993-2 Allocable Recoveries
Amount is greater than zero following the application in clause (i) above,
the Series 1993-2 Required Subordinated Amount shall be increased (but only
to the extent of any previous reductions of the Series 1993-2 Required
Subordinated Amount pursuant to subsection 3.04(b)(i)) by such remaining
Series 1993-2 Allocable Recoveries Amount (which shall also be reduced by
the amount so applied).
SECTION 3.05. Applications.
(a) The Trustee shall distribute, based solely on the information
provided to the Trustee by the Master Servicer in the Daily Report (upon which
the Trustee may conclusively rely), on each Payment Date, from amounts on
deposit in the Series 1993-2 Accrued Interest Sub-subaccount to the extent funds
are available (but if funds therein are insufficient to make all such
applications, then also from any funds on deposit in the Series 1993-2 Principal
Collection Sub-subaccount): an amount equal to the Class A Monthly Interest
payable on such Payment Date, plus any Class A Interest Shortfall on a prior
Payment Date, plus the amount of any Class A Additional Interest for such
Payment Date and any Class A Additional Interest previously due but not
distributed to the Class A Certificateholders on a prior Payment Date, to the
Class A
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Certificateholders; provided, however, that during the Series 1993-2
Amortization Period, no Class A Additional Interest will be paid until repayment
in full of the Series 1993-2 Invested Amount and all Class A Monthly Interest
has been paid.
(b) On each Payment Date, the Trustee shall apply, based solely on the
information provided to the Trustee by the Master Servicer in the Daily Report
(upon which the Trustee may conclusively rely), funds on deposit in the Series
1993-2 Non-Principal Collection Sub-subaccount in the following order of
priority to the extent funds are available:
(i) an amount equal to the Series 1993-2 Monthly Servicing Fee for the
Accrual Period ending on such Payment Date shall be withdrawn from the
Series 1993-2 Non-Principal Collection Sub-subaccount by the Trustee and
paid to the Master Servicer (less any amount payable to the Trustee
pursuant to Section 8.05 of the Agreement which shall be paid to the
Trustee); and
(ii) an amount equal to any Program Costs due and payable shall be
withdrawn from the Series 1993-2 Non-Principal Collection Sub-subaccount by
the Trustee and paid (a) first to the Persons owed any such amounts that
are Company Unsubordinated Obligations (first, to the Purchasers ratably in
accordance with the amounts owed, and second, to any other Persons to whom
such Program Costs are owed, ratably in accordance with the amounts owed)
and (b) second to the Persons owed any such amounts that are Company
Subordinated Obligations (first, to the Purchasers ratably in accordance
with the amounts owed, and second, to any other Persons to whom such
Program Costs are owed, ratably in accordance with the amounts owed).
Any remaining amount on deposit in the Series 1993-2 Non-Principal Collection
Sub-subaccount (in excess of the Accrued Expense Amount as of such day) not
allocated pursuant to clauses (i) and (ii) above shall be paid to the holder of
the Series 1993-2 Subordinated Interest; provided, however, that during the
Series 1993-2 Amortization Period, such remaining amounts shall be deposited in
the Series 1993-2 Principal Collection Sub-subaccount for distribution in
accordance with subsection 3.05(c).
(c) During the Series 1993-2 Amortization Period, the Trustee shall
apply, based solely on the information provided to the Trustee by the Master
Servicer in the Daily Report (upon which the Trustee may conclusively rely), on
each Payment Date, amounts on deposit in the Series 1993-2 Principal Collection
Sub-subaccount in the following order of priority:
(i) to the extent required, to application under Section 3.05(a);
(ii) if any amounts are owed to the Trustee or any other Person, on
account of the Series 1993-2 Monthly Servicing Fees incurred in respect of
the performance of its responsibilities as Successor Master Servicer or
amounts are owing to the Trustee pursuant to Section 8.05 of the Agreement
out of the Series 1993-2 Monthly Servicing Fees and the Master Servicer has
failed to pay such amounts an amount equal to the product of (a) the
aggregate amounts so owed to such Trustee or other Person and (b) the
Series 1993-2 Invested Percentage as of the end of the immediately
preceding Settlement
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Period and the denominator of which shall be equal to the Aggregate
Invested Amount as of the end of the immediately preceding Settlement
Period shall be transferred from the Series 1993-2 Principal Collection
Sub-subaccount to the Trustee or such other Person; provided that no amount
payable under this Section 3.05(c)(ii) shall exceed the Series 1993-2
Monthly Servicing Fee (after giving effect to the amount paid under Section
3.05(b)).
(iii) following the repayment in full of all amounts set forth in
clauses (i) and (ii) above, an amount equal to the Series 1993-2 Monthly
Principal Payment for such Payment Date shall be distributed from the
Series 1993-2 Principal Collection Sub-subaccount pro rata to the Class A
Certificateholders until repayment in full of the Class A Invested Amount;
(iv) following the repayment in full of all amounts set forth in
clauses (i) through (iii) above, the remaining amount on deposit in the
Series 1993-2 Principal Collection Sub-subaccount on such Payment Date, if
any, shall be distributed first, to the Class A Certificateholders in an
amount not to exceed the unpaid Make-Whole Amount, if any, and second, to
the Class A Certificateholders of Series 1994-2 and Series 1994-3 in an
amount not to exceed the unpaid Make-Whole Amount (the "Other Series
Make-Whole Amount") owed to such Class A Certificateholders under the
Series 1994-2 Supplement and the Series 1994-3 Supplement, if any;
(v) if, following the repayment in full of all amounts set forth in
clauses (i) through (iv) above, any amounts are owed to the Trustee or, on
account of its fees, expenses and disbursements incurred in respect of the
performance of its responsibilities hereunder (other than amounts paid
pursuant to clause (ii) above), such amounts shall be transferred from the
Series 1993-2 Principal Collection Sub-subaccount and paid to the Trustee;
and
(vi) following the repayment in full of all amounts set forth in
clauses (i) through (v) above, the remaining amount on deposit in the
Series 1993-2 Principal Collection Sub-subaccount on such Payment Date, if
any, shall be distributed to the holder of the Series 1993-2 Subordinated
Interest.
SECTION 3.06. Make-Whole Amount.
(a) Subject to the Agreement and Section 9.13 of the Receivables Sales
Agreement, a Seller may be terminated as an originator of Receivables (whether
by reason of sale or other disposition of such Seller or otherwise), provided,
that in the event that within twelve months following any such removal of a
Seller as an originator of Receivables an Early Amortization Event arising under
Sections 5.01(a) or (e) (any such Early Amortization Event, an "Applicable Early
Amortization Event") shall occur and, as a result thereof, the Series 1993-2
Amortization Period with respect to the Class A Certificates shall occur, then
in addition to all other amounts required to be paid to the Class A
Certificateholders under the Agreement, the Class A Certificateholders shall be
entitled to receive an additional Make-Whole Amount (as hereinafter defined).
The Make-Whole Amount shall be payable pursuant to Section 3.05(c) of the
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Agreement as set forth in this Supplement. The Trustee agrees that if any of the
events described in the provisions of Section 5.01 which are not included as a
basis for an Applicable Early Amortization Event as set forth above in the
definition of such term shall occur within twelve months following the voluntary
removal of a Seller as an originator of Receivables, then unless the occurrence
of such event shall automatically result in an Early Amortization Event in
accordance with Section 5.01, the Trustee will not give notice or otherwise
declare an Early Amortization Event with respect to this Series without
obtaining the consent of the Holders of not less than 65% of the Class A
Invested Amount.
(b) The "Make-Whole Amount" shall mean, with respect to any Class A
Certificate, an amount equal to the excess, if any, of the Discounted Value of
such Class A Certificate over the sum of (i) the Class A Invested Amount of such
Class A Certificate on the day preceding the Call Date plus (ii) interest
accrued thereon as of (including interest due on) the Call Date. The Make-Whole
Amount shall be calculated on the Make-Whole Calculation Date and shall in no
event be less than zero. From and after the Make-Whole Calculation Date, if
either the Make-Whole Amount or Other Series Make-Whole Amount is greater than
zero no amounts held in the Trust Accounts shall be distributed to the Series
1993-2 Subordinated Interest until the Make-Whole Amount and the Other Series
Make Whole Amount have been fully paid to the Class A Certificateholders and the
Class A Certificateholders of Series 1994-2 and Series 1994-3, as applicable.
ARTICLE IV
Distributions and Reports
Article IV of the Agreement (except for any portion thereof relating to another
Series) shall read in its entirety as follows and the following shall be
exclusively applicable to the Term Certificates issued pursuant to this
Supplement:
SECTION 4.01. Distributions.
(a) The final distribution of principal in respect of the Term
Certificates or portions thereof will be made after due notice by the Trustee of
the pendency of such distribution (subject to at least five Business Days' prior
written notice from the Master Servicer to the Trustee containing all
information required for the Trustee's notice, upon which the Trustee may
conclusively rely) by check drawn on, or by transfer to an account maintained by
the holder with, a bank in New York City. Any other distribution of principal in
respect of the Term Certificates or on account of interest or fees on the Term
Certificates on each Payment Date will be made or caused to be made by the
Paying Agent or the Trustee to the persons in whose name the Term Certificates
are registered at the close of business on the related Record Date. Such payment
will be made by a check mailed to the Term Certificateholders at such Term
Certificateholders, registered addresses or, upon application by any Term
Certificateholder of at least $5,000,000 in original principal amount thereof to
the Trustee not later than five Business Days prior to the related Payment Date,
by transfer to an account maintained by the Term Certificateholder with a bank
in New York City.
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(b) All allocations and distributions hereunder shall be in accordance
with the Daily Reports and the Monthly Settlement Statements and subject to
Section 3.01(h) of the Agreement.
SECTION 4.02. Statements and Notices.
(a) Monthly Settlement Statements. On each Settlement Report Date
(commencing with the first Settlement Report Date occurring in April, 2000), the
Master Servicer shall deliver to the Trustee and each Rating Agency a Monthly
Settlement Statement in the Form of Exhibit C setting forth, among other things,
the Loss Reserve Ratio, the Dilution Reserve Ratio, the Minimum Ratio, in each
case, where applicable, with respect to the Class A Certificates and the
Carrying Cost Reserve Ratio and the Servicing Reserve Ratio, each as
recalculated for the next succeeding Settlement Period.
(b) Annual Certificateholders' Tax Statement. On or before April 1 of
each calendar year (or such earlier date as required by applicable law),
beginning with calendar year 2000, the Company shall furnish, or cause to be
furnished, to each Person who at any time during the preceding calendar year was
a Term Certificateholder, a statement prepared by the Company containing the
aggregate amount distributed to such Person for such preceding calendar year or
the applicable portion thereof during which such Person was a Term
Certificateholder, together with such other information as is required to be
provided by an issuer of indebtedness under the Code and such other customary
information as the Company deems necessary to enable the Term Certificateholders
to prepare their tax returns. Such obligation of the Company shall be deemed to
have been satisfied to the extent that substantially comparable information
shall have been provided by the Trustee pursuant to any requirements of the Code
as from time to time in effect. The Trustee shall be under no obligation to
prepare tax returns for the Trust.
(c) Early Amortization Event Notices. As promptly as reasonably
practicable after its receipt of notice of the occurrence of an Early
Amortization Event with respect to Series 1993-2, the Trustee shall give notice
of such occurrence to each Rating Agency (which notice shall in any event be
given, by telephone or otherwise, not later than the second Business Day after
such receipt).
(d) The Trustee agrees that it will furnish to each Holder of a Class A
Certificate all notices, reports and certificates that are either prepared or
received by the Trustee pursuant to the Agreement, without any need for request
for any such materials by any such Holder, on the same date as any such
materials are otherwise distributed, in the case of materials prepared by the
Trustee, or within one Business Day of receipt by the Trustee, in the case of
materials prepared by others, including without limitation, the Monthly
Settlement Statement, the Officer's Certificate contemplated by Section 4.03 of
the Servicing Agreement and the reports contemplated by Section 4.04 of the
Servicing Agreement, provided, however, that this sentence shall not apply to
the Daily Report delivered by the Master Servicer to the Trustee. Materials
furnished by the Trustee pursuant to this paragraph (d) will be sent by first
class mail, postage prepaid, to each such Holder at the address shown for it in
the Certificate Register maintained by the Trustee.
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(e) In order to enable the Trustee to furnish materials to each Holder
of a Class A Certificate in accordance with paragraph (d) above, the Master
Servicer agrees that it will furnish to the Trustee all notices, reports and
certificates that are either prepared or received by the Master Servicer under
the Agreement and are not otherwise required to be delivered to the Trustee.
(f) If, on any day on which the Daily Report is delivered to the
Trustee the Master Servicer is unable to make the certification called for
therein without exception thereto, then the Master Servicer shall also provide a
copy of such Daily Report to each Class A Certificateholder by means of either
(i) Federal Express or similar overnight courier service, (ii) certified mail,
return receipt requested, or (iii) facsimile transmission (subject to
confirmation of receipt by an authorized officer of such Class A
Certificateholder), in any case dispatched by the Master Servicer on the same
day as such Daily Report is delivered to the Trustee to the address of such
Holder shown for it in the Certificate Register maintained by the Trustee. The
Company also shall furnish to each Class A Certificateholder the statement
contemplated by Section 2.07(h) of the Agreement within the time permitted under
such Section by one of the means described in the preceding sentence. In the
event that the Master Servicer does not provide the Daily Report to the Class A
Certificateholders on a timely basis if required to do so by this Section
4.02(f), then for each day that elapses from the date on which such Daily Report
was required to be provided to Class A Certificateholders until and including
the date on which such Daily Report is in fact provided, the grace or cure
period provided to the Company under Section 5.01(b) (to the extent that a grace
or cure period is applicable to the matters disclosed in such Daily Report)
before a Potential Early Amortization Event becomes an Early Amortization Event
or the grace or cure period provided to the Servicer under clauses (a) and (c)
and Section 6.01 of the Servicing Agreement (to the extent that a grace or cure
period is applicable to the matters disclosed in such Daily Report) before a
prospective Servicer Default becomes a Servicer Default shall, as applicable, be
reduced by each day of such delay.
(g) The Master Servicer agrees that as soon as available and, in any
case, within 100 days after the end of each fiscal year, it will provide to each
Holder of a Class A Certificate the audited consolidated financial statements of
the Master Servicer and its consolidated subsidiaries, consisting of the audited
consolidated balance sheet of the Master Servicer and its consolidated
subsidiaries as of the end of such fiscal year and the audited consolidated
statements of income, changes in stockholders' equity and cash flows of the
Master Servicer and its consolidated subsidiaries for such fiscal year,
certified by the independent public accountants of the Master Servicer and its
consolidated subsidiaries.
(h) The Master Servicer agrees that as soon as available and, in any
case, within 50 days after the end of each fiscal month in each fiscal quarter
in each fiscal year (or, if the Master Servicer elects to provide quarterly
information as hereinafter described, within 50 days after the end of each
fiscal quarter), it will provide to each Holder of a Class A Certificate the
consolidated financial statements of the Master Servicer consisting of the
unaudited consolidated balance sheet of the Master Servicer and its
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consolidated subsidiaries as of the end of such fiscal month (or, at the option
of the Master Servicer and upon written notice to the Class A
Certificateholders, as of the end of each fiscal quarter) and the unaudited
consolidated statements of income, changes in stockholders' equity and cash
flows of the Master Servicer and its consolidated subsidiaries for such fiscal
month (or, at the option of the Master Servicer and upon written notice to the
Class A Certificateholders, as of the end of each such quarter) and for the
fiscal year to date, setting forth in each case in comparative form, the figures
for the corresponding periods of the preceding fiscal year, all in reasonable
detail and certified by the Chief Financial Officer or the Treasurer of the
Master Servicer as being a complete and correct copy of the Master Servicer's
financial statements which have been prepared in accordance with generally
accepted accounting principals consistently applied (except as otherwise
disclosed therein and without the information normally provided in the
accompanying footnotes), and which present fairly the financial position of the
Master Servicer and its consolidated subsidiaries and the results of operation
and cash flows thereof subject, in each case, to changes resulting from year-end
audit adjustments; provided, however, that at such time and so long as the
Master Servicer shall be required to file reports with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
the delivery of its Quarterly Report on Form 10-Q shall satisfy the requirements
of this Section 4.02 with respect to consolidated financial statements.
SECTION 4.03. Notices. Unless otherwise provided, notices required to
be given to the Holders hereunder shall be given by first class mail to the
address of such Holders as they appear in the Certificate Register or the
Subordinated Interest Register, as applicable. The Company and the Master
Servicer shall deliver copies of all notices, reports, statements and other
documents delivered by it pursuant to the Pooling and Servicing Agreements to
each Rating Agency.
SECTION 4.04. Audit and Inspection Rights.
(a) The Company agrees that the audit rights of the Trustee provided
for in Section 2.07(d) of the Agreement may be exercised by the Class A
Certificateholders, and the Master Servicer or Servicer agrees that the
inspection rights of the Trustee provided for in Section 4.09 of the Servicing
Agreement may be exercised by the Class A Certificateholders, subject in each
case, however, to each of the following conditions:
(i) for purposes of this Section 4.04, references to the Class A
Certificateholders shall mean, collectively, the Holders of Class A
Certificates of Series 1993-2 together with the Holders of Class A
Certificates of Series 1994-2 and the Holders of Class A Certificates of
Series 1994-3, and a Holder of Class A Certificates of more than one of the
foregoing Series will be treated as only one Class A Certificateholder;
(ii) such rights may not be exercised more than one time in any
consecutive 12 month period by (A) each Class A Certificateholder that is
an Initial Purchaser or (B) Class A Certificateholders, in the aggregate,
that are not Initial Purchasers in accordance with clause (iv) below,
provided, that the foregoing limitation shall not apply if and for so long
as a prospective Servicer Default (i.e., a condition that with the giving
of notice and/or the passage of time would constitute a Servicer Default),
Servicer Default, Potential Early Amortization Event or Early Amortization
Event shall have occurred and shall be continuing under the Agreement;
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(iii) for purposes of clause (ii) above, multiple Class A
Certificateholders under common management shall be treated collectively as
only one Class A Certificateholder;
(iv) for purposes of clause (ii) above, all transferees of (A) any of
the "Initial Purchasers" named in the Series 1993-2 Supplement, (B) any of
The Prudential Insurance Company of America, Pacific Mutual Life Insurance,
or The Great West Life & Annuity Insurance Company, or (C) any Class A
Certificateholder managed by any thereof and treated collectively therewith
in accordance with clause (iii) above (collectively, the "Initial
Purchasers"), and successive transferees thereafter, shall be treated
collectively as one Class A Certificateholder and, in order to exercise the
rights provided for in paragraph (a), must act collectively through an
agent or representative appointed to act for all by a vote of not less than
65% of the Invested Amount of all Class A Certificateholders excluding the
Initial Purchasers and must hold, in aggregate, not less than 25% of the
aggregate Invested Amount of the Class A Certificates of Series 1993-2,
Series 1994-2 and Series 1994-3; and
(v) such rights may not be exercised (and the Company or the Servicer,
as applicable, may deny access to the relevant information) by any Holder
reasonably believed by the Company, the Master Servicer or the Servicer in
good faith to be a competitor of the Master Servicer or Servicer or any
Subsidiary, or by any Holder which the Company, the Master Servicer or the
Servicer reasonably believes in good faith might violate or otherwise
undermine the confidentiality of the materials to be reviewed, provided,
that the Company, the Master Servicer and the Servicer each hereby
acknowledge that none of the Initial Purchasers will be subject to
objection by the Company, the Master Servicer or the Servicer for reasons
of competition or confidentiality.
ARTICLE V
Additional Early Amortization Events
SECTION 5.01. Additional Early Amortization Events. If any one of the
events specified in Section 7.01 of the Agreement (after any grace periods or
consents applicable thereto) or any one of the following events (each, an "Early
Amortization Event"), shall occur:
(a) failure on the part of the Company or the Master Servicer to direct
any payment or deposit to be made, or failure of any payment or deposit required
by the terms of the Agreement or any Supplement to be made, in respect of
interest owing on any Term Certificates within five days of the date such
payment or deposit is required to be made;
(b) failure on the part of the Company duly to observe or perform in
any material respect any covenant or agreement of the Company set forth in any
Pooling and Servicing Agreement (including each covenant contained in Sections
2.07 and 2.08 of the Agreement) that continues unremedied 30 days after the
earlier of (i) the date on which a Responsible Officer of the Company or, so
long as the Master Servicer is an Affiliate of the Company, a Responsible
Officer of the Master Servicer has knowledge of such failure and (ii) the date
on which written
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notice of such failure, requiring the same to be remedied, shall have been given
to the Company by the Trustee, or to the Company and the Trustee by holders of
the Term Certificates evidencing 10% or more of the Series 1993-2 Invested
Amount;
(c) any representation or warranty made or deemed made by the Company
in any Pooling and Servicing Agreement to or for the benefit of the Term
Certificateholders shall prove to have been incorrect in any material respect
when made or when deemed made that continues to be incorrect 30 days after the
earlier of (i) the date on which a Responsible Officer of the Company or, so
long as the Master Servicer is an Affiliate of the Company, a Responsible
Officer of the Master Servicer has knowledge of such failure and (ii) the date
on which notice of such failure, requiring the same to be remedied, shall have
been given to the Company by the Trustee or to the Company and the Trustee by
holders of the Term Certificates evidencing 10% or more of the Series 1993-2
Invested Amount and as a result of such incorrectness, the interests, rights or
remedies of the Term Certificateholders have been materially and adversely
affected; provided, however, that an Early Amortization Event with respect to
Series 1993-2 shall not be deemed to have occurred under this paragraph if the
incorrectness of such representation or warranty gives rise to an obligation to
repurchase or make a Dilution Adjustment in respect of the related Receivables
and the Company has repurchased or made a Dilution Adjustment in respect of the
related Receivable or all such Receivables, if applicable, in accordance with
the provisions of any Pooling and Servicing Agreement;
(d) a Servicer Default other than any Servicer Default that is within
subsection 5.01(a) above shall have occurred and be continuing; or
(e) the Series 1993-2 Allocated Receivables Amount shall be less than
the Series 1993-2 Target Receivables Amount for any period of five consecutive
Business Days;
(f) a Purchase Termination Event shall have occurred and be
continuing;
(g) a Change in Control shall have occurred;
(h) any of the Agreement, the Servicing Agreement, this Supplement or
the Receivables Sale Agreement shall cease, for any reason, to be in full force
and effect, or the Company, the Seller, the Servicer or any Affiliate thereof
shall so assert in writing;
(i) the Lien created in favor of the Trust on all the Trust Assets
shall cease to be a perfected, first priority enforceable Lien thereon, or the
Company or Ingram Micro Inc. shall so assert in writing (and such Receivables
are not repurchased pursuant to the Agreement);
(j) a Federal tax notice of Lien shall have been filed against the
Company or the Trust unless there shall have been delivered to the Trustee and
the Rating Agencies proof of release of such Lien;
(k) 15 days shall have elapsed after a Responsible Officer of the
Company receives notice as to, or becomes aware of, a notice of Lien having been
filed by the Pension Benefit Guaranty Corporation against the Company or the
Trust under Section 412 (n) of the Code or
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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 unless there shall have been delivered to the Trustee and the
Rating Agencies proof of the release of such Lien;
(l) one or more judgments for the payment of money (to the extent not
bonded or covered by insurance to the reasonable satisfaction of the Trustee)
shall be rendered against the Company (A) in an aggregate amount greater than
$100,000 or (B) that, individually or in the aggregate, have resulted or could
reasonably be expected to result in a Company Material Adverse Effect or (ii)
one or more judgments for the payment of money (to the extent not bonded or
covered by insurance to the reasonable satisfaction of the Trustee) shall be
rendered against the Servicer, the Seller or any combination thereof in an
aggregate amount greater than (i) 7.25% of the Consolidated Tangible Net Worth
of Ingram Micro Inc. at the end of the most recently ended Fiscal Quarter or
(ii) $80,000,000 whichever is less and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
the assets or properties of the Company, the Servicer or the Seller to enforce
any such judgment and no stay of enforcement shall be in effect;
(m) Payment of interest with respect to the Class A Certificates is not
made on the Payment Date (without regard to any grace period) more than three
times prior to the Scheduled Revolving Termination Date when the full amount of
funds that would be required to make such payment are not on deposit in the
Series 1993-2 Accrued Interest Sub-subaccount on such Payment Date; provided,
however that failure to make payment on a Payment Date will not be a cause of an
Early Amortization Event under this subsection (n) if such delay or failure is
reasonably attributable to any action taken or not taken by the Trustee in
respect of such payment, unless the Trustee's action or lack of action was the
direct result of misdirection, or lack of required direction, by Ingram Micro
Inc..
then, in the case of (x) any event described in Section 7.01 of the Agreement
(other than the event described in Section 7.01(a)(vi) of the Agreement),
automatically without any notice or action on the part of the Trustee or the
holders of the Term Certificates, an early amortization period shall immediately
commence or (y) an event described above (or the event described in Section
7.01(a)(vi) of the Agreement), after the applicable grace period (if any) set
forth in the applicable subsection, the Trustee may, and at the written
direction of 65% of the Series 1993-2 Invested Amount shall, by written notice
then given to the Company and the Master Servicer, declare that an early
amortization period has commenced as of the date of such notice with respect to
Series 1993-2 (any such period under clause (x) or (y) above an "Early
Amortization Period"); provided, however, that in the case of the event
described in clause (e) above, if an Early Amortization Period has not been
declared within 10 Business Days from the occurrence of such event, then an
Early Amortization Period shall occur automatically unless, (i) prior to the end
of such 10 Business Day period, the Series 1993-2 Allocated Receivables Amount
shall no longer be less than the Series 1993-2 Target Receivables Amount and
(ii) so long as the Series 1993-2 Allocated Receivables Amount continues to be
equal to or greater than the Series 1993-2 Target Receivables Amount, Term
Certificateholders evidencing 66-2/3% or more of the Series 1993-2 Invested
Amount voting as a single class shall have waived the occurrence of such event.
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ARTICLE VI
Servicing Fee
SECTION 6.01. Servicing Compensation. A monthly servicing fee (the
"Series 1993-2 Monthly Servicing Fee") shall be payable to the Master Servicer
on each Payment Date for the preceding Settlement Period, in an amount equal to
the product of (a) the Servicing Fee and (b) the Series 1993-2 Invested
Percentage as of the end of the preceding Settlement Period. To the extent that
funds on deposit in the Series 1993-2 Non-Principal Collection Sub-subaccount at
any such date are insufficient to pay the Series 1993-2 Monthly Servicing Fee
due on such date as set forth in the Monthly Settlement Statement delivered by
the Master Servicer to the Trustee, the Trustee shall so notify the Company and
the Company shall immediately pay the Master Servicer the amount of any such
deficiency; provided, however that any payments to be made by the Company
pursuant to this Section shall, if the Master Servicer is Ingram Micro Inc. or
an Affiliate thereto, (i) be Company Subordinated Obligations, (ii) be made
solely from funds available to the Company that are not required to be applied
to the Company Unsubordinated Obligations then due and (iii) not constitute a
general recourse claim against the Company but only a claim against the Company
to the extent of funds available after satisfying all Company Unsubordinated
Obligations then due.
ARTICLE VII
Covenants, Representations and Warranties
SECTION 7.01. Representations and Warranties of the Company and the
Master Servicer. The Company and the Master Servicer each hereby represents and
warrants to the Trustee and each of the Term Certificateholders that each and
every of their respective representations and warranties contained in the
Agreement and the Servicing Agreement is true and correct as of the Issuance
Date and any Subsequent Issuance Date.
SECTION 7.02. Covenants of the Company and the Master Servicer. The
Company and the Master Servicer each hereby agree, in addition to their
obligations under the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in compliance with
the terms of the Agreement and the supplements relating to each Outstanding
Series;
(b) they will (i) provide the Trustee with evidence, reasonably
satisfactory to the Trustee, of (A) the establishment of a disaster recovery
plan, (B) the establishment of computer back-up systems and (C) the operational
readiness of an off-site disaster recovery facility;
(c) for so long as any Term Certificates are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will cause to be provided to any holder of Term
Certificates and any prospective purchaser of Term Certificates or an interest
therein, upon the request of such holder or prospective purchaser, the
information required to be provided to such holder or prospective purchaser by
Rule 144A(d)(4) under the Securities Act;
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(d) it shall observe in all material respects each of its respective
covenants (both affirmative and negative) contained in the Agreement, the
Servicing Agreement, this Supplement and all other Transaction Documents to
which it is a party.
SECTION 7.03. Negative Covenant of the Company; Covenants of the
Master Servicer.
(a) The Company shall not make any Restricted Payment while Series
1993-2 is an Outstanding Series, except (i) from amounts distributed to the
Company (x) in respect of the Exchangeable Company Interest, provided that on
the date any such Restricted Payment is made, the Company is in compliance with
its payment obligations under Section 2.05 of the Agreement or (y) pursuant to
subsection 3.02(c); (ii) in compliance with all terms of the Transaction
Documents, including the Company's covenant as to net worth set forth in
subsection 2.07(m) of the Agreement and (iii) such Restricted Payment is made in
accordance with all corporate and legal formalities applicable to the Company;
provided that no Restricted Payment shall be made if an Early Amortization Event
has occurred and is continuing (or would occur as a result of making such
Restricted Payment).
(b) The Master Servicer hereby agrees that it shall observe each and
all of its respective covenants (both affirmative and negative) contained in
each Pooling and Servicing Agreement in all material respects.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Ratification of Agreement. As modified and supplemented
by this Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 8.02. Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ANY CONFLICT OF LAW PRINCIPLES, EXCEPT TO THE EXTENT ISSUES OF PERFECTION ARE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 8.03. Further Assurances. Each of the Company, the Master
Servicer and the Trustee agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments required or reasonably
requested by the other more fully to effect the purposes of this Supplement and
the sale of the Term Certificates hereunder, including, without limitation, in
the case of the Company and the Master Servicer, the execution of any financing
or registration statements or similar documents or notices or continuation
statements relating to the Receivables and the other Trust Assets for filing or
registration under the provisions of the UCC or similar legislation of any
applicable jurisdiction provided that, in the case of the Trustee, in
furtherance and without limiting the generality of subsection 8.01(d) of the
Agreement, the Trustee shall have received reasonable assurance of adequate
reimbursement and indemnity in connection with taking such action before the
Trustee shall be required to take any such action.
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SECTION 8.04. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee or any Term
Certificateholder, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 8.05. Amendments.
(a) This Supplement may only be amended, supplemented or otherwise
modified from time to time if (i) such amendment, supplement or modification is
effected in accordance with the provisions of Section 10.01 of the Agreement and
(ii) the Rating Agency Condition is Satisfied; provided that any amendment,
supplement or modification which is governed by Section 10.01(a) of the
Agreement will be subject to the delivery of an Opinion of Counsel delivered to
the Trustee, that such action shall not have a Material Adverse Effect, and
further, any such amendment, supplement or modification will not be subject to
the second proviso of the first sentence set forth in Section 10.01(a) of the
Agreement; provided further that any amendment, supplement or modification which
is governed by Section 10.01(b) of the Agreement and relates to an amendment,
supplement or modification of Article III, Article IV, the definition of the
Class A Ratio, Series 1993-2 Required Subordinated Amount and any defined terms
used therein shall require the consent of Class A Certificateholders evidencing
more than 65% of the Series 1993-2 Invested Amount, unless such amendment,
supplement or modification increases the Class A Ratio or the Series 1993-2
Required Subordinated Amount, in which case no consent of the Class A
Certificateholders shall be required so long as the Rating Agency Conditions has
been satisfied. Prior to consenting to any amendment the Trustee shall be
entitled to obtain and rely on an Opinion of Counsel from the Company stating
that such amendment is authorized and permitted pursuant to the Agreement and
this Supplement.
(b) The Receivables Sale Agreement may only be amended, supplemented or
modified, and any provision thereof may only be waived, with the consent of the
Class A Certificateholders evidencing more than 65% of the Aggregate Invested
Amount of all Series of Investor Certificates that (i) were outstanding prior to
the Effective Date and (ii) are adversely affected in any material respect by
such amendment, supplement, modification or waiver.
SECTION 8.06. Notices. All notices, requests and demands to or upon any
party hereto to be effective shall be given in the manner set forth in the case
of the Company, the Servicer and the Trustee, in Section 10.05 of the Agreement,
and in the case of any other party, in writing (including a confirmed
transmission by telecopy), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand or three
days after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows in the case of the Rating
Agencies or to such other address as may be hereafter notified by the respective
parties hereto:
Fitch: Fitch IBCA, Inc.
One State Street Plaza
New York, NY 10004
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Telecopier (212) 968-8839
Attention: Asset-Backed Surveillance
S&P: Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Attention: Asset-Backed Surveillance Group
Telecopier: (212) 438-2664
Any notice required or permitted to be mailed to a Term
Certificateholder shall be given as provided in Section 4.03.
SECTION 8.07. Counterparts. This Supplement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same Agreement.
SECTION 8.08. No Bankruptcy Petition. Each Term Certificateholder shall
be deemed to have agreed by its acceptance of a Term Certificate (or a
beneficial interest therein) that, prior to the date which is one year and one
day after the later of (i) the last day of the Series 1993-2 Amortization Period
and (ii) the date that all Investor Certificates of each other Outstanding
Series are repaid in full, it will not institute against, or join any other
Person in instituting against, the Company any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other similar proceedings
under any Federal or state bankruptcy or similar law.
SECTION 8.09. Limitation on Addition and Termination of Sellers.
(a) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement or the Agreement, the Company shall not consent to
the addition of a Seller thereunder unless each of the following conditions
shall have been satisfied:
(i) Each of the conditions set forth in Section 3.05 of the
Receivables Sale Agreement shall have been satisfied and the Trustee shall
have received evidence in the form of an appropriate Officer's Certificate
as to that fact.
(ii) The Company and the Trustee shall have received evidence that the
Rating Agency Condition shall have been satisfied with respect to the
addition of such Seller; provided that satisfaction of the Rating Agency
Condition (and such receipt of evidence thereof) shall not be required with
respect to the addition of up to three additional Sellers during any
calendar year, each of which meets the following criteria: (x) such
proposed additional Seller is, in the judgment of the Company as certified
by the Company to the Trustee in an Officer's Certificate, in the same line
of business as the existing Sellers as of the related Seller Addition Date
(as defined in the Receivables Sale Agreement) and (y) as of the Seller
Addition Date, immediately prior to giving effect to such addition, the
ratio (as determined by the Company and expressed as a percentage) of (I)
the aggregate Principal Amount of what would constitute all Eligible
Receivables of the proposed Seller if it were a Seller at the end of the
Business Day immediately preceding the Seller Addition Date minus the
amount which would constitute the Overconcentration Amount applicable to
such Receivables on the Seller Addition Date if the proposed
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Seller were a Seller to (II) the Aggregate Receivables Amount on the Seller
Addition Date (before giving effect to such addition), is less than five
percent; provided, however, that in no event may additional Sellers be
added without satisfaction of the Rating Agency Condition and the consent
of the holders of 65% of the Aggregate Invested Amount of all Series of
Investor Certificates that were outstanding prior to the Effective Date if
the aggregate Principal Amount of what would constitute all Eligible
Receivables of all additional Sellers would exceed fifteen percent of the
aggregate Principal Amount of Receivables on the date upon which the first
additional Seller is added.
(iii) The Company and the Trustee shall have received a certificate
prepared by a Responsible Officer of the Master Servicer certifying that
after giving effect to the addition of such Seller, the Aggregate Allocated
Receivables Amount shall not be less than the Aggregate Target Receivables
Amount on the related Seller Addition Date and setting forth a
re-calculation of the Series 1993-2 Required Subordinated Amount (including
Receivables originated by the additional Sellers).
(iv) The Trustee shall have notified the Company and each Rating
Agency that a Standby Liquidation System is in place for such proposed
additional Seller.
(b) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement, the Company shall not consent to any request made
pursuant to Section 9.13(b) thereof, nor shall any Seller which is the subject
of such request be terminated under the Receivables Sale Agreement, in each case
unless (i) no Early Amortization Event, Potential Early Amortization Event or
Potential Purchase Termination Event (as defined in the Receivables Sale
Agreement) (other than with respect to the Seller to be so terminated) has
occurred and is continuing (both before and after giving effect to such
termination) and (ii) the Trustee shall have received prior written notice of
such termination (which notice shall be accompanied by a pro forma Daily Report
confirming that the Aggregate Allocated Receivables Amount shall not be less
than the Aggregate Target Receivables Amount, each calculated after giving
effect to such termination and excluding all Receivables originated by the
Seller to be terminated).
(c) Upon the termination of a Seller pursuant to Section 9.13(b) of the
Receivables Sale Agreement and the foregoing paragraph (c), the calculation
(including, without limitation, for purposes of the pro forma calculations
pursuant to paragraph (c) above) of the Aggregate Target Receivables Amount, the
Aggregate Allocated Receivables Amount, the Series 1993-2 Required Subordinated
Amount and all other amounts from which each such amount is directly or
indirectly derived shall exclude in each case the Receivables originated by such
terminated Seller.
SECTION 8.10. Certificateholder List. Notwithstanding Section 5.07 of
the Agreement, each Class A Certificateholder shall have access to (a) the list
of Holders of Series 1993-2 Certificates without regard to the requirement set
forth in such Section that otherwise would
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require application by three or more Holders or by Holders representing not less
than 10% of the Invested Amount of the Investor Certificates of any Series and
(b) the list of Holders of any other Series if three or more Holders or Holders
representing not less than 5% of the Invested Amount of the Investor
Certificates of any Series apply in writing to the Trustee, in each case subject
to the terms and conditions of Section 5.07.
SECTION 8.11. Late Charge. In the event that payment of interest or
principal with respect to the Class A Certificates is not made on the Payment
Date (without regard to any grace period) when the funds required to make such
payment are then on deposit in the Series 1993-2 Accrued Interest Sub-subaccount
or the Series 1993-2 Principal Collection Sub-subaccount, as applicable, then
unless such failure to pay is attributable to the circumstances described in
subsection (m) of Section 5.01, the Company shall pay to each Class A
Certificateholder a late charge (the "Late Charge") calculated on a per diem
basis on the amount of such late payment for each day following the Payment Date
until and including the date on which paid, at a rate equal to the greater of
(i) the Class A Certificate Rate plus 200 basis points per annum and (ii)
Chase's Prime Rate then in effect, such Late Charge to be payable pursuant to
Section 3.03 of the Agreement as set forth in this Supplement.
SECTION 8.12. Final Payment; Surrender of Certificates. Final payment
on the Series 1993-2 Certificates shall be made to each Holder in the same
manner in which prior payments are made to such Holder and without any need for
such Holder to physically surrender its Class A Certificate(s) to the Trustee;
provided, that at such time as final payment or provision for final payment, of
the Series 1993-2 Certificates shall have been made, such Certificates shall be
deemed canceled and of no effect and shall not represent any further claim on or
interest in the Trust Assets notwithstanding any failure on the part of the
Holder thereof to physically surrender its Class A Certificate(s).
SECTION 8.13. Rights of the Trustee. The Trustee shall not be bound to
make any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
direction, order, approval, bond, note or other paper or document, unless
requested in writing so to do by the Holders of Investor Certificates evidencing
more than 10% of the Series 1993-2 Invested Amount if the Class A
Certificateholders under this Supplement could be materially and adversely
affected if the Trustee does not perform such acts; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
shall be, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Master Servicer (or, if Ingram Micro Inc. is no longer the
Master Servicer, by Ingram Micro Inc.) or, if paid by the Trustee, shall be
reimbursed by the Master Servicer (or if Ingram Micro Inc. is no longer the
Master Servicer, by Ingram Micro Inc.) upon demand. The Trustee shall be
entitled to make such further inquiry or investigation into such facts or
matters as it may reasonably see fit, and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books
and records of the Company, personally or by agent or attorney, at the sole cost
and expense of the Company.
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In any case in which security or indemnity is required to be provided
by a Class A Certificateholder under any provision of the Pooling and Servicing
Agreements to either the Trustee, the Transfer Agent and Registrar, the Company,
the Master Servicer or any Servicer (an "Indemnified Party") as a condition to
such Indemnified Party taking, or not taking, any action, the unsecured
indemnity of any such Class A Certificateholder that is an Initial Purchaser or
is an institutional purchaser with an unsecured debt rating or claims paying
ability of at least "BBB" or its equivalent shall be deemed to satisfy such
requirement for security or indemnity.
SECTION 8.14. Waiver of Past Defaults. Without reference to Section
6.03 of the Servicing Agreement, Holders of Investor Certificates evidencing
more than 65% of the Series 1993-2 Invested Amount adversely affected in any
material respect may waive any continuing default by the Master Servicer, a
Servicer or the Company in the performance of its respective obligations
hereunder and its consequences. Upon any such waiver of a past default, such
default shall cease to exist, and any default arising therefrom shall be deemed
to have been remedied for every purpose of the Pooling and Servicing Agreements.
No such waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived. Either the
Company, the Master Servicer or the Servicer shall provide notice to each Rating
Agency of any such waiver.
SECTION 8.15. Amendment of Policies. Neither the Master Servicer, any
Servicer, nor any Seller shall without the consent of 65% of the Aggregate
Invested Amount of all Series of Investor Certificates that were outstanding
prior to the Effective Date, make any change in the Policies that could
reasonably be expected to have a material adverse effect on the collectibility
of the Receivables taken as a whole, or the ability of the Master Servicer to
perform its obligations under the Transaction Documents. The Master Servicer
shall provide written notice to each Rating Agency of any such change in the
Policies.
ARTICLE IX
Final Distributions
SECTION 9.01. Certain Distributions.
(a) Not later than 2:00 p.m., New York City time, on the Payment Date
following the date on which the proceeds from the disposition of the Receivables
pursuant to subsection 7.02(b) of the Agreement are deposited into the Series
1993-2 Non-Principal Collection Sub-subaccount and the Series 1993-2 Principal
Collection Sub-subaccount, the Trustee shall distribute such amounts pursuant to
Article III of this Supplement.
(b) Notwithstanding anything to the contrary in this Supplement or the
Agreement, any distribution made pursuant to this Section shall be deemed to be
a final distribution pursuant to Section 9.03 of the Agreement with respect to
the Term Certificates.
37
<PAGE> 41
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Amended and Restated Series 1993-2 Supplement to be duly
executed by their respective officers as of the day and year first above
written.
INGRAM FUNDING INC.,
By: /s/ P. Kurt Preising
--------------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC., as Master Servicer,
By: /s/ P. Kurt Preising
--------------------------------------
Title: Attorney-in-Fact
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee,
By: /s/ Melissa J. Adelson
--------------------------------------
Title: Vice President
Signature Page
to
Series 1993-2 Supplement
<PAGE> 42
EXHIBIT A TO
SERIES 1993-2 SUPPLEMENT
INGRAM FUNDING MASTER TRUST
AMENDED AND RESTATED FORM OF CLASS A CERTIFICATE, SERIES 1993-2
REGISTERED
NO. $_______ (of $__________ issued)
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY PURCHASING THIS TERM CERTIFICATE,
AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS IN AN AMOUNT OF AT LEAST
$2,000,000 AND (1) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
OR (2) TO A PERSON WHO (A) IS AN INSTITUTIONAL "ACCREDITED INVESTOR", WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, AND
WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM ATTACHED TO THE
SERIES 1993-2 SUPPLEMENT OR (B) IS TAKING DELIVERY OF SUCH CERTIFICATE PURSUANT
TO A TRANSACTION THAT IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, AS CONFIRMED IN AN OPINION OF COUNSEL ADDRESSED TO THE TRUSTEE AND THE
COMPANY WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE COMPANY AND THE
TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF OF
(1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR OTHER RETIREMENT
ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH PLAN, WHETHER OR NOT IT IS
SUBJECT TO THE PROVISIONS OF TITLE I THERETO, (2) ANY PLAN DESCRIBED IN SECTION
4975(e) (1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR (3)
ANY OTHER ENTITY THAT WOULD BE DEEMED TO BE A "BENEFIT PLAN INVESTOR" WITHIN THE
MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101(f) (2) (ANY OF THE
FOREGOING, AN "ERISA ENTITY").THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED
BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
Purchasers of this Term Certificate will be deemed to have made certain
representations and warranties set forth in the Supplement (it being understood
that the Initial
A-1
<PAGE> 43
Purchaser named herein shall not be deemed to have made any representation or
warranty pursuant to Section 2.05 of the Supplement).
This Class A Certificate evidences a fractional undivided
interest in the assets of the
INGRAM FUNDING MASTER TRUST
the corpus of which consists of receivables representing amounts payable for
goods or services, which receivables have been purchased by Ingram Funding Inc.,
a Delaware corporation, which in turn transferred and assigned such receivables
to the Ingram Micro Master Trust.
(Not an interest in or recourse obligation of
Ingram Micro Inc., Ingram Funding Inc.,
or any of their respective Affiliates)
This certifies that
[NAME OF CERTIFICATEHOLDER]
(the "Class A Certificateholder") is the registered owner of a fractional
undivided interest in the assets of Ingram Funding Master Trust (the "Trust"),
originally created pursuant to the Pooling and Servicing Agreement, dated as of
February 12, 1993 (as amended and restated on March 8, 2000 and as the same may
from time to time be amended, restated, supplemented or otherwise modified
thereafter, the "Pooling Agreement"), by and among Ingram Funding Inc., a
Delaware corporation (the "Company"), Ingram Micro Inc., a California
corporation, as master servicer (the "Master Servicer") and The Chase Manhattan
Bank, a New York banking corporation, not in its individual capacity but solely
as trustee (in such capacity, the "Trustee") for the Trust, as supplemented by
the Amended and Restated Series 1993-2 Supplement, dated as of March 8, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Supplement",
collectively with the Pooling Agreement, the "Agreement"), by and among the
Company, the Master Servicer and the Trustee. The corpus of the Trust consists
of receivables (the "Receivables") representing amounts payable for goods or
services and all other Trust Assets referred to in the Agreement. Although a
summary of certain provisions of the Agreement is set forth below, this Class A
Certificate does not purport to summarize the Agreement, is qualified in its
entirety by the terms and provisions of the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee. A copy of the Agreement may be requested by writing
to the Trustee at The Chase Manhattan Bank, 450 W. 33rd Street, 15th Floor, New
York, New York 10011, Attention: Advanced Structured Products Group. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreement.
This Class A Certificate is issued under, is entitled to the benefits
of, and is subject to, the terms, provisions and conditions of the Agreement, to
which Agreement the Class A Certificateholder by virtue of the acceptance hereof
assents and is bound.
The Master Servicer, the Company, each Class A
Certificateholder and the Trustee intend, for federal, state and local income
and franchise tax purposes only, that the Class A Certificates be evidence of
indebtedness of the Company secured by the Trust Assets and that
A-2
<PAGE> 44
the Trust not be characterized as an association or publicly traded partnership
taxable as a corporation. The Class A Certificateholder, by the acceptance
hereof, agrees to treat the Class A Certificates for federal, state and local
income and franchise tax purposes as indebtedness of the Company.
This Class A Certificate is one of a Class of Investor Certificates
entitled "Ingram Micro Master Trust, Class A Certificates, Series 1993-2" (the
"Class A Certificates" and also referred to as the "Term Certificates"). The
Term Certificates represent fractional undivided interests in the Trust Assets,
consisting of the right to receive distributions specified in the Supplement out
of (i) the Series 1993-2 Invested Percentage (expressed as a decimal) of the
Collections received with respect to the Receivables and of all other funds on
deposit in the Collection Account and (ii) to the extent such interests appear
in the Supplement, all other funds on deposit in the Series 1993-2 Collection
Subaccount and any subaccounts thereof (the "Series 1993-2 Certificateholders'
Interest"). Concurrent with the issuance of the Term Certificates, the Trust
shall also issue a Subordinated Company Interest to the Company representing a
fractional undivided interest in the Trust Assets, consisting of the right to
receive the distributions specified in the Supplement out of (i) the Series
1993-2 Invested Percentage (expressed as a decimal) of Collections received with
respect to the Receivables and all other funds on deposit in the Collection
Account and (ii) to the extent such interests appear in the Supplement, all
other funds on deposit in the Series 1993-2 Collection Subaccount and any
subaccounts thereof, in each case to the extent not required to be distributed
to or for the benefit of the Term Certificateholders (the "Series 1993-2
Subordinated Interest"). The Trust Assets are allocated in part to the Term
Certificateholders and the holders of the Series 1993-2 Subordinated Interest
with the remainder allocated to the Investor Certificateholders and the holders
of the Subordinated Company Interest of other Series and to the Company. An
Exchangeable Company Interest representing the Company's interest in the Trust
was issued to the Company pursuant to the Pooling Agreement on March 8, 2000.
The Exchangeable Company Interest represents the interest in the Trust Assets
not represented by the Investor Certificates and Subordinated Company Interest
of each Outstanding Series. The Exchangeable Company Interest may be decreased
by the Company pursuant to the Pooling Agreement in exchange for an increase in
the Invested Amount of a Class of Investor Certificates of an Outstanding Series
and an increase in the related Series Subordinated Company Interest, or one or
more newly issued Series of Investor Certificates and the related newly issued
Series Subordinated Company Interest, upon the conditions set forth in the
Pooling Agreement.
Interest on the Class A Invested Amount will be distributed to the
Class A Certificateholders on each Payment Date. The interest payable on each
Payment Date shall be an amount equal to the product of (i) the Class A
Certificate Rate, (ii) the Class A Invested Amount on the first day of such
Accrual Period (after giving effect to any distributions of principal on such
date) and (iii) the actual number of days in such Accrual Period divided by 360.
Interest due but not paid on any Payment Date (the "Class-A Interest Shortfall")
will be due on the next Payment Date, together with interest on such amount
equal to the product, for the Accrual Period succeeding such Accrual Period (or
portion thereof) until such Class A Interest Shortfall is paid, of (i) a rate
per annum equal to the Class A Certificate Rate, (ii) such Class A Interest
Shortfall (or the portion thereof which has not been paid to the Class A
Certificateholders) and (iii) the actual number of days in such succeeding
Accrual Period divided by 360.
A-3
<PAGE> 45
On each Payment Date during the Series 1993-2 Amortization Period, a
Series 1993-2 Monthly Principal Payment shall be made from amounts deposited
into the Series 1993-2 Principal Collection Subsubaccount during the preceding
Accrual Period (after the payment of any Servicing Fees due to the Successor
Servicer), pro rata to the Class A Certificateholders until repayment in full of
the Class A Invested Amount on such date. The Class A Invested Amount may be
otherwise reduced by distributions to the Class A Certificateholders as set
forth in the Agreement.
Distributions with respect to this Class A Certificate shall be paid by
the Trustee or its agent in immediately available funds to the Class A
Certificateholder at the registered address of the Class A Certificateholder as
provided to the Trustee. Final payment of this Class A Certificate shall be made
after due notice of such final distribution delivered by the Trustee to the
Class A Certificateholders in accordance with the Agreement. The Class A
Invested Amount may be prepaid by the Company in accordance with the Agreement.
This Class A Certificate does not represent an obligation of, or an
interest in, the Company, the Servicer or any Affiliate of either of them.
Subject to the provisions of the Agreement, the transfer of this Class
A Certificate shall be registered in the Certificate Register upon surrender of
this Class A Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee and the Transfer
Agent and Registrar, duly executed by the Class A Certificateholder or the Class
A Certificateholder's attorney-in-fact duly authorized in writing, and thereupon
one or more Class A Certificates of authorized denominations and of like
Investor Certificateholders' Interests will be issued to the designated
transferee or transferees.
The Trustee, the Company, the Paying Agent, the Transfer Agent and
Registrar and any agent of either of them, may treat the person in whose name
this Class A Certificate is registered as the owner hereof for all purposes.
It is expressly understood and agreed by the Company and the Class A
Certificateholder that (i) the Agreement is executed and delivered by the
Trustee, not individually or personally but solely as Trustee of the Trust, in
the exercise of the powers and authority conferred and vested in it, (ii) except
as set forth in the Agreement, the representations, undertakings and agreements
made on the part of the Trust in the Agreement are made and intended not as
personal representations, undertakings and agreements by the Trustee, but are
made and intended for the purpose of binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability of the Trustee,
individually or personally, to perform any covenant either expressed or implied
made on the part of the Trust in the Agreement, all such liability, if any,
being expressly waived by the parties who are signatories to the Agreement and
by any Person claiming by, through or under such parties; provided, however, the
Trustee shall be liable in its individual capacity for its own willful
misconduct or negligence and for any tax assessed against the Trustee based on
or measured by any fees, commission or compensation received by it for acting as
Trustee and (iv) under no circumstances shall the Trustee be personally liable
for the payment of any indebtedness or expenses of the Trust or be liable for
the
A-4
<PAGE> 46
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trust under the Agreement.
This Class A Certificate shall be construed in accordance with and
governed by the laws of the State of New York without reference to any conflict
of law principles.
The Class A Certificateholder hereby agrees that, prior to the date
which is one year and one day after the later of (i) the last day of the Series
1993-2 Amortization Period and (ii) the date that any Investor Certificates of
any other Outstanding Series are paid in full, it will not institute against, or
join any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
similar proceedings under any federal or state bankruptcy or similar law.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Class A Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-5
<PAGE> 47
IN WITNESS WHEREOF, the Company has caused this Amended and Restated
Class A Certificate to be duly executed.
Dated: ___________, 20__
INGRAM FUNDING INC., as
authorized pursuant to Section 5.01 of the
Pooling Agreement
By:________________________________________
Title:
A-6
<PAGE> 48
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the
within-mentioned Agreement.
The Chase Manhattan Bank,
not in its individual
capacity but solely
as Trustee,
By:___________________________ OR By:___________________________
Authorized Signatory Authenticating Agent
By:___________________________
Authorized Signatory
A-7
<PAGE> 49
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE(S)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints
- --------------------------------------------------------------------------------
attorney, with full power of substitution in the premises, to transfer said
certificate on the books kept for registration thereof.
The undersigned certifies that:
(check one)
[ ] The undersigned is transferring this Term Certificate to a
Person it reasonably believes is a "Qualified Institutional Buyer"
(as defined in Rule 144A under the Act) who has been informed that
the sale is being made in reliance upon Rule 144A.
[ ] The undersigned is transferring this Term Certificate in
accordance with the other provisions of the legends set forth
herein.
Dated:
----------------
----------------------------------------
Note: The signature(s) to this
Assignment must correspond with the
name(s) as written on the face of the
within certificate in every particular,
without alteration or any change
whatsoever.
A-8
<PAGE> 50
EXHIBIT B TO
SERIES 1993-2 SUPPLEMENT
FORM OF DAILY REPORT
Attached.
<PAGE> 51
INGRAM FUNDING MASTER TRUST
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Company Interest Series 1993-2 Series 1994-2 Series 1994-3
-----------------------------------------------------------------------------
Investor Interest Investor Interest Investor Interest Investor Interest
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance
Plus: Gross Credit Sales
Plus: Inter-Co. Sales
Less: Inter-Co. Collections
Less: Collections
Less: Net Write-Offs
Less: Total Dilution Adjustments
Plus/Less: A/R Adjustments
Less: Repurchased Receivables
Ending Receivables Balance
Less: Defaulted Receivables
Less: Total Ineligible Receivables
Total Eligible Receivables
Less: Overconcentration Amount
Aggregate Receivables Amount
Invested Amount #N/A #N/A #N/A
Adjusted Invested Amount #N/A #N/A #N/A
Required Subordinated Amount #N/A #N/A #N/A
Target Receivables Amount #N/A #N/A #N/A
Allocated Receivables Amount #N/A #N/A #N/A #N/A
Collateral Compliance #N/A #N/A #N/A
Ending Invested % #N/A #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Trasfered to Collection Account
(Aggregate Daily Collections)
B) Trasfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A #N/A #N/A
C) Trasfer to Company Collection
Subaccount (from A) #N/A
D) Trasfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A #N/A #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A #N/A #N/A
H) Trasfer to Company
Collection Subaccount (from B) #N/A #N/A #N/A
I) Trasfer to Company Collection
Subaccount (from F) -
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15) -
---
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily)
J) Total Trasfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A #N/A #N/A
-----------------------------------------------------------------------
Total Held at Trust #N/A #N/A #N/A
- ---------------------------------------------------------------------------------------------------------------------
<CAPTION>
REPORT DATE ACTIVITY DATE
6-Mar-00
- ----------------------------------------------------------------------------
Series 2000-1
------------------- Pool
Investor Interest Balance
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
POOL ACTIVITY
Beginning Receivables Balance #N/A
Plus: Gross Credit Sales #N/A
Plus: Inter-Co. Sales #N/A
Less: Inter-Co. Collections #N/A
Less: Collections #N/A
Less: Net Write-Offs #N/A
Less: Total Dilution Adjustments #N/A
Plus/Less: A/R Adjustments #N/A
Less: Repurchased Receivables #N/A
-----------
Ending Receivables Balance #N/A
#N/A
Less: Defaulted Receivables #N/A
Less: Total Ineligible Receivables #N/A
-----------
Total Eligible Receivables #N/A
Less: Overconcentration Amount #N/A
-----------
Aggregate Receivables Amount #N/A
#N/A
Invested Amount #N/A
Adjusted Invested Amount #N/A
Required Subordinated Amount #N/A
Target Receivables Amount #N/A
Allocated Receivables Amount #N/A #N/A
Collateral Compliance #N/A
Ending Invested % #N/A #N/A
- ----------------------------------------------------------------------------
DAILY ALLOCATION OF COLLECTIONS
A) Amt. Trasfered to Collection Account
(Aggregate Daily Collections) #N/A
B) Trasfer to Series '93,'94,'94,'00
Collection Subaccounts (from A) #N/A
C) Trasfer to Company Collection
Subaccount (from A)
D) Trasfer to Series Non-Principal
Collection Sub-subaccount (from B) #N/A
E) Transfer to Series Accrued
Interest Sub-subaccount (from D) #N/A
F) Transfer to Series Principal
Collection Sub-subaccount (from B) #N/A
G) Amount to hold in Principal
Collection Sub-subaccount (from B) #N/A
H) Trasfer to Company
Collection Subaccount (from B) #N/A
I) Trasfer to Company Collection
Subaccount (from F)
Wire to Series 1993-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-2 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 1994-3 (Interest due
3/15, 6/15, 9/15 and 12/15)
Wire to Series 2000-1 (Interest due
5th - Program Costs Daily) -
---
J) Total Trasfer to Company Collection
Subaccount (Wire to Company) #N/A #N/A
-------------------------------------
Total Held at Trust #N/A #N/A
- ----------------------------------------------------------------------------
#N/A
</TABLE>
The undersigned, an Officer of Ingram Micro, as Master Servicer, certifies that
the information set forth above is true and correct and it has performed in all
material respects all of its obligations as Servicer under the Pooling and
Servicing Agreements required to be performed as of the date hereof.
Signature: Name: Title: Date:
- --------------------------------------------------------------------------------
1
<PAGE> 52
EXHIBIT C TO
SERIES 1993-2 SUPPLEMENT
------------------------
FORM OF MONTHLY SETTLEMENT STATEMENT
Attached.
C-1
<PAGE> 53
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00 Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(Non-Inter-Co.)
Beginning Gross Gross Credit Inter-Co. Inter-Co. (Non-Inter-Co.)
Receivable Balance Sales Sales Collections Collections Net Write-Offs
==================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Dilutative Items
----------------------
Defective Non-
Product Resellable
========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals : 0.00 0.00
</TABLE>
Index-> #N/A
2
<PAGE> 54
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
Dilutative Items
------------------------------------------------------------------ Total
Stock A/P Wrong Daily Credits Other Dilutative A/R
Balancing Adjustments Shipment In Other A/R Dilutive Adjustments Adjustments
==============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
=====
Totals : 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
<TABLE>
<CAPTION>
Ending
Repurchased Receivables
Receivables Balance
===========================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
=====
Totals : 0.00
</TABLE>
Index-> #N/A
3
<PAGE> 55
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
DEFAULTED RECEIVABLES INELIGIBLE RECEIVABLES
----------------------------------------------------------------------------------------------------
61-90 Days 91-120 Days 121+ Days Credits Over 60 35% Cross Aged Federal
Past Due Past Due Past Due Past Due >121 Days Government Inter-Company
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------
Foreign Contra
Select Source Receivables Balances
-------------------------------------
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
4
<PAGE> 56
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
INELIGIBLE RECEIVABLES
-------------------------------------------------------------------------------------------------------------
Non Qualifying Customers with Trade Litigation & Unaplied Cash Accured
ChargeBacks DIP Obligor Terms > 90 Days Discounts Collection Adjustment Pricing Credits Other
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Totals :
</TABLE>
<TABLE>
<CAPTION>
Total Total
Ineligible Eligible
Receivables Receivables
--------------------------
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00
Monday 3-Apr-00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00
Friday 7-Apr-00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00
Monday 10-Apr-00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00
Friday 14-Apr-00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00
Monday 17-Apr-00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00
Friday 21-Apr-00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00
Monday 24-Apr-00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00
Friday 28-Apr-00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00
Monday 1-May-00 0.00 0.00
Tuesday 2-May-00 0.00 0.00
Wednesday 3-May-00 0.00 0.00
Thursday 4-May-00 0.00 0.00
Totals :
</TABLE>
Index-> #N/A
5
<PAGE> 57
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
(EARLY) AMORTIZATION PERIOD ONLY
----------------------------------------------
Repurchase Repurchase Overconcentration Aggregate
Overconcentration Obligation for Obligation for plus Ineligible Receivables
Amount Defaulted Receivables Ineligible Receivables Receivables Amount
========================================================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 2-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 3-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 4-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 5-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 6-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 7-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 8-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 9-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 10-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 11-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 12-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 13-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 14-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 15-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 16-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 17-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 18-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 19-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 20-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 21-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 22-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 23-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 24-Apr-00 0.00 0.00 0.00 0.00 0.00
Tuesday 25-Apr-00 0.00 0.00 0.00 0.00 0.00
Wednesday 26-Apr-00 0.00 0.00 0.00 0.00 0.00
Thursday 27-Apr-00 0.00 0.00 0.00 0.00 0.00
Friday 28-Apr-00 0.00 0.00 0.00 0.00 0.00
Saturday 29-Apr-00 0.00 0.00 0.00 0.00 0.00
Sunday 30-Apr-00 0.00 0.00 0.00 0.00 0.00
Monday 1-May-00 0.00 0.00 0.00 0.00 0.00
Tuesday 2-May-00 0.00 0.00 0.00 0.00 0.00
Wednesday 3-May-00 0.00 0.00 0.00 0.00 0.00
Thursday 4-May-00 0.00 0.00 0.00 0.00 0.00
Totals :
<CAPTION>
-------------------
Series 1993-2
Invested Amount
===================
<S> <C>
1-Apr-00 -
2-Apr-00 -
3-Apr-00 -
4-Apr-00 -
5-Apr-00 -
6-Apr-00 -
7-Apr-00 -
8-Apr-00 -
9-Apr-00 -
10-Apr-00 -
11-Apr-00 -
12-Apr-00 -
13-Apr-00 -
14-Apr-00 -
15-Apr-00 -
16-Apr-00 -
17-Apr-00 -
18-Apr-00 -
19-Apr-00 -
20-Apr-00 -
21-Apr-00 -
22-Apr-00 -
23-Apr-00 -
24-Apr-00 -
25-Apr-00 -
26-Apr-00 -
27-Apr-00 -
28-Apr-00 -
29-Apr-00 -
30-Apr-00 -
1-May-00 -
2-May-00 -
3-May-00 -
4-May-00 -
</TABLE>
Index-> #N/A
6
<PAGE> 58
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-----------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Sub-Acct. Principal Invested Subordinated Required
Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================
<S> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 - - - #DIV/0! 0.00%
Sunday 2-Apr-00 - - - #DIV/0! 0.00%
Monday 3-Apr-00 - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 - - - #DIV/0! 0.00%
Thursday 6-Apr-00 - - - #DIV/0! 0.00%
Friday 7-Apr-00 - - - #DIV/0! 0.00%
Saturday 8-Apr-00 - - - #DIV/0! 0.00%
Sunday 9-Apr-00 - - - #DIV/0! 0.00%
Monday 10-Apr-00 - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 - - - #DIV/0! 0.00%
Thursday 13-Apr-00 - - - #DIV/0! 0.00%
Friday 14-Apr-00 - - - #DIV/0! 0.00%
Saturday 15-Apr-00 - - - #DIV/0! 0.00%
Sunday 16-Apr-00 - - - #DIV/0! 0.00%
Monday 17-Apr-00 - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 - - - #DIV/0! 0.00%
Thursday 20-Apr-00 - - - #DIV/0! 0.00%
Friday 21-Apr-00 - - - #DIV/0! 0.00%
Saturday 22-Apr-00 - - - #DIV/0! 0.00%
Sunday 23-Apr-00 - - - #DIV/0! 0.00%
Monday 24-Apr-00 - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 - - - #DIV/0! 0.00%
Thursday 27-Apr-00 - - - #DIV/0! 0.00%
Friday 28-Apr-00 - - - #DIV/0! 0.00%
Saturday 29-Apr-00 - - - #DIV/0! 0.00%
Sunday 30-Apr-00 - - - #DIV/0! 0.00%
Monday 1-May-00 - - - #DIV/0! 0.00%
Tuesday 2-May-00 - - - #DIV/0! 0.00%
Wednesday 3-May-00 - - - #DIV/0! 0.00%
Thursday 4-May-00 - - - #DIV/0! 0.00%
Totals :
<CAPTION>
SERIES 1993-2 MEDIUM TERM NOTES
-------------------------------
Series 1993-2
Carrying Cost Servicing
Reserve % Reserve %
===============================
<S> <C> <C> <C>
Saturday 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 0.00% 0.00%
Monday 1-May-00 0.00% 0.00%
Tuesday 2-May-00 0.00% 0.00%
Wednesday 3-May-00 0.00% 0.00%
Thursday 4-May-00 0.00% 0.00%
Totals:
</TABLE>
Index-> #N/A
7
<PAGE> 59
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-2 MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-2 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
=============================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
<CAPTION>
-----------------------------------
Series 1994-2
Carrying Cost Servicing
Reserve % Reserve %
===================================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
8
<PAGE> 60
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
SERIES 1994-3 MEDIUM TERM NOTES
------------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 1994-3 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
==========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
<CAPTION>
---------------------------
Series 1994-3
Carrying Cost Servicing
Reserve % Reserve %
===========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
9
<PAGE> 61
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
----------------------------------------------------------------------------------------
Principal Cumulative Adjusted Required
Series 2000-1 Sub-Acct. Principal Invested Subordinated Required
Invested Amount Deposit Amount Sub-Acct. Amount Amount Reserve %
========================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 - - - - #DIV/0! 0.00%
Sunday 2-Apr-00 2-Apr-00 - - - - #DIV/0! 0.00%
Monday 3-Apr-00 3-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 4-Apr-00 4-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 5-Apr-00 5-Apr-00 - - - - #DIV/0! 0.00%
Thursday 6-Apr-00 6-Apr-00 - - - - #DIV/0! 0.00%
Friday 7-Apr-00 7-Apr-00 - - - - #DIV/0! 0.00%
Saturday 8-Apr-00 8-Apr-00 - - - - #DIV/0! 0.00%
Sunday 9-Apr-00 9-Apr-00 - - - - #DIV/0! 0.00%
Monday 10-Apr-00 10-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 11-Apr-00 11-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 12-Apr-00 12-Apr-00 - - - - #DIV/0! 0.00%
Thursday 13-Apr-00 13-Apr-00 - - - - #DIV/0! 0.00%
Friday 14-Apr-00 14-Apr-00 - - - - #DIV/0! 0.00%
Saturday 15-Apr-00 15-Apr-00 - - - - #DIV/0! 0.00%
Sunday 16-Apr-00 16-Apr-00 - - - - #DIV/0! 0.00%
Monday 17-Apr-00 17-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 18-Apr-00 18-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 19-Apr-00 19-Apr-00 - - - - #DIV/0! 0.00%
Thursday 20-Apr-00 20-Apr-00 - - - - #DIV/0! 0.00%
Friday 21-Apr-00 21-Apr-00 - - - - #DIV/0! 0.00%
Saturday 22-Apr-00 22-Apr-00 - - - - #DIV/0! 0.00%
Sunday 23-Apr-00 23-Apr-00 - - - - #DIV/0! 0.00%
Monday 24-Apr-00 24-Apr-00 - - - - #DIV/0! 0.00%
Tuesday 25-Apr-00 25-Apr-00 - - - - #DIV/0! 0.00%
Wednesday 26-Apr-00 26-Apr-00 - - - - #DIV/0! 0.00%
Thursday 27-Apr-00 27-Apr-00 - - - - #DIV/0! 0.00%
Friday 28-Apr-00 28-Apr-00 - - - - #DIV/0! 0.00%
Saturday 29-Apr-00 29-Apr-00 - - - - #DIV/0! 0.00%
Sunday 30-Apr-00 30-Apr-00 - - - - #DIV/0! 0.00%
Monday 1-May-00 1-May-00 - - - - #DIV/0! 0.00%
Tuesday 2-May-00 2-May-00 - - - - #DIV/0! 0.00%
Wednesday 3-May-00 3-May-00 - - - - #DIV/0! 0.00%
Thursday 4-May-00 4-May-00 - - - - #DIV/0! 0.00%
Totals :
</TABLE>
<TABLE>
<CAPTION>
--------------------------
Carrying Cost Servicing
Reserve % Reserve %
=========================
<S> <C> <C> <C> <C>
Saturday 1-Apr-00 1-Apr-00 0.00% 0.00%
Sunday 2-Apr-00 2-Apr-00 0.00% 0.00%
Monday 3-Apr-00 3-Apr-00 0.00% 0.00%
Tuesday 4-Apr-00 4-Apr-00 0.00% 0.00%
Wednesday 5-Apr-00 5-Apr-00 0.00% 0.00%
Thursday 6-Apr-00 6-Apr-00 0.00% 0.00%
Friday 7-Apr-00 7-Apr-00 0.00% 0.00%
Saturday 8-Apr-00 8-Apr-00 0.00% 0.00%
Sunday 9-Apr-00 9-Apr-00 0.00% 0.00%
Monday 10-Apr-00 10-Apr-00 0.00% 0.00%
Tuesday 11-Apr-00 11-Apr-00 0.00% 0.00%
Wednesday 12-Apr-00 12-Apr-00 0.00% 0.00%
Thursday 13-Apr-00 13-Apr-00 0.00% 0.00%
Friday 14-Apr-00 14-Apr-00 0.00% 0.00%
Saturday 15-Apr-00 15-Apr-00 0.00% 0.00%
Sunday 16-Apr-00 16-Apr-00 0.00% 0.00%
Monday 17-Apr-00 17-Apr-00 0.00% 0.00%
Tuesday 18-Apr-00 18-Apr-00 0.00% 0.00%
Wednesday 19-Apr-00 19-Apr-00 0.00% 0.00%
Thursday 20-Apr-00 20-Apr-00 0.00% 0.00%
Friday 21-Apr-00 21-Apr-00 0.00% 0.00%
Saturday 22-Apr-00 22-Apr-00 0.00% 0.00%
Sunday 23-Apr-00 23-Apr-00 0.00% 0.00%
Monday 24-Apr-00 24-Apr-00 0.00% 0.00%
Tuesday 25-Apr-00 25-Apr-00 0.00% 0.00%
Wednesday 26-Apr-00 26-Apr-00 0.00% 0.00%
Thursday 27-Apr-00 27-Apr-00 0.00% 0.00%
Friday 28-Apr-00 28-Apr-00 0.00% 0.00%
Saturday 29-Apr-00 29-Apr-00 0.00% 0.00%
Sunday 30-Apr-00 30-Apr-00 0.00% 0.00%
Monday 1-May-00 1-May-00 0.00% 0.00%
Tuesday 2-May-00 2-May-00 0.00% 0.00%
Wednesday 3-May-00 3-May-00 0.00% 0.00%
Thursday 4-May-00 4-May-00 0.00% 0.00%
Totals :
</TABLE>
Index-> #N/A
10
<PAGE> 62
INGRAM FUNDING MASTER TRUST
Beginning Date 1-Apr-00
Ending Date 1-May-00
<TABLE>
<CAPTION>
2000-1 ESTIMATED ESTIMATED
Maximum 2000-1 Allocated Maximum 2000-1
Target Receivables Receivables Required Maximum 2000-1
Amount Amount Subordinated Amount Invested Amount
<S> <C> <C> <C> <C> <C>
Saturday 1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Friday 28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Saturday 29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sunday 30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Monday 1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Tuesday 2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Wednesday 3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Thursday 4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Totals :
<CAPTION>
MTN MTN MTN VFC
1993-2 1994-2 1994-3 2000-1
Invested Invested Invested Invested
% % % %
==========================================================
<S> <C> <C> <C> <C> <C>
31-Mar-00 0.00% 0.00% 0.00% 0.00%
1-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
5-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
6-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
7-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
8-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
9-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
10-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
11-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
12-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
13-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
14-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
15-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
16-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
17-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
18-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
19-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
20-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
21-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
22-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
23-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
24-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
25-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
26-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
27-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
28-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
29-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
30-Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
1-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
2-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
3-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
4-May-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
Index-> #N/A
11
<PAGE> 63
Overconcentration
OVERCONCENTRATION GRID:
<TABLE>
<CAPTION>
SHORT-TERM LONG-TERM
<S> <C> <C>
A-1+,F-1+,P-1 AA-, AA-, Aa3 15.00%
A-1,F-1,P-1 A+, A+, A1 15.00%
A-2,F-2,P-2 BBB+, BBB+, Baa1 7.50%
A-3,F-3,P-3 BBB-, BBB-, Baa3 5.00%
UNRATED UNRATED 3.00%
ELIGIBLE RECEIVABLES:
REPORT CHECK: 0.00
</TABLE>
REPORT DATE ACTIVITY DATE
6-Mar-00
S&P RATING DESK: (212) 438-2400
MOODY'S RATING DESK: (212) 553-0377
FITCH RATING DESK: (800) 853-4824 FAX: (307) 754-3721
(Total Eligible Receivables per Daily Statement - Cell F24)
<TABLE>
<CAPTION>
RATING ELIGIBLE CONCENTRATION EXCESS
CUSTOMER S&P/MOODY'S/FITCH A/R BALANCE % OF ELIGIBLES $ THRESHOLD % CONCENTRATION
--------------------------------------------- -------------- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 #DIV/0! - #DIV/0! -
2 #DIV/0! - #DIV/0! -
3 #DIV/0! - #DIV/0! -
4 #DIV/0! - #DIV/0! -
5 #DIV/0! - #DIV/0! -
6 #DIV/0! - #DIV/0! -
7 #DIV/0! - #DIV/0! -
8 #DIV/0! - #DIV/0! -
9 #DIV/0! - #DIV/0! -
10 #DIV/0! - #DIV/0! -
11 #DIV/0! - #DIV/0! -
12 #DIV/0! - #DIV/0! -
13 #DIV/0! - #DIV/0! -
14 #DIV/0! - #DIV/0! -
15 #DIV/0! - #DIV/0! -
16 #DIV/0! - #DIV/0! -
17 #DIV/0! - #DIV/0! -
18 #DIV/0! - #DIV/0! -
19 #DIV/0! - #DIV/0! -
20 #DIV/0! - #DIV/0! -
---
$ -
===
</TABLE>
<PAGE> 64
INGRAM MICRO MASTER TRUST
MONTHLY RESERVES
($ in thousands)
<TABLE>
<CAPTION>
Aggregate
Principal Total Total Dollar Receivables
Non-I/C Amount of Dilutive A/R Weighted Amount Weighted
Sales Receivables Items Gross Written-Off Average (as of Mth end Ave.
Period Per Per Per A/R Prior Dilution on the daily Pay.
Ended Rollforward Rollforward Rollforward 91 - 120 to 91 Days Horizon statement) Terms
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0 0 0 0.00 - 0.0
Feb-97 0 0 0 0 0 0.00 - 0.0
Mar-97 0 0 0 0 0 0.00 - 0.0
Apr-97 0 0 0 0 0 0.00 - 0.0
May-97 0 0 0 0 0 0.00 - 0.0
Jun-97 0 0 0 0 0 0.00 - 0.0
Jul-97 0 0 0 0 0 0.00 - 0.0
Aug-97 0 0 0 0 0 0.00 - 0.0
Sep-97 0 0 0 0 0 0.00 - 0.0
Oct-97 0 0 0 0 0 0.00 - 0.0
Nov-97 0 0 0 0 0 0.00 - 0.0
Dec-97 0 0 0 0 0 0.00 - 0.0
Jan-98 0 0 0 0 0 0.00 - 0.0
Feb-98 0 0 0 0 0 0.00 - 0.0
Mar-98 0 0 0 0 0 0.00 - 0.0
Apr-98 0 0 0 0 0 0.00 - 0.0
May-98 0 0 0 0 0 0.00 - 0.0
Jun-98 0 0 0 0 0 0.00 - 0.0
Jul-98 0 0 0 0 0 0.00 - 0.0
Aug-98 0 0 0 0 0 0.00 - 0.0
Sep-98 0 0 0 0 0 0.00 - 0.0
Oct-98 0 0 0 0 0 0.00 - 0.0
Nov-98 0 0 0 0 0 0.00 - 0.0
Dec-98 0 0 0 0 0 0.00 - 0.0
Jan-99 0 0 0 0 0 0.00 - 0.0
Feb-99 0 0 0 0 0 0.00 - 0.0
Mar-99 0 0 0 0 0 0.00 - 0.0
Apr-99 0 0 0 0 0 0.00 - 0.0
May-99 0 0 0 0 0 0.00 - 0.0
Jun-99 0 0 0 0 0 0.00 - 0.0
Jul-99 0 0 0 0 0 0.00 - 0.0
Aug-99 0 0 0 0 0 0.00 - 0.0
Sep-99 0 0 0 0 0 0.00 - 0.0
Oct-99 0 0 0 0 0 0.00 - 0.0
Nov-99 0 0 0 0 0 0.00 - 0.0
Dec-99 0 0 0 0 0 0.00 - 0.0
Jan-00 0 0 0 0 0 0.00 - 0.0
Feb-00 0 0 0 0 0 0.00 - 0.0
Mar-00 0 0 0 0 0 0.00 - 0.0
Apr-00 0 0 0 0 0 0.00 - 0.0
<CAPTION>
Series Series Series Base
1993-2 1994-2 1994-3 Rate
Period Discount Discount Discount (Prime
Ended Rate Rate Rate Rate)
---------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97 6.61% 6.91% 7.17% 0.00%
Feb-97 6.61% 6.91% 7.17% 0.00%
Mar-97 6.61% 6.91% 7.17% 0.00%
Apr-97 6.61% 6.91% 7.17% 0.00%
May-97 6.61% 6.91% 7.17% 0.00%
Jun-97 6.61% 6.91% 7.17% 0.00%
Jul-97 6.61% 6.91% 7.17% 0.00%
Aug-97 6.61% 6.91% 7.17% 0.00%
Sep-97 6.61% 6.91% 7.17% 0.00%
Oct-97 6.61% 6.91% 7.17% 0.00%
Nov-97 6.61% 6.91% 7.17% 0.00%
Dec-97 6.61% 6.91% 7.17% 0.00%
Jan-98 6.61% 6.91% 7.17% 0.00%
Feb-98 6.61% 6.91% 7.17% 0.00%
Mar-98 6.61% 6.91% 7.17% 0.00%
Apr-98 6.61% 6.91% 7.17% 0.00%
May-98 6.61% 6.91% 7.17% 0.00%
Jun-98 6.61% 6.91% 7.17% 0.00%
Jul-98 6.61% 6.91% 7.17% 0.00%
Aug-98 6.61% 6.91% 7.17% 0.00%
Sep-98 6.61% 6.91% 7.17% 0.00%
Oct-98 6.61% 6.91% 7.17% 0.00%
Nov-98 6.61% 6.91% 7.17% 0.00%
Dec-98 6.61% 6.91% 7.17% 0.00%
Jan-99 6.61% 6.91% 7.17% 0.00%
Feb-99 6.61% 6.91% 7.17% 0.00%
Mar-99 6.61% 6.91% 7.17% 0.00%
Apr-99 6.61% 6.91% 7.17% 0.00%
May-99 6.61% 6.91% 7.17% 0.00%
Jun-99 6.61% 6.91% 7.17% 0.00%
Jul-99 6.61% 6.91% 7.17% 0.00%
Aug-99 6.61% 6.91% 7.17% 0.00%
Sep-99 6.61% 6.91% 7.17% 0.00%
Oct-99 6.61% 6.91% 7.17% 0.00%
Nov-99 6.61% 6.91% 7.17% 0.00%
Dec-99 6.61% 6.91% 7.17% 0.00%
Jan-00 6.61% 6.91% 7.17% 0.00%
Feb-00 6.61% 6.91% 7.17% 0.00%
Mar-00 6.61% 6.91% 7.17% 0.00%
Apr-00 6.61% 6.91% 7.17% 0.00%
</TABLE>
<PAGE> 65
<TABLE>
<CAPTION>
Three
Month Max.
Dilution Max. Average 12 Mth.
Servicing 12-month 12 Mth. Dilution Aged Aged Aged Payment
Period Fee Dilution Rolling Rolling Horizon Dilution A/R A/R A/R Terms
Ended Rate Ratio Average Avg. Factor Period Ratio Ratio Ratio Factor
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00%
Feb-97 0.00%
Mar-97 0.00% #DIV/0!
Apr-97 0.00% #DIV/0!
May-97 0.00% #DIV/0!
Jun-97 0.00% #DIV/0! #DIV/0!
Jul-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0!
Aug-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Sep-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Oct-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Nov-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Dec-97 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Jan-98 0.00% #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0!
Feb-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-98 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
May-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jun-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jul-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Aug-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Sep-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Oct-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Nov-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Dec-99 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Jan-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Feb-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Mar-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
Apr-00 0.00% #DIV/0! #DIV/0! #DIV/0! 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.00
</TABLE>
<TABLE>
<CAPTION>
Minimum
Payment Days
Period Terms Sales
Ended Factor Out.
-----------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0!
Jun-97 #DIV/0!
Jul-97 #DIV/0!
Aug-97 #DIV/0!
Sep-97 #DIV/0!
Oct-97 #DIV/0!
Nov-97 #DIV/0!
Dec-97 #DIV/0!
Jan-98 #DIV/0!
Feb-98 0.00 #DIV/0!
Mar-98 0.00 #DIV/0!
Apr-98 0.00 #DIV/0!
May-98 0.00 #DIV/0!
Jun-98 0.00 #DIV/0!
Jul-98 0.00 #DIV/0!
Aug-98 0.00 #DIV/0!
Sep-98 0.00 #DIV/0!
Oct-98 0.00 #DIV/0!
Nov-98 0.00 #DIV/0!
Dec-98 0.00 #DIV/0!
Jan-99 0.00 #DIV/0!
Feb-99 0.00 #DIV/0!
Mar-99 0.00 #DIV/0!
Apr-99 0.00 #DIV/0!
May-99 0.00 #DIV/0!
Jun-99 0.00 #DIV/0!
Jul-99 0.00 #DIV/0!
Aug-99 0.00 #DIV/0!
Sep-99 0.00 #DIV/0!
Oct-99 0.00 #DIV/0!
Nov-99 0.00 #DIV/0!
Dec-99 0.00 #DIV/0!
Jan-00 0.00 #DIV/0!
Feb-00 0.00 #DIV/0!
Mar-00 0.00 #DIV/0!
Apr-00 0.00 #DIV/0!
</TABLE>
<PAGE> 66
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
---------------------------------------------------------------------------------------------------------
MAX
(a) (b) (c) (A+B) OR (C)
aa bb cc Max
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
</TABLE>
<TABLE>
<CAPTION>
SERIES 1993-2, 1994-2, 1994-3 - MEDIUM TERM NOTES
-------------------------------------------------------
SERIES SERIES SERIES
1993-2 1994-2 1994-3
CARRYING CARRYING CARRYING
COST COST COST SERVICING
Period RESERVE RESERVE RESERVE FEE
Ended RATIO RATIO RATIO RATIO
-----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0! #DIV/0! #DIV/0!
May-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
--------------------------------------------------------------------------------------------------------
(a) (b) (c) MAX
aa bb cc Max (A+B) OR (C)
12 Mth. (aa*bb)+cc
Dilution Loss Avg. or 25% REQUIRED
Period Stress Reserve Reserve Dilution Dilution Minimum RESERVES
Ended Factor Ratio Ratio Ratio Period Ratio RATIO
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.00 0.0%
Feb-97 0.00 0.0%
Mar-97 0.00 0.0%
Apr-97 0.00 0.0%
May-97 0.00 0.0%
Jun-97 0.00 0.0%
Jul-97 0.00 #DIV/0! 0.0%
Aug-97 0.00 #DIV/0! 0.0%
Sep-97 0.00 #DIV/0! 0.0%
Oct-97 0.00 #DIV/0! 0.0%
Nov-97 0.00 #DIV/0! 0.0%
Dec-97 0.00 #DIV/0! 0.0%
Jan-98 0.00 #DIV/0! 0.0%
Feb-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-98 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
May-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jun-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jul-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Aug-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Sep-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Oct-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Nov-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Dec-99 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Jan-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Feb-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Mar-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
Apr-00 0.00 #DIV/0! #DIV/0! #DIV/0! #DIV/0! 0.0% #DIV/0! #DIV/0!
</TABLE>
<TABLE>
<CAPTION>
2000-1 VARIABLE FUNDING CERTIFICATES
------------------------------------
CARRYING
COST SERVICING
Period RESERVE FEE
Ended RATIO RATIO
- ------------------------------------------
<S> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97 #DIV/0!
May-97 #DIV/0! #DIV/0!
Jun-97 #DIV/0! #DIV/0!
Jul-97 #DIV/0! #DIV/0!
Aug-97 #DIV/0! #DIV/0!
Sep-97 #DIV/0! #DIV/0!
Oct-97 #DIV/0! #DIV/0!
Nov-97 #DIV/0! #DIV/0!
Dec-97 #DIV/0! #DIV/0!
Jan-98 #DIV/0! #DIV/0!
Feb-98 #DIV/0! #DIV/0!
Mar-98 #DIV/0! #DIV/0!
Apr-98 #DIV/0! #DIV/0!
May-98 #DIV/0! #DIV/0!
Jun-98 #DIV/0! #DIV/0!
Jul-98 #DIV/0! #DIV/0!
Aug-98 #DIV/0! #DIV/0!
Sep-98 #DIV/0! #DIV/0!
Oct-98 #DIV/0! #DIV/0!
Nov-98 #DIV/0! #DIV/0!
Dec-98 #DIV/0! #DIV/0!
Jan-99 #DIV/0! #DIV/0!
Feb-99 #DIV/0! #DIV/0!
Mar-99 #DIV/0! #DIV/0!
Apr-99 #DIV/0! #DIV/0!
May-99 #DIV/0! #DIV/0!
Jun-99 #DIV/0! #DIV/0!
Jul-99 #DIV/0! #DIV/0!
Aug-99 #DIV/0! #DIV/0!
Sep-99 #DIV/0! #DIV/0!
Oct-99 #DIV/0! #DIV/0!
Nov-99 #DIV/0! #DIV/0!
Dec-99 #DIV/0! #DIV/0!
Jan-00 #DIV/0! #DIV/0!
Feb-00 #DIV/0! #DIV/0!
Mar-00 #DIV/0! #DIV/0!
Apr-00 #DIV/0! #DIV/0!
</TABLE>
<PAGE> 68
INGRAM MICRO
OVERCOLLATERALIZATION SUMMARY
- --------------------------------------------------------------------------------
($ in thousands)
ASSUMPTIONS:
AGING TYPE Due To Date
CREDIT MEMO LAG 30 30
DILUTION HORIZON 30 30
DEFAULT HORIZON 90 90
DEEMED DEFAULTS 90-120 91-120
FIRST PERIOD OF DATA JAN-97
RATING FACTOR 2.00=A 2
PROJECTED ADV. RATE 75%
The Company's method of aging its receivables.
Lag from the original invoice date to the credit memo date.
This represents the number of days of sales GE Capital/Redwood is exposed to
dilution. This is based on the maximum of how many days of sales are in our
borrowing or A/R turnover.
This represents the number of days of sales GE Capital/Redwood is lending on.
(i.e. If we are lending up to 90 days past invoice date, we would have 90 days
of sales in our borrowing base or 3 months).
Represents the next aging category outside of our borrowing base window (i.e. If
we are lending up to 90 days past invoice date, our deemed default would be the
91-120 aging category).
The beginning period of our historical data.
The rating factor is the stress factor used to underwrite a pool to a certain
credit level. (AAA = 2.5, AA=2.25, A=2.00, BBB=1.75).
Projected advance rate based on ((2 times dilution) plus 5%).
<TABLE>
<CAPTION>
0.00% Max O/C
4/SALES AVG. OF LAST PRIOR 3 7X8
5 MONTHS AGO 3 MOS OF #5 OF 1 XFACTOR
1 2 3 4 5 6 7 8 9
91-120 Monthly 3 Month Highest Prior Default Rating
Month Sales A/R Dilutions Bucket Def. Ratio Average 12 mos of #6 Horizon Factor
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - -
Feb-97 - - - -
Mar-97 - - - -
Apr-97 - - - -
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-97 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-98 - - - - #DIV/0! 0.00% 0.00% 0 0
May-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-98 - - - - #DIV/0! 0.00% 0.00% 0 0
Jan-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Feb-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Mar-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Apr-99 - - - - #DIV/0! 0.00% 0.00% 0 0
May-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jun-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Jul-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Aug-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Sep-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Oct-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Nov-99 - - - - #DIV/0! 0.00% 0.00% 0 0
Dec-99 - - - - #DIV/0! 0.00% 0.00% 0 0
<CAPTION>
3/1,1 SUM 12 MOS. PRIOR 1 HIGHEST PRIOR 4
MOS. AGO 10/TWELVE MOS. OF 1 11x12xFACT. TWELVE OF 10 14-11 14/11 12x15x16
10 11 12 13 14 15 16 17
Dilution 12 Month Avg Dilution Normal "Spike" Spike Less Spike Divided Spike
Month Percent Dil/Sales Horizon Dilution 12 Mos Avg 12 Month Avg Impact
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97 0.00%
Jun-97 0.00%
Jul-97 0.00%
Aug-97 0.00%
Sep-97 0.00%
Oct-97 0.00%
Nov-97 0.00%
Dec-97 0.00%
Jan-98 0.00%
Feb-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-98 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jan-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Feb-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Mar-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Apr-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
May-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jun-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Jul-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Aug-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Sep-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Oct-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Nov-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
Dec-99 0.00% 0.00% 0 0 0.00% 0.00% 0.00% 0
<CAPTION>
(13+17)/2 9/2 18+19
18 19 20 21
Dilution Default Total GECC
Month Coverage Coverage O/C LOC
------------------------------------------------------------------
<S> <C> <C> <C> <C>
Jan-97
Feb-97
Mar-97
Apr-97
May-97
Jun-97
Jul-97
Aug-97
Sep-97
Oct-97
Nov-97
Dec-97
Jan-98
Feb-98 0.00% 0.00% 0.00% 0.00%
Mar-98 0.00% 0.00% 0.00% 0.00%
Apr-98 0.00% 0.00% 0.00% 0.00%
May-98 0.00% 0.00% 0.00% 0.00%
Jun-98 0.00% 0.00% 0.00% 0.00%
Jul-98 0.00% 0.00% 0.00% 0.00%
Aug-98 0.00% 0.00% 0.00% 0.00%
Sep-98 0.00% 0.00% 0.00% 0.00%
Oct-98 0.00% 0.00% 0.00% 0.00%
Nov-98 0.00% 0.00% 0.00% 0.00%
Dec-98 0.00% 0.00% 0.00% 0.00%
Jan-99 0.00% 0.00% 0.00% 0.00%
Feb-99 0.00% 0.00% 0.00% 0.00%
Mar-99 0.00% 0.00% 0.00% 0.00%
Apr-99 0.00% 0.00% 0.00% 0.00%
May-99 0.00% 0.00% 0.00% 0.00%
Jun-99 0.00% 0.00% 0.00% 0.00%
Jul-99 0.00% 0.00% 0.00% 0.00%
Aug-99 0.00% 0.00% 0.00% 0.00%
Sep-99 0.00% 0.00% 0.00% 0.00%
Oct-99 0.00% 0.00% 0.00% 0.00%
Nov-99 0.00% 0.00% 0.00% 0.00%
Dec-99 0.00% 0.00% 0.00% 0.00%
</TABLE>
17
<PAGE> 69
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
18
<PAGE> 70
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS - PREVIOUS MASTER TRUST (SELECT SOURCE ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - -
Feb-97 - - - - - - - - -
Mar-97 - - - - - - - - -
Apr-97 - - - - - - - - -
May-97 - - - - - - - - -
Jun-97 - - - - - - - - -
Jul-97 - - - - - - - - -
Aug-97 - - - - - - - - -
Sep-97 - - - - - - - - -
Oct-97 - - - - - - - - -
Nov-97 - - - - - - - - -
Dec-97 - - - - - - - - -
Jan-98 - - - - - - - - -
Feb-98 - - - - - - - - -
Mar-98 - - - - - - - - -
Apr-98 - - - - - - - - -
May-98 - - - - - - - - -
Jun-98 - - - - - - - - -
Jul-98 - - - - - - - - -
Aug-98 - - - - - - - - -
Sep-98 - - - - - - - - -
Oct-98 - - - - - - - - -
Nov-98 - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - 0.0%
Jan-98 - - - - 28 - 0.0%
Feb-98 - - - - 28 - 0.0%
Mar-98 - - - - 35 - 0.0%
Apr-98 - - - - 28 - 0.0%
May-98 - - - - 28 - 0.0%
Jun-98 - - - - 35 - 0.0%
Jul-98 - - - - 28 - 0.0%
Aug-98 - - - - 28 - 0.0%
Sep-98 - - - - 35 - 0.0%
Oct-98 - - - - 28 - 0.0%
Nov-98 - - - - 28 - 0.0%
Dec-98 - - - - 35 - 0.0%
Jan-99 - - - - 28 - 0.0%
Feb-99 - - - - 28 - 0.0%
Mar-99 - - - - 35 - 0.0%
Apr-99 - - - - 28 - 0.0%
May-99 - - - - 28 - 0.0%
Jun-99 - - - - 35 - 0.0%
Jul-99 - - - - 28 - 0.0%
Aug-99 - - - - 28 - 0.0%
Sep-99 - - - - 35 - 0.0%
Oct-99 - - - - 28 - 0.0%
Nov-99 - - - - 28 - 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
19
<PAGE> 71
INGRAM MICRO
ACCOUNTS RECEIVABLE STATISTICS (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
NOTE: REDUCTIONS TO THE BOM A/R BALANCE NEED TO BE INPUTTED AS A NEGATIVE
NUMBER.
<TABLE>
<CAPTION>
Dilutive
------------------------------------------
BOM Gross Credit Inter-Co. Inter-Co. Defective Non- Stock A/P
Period A/R Balance Sales Sales Collections Collections Write-offs Product Resellable Balancing Adj.
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - - -
Feb-97 - - - - - - - - - -
Mar-97 - - - - - - - - - -
Apr-97 - - - - - - - - - -
May-97 - - - - - - - - - -
Jun-97 - - - - - - - - - -
Jul-97 - - - - - - - - - -
Aug-97 - - - - - - - - - -
Sep-97 - - - - - - - - - -
Oct-97 - - - - - - - - - -
Nov-97 - - - - - - - - - -
Dec-97 - - - - - - - - - -
Jan-98 - - - - - - - - - -
Feb-98 - - - - - - - - - -
Mar-98 - - - - - - - - - -
Apr-98 - - - - - - - - - -
May-98 - - - - - - - - - -
Jun-98 - - - - - - - - - -
Jul-98 - - - - - - - - - -
Aug-98 - - - - - - - - - -
Sep-98 - - - - - - - - - -
Oct-98 - - - - - - - - - -
Nov-98 - - - - - - - - - -
Dec-98 - - - - - - - - - -
Jan-99 - - - - - - - - - -
Feb-99 - - - - - - - - - -
Mar-99 - - - - - - - - - -
Apr-99 - - - - - - - - - -
May-99 - - - - - - - - - -
Jun-99 - - - - - - - - - -
Jul-99 - - - - - - - - - -
Aug-99 - - - - - - - - - -
Sep-99 - - - - - - - - - -
Oct-99 - - - - - - - - - -
Nov-99 - - - - - - - - - -
Dec-99 - - - - - - - - - -
Jan-00 - - - - - - - - - -
Feb-00 - - - - - - - - - -
</TABLE>
<TABLE>
<CAPTION>
Dilutive
-------------------
Turnover (w/o I/C) Dilution
Wrong Other Total EOM ------------------- -----------------
Period Shipment Dilutive Dilutive A/R Balance Days Mos. 12 Mos. Roll Mos. 12 Mos. Roll
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - 28 - 0.0%
Feb-97 - - - - 28 - 0.0%
Mar-97 - - - - 35 - 0.0%
Apr-97 - - - - 28 - 0.0%
May-97 - - - - 28 - 0.0%
Jun-97 - - - - 35 - 0.0%
Jul-97 - - - - 28 - 0.0%
Aug-97 - - - - 28 - 0.0%
Sep-97 - - - - 35 - 0.0%
Oct-97 - - - - 28 - 0.0%
Nov-97 - - - - 28 - 0.0%
Dec-97 - - - - 35 - - 0.0% 0.0%
Jan-98 - - - - 28 - - 0.0% 0.0%
Feb-98 - - - - 28 - - 0.0% 0.0%
Mar-98 - - - - 35 - - 0.0% 0.0%
Apr-98 - - - - 28 - - 0.0% 0.0%
May-98 - - - - 28 - - 0.0% 0.0%
Jun-98 - - - - 35 - - 0.0% 0.0%
Jul-98 - - - - 28 - - 0.0% 0.0%
Aug-98 - - - - 28 - - 0.0% 0.0%
Sep-98 - - - - 35 - - 0.0% 0.0%
Oct-98 - - - - 28 - - 0.0% 0.0%
Nov-98 - - - - 28 - - 0.0% 0.0%
Dec-98 - - - - 35 - - 0.0% 0.0%
Jan-99 - - - - 28 - - 0.0% 0.0%
Feb-99 - - - - 28 - - 0.0% 0.0%
Mar-99 - - - - 35 - - 0.0% 0.0%
Apr-99 - - - - 28 - - 0.0% 0.0%
May-99 - - - - 28 - - 0.0% 0.0%
Jun-99 - - - - 35 - - 0.0% 0.0%
Jul-99 - - - - 28 - - 0.0% 0.0%
Aug-99 - - - - 28 - - 0.0% 0.0%
Sep-99 - - - - 35 - - 0.0% 0.0%
Oct-99 - - - - 28 - - 0.0% 0.0%
Nov-99 - - - - 28 - - 0.0% 0.0%
Dec-99 - - - - 35 - - 0.0% 0.0%
Jan-00 - - - - 28 - - 0.0% 0.0%
Feb-00 - - - - 28 - - 0.0% 0.0%
</TABLE>
20
<PAGE> 72
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST
(NON CMD & SELECT SOURCE)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
21
<PAGE> 73
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE - PREVIOUS MASTER TRUST (SELECT SOURCE
ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date 13,196 12,649
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL
------ ---- ----- ----- ------ ---- -----
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
22
<PAGE> 74
INGRAM MICRO
ACCOUNTS RECEIVABLE AGING COMPARATIVE (NON CMD ONLY)
- --------------------------------------------------------------------------------
($ in thousands)
Aging Type - Due Date
<TABLE>
<CAPTION>
PERIOD DIFF CURRENT 1-30 31-60 61-90 91-120 120+ TOTAL DIFF CURRENT
------ ---- ------- ---- ----- ----- ------ ---- ----- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - - - - - 0.0% 0.0%
Feb-97 - - - - - - - - 0.0% 0.0%
Mar-97 - - - - - - - - 0.0% 0.0%
Apr-97 - - - - - - - - 0.0% 0.0%
May-97 - - - - - - - - 0.0% 0.0%
Jun-97 - - - - - - - - 0.0% 0.0%
Jul-97 - - - - - - - - 0.0% 0.0%
Aug-97 - - - - - - - - 0.0% 0.0%
Sep-97 - - - - - - - - 0.0% 0.0%
Oct-97 - - - - - - - - 0.0% 0.0%
Nov-97 - - - - - - - - 0.0% 0.0%
Dec-97 - - - - - - - - 0.0% 0.0%
Jan-98 - - - - - - - - 0.0% 0.0%
Feb-98 - - - - - - - - 0.0% 0.0%
Mar-98 - - - - - - - - 0.0% 0.0%
Apr-98 - - - - - - - - 0.0% 0.0%
May-98 - - - - - - - - 0.0% 0.0%
Jun-98 - - - - - - - - 0.0% 0.0%
Jul-98 - - - - - - - - 0.0% 0.0%
Aug-98 - - - - - - - - 0.0% 0.0%
Sep-98 - - - - - - - - 0.0% 0.0%
Oct-98 - - - - - - - - 0.0% 0.0%
Nov-98 - - - - - - - - 0.0% 0.0%
Dec-98 - - - - - - - - 0.0% 0.0%
Jan-99 - - - - - - - - 0.0% 0.0%
Feb-99 - - - - - - - - 0.0% 0.0%
Mar-99 - - - - - - - - 0.0% 0.0%
Apr-99 - - - - - - - - 0.0% 0.0%
May-99 - - - - - - - - 0.0% 0.0%
Jun-99 - - - - - - - - 0.0% 0.0%
Jul-99 - - - - - - - - 0.0% 0.0%
Aug-99 - - - - - - - - 0.0% 0.0%
Sep-99 - - - - - - - - 0.0% 0.0%
Oct-99 - - - - - - - - 0.0% 0.0%
Nov-99 - - - - - - - - 0.0% 0.0%
Dec-99 - - - - - - - - 0.0% 0.0%
Jan-00 - - - - - - - - 0.0% 0.0%
Feb-00 - - - - - - - - 0.0% 0.0%
</TABLE>
<TABLE>
<CAPTION>
PERIOD 1-30 31-60 61-90 91-120 120+ TOTAL Check S/B=0
------ ---- ----- ----- ------ ---- ----- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Jan-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-97 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-98 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Mar-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Apr-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
May-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jun-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jul-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Aug-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Sep-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Oct-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Nov-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Dec-99 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Jan-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% -
Feb-00 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
</TABLE>
23
<PAGE> 75
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 0 0 0.0% 0.0
Feb-97 0 0 0.0% 0.0
Mar-97 0 0 0.0% 0.0
Apr-97 0 0 0.0% 0.0
May-97 0 0 0.0% 0.0
Jun-97 0 0 0.0% 0.0% 0.0 -
Jul-97 0 0 0.0% 0.0% 0.0 -
Aug-97 0 0 0.0% 0.0% 0.0 -
Sep-97 0 0 0.0% 0.0% 0.0 -
Oct-97 0 0 0.0% 0.0% 0.0 -
Nov-97 0 0 0.0% 0.0% 0.0 -
Dec-97 0 0 0.0% 0.0% 0.0 -
Jan-98 0 0 0.0% 0.0% 0.0 -
Feb-98 0 0 0.0% 0.0% 0.0 -
Mar-98 0 0 0.0% 0.0% 0.0 -
Apr-98 0 0 0.0% 0.0% 0.0 -
May-98 0 0 0.0% 0.0% 0.0 -
Jun-98 0 0 0.0% 0.0% 0.0 -
Jul-98 0 0 0.0% 0.0% 0.0 -
Aug-98 0 0 0.0% 0.0% 0.0 -
Sep-98 0 0 0.0% 0.0% 0.0 -
Oct-98 0 0 0.0% 0.0% 0.0 -
Nov-98 0 0 0.0% 0.0% 0.0 -
Dec-98 0 0 0.0% 0.0% 0.0 -
Jan-99 0 0 0.0% 0.0% 0.0 -
Feb-99 0 0 0.0% 0.0% 0.0 -
Mar-99 0 0 0.0% 0.0% 0.0 -
Apr-99 0 0 0.0% 0.0% 0.0 -
May-99 0 0 0.0% 0.0% 0.0 -
Jun-99 0 0 0.0% 0.0% 0.0 -
Jul-99 0 0 0.0% 0.0% 0.0 -
Aug-99 0 0 0.0% 0.0% 0.0 -
Sep-99 0 0 0.0% 0.0% 0.0 -
Oct-99 0 0 0.0% 0.0% 0.0 -
Nov-99 0 0 0.0% 0.0% 0.0 -
Dec-99 0 0 0.0% 0.0% OK 0.0 - OK
Jan-00 0 0 0.0% 0.0% OK 0.0 - OK
Feb-00 0 0 0.0% 0.0% OK 0.0 - OK
CALCULATION
High 0.0% -
Low 0.0% -
Average 0.0% -
STD Deviation 0.0% -
High + 1 std deviations 0.0% -
<CAPTION>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Jan-97 - - - - #DIV/0!
Feb-97 - - - - #DIV/0!
Mar-97 - - - - #DIV/0!
Apr-97 - - - - #DIV/0!
May-97 - - - - #DIV/0!
Jun-97 - - - - #DIV/0! 0.0%
Jul-97 - - - - #DIV/0! 0.0%
Aug-97 - - - - #DIV/0! 0.0%
Sep-97 - - - - #DIV/0! 0.0%
Oct-97 - - - - #DIV/0! 0.0%
Nov-97 - - - - #DIV/0! 0.0%
Dec-97 - - - - #DIV/0! 0.0%
Jan-98 - - - - #DIV/0! 0.0%
Feb-98 - - - - #DIV/0! 0.0%
Mar-98 - - - - #DIV/0! 0.0%
Apr-98 - - - - #DIV/0! 0.0%
May-98 - - - - #DIV/0! 0.0%
Jun-98 - - - - #DIV/0! 0.0%
Jul-98 - - - - #DIV/0! 0.0%
Aug-98 - - - - #DIV/0! 0.0%
Sep-98 - - - - #DIV/0! 0.0%
Oct-98 - - - - #DIV/0! 0.0%
Nov-98 - - - - #DIV/0! 0.0%
Dec-98 - - - - #DIV/0! 0.0%
Jan-99 - - - - #DIV/0! 0.0%
Feb-99 - - - - #DIV/0! 0.0%
Mar-99 - - - - #DIV/0! 0.0%
Apr-99 - - - - #DIV/0! 0.0%
May-99 - - - - #DIV/0! 0.0%
Jun-99 - - - - #DIV/0! 0.0%
Jul-99 - - - - #DIV/0! 0.0%
Aug-99 - - - - #DIV/0! 0.0%
Sep-99 - - - - #DIV/0! 0.0%
Oct-99 - - - - #DIV/0! 0.0%
Nov-99 - - - - #DIV/0! 0.0%
Dec-99 - - - - #DIV/0! 0.0% OK
Jan-00 - - - - #DIV/0! 0.0% OK
Feb-00 - - - - #DIV/0! 0.0% OK
CALCULATION
High 0.0%
Low 0.0%
Average 0.0%
STD Deviation 0.0%
High + 1 std deviations 0.0%
</TABLE>
24
<PAGE> 76
INGRAM MICRO
Collateral Trigger Calculations
FYE December
<TABLE>
<CAPTION>
TRIGGER 8.0% 30.0
============================================================================================
($ in thousands)
DILUTION RATIO RECEIVABLE COLLECTION TURNOVER
------------------------------------------ ------------------------------
Gross Dilutive Monthly Rolling 6 - Monthly Rolling 6 -
Period Sales Credits Dilution Months T/O Month
- -------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
TRIGGER 5.0%
===================================================================================
($ in thousands)
DEFAULT RATIO
------------------------------------------------------------------
Total >60 Total Monthly Rolling 6 -
Period A/R EOM $ write-offs W/O & >60 Default Month
- --------------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
25
<PAGE> 77
EXHIBIT D TO
SERIES 1993-2 SUPPLEMENT
FORM OF PURCHASER LETTER
[Month] [Day], 20___
The Chase Manhattan Bank
450 West 33d Street, 14th Floor
New York, New York 10001
Re: Class A Certificate, Series 1993-2
Ladies and Gentlemen:
This letter (the "Purchaser Letter") is delivered by the
undersigned (the "Transferee") pursuant to the Amended and Restated Series
1993-2 Supplement to the Amended and Restated Pooling Agreement dated as of
March 8, 2000, among Ingram Funding Inc. ("Funding"), Ingram Micro Inc. and The
Chase Manhattan Bank, as trustee (the "Trustee") (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Supplement"). Capitalized terms used herein without definition shall have the
meanings set forth in the Supplement. The Transferee represents and covenants to
the Trustee as follows:
1. It is (A) a Qualified Institutional Buyer as defined in Rule
144A(a) and is acquiring the Term Certificates for its own institutional account
or for the account or accounts of a Qualified Institutional Buyer or (B)
purchasing Term Certificates being delivered in the form of Definitive
Certificates in a transaction exempt from registration under the Securities Act
and in compliance with the provisions of the Agreement and in compliance with
the legends set forth in paragraph 4 below.
2. It is purchasing one or more Term Certificates in an amount of
at least $2,000,000 and it understands that such Term Certificate may be resold,
pledged or otherwise transferred only in an amount of at least $2,000,000;
3. It understands that the Term Certificates are being
transferred to it in a transaction not involving any public offering within the
meaning of the Securities Act, and that, if in the future it decides to resell,
pledge or otherwise transfer any Term Certificates, such Term Certificates may
be resold, pledged or transferred only (A) in a transaction meeting the
requirements of Rule 144A to a person who the seller reasonably believes is a
Qualified Institutional Buyer that purchases for its own account or for the
account or accounts of a Qualified Institutional Buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A or
(B) to purchasers of Term Certificates being delivered in the form of Definitive
Certificates, pursuant to a transaction otherwise exempt from registration under
the Securities Act and in compliance with the provisions of the Agreement and in
compliance with the legends set forth in paragraph 4 below.
D-1
<PAGE> 78
4. It understands that each Term Certificate will bear a legend
substantially to the following effect:
THIS TERM CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS TERM CERTIFICATE, AGREES THAT SUCH TERM
CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS IN AN AMOUNT
OF AT LEAST $2,000,000 AND (1) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE 144A"), TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR (2) TO A PERSON (A) WHO IS
AN "INSTITUTIONAL ACCREDITED INVESTOR", WITHIN THE MEANING OF
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT,
AND WHO DELIVERS A PURCHASER LETTER TO THE TRUSTEE IN THE FORM
ATTACHED TO THE SERIES 1993-2 SUPPLEMENT OR (B) WHO IS TAKING
DELIVERY OF SUCH TERM CERTIFICATE PURSUANT TO A TRANSACTION THAT
IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
ACT, AS CONFIRMED IN AN OPINION OF COUNSEL ADDRESSED TO THE
TRUSTEE AND THE COMPANY, WHICH COUNSEL AND OPINION ARE
SATISFACTORY TO THE COMPANY AND THE TRUSTEE.
THIS TERM CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR ON BEHALF
OF (1) AN "EMPLOYEE BENEFIT PLAN" WITHIN THE MEANING OF SECTION
3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR OTHER RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT
ACCOUNT OR KEOGH PLAN, WHETHER OR NOT IT IS SUBJECT TO THE
PROVISIONS OF TITLE I THERETO, (2) ANY PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") OR (3) ANY OTHER ENTITY THAT WOULD BE DEEMED TO BE A
"BENEFIT PLAN INVESTOR" WITHIN THE MEANING OF DEPARTMENT OF LABOR
REGULATION SECTION 2510.3-101(f)(2) (ANY OF THE FOREGOING, AN
"ERISA ENTITY")
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
D-2
<PAGE> 79
5. The Transferee understands that there may be restrictions on the
ability of certain investors, including, without limitation, depository
institutions, either to purchase the Term Certificate or to purchase investments
having characteristics similar to those of the Term Certificate representing
more than a specified percentage of the investor's assets, and the Transferee
further represents and warrants that it has not relied on the Trustee in
determining whether and to what extent the Term Certificate constitutes a legal
investment for the Transferee.
6. Notwithstanding anything to the contrary contained herein, in no
event shall any interest in the Term Certificates be sold or transferred to an
employee benefit plan, trust or account subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or described in Section
4975(e)(1) of the Internal Revenue Code. The Transferee hereby covenants with
you that by its acceptance thereof, the Transferee represents and warrants that
it is not (1) an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to the provisions of ERISA, (ii) a plan (as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, other than a
governmental or church plan described in Section 4975(g)(2) or (3) of the Code)
or (iii) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (unless registered under the Investment Company
Act of 1940, as amended).
7. The Transferee agrees that in selling the Term Certificate (or
any interest therein) purchased pursuant hereto, it will comply with the
applicable requirements of the 1933 Act.
8. The Transferee acknowledges that it has been afforded the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of Funding or the Trustee concerning the terms and
conditions of the offering of the Term Certificate and the merits and risks of
investing in the Term Certificate.
In addition, the Transferee hereby acknowledges that by its
execution and delivery of this Purchaser Letter, the Transferee agrees to make
the representations, warranties and covenants set forth in, and otherwise to be
bound by, each and every provision of the Supplement that by its terms applies
to the "Purchaser" (as defined in the Supplement).
D-3
<PAGE> 80
To the extent not defined herein, capitalized terms used herein
have the meanings assigned to them in the Supplement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------------------------
Name:
Title:
D-4
<PAGE> 81
SCHEDULE 1 TO
SERIES 1993-2 SUPPLEMENT
TRUST ACCOUNTS
<TABLE>
<CAPTION>
DDA # Account Name
----- ------------
<S> <C>
323-303986 Ingram Series 1993-2 Coll Subaccount
507-894073 Ingram Ser l993-2 Princ Coll Sub-Sub A/C
507-894081 Ingram Ser 1993-2 NonPrin Coll Sb-sb A/C
507-894200 Ingram Ser 1993-2 Acc Int Sub-Sub A/C
</TABLE>
<PAGE> 1
EXHIBIT 10.63
GENERAL ELECTRIC CAPITAL CORPORATION
201 HIGH RIDGE ROAD
STAMFORD, CONNECTICUT 06927
March 8, 2000
Ingram Micro Inc.
Ingram Funding Inc.
1600 St. Andrew Place
Santa Ana, CA 92705
Ladies and Gentlemen:
Reference is hereby made to that certain Liquidity Loan Agreement
dated as of March 8, 2000 between Redwood Receivables Corporation, as Borrower
and General Electric Capital Corporation, in its separate capacities as
Liquidity Agent, Initial Liquidity Lender, Operating Agent and Collateral Agent
(as the same may be amended, restated or otherwise modified from time to time,
the "Loan Agreement"). Capitalized terms used herein without definition are used
as defined in the Loan Agreement.
In consideration of Ingram Funding Inc.'s agreement to sell the
VFC Certificate, Series 2000-1 issued by the Ingram Funding Master Trust,
General Electric Capital Corporation ("GE Capital") hereby agrees that: (i) it
does not intend to syndicate its Liquidity Commitment to other Liquidity
Lenders, (ii) if and to the extent that it does syndicate its Liquidity
Commitment it intends to do so by selling participations to Eligible Liquidity
Assignees pursuant to Section 9.02 of the Loan Agreement and will not do so
pursuant to Section 9.01 of the Loan Agreement, (iii) it will not amend the Loan
Agreement without giving prior notice thereof to Ingram Funding Inc. and Ingram
Micro Inc. and (iv) it will not amend Section 3.04 of the Loan Agreement or the
definitions of the terms used therein without the prior written consent of
Ingram Funding Inc. and Ingram Micro Inc.
Except as expressly set forth above, nothing in this letter
agreement shall be deemed to waive any rights or remedies available to GE
Capital under the terms of the Loan Agreement and the Related Documents, nor to
amend or modify any terms or provisions of the Loan Agreement or the the other
Redwood Program Documents.
This letter agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
<PAGE> 2
Ingram Funding Inc
March 8, 2000
Page 2
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Sincerely,
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Denis M. Creeden
-------------------------------
(Duly Authorized Signatory)
Agreed to and accepted
this 8th day of March, 2000.
INGRAM FUNDING INC.
By: /s/ P. Kurt Preising
-------------------------------
Title: Attorney-in-Fact
INGRAM MICRO INC.
By: /s/ P. Kurt Preising
-------------------------------
Title: Senior Director and
Assistant Worldwide
Treasurer
<PAGE> 1
EXHIBIT 13.01
INDEX TO
FINANCIAL INFORMATION
SELECTED CONSOLIDATED FINANCIAL DATA 18
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS 19
CONSOLIDATED BALANCE SHEET 30
CONSOLIDATED STATEMENT OF INCOME 31
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY 32
CONSOLIDATED STATEMENT OF CASH FLOWS 33
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 34
MANAGEMENT'S STATEMENT OF FINANCIAL RESPONSIBILITY 51
REPORT OF INDEPENDENT ACCOUNTANTS 51
COMPANY INFORMATION 52
<PAGE> 2
SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents selected consolidated financial data of Ingram
Micro Inc. ("Ingram Micro" or the "Company"). The information set forth below
should be read in conjunction with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and the historical consolidated
financial statements and notes thereto, included elsewhere in this Annual Report
to Shareowners.
The fiscal year of the Company is a 52- or 53-week period ending on the Saturday
nearest to December 31. References below to 1995, 1996, 1997, 1998 and 1999
represent the fiscal years ended December 30, 1995 (52 weeks), December 28, 1996
(52 weeks), January 3, 1998 (53 weeks), January 2, 1999 (52 weeks), and January
1, 2000 (52 weeks), respectively.
<TABLE>
<CAPTION>
FISCAL YEAR
(Dollars in 000s, except per share data) 1999 1998 1997 1996 1995
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
SELECTED OPERATING INFORMATION
NET SALES $ 28,068,642 $ 22,034,038 $ 16,581,539 $ 12,023,451 $ 8,616,867
GROSS PROFIT 1,336,163 1,391,168 1,085,689 812,384 605,686
INCOME FROM OPERATIONS 200,004 486,605 376,579 247,508 186,881
INCOME BEFORE INCOME TAXES,
MINORITY INTEREST AND
EXTRAORDINARY ITEM 290,493 406,860 326,489 196,757 134,616
INCOME BEFORE EXTRAORDINARY ITEM 179,641 245,175 193,640 110,679 84,307
NET INCOME 183,419 245,175 193,640 110,679 84,307
BASIC EARNINGS PER SHARE -
INCOME BEFORE EXTRAORDINARY ITEM 1.25 1.76 1.43 0.99 0.79
DILUTED EARNINGS PER SHARE -
INCOME BEFORE EXTRAORDINARY ITEM 1.21 1.64 1.32 0.88 0.74
BASIC EARNINGS PER SHARE - NET
INCOME 1.28 1.76 1.43 0.99 0.79
DILUTED EARNINGS PER SHARE - NET
INCOME 1.24 1.64 1.32 0.88 0.74
BASIC WEIGHTED AVERAGE
COMMON SHARES OUTSTANDING 143,404,207 139,263,810 135,764,053 112,285,058 107,251,362
DILUTED WEIGHTED AVERAGE
COMMON SHARES OUTSTANDING 147,784,712 149,537,870 146,307,532 125,436,376 114,517,371
- -------------------------------------------------------------------------------------------------------------------
SELECTED BALANCE SHEET INFORMATION
CASH $ 128,152 $ 96,682 $ 92,212 $ 48,279 $ 56,916
TOTAL ASSETS 8,271,927 6,733,404 4,932,151 3,366,947 2,940,898
TOTAL DEBT (1) 1,348,135 1,720,456 1,141,131 304,033 850,548
STOCKHOLDERS' EQUITY 1,966,845 1,399,257 1,038,206 825,150 310,795
</TABLE>
(1) Includes long-term debt, convertible debentures, current maturities of
long-term debt and, in 1995, debt due to Ingram Industries.
18
<PAGE> 3
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
In evaluating the business of Ingram Micro, readers should carefully consider
the important factors discussed in Exhibit 99.01 to the Company's Annual Report
on Form 10-K for the fiscal year ended January 1, 2000 and "--Cautionary
Statements for the Purpose of the Safe Harbor Provisions of the Private
Securities Litigation Reform Act of 1995."
OVERVIEW
Ingram Micro is the leading distributor of information technology products and
services worldwide. The Company's net sales have grown to $28.1 billion in 1999
from $8.6 billion in 1995. The growth reflects substantial expansion of the
Company's existing operations, resulting from the integration of numerous
acquisitions worldwide, growth in the information technology products and
services distribution industry in general, the addition of new customers, and
increased sales to the existing customer base, as well as the addition of new
product categories and suppliers.
The Company's gross profit as a percentage of net sales ("gross margin") has
declined to 4.8% in 1999 from 7.0% in 1995. The information technology products
and services distribution industry in which the Company operates is
characterized by narrow gross margins and narrow income from operations as a
percentage of net sales ("operating margin") that have declined industry-wide in
recent years. In the past, the margin decline has primarily been due to intense
price competition; however, more recently, overall changes in vendor terms and
conditions, including, but not limited to, significant reductions in vendor
rebates and incentives, tighter restrictions on the Company's ability to return
inventory to vendors, and reduced time periods qualifying for price protection,
have exacerbated the decline. The Company expects these competitive pricing
pressures and the restrictive vendor terms and conditions to continue in the
foreseeable future. The Company has continually implemented and refined changes
to its pricing strategies and inventory management processes to address the
intense price competition. In addition, in response to the changes in vendor
terms and conditions, the Company is implementing specific changes to its
inventory management processes, administration of vendor subsidized programs,
and certain of the terms and conditions offered to its customers.
To partially offset the decline in gross margins, the Company has continually
instituted operational and expense controls that have reduced selling, general,
and administrative expenses as a percentage of net sales ("SG&A") to 4.0% in
1999 from 4.9% in 1995, reflecting the benefit of greater economies of scale.
However, the reduction in SG&A expenses was not large enough to offset the
decline in gross margins and as a result, operating margins, excluding
reorganization costs, declined to 0.8% in 1999 from 2.2% in 1995. If any future
reductions in gross margins were to occur, there can be no assurance that the
Company will be able to reduce SG&A commensurately.
In December 1998, the Company purchased 990,800 shares of common stock of
SOFTBANK Corp. ("Softbank"), Japan's largest distributor of software,
peripherals and networking products, for approximately $50.3 million. During
December 1999, the Company sold 346,800 shares or approximately 35% of its
original investment in Softbank common stock for approximately $230.1 million,
resulting in a pre-tax gain of approximately $201.3 million, net of related
expenses. The Company used the proceeds from this sale to repay existing
indebtedness. In January 2000, the Company sold an additional 148,600 shares or
approximately 15% of its original holdings in Softbank common stock for
approximately $118.9 million, resulting in a pre-tax gain in the first quarter
of fiscal year 2000 of approximately $111.4 million.
The information technology products and services distribution business is
capital-intensive. The Company's business requires significant levels of capital
to finance accounts receivable and product inventory that are not financed by
trade creditors. The Company has relied heavily on debt financing for its
increasing working capital needs resulting from organic growth and acquisitions.
In March 2000, the Company completed a new 5-year accounts receivable
securitization program in the U.S., which provides for the issuance of up to
$700 million in commercial paper. This new program adds to the Company's
existing accounts receivable
19
<PAGE> 4
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
facilities, of which approximately $263 million of accounts receivable were sold
as of January 1, 2000. The Company also has revolving credit facilities of
approximately $1.65 billion, as well as uncommitted facilities of approximately
$601.0 million. In addition, on June 9, 1998, the Company sold $1.33 billion
aggregate principal amount at maturity of its Zero Coupon Convertible Senior
Debentures due 2018 in a private placement. The Company subsequently registered
the resale of these debentures with the Securities and Exchange Commission (the
"SEC"). Gross proceeds from this offering were $460.4 million. In March 1999,
the Company repurchased Zero Coupon Convertible Senior Debentures with a
carrying value of $56.5 million as of the repurchase date for approximately
$50.3 million in cash. The debenture repurchase resulted in an extraordinary
gain of $3.8 million (net of $2.4 million in income taxes). The Company's
interest expense for any current or future indebtedness will be subject to
fluctuations in interest rates and may cause fluctuations in the Company's net
income.
RESULTS OF OPERATIONS
The following table sets forth the Company's net sales by geographic region
(excluding intercompany sales), and the percentage of total net sales
represented thereby, for each of the periods indicated.
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
------------------ ------------------ ------------------
NET SALES BY GEOGRAPHIC REGION: (DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
United States $16,814 59.9% $14,393 65.3% $11,540 69.6%
Europe 7,344 26.2 5,624 25.5 3,353 20.2
Other international 3,911 13.9 2,017 9.2 1,689 10.2
------------------ ------------------ ------------------
Total $28,069 100.0% $22,034 100.0% $16,582 100.0%
================== ================== ==================
</TABLE>
The following table sets forth certain items from the Company's Consolidated
Statement of Income as a percentage of net sales, for each of the periods
indicated.
<TABLE>
<CAPTION>
PERCENTAGE OF NET SALES
FISCAL YEAR
1999 1998 1997
------ ------ ------
<S> <C> <C> <C>
Net sales 100.0% 100.0% 100.0%
Cost of sales 95.2 93.7 93.5
------ ------ ------
Gross profit 4.8 6.3 6.5
Expenses:
SG&A expenses 4.0 4.1 4.2
Reorganization costs 0.0 -- --
------ ------ ------
Income from operations 0.8 2.2 2.3
Other (income) expense, net (0.3) 0.4 0.3
------ ------ ------
Income before income taxes, minority
interest and extraordinary item 1.1 1.8 2.0
Provision for income taxes 0.4 0.7 0.8
------ ------ ------
Income before minority interest
and extraordinary item 0.7 1.1 1.2
Minority interest -- -- 0.0
------ ------ ------
Income before extraordinary item 0.7 1.1 1.2
Extraordinary item 0.0 -- --
------ ------ ------
Net income 0.7% 1.1% 1.2%
====== ====== ======
</TABLE>
20
<PAGE> 5
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
1999 COMPARED TO 1998
Consolidated net sales increased 27.4% to $28.1 billion in 1999 from $22.0
billion in 1998. The increase in worldwide net sales was primarily attributable
to the addition of new customers, increased sales to the existing customer base,
and the expansion of the Company's product and service offerings. Net sales also
increased as a result of the January 1999 acquisition of Electronic Resources,
Ltd. ("ERL") in the Asia Pacific region and the July 1998 acquisition of Munich,
Germany-based Macrotron AG ("Macrotron").
Net sales from U.S. operations increased 16.8% to $16.8 billion in 1999 from
$14.4 billion in 1998 primarily due to growth of its current business. Net sales
from European operations increased 30.6% to $7.3 billion in 1999 from $5.6
billion in 1998 due to the overall growth in the Company's existing European
operations and the acquisition of Macrotron in July 1998. For geographic regions
outside the U.S. and Europe, net sales increased 93.9% to $3.9 billion in 1999
from $2.0 billion in 1998 due to the acquisition of ERL and growth in the
Company's Canadian and Latin American operations.
Gross profit, as a percentage of net sales, decreased to 4.8% in 1999 from 6.3%
in 1998. The significant decline in the gross profit percentage was primarily
due to reduced vendor rebates and incentives and intense price competition in
the U.S. and in the larger countries in Europe. The decline was exacerbated by
excess capacity in the information technology products and services distribution
industry. In addition, during 1999, the Company recorded substantially higher
expenses totaling approximately $94.8 million ($48.4 million for the fourth
quarter of 1999) related to excess and obsolete inventory as compared to $26.1
million for 1998 ($10.8 million for the fourth quarter of 1998). The higher
excess and obsolete inventory provisions primarily resulted from the rapid
changes experienced in the technology marketplace and the significant changes in
vendor terms and conditions during 1999. Also in the fourth quarter of 1999, the
Company recorded additional expenses to cost of sales totaling approximately
$53.6 million related to estimated losses from vendor incentive and subsidy
programs. The estimated losses on vendor incentive and subsidy programs
primarily originated from recent dramatic changes in the terms and conditions
for reimbursements of customer rebates and competitive price programs by the
Company's major personal computer suppliers. The majority of these higher
provisions related to inventory and vendor programs in the U.S. region with some
in the European region. The Company is implementing and continually refining
changes to its pricing strategies, inventory management processes and
administration of vendor subsidized programs. In addition, the Company continues
to change certain of the terms and conditions offered to its customers to
reflect those being imposed by its vendors. The Company believes these plans
will help mitigate the impact of these changes in vendor terms and conditions
and intense price competition. However, there can be no assurance that the
Company will not continue to experience higher levels of these related expenses
as compared to historical levels.
Total SG&A expenses increased 23.4% to $1.1 billion in 1999 from $904.6 million
in 1998, but decreased as a percentage of net sales to 4.0% in 1999 from 4.1% in
1998. The increase in SG&A spending was attributable in part to the acquisition
of ERL in January 1999, and the full-year impact of the acquisition of Macrotron
in July 1998. In addition, during fiscal year 1999, the Company recorded
significantly higher bad debt expense of approximately $75.8 million or 0.27% as
a percentage of net sales ($40.6 million for the fourth quarter of 1999) as
compared to fiscal year 1998 expense of approximately $32.5 million or 0.15% as
a percentage of net sales ($11.7 million for the fourth quarter of 1998). The
larger bad debt provision was primarily the result of negotiations with several
large customers primarily in the area of unauthorized product returns. SG&A also
increased to support the expansion of the Company's business. Expenses related
to expansion consisted of incremental personnel and support costs, lease
expenses related to new operating facilities, and expenses associated with the
development and maintenance of information
21
<PAGE> 6
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
systems. The overall decrease in SG&A expenses as a percentage of sales is
attributable to economies of scale from greater sales volume, the reorganization
efforts during 1999, and continued cost-control measures, partially offset by
the higher bad debt expenses as a percentage of sales.
In February 1999, the Company initiated a plan primarily in the U.S., but also
in Europe, to streamline operations and reorganize resources to increase
flexibility and service and maximize cost savings and operational efficiencies.
This reorganization plan included several organizational and structural changes,
including the closing of the Company's California-based consolidation center and
certain other redundant locations, realignment of the Company's sales force and
the creation of a product management organization that integrates purchasing,
vendor services, and product marketing functions, as well as a realignment of
administrative functions and processes throughout the U.S. organization. In
addition, during the fourth quarter of 1999, further organizational and
strategic changes were implemented in the Company's assembly and
custom-configuration operations, including the selection of an outsource partner
to produce unbranded systems and the reallocation of resources to support the
Company's custom-configuration services capabilities.
In connection with these reorganization efforts, the Company recorded a charge
of $20.3 million for the fiscal year ended January 1, 2000. The reorganization
charge included $12.3 million in employee termination benefits for approximately
597 employees, $6.4 million for the write-off of software used in the production
of unbranded systems, $1.3 million for closing and consolidation of redundant
facilities relating primarily to excess lease costs net of estimated sublease
income, and $0.3 million for other costs associated with the reorganization.
These initiatives were substantially complete as of January 1, 2000.
Income from operations, excluding reorganization costs, decreased as a
percentage of net sales to 0.8% in 1999 from 2.2% in 1998. The decrease in
income from operations, excluding reorganization costs, as a percentage of net
sales is primarily due to the significant decrease in gross profit as a
percentage of net sales as described above. U.S. income from operations,
excluding reorganization costs, decreased as a percentage of net sales to 0.9%
in 1999 from 2.8% in 1998. European income from operations, excluding
reorganization costs, decreased as a percentage of net sales to 0.3% in 1999
from 1.1% in 1998. For geographic regions outside the U.S. and Europe, income
from operations, excluding reorganization costs, decreased as a percentage of
net sales to 1.0% in 1999 from 1.4% in 1998. Income from operations, including
reorganization costs, as a percentage of net sales decreased to 0.8% in 1999
from 2.2% in 1998.
Other (income) expense consisted primarily of interest, foreign currency
exchange losses, gains on sales of securities and miscellaneous non-operating
(income) expenses. During 1999, the Company recorded net other income of $90.5
million, or 0.3% as a percentage of net sales, as compared to net other expense
of $79.7 million, or 0.4% as a percentage of net sales in 1998. The increase in
other income over 1998 is primarily attributable to the gain realized on the
sale of Softbank common stock, partially offset by an increase in interest
expense. In December 1999, the Company sold 346,800 shares or 35% of its
original holdings in Softbank common stock for a pre-tax gain of approximately
$201.3 million, net of related costs. Interest expense increased primarily due
to increased borrowings to finance the January 1999 ERL acquisition; the fourth
quarter 1998 investment in Softbank; the July 1998 acquisition of Macrotron;
changing vendor terms and conditions associated with floor plan financing
arrangements; and the growth of the Company's ongoing operations. This increase
was partially offset by a decrease in average interest rates in fiscal 1999 as
compared to fiscal 1998. Foreign exchange losses decreased by $3.7 million in
1999 compared to 1998 primarily due to the strengthening of currencies in Latin
America as compared to the U.S. dollar.
22
<PAGE> 7
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
The provision for income taxes, excluding extraordinary items, decreased 31.4%
to $110.9 million in 1999 from $161.7 million in 1998, reflecting the 28.6%
decrease in the Company's income before income taxes. The Company's effective
tax rate was 38.1% in 1999 compared to 39.7% in 1998. The decrease in the
effective tax rate was primarily due to tax planning in certain countries.
In March 1999, the Company repurchased Zero Coupon Convertible Senior Debentures
with a carrying value of $56.5 million as of the repurchase date for
approximately $50.3 million in cash. The debenture repurchase resulted in an
extraordinary gain of $3.8 million (net of $2.4 million in income taxes).
1998 COMPARED TO 1997
Consolidated net sales increased 32.9% to $22.0 billion in 1998 from $16.6
billion in 1997. The increase in worldwide net sales was primarily attributable
to the addition of new customers, increased sales to the existing customer base,
expansion of the Company's product offerings, growth in the information
technology products and services distribution industry in general, and the July
1998 acquisition of Macrotron.
Net sales from U.S. operations increased 24.7% to $14.4 billion in 1998 from
$11.5 billion in 1997 primarily due to growth of its current business, which was
favorably impacted by the RND acquisition in July 1997. The U.S. sales increase
was tempered, however, by manufacturers making more product directly available
to resellers during the fourth quarter of 1998, resulting in less business
through distribution. Net sales from European operations increased 67.8% to $5.6
billion in 1998 from $3.4 billion in 1997 due primarily to the acquisition of
Macrotron, as well as to the overall growth in the Company's existing European
operations. Other international net sales increased 19.4% to $2.0 billion in
1998 from $1.7 billion in 1997 primarily due to the November 1997 acquisition of
Computacion Tecnica, S.A. ("Computek") in Latin America as well as growth in the
Company's Canadian operations.
Gross profit, as a percentage of net sales, decreased to 6.3% in 1998 from 6.5%
in 1997. During the fourth quarter of 1998, the Company's operations experienced
a significant decrease in gross profit percentage compared to the fourth quarter
of 1997, which continued into 1999. These decreases were largely attributable to
significant competitive pricing pressures experienced primarily in the U.S. and
the larger countries in Europe. Furthermore, during 1998, the Company incurred
significant costs associated with its investment in its assembly and
custom-configuration operations, which negatively impacted gross profit.
Total SG&A expenses increased 27.6% to $904.6 million in 1998 from $709.1
million in 1997, but decreased as a percentage of net sales to 4.1% in 1998 from
4.2% in 1997. The increase in SG&A spending was attributable to the acquisitions
in July 1998 of Macrotron, a manufacturing facility and related business in The
Netherlands in June 1998, the full year's effect of the 1997 acquisitions of RND
and Computek, as well as the increased expenses required to support the
expansion of the Company's business. Expenses related to expansion consisted of
incremental personnel and support costs, lease expenses relating to new
operating facilities, and expenses associated with the development and
maintenance of information systems. The overall decrease in SG&A expenses as a
percentage of sales is attributable to economies of scale from greater sales
volume as well as continued cost-control measures.
Income from operations decreased as a percentage of net sales to 2.2% in 1998
from 2.3% in 1997. U.S. income from operations increased as a percentage of net
sales to 2.8% in 1998 from 2.6% in 1997; however, European income from
operations decreased as a percentage of net sales to 1.1% in 1998 from 1.2% in
1997. For geographic regions outside the U.S. and Europe,
23
<PAGE> 8
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
income from operations decreased as a percentage of net sales to 1.4% in 1998
from 1.9% in 1997, primarily due to currency devaluations and overall weaker
economies in Latin America.
Other expense, net, consisting primarily of interest, foreign currency exchange
losses and miscellaneous nonoperating expenses, increased 59.2% to $79.7 million
in 1998 from $50.1 million in 1997. Other expense, net, also increased as a
percentage of net sales to 0.4% in 1998 from 0.3% in 1997. Toward the end of
1998, the Company's interest expense grew as a result of increased borrowings to
finance acquisitions and strategic investments; expansion of the Company's
business; ongoing sales growth; and maintenance of higher accounts receivable
levels. Accounts receivable levels were higher primarily due to a reduction in
master reseller sales as a percentage of total sales and due to the changing
vendor terms and conditions associated with floor plan financing arrangements of
those sales. The increase in other expense also reflects an increase in foreign
currency exchange losses primarily attributable to ongoing international
economic conditions that led to weaker currencies in Latin America as compared
to the U.S. dollar.
The provision for income taxes increased 23.0% to $161.7 million in 1998 from
$131.5 million in 1997, reflecting the 24.6% increase in the Company's income
before income taxes. The Company's effective tax rate was 39.7% in 1998 compared
to 40.3% in 1997. The decrease in the effective tax rate was primarily due to
the reduction in a noncash compensation charge, much of which is not deductible
for tax purposes, as well as the effect of certain international taxes in 1998.
QUARTERLY DATA; SEASONALITY
The Company's quarterly operating results have fluctuated significantly in the
past and will likely continue to do so in the future as a result of seasonal
variations in the demand for the products and services offered by the Company;
competitive conditions including pricing; variation in the amount of provisions
for excess and obsolete inventory, vendor sponsored programs and doubtful
accounts; changes in the level of operating expenses; the impact of
acquisitions; the introduction of new hardware and software technologies and
products and services offering improved features and functionality by the
Company and its competitors; the loss or consolidation of a significant supplier
or customer; product supply constraints; interest rate fluctuations; currency
fluctuations; and general economic conditions. The Company's narrow operating
margins may magnify the impact of these factors on the Company's operating
results. Specific historical seasonal variations in the Company's operating
results have included a reduction of demand in Europe during the summer months,
increased Canadian government purchasing in the first quarter, and worldwide
pre-holiday stocking in the retail channel during the September-to-November
period. In addition, the product cycle of major products may materially impact
the Company's business, financial condition, or results of operations.
The following table sets forth certain unaudited quarterly historical financial
data for each of the eight quarters in the period ended January 1, 2000. This
unaudited quarterly information has been prepared on the same basis as the
annual information presented elsewhere herein and, in the Company's opinion,
includes all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the selected quarterly information. This
information should be read in conjunction with the consolidated financial
statements and notes thereto included elsewhere in this Annual Report to
Shareowners. The operating results for any quarter shown are not necessarily
indicative of results for any future period.
24
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
CONSOLIDATED QUARTERLY INFORMATION
<TABLE>
<CAPTION>
DILUTED DILUTED
INCOME EARNINGS EARNINGS
INCOME BEFORE PER SHARE PER SHARE
INCOME BEFORE EXTRA- BEFORE ON
NET GROSS FROM INCOME ORDINARY NET EXTRAORDINARY NET
SALES PROFIT OPERATIONS TAXES ITEM INCOME ITEM INCOME
-------- ------- ---------- ------- -------- ------ ------------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
FISCAL YEAR ENDED JANUARY 2, 1999
THIRTEEN WEEKS ENDED:
April 4, 1998 $5,150.1 $ 329.9 $116.2 $94.0 $56.5 $ 56.5 $ 0.38 $ 0.38
July 4, 1998 4,956.1 315.5 110.8 92.8 55.6 55.6 0.37 0.37
October 3, 1998 5,708.0 357.8 118.4 99.3 59.8 59.8 0.40 0.40
January 2, 1999 6,219.8 388.0 141.2 120.8 73.3 73.3 0.49 0.49
FISCAL YEAR ENDED JANUARY 1, 2000
THIRTEEN WEEKS ENDED: (1)(2)
April 3, 1999 $6,725.3 $ 359.3 $ 85.5 $61.1 $38.5 $ 42.3 $ 0.26 $ 0.29
July 3, 1999 6,804.8 367.8 107.6 79.6 50.3 50.3 0.34 0.34
October 2, 1999 6,710.1 321.9 52.8 24.8 15.8 15.8 0.11 0.11
January 1, 2000 7,828.5 287.2 (45.9) 125.0 75.0 75.0 0.51 0.51
</TABLE>
(1) Reflects charges related to a reorganization plan initiated to streamline
operations and reorganize resources. Quarterly charges were recorded as follows:
first quarter, $6.2 million; second quarter, $2.1 million; third quarter, $2.7
million; fourth quarter, $9.3 million.
(2) For the fourth quarter of the year ended January 1, 2000, the Company
recorded larger-than-historical provisions for excess and obsolete inventory,
losses on vendor-sponsored programs and doubtful accounts, primarily resulting
from rapid industry changes and changes in vendor terms and conditions (See
"1999 Compared to 1998"). In addition, income before income taxes includes a
pre-tax gain of approximately $201.3 million, net of related costs, realized
from the sale of Softbank common stock.
As indicated in the table above, the Company's net sales in the fourth quarter
of each fiscal year have generally been higher than those in the other three
quarters in the same fiscal year. The trend of higher fourth quarter net sales
is attributable to calendar year-end business purchases and holiday period
purchases made by customers.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flows
The Company has financed its growth and cash needs largely through income from
operations and borrowings, trade and supplier credit, its initial public stock
offering in November 1996, the sale of Zero Coupon Convertible Senior Debentures
in June 1998, and the sale of Softbank common stock in December 1999 and January
2000.
Cash provided by operating activities was $573.0 million in 1999 as compared to
cash used of $278.5 million in 1998 and $647.7 million in 1997. The significant
increase in cash provided by operating activities in 1999 compared to cash used
in 1998 was primarily attributable to the increase in trade creditor financing
of product inventory through the increase in accounts payable and
25
<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
a reduction in the growth rate of accounts receivable over 1998. The significant
decrease in cash used by operating activities in 1998 compared to 1997 was
primarily attributable to the increase in trade creditor financing of product
inventory through the increase in accounts payable, partially offset by the
increase in accounts receivable resulting from the continued growth of the
Company.
Net cash used by investing activities was $138.4 million, $218.6 million, and
$193.3 million, in 1999, 1998 and 1997, respectively. These uses of cash were
due in part to the Company's expansion of warehouses and other facilities, the
development of information systems and the Company's commitment to growth
through acquisitions and strategic alliances. In 1999, the Company used
approximately $241.9 million in cash for acquisitions, net of cash acquired, and
$135.3 million in capital expenditures. The use of cash was partially offset by
the proceeds from the sale of Softbank common stock totaling approximately
$230.1 million. In 1998, the Company used approximately $96.6 million in cash
for acquisitions, net of cash acquired, approximately $143.2 million in capital
expenditures, and approximately $50.3 million for the purchase of Softbank
common stock. Mitigating the uses of cash, the Company entered into a
sale/leaseback agreement whereby the Company sold its Santa Ana, California
facility and a portion of its Buffalo, New York facility to a third party and
received approximately $75.3 million in cash. In 1997, the Company used
approximately $34.0 million in cash for acquisitions, net of cash acquired,
$101.5 million in capital expenditures, and approximately $71.2 million in cash
primarily for the purchase of common stock and warrants to acquire common stock
of ERL (see Note 4 of the Notes to Consolidated Financial Statements).
Net cash used by financing activities was $413.8 million in 1999 compared to
cash provided of $497.1 million and $888.4 million in 1998 and 1997,
respectively. Net cash used by financing activities in 1999 was primarily due to
the repurchase of the convertible debentures and the net decrease in borrowings
under the revolving credit facilities primarily resulting from the use of the
proceeds received from the sale of Softbank common stock to repay indebtedness,
as well as to the continued focus on working capital management. Net cash
provided by financing activities in 1998 was primarily due to the proceeds from
the convertible debentures and stock option exercises. The reduction of cash
provided by financing activities in 1998 compared to 1997 is due in part to the
Company's ability to finance its operations through trade creditors as well as
the increase in proceeds from stock option exercises. Net cash provided by
financing activities in 1997 was due primarily to the increase in revolving
credit of $770.4 million.
Acquisitions
In December 1997, the Company purchased approximately 21% of the outstanding
common stock, and approximately 19% of an outstanding class of warrants of ERL,
a publicly traded electronic components distributor based in Singapore, for
approximately $71 million. In January 1999, the Company purchased additional
shares from specific shareholders, which brought the Company's total ownership
to approximately 39.6%. In January and February 1999, the Company made
open-market purchases of ERL shares and warrants, and on February 19, 1999,
completed a tender offer for the remaining outstanding shares and warrants of
ERL. These additional purchases resulted in ownership of approximately 95% of
both the outstanding common stock and warrants of ERL. In the third quarter of
1999, the Company commenced a take-over offer for the remaining ERL shares and
warrants not already owned by Ingram Micro. As a result of the take-over offer,
the Company purchased additional shares and warrants of ERL, increasing the
Company's ownership position to 100% of the outstanding shares of ERL and
approximately 99% of the outstanding warrants. The total cash paid for these
purchases in 1999 was approximately $237.4 million, net of cash acquired.
In April 1999, the Company acquired ITG Computers, an Australian computer
products distributor. In addition, the Company's majority-owned Macrotron
subsidiary increased its ownership of Walton Kft., a Hungarian based computer
products distributor, from approximately 33% to 100% in September 1999. Total
cash paid for these acquisitions was approximately $4.5 million, net of cash
acquired.
Capital Resources
The Company has three credit facilities with bank syndicates providing an
aggregate credit availability of $1.65 billion. Under these credit facilities,
the Company is required to comply with certain financial covenants, including
minimum tangible net worth, restrictions on funded debt and interest coverage.
The credit facilities also restrict the amount of dividends the Company can pay
as
26
<PAGE> 11
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
well as the amount of common stock that the Company can repurchase annually.
Borrowings are subject to the satisfaction of customary conditions, including
the absence of any material adverse change in the Company's business or
financial condition. At January 1, 2000 and January 2, 1999, the Company had
$503.5 million and $994.5 million in outstanding borrowings under the credit
facilities.
The Company has an arrangement pursuant to which certain U.S. trade accounts
receivable of the Company are transferred to a trust, which in turn has sold
certificates representing undivided interests in the total pool of trade
receivables without recourse. The trust has issued fixed-rate, medium-term
certificates to investors (which results in a reduction of trade accounts
receivable on the Company's Consolidated Balance Sheet) and a variable-rate
certificate to support a commercial paper program. At January 1, 2000 and
January 2, 1999, the amount of medium-term certificates outstanding totaled $75
million and $100 million, respectively. The amortization period for the
commercial paper program began October 1, 1999 and terminated effective December
31, 1999. Accordingly, there were no amounts outstanding under this commercial
paper program at January 1, 2000. The amount outstanding under this commercial
paper program at January 2, 1999 totaled $150 million. In March 2000, the
Company completed a new 5-year accounts receivable securitization program in the
U.S., which provides for the issuance of up to $700 million in commercial paper.
The Company believes that available funding under this new program will provide
increased flexibility for the Company to make incremental investments in
strategic growth initiatives and to manage working capital requirements.
The Company also established certain other facilities relating to accounts
receivable in Europe and Canada during 1999. Under these programs, the Company
has sold approximately $188 million of trade accounts receivable in the
aggregate resulting in a further reduction of trade accounts receivable on the
Company's Consolidated Balance Sheet at January 1, 2000.
The aggregate amount of trade accounts receivable sold as of January 1, 2000
totaled approximately $263 million. Proceeds from these accounts receivable
facilities are generally used to repay existing indebtedness. The Company
believes that there are sufficient trade accounts receivable to support the
outstanding medium-term certificates, the new U.S. commercial paper program and
the European and Canadian facilities.
On June 9, 1998, the Company sold $1.33 billion aggregate principal amount at
maturity of its Zero Coupon Convertible Senior Debentures due 2018 in a private
placement. The Company has subsequently registered the resale of these
debentures with the SEC. Gross proceeds from this offering were $460.4 million.
The debentures were sold at an issue price of $346.18 per $1,000 principal
amount at maturity (representing a yield to maturity of 5.375% per annum), and
are convertible into shares of the Company's Class A Common Stock at a rate of
5.495 shares per $1,000 principal amount at maturity, subject to adjustment
under certain circumstances. In March 1999, the Company repurchased Zero Coupon
Convertible Senior Debentures with a carrying value of $56.5 million as of the
repurchase date for approximately $50.3 million in cash. The debenture
repurchase resulted in an extraordinary gain of $3.8 million (net of $2.4
million in income taxes).
As of January 1, 2000, the debentures were convertible into approximately 6.4
million shares of the Company's Class A Common Stock. The debentures are
redeemable at the option of the Company on or after June 9, 2003, at the issue
price plus accrued original issue discount to the date of the redemption. Each
debenture is subject to repurchase at the option of the holder as of June 9,
2001, June 9, 2003, June 9, 2008, or June 9, 2013, or if there is a Fundamental
Change (as defined), at the issue price plus accrued original issue discount to
the date of the redemption. In the event of a repurchase at the option of the
holder (other than upon a Fundamental Change), the Company may, at its option,
satisfy the redemption in cash or Class A Common Stock, or any combination
thereof. In the case of any such repurchase as of June 9, 2001, the Company may
elect, in lieu of the payment of cash or Class A Common Stock, to satisfy the
redemption in new Zero Coupon Convertible Senior Debentures due 2018.
The Company and its foreign subsidiaries have additional lines of credit,
commercial paper, short-term overdraft facilities and other credit facilities
with various financial institutions worldwide, which provide for borrowings
aggregating $601.0 million at January 1, 2000. Most of these arrangements are on
an uncommitted basis and are reviewed periodically for renewal. At January 1,
2000, the Company had $248.1 million outstanding under these facilities.
27
<PAGE> 12
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
The proceeds from stock option exercises provide an additional source of cash to
the Company. In 1999, 1998 and 1997, respectively, cash proceeds from the
exercise of stock options, including applicable tax benefits, totaled $20.8
million, $93.9 million, and $28.4 million, respectively.
The Company believes that cash provided by operating activities, supplemented as
necessary with funds available under credit arrangements (including the $1.65
billion in credit facilities, the June 1998 sale of the Company's convertible
debentures and the Company's facilities relating to accounts receivable), will
provide sufficient resources to meet its present and future working capital and
cash requirements for at least the next 12 months.
Capital Expenditures
The Company presently expects to spend approximately $130 million in fiscal 2000
for capital expenditures due to continued expansion of its business.
MARKET RISK
The Company is exposed to the impact of foreign currency fluctuations and
interest rate changes due to its international sales and global funding. In the
normal course of business, the Company employs established policies and
procedures to manage its exposure to fluctuations in the value of foreign
currencies and interest rates using a variety of financial instruments. It is
the Company's policy to utilize financial instruments to reduce risks where
internal netting cannot be effectively employed. It is the Company's policy not
to enter into foreign currency or interest rate transactions for speculative
purposes.
In addition to product sales and costs, the Company has foreign currency risk
related to debt that is denominated in currencies other than the dollar and
cross-currency swaps hedging intercompany debt. The Company's foreign currency
risk management objective is to protect its earnings and cash flows resulting
from sales, purchases and other transactions from the adverse impact of exchange
rate movements. Foreign exchange risk is managed by using forward and option
contracts to hedge receivables and payables. By policy, the Company maintains
hedge coverage between minimum and maximum percentages. Cross-currency swaps are
used to hedge foreign currency denominated payments related to intercompany and
third-party loans. During 1999, hedged transactions were denominated primarily
in euros, Canadian dollars, Australian dollars, Chilean pesos, Thai baht,
Mexican pesos, Swedish krona, British pounds and Norwegian kroner.
The Company is exposed to changes in interest rates primarily as a result of its
long-term debt used to maintain liquidity and finance inventory, capital
expenditures and business expansion. Interest rate risk is also present in the
cross-currency swaps hedging intercompany and third-party loans. The Company's
interest rate risk management objective is to limit the impact of interest rate
changes on earnings and cash flows and to lower its overall borrowing costs. To
achieve its objectives the Company uses a combination of fixed- and
variable-rate debt. As of January 1, 2000 and January 2, 1999, approximately 34%
and 28%, respectively, of the outstanding debt had fixed interest rates. The
Company finances working capital needs through various bank loans and commercial
paper programs.
MARKET RISK MANAGEMENT
Foreign exchange and interest rate risk and related derivatives use is monitored
using a variety of techniques including a review of market value, sensitivity
analysis and Value-at-Risk ("VaR"). The VaR model determines the maximum
potential loss in the fair value of foreign exchange rate-sensitive financial
instruments assuming a one-day holding period. The VaR model estimates were made
assuming normal market conditions and a 95% confidence level. There are various
modeling techniques that can be used in the VaR computation. The Company's
computations are based on interrelationships between currencies and interest
rates (a "variance/co-variance" technique). These interrelationships were
determined by observing foreign currency market changes and interest rate
changes over the preceding 90 days. The value of foreign currency options does
not change on a one-to-one basis with changes in the underlying currency rate.
The potential loss in option value was adjusted for the estimated sensitivity
(the "delta" and "gamma") to changes in the underlying currency rate. The model
includes all of the Company's forwards, options, cross-currency swaps and
nonfunctional currency denominated debt (i.e., the Company's market-sensitive
derivative and other financial instruments as defined by the SEC). The accounts
receivable and accounts payable denominated in foreign currencies, which certain
of these instruments are intended to hedge, were excluded from the model.
28
<PAGE> 13
MANAGEMENT'S DISCUSSION AND ANALYSIS continued
The VaR model is a risk analysis tool and does not purport to represent actual
losses in fair value that will be incurred by the Company, nor does it consider
the potential effect of favorable changes in market rates. It also does not
represent the maximum possible loss that may occur. Actual future gains and
losses will differ from those estimated because of changes or differences in
market rates and interrelationships, hedging instruments and hedge percentages,
timing and other factors.
The estimated loss in fair value on the Company's foreign currency-sensitive and
interest rate-sensitive financial instruments was derived using the VaR model
and a one-day holding period. At January 1, 2000, the estimated loss in fair
value on the Company's foreign currency-sensitive financial instruments and
interest rate-sensitive financial instruments was $0.1 million and $4.3 million,
respectively. At January 2, 1999, the estimated loss in fair value on the
Company's foreign currency-sensitive financial instruments and interest
rate-sensitive financial instruments was $1.3 million and $1.6 million,
respectively. The decrease in the estimated loss in fair value on foreign
currency-sensitive financial instruments from January 2, 1999 to January 1, 2000
was due to a lower notional value of outstanding foreign currency-sensitive
instruments. The increase in the estimated loss in fair value on interest
rate-sensitive financial instruments from January 2, 1999 to January 1, 2000 was
due to higher interest rate volatility. The Company believes that the
hypothetical loss in fair value of its derivatives would be offset by increases
in the value of the underlying transactions being hedged.
EURO CONVERSION
On January 1, 1999, a single currency called the euro was introduced in Europe.
Eleven of the 15 member countries of the European Union adopted the euro as
their common legal currency on that date. Fixed conversion rates between these
participating countries' existing currencies (the "legacy currencies") and the
euro were established as of that date. The legacy currencies are scheduled to
remain legal tender as denominations of the euro until at least January 1, 2002
(but not later than July 1, 2002). During this transition period, parties may
settle transactions using either the euro or a participating country's legacy
currency. Beginning in January 2002, new euro-denominated bills and coins will
be issued and legacy currencies will be withdrawn from circulation. The Company
has implemented plans to address the issues raised by the euro currency
conversion. These plans include, among others, the need to adapt computer
information systems and business processes and equipment to accommodate
euro-denominated transactions; the need to analyze the legal and contractual
implications on contracts; and the ability of the Company's customers and
vendors to accommodate euro-denominated transactions on a timely basis. Since
the implementation of the euro on January 1, 1999, the Company has experienced
improved efficiencies in its cash management program in Europe as all
intracompany transactions within participating countries are conducted in euros.
In addition, the Company has reduced hedging activities in Europe for
transactions conducted between euro participating countries. Since the Company's
information systems and processes generally accommodate multiple currencies, the
Company anticipates that modifications to its information systems, equipment and
processes will be made on a timely basis and does not expect any failures which
would have a material adverse effect on the Company's financial position or
results of operations or that the costs of such modifications will have a
material effect on the Company's financial position or results of operations.
The Company has not experienced any material adverse effects on its financial
position or results of operations in connection with the January 1, 1999 first
stage conversion.
CAUTIONARY STATEMENTS FOR PURPOSES OF THE SAFE HARBOR PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
The matters in this Annual Report that are forward-looking statements are based
on current management expectations that involve certain risks, including without
limitation: intense competition; continued pricing and margin pressures; the
potential for continued restrictive vendor terms and conditions; the potential
decline as well as seasonal variations in demand for the Company's products;
unavailability of adequate capital; management of growth; reliability of
information systems; foreign currency fluctuations; dependency on key
individuals; product supply shortages; the potential termination of a supply
agreement with a major supplier; acquisitions; rapid product improvement and
technological change, and resulting obsolescence risks; risk of credit loss;
dependency on independent shipping companies; and the termination of subsidized
floor plan financing.
The Company has and continues to institute changes to its strategies, operations
and processes to address these risk factors and to mitigate their impact on the
Company's results of operations and financial condition. However, no assurances
can be given that the Company will be successful in these efforts. For a further
discussion of these and other significant factors to consider in connection with
forward-looking statements concerning the Company, reference is made to Exhibit
99.01 of the Company's Annual Report on Form 10-K for the fiscal year ended
January 1, 2000; other risks or uncertainties may be detailed from time to time
in the Company's future SEC filings.
29
<PAGE> 14
INGRAM MICRO INC.
- --------------------------------------------------------------------------------
CONSOLIDATED BALANCE SHEET
(DOLLARS IN 000S, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR END
1999 1998
----------- -----------
<S> <C> <C>
ASSETS
Current assets:
Cash $ 128,152 $ 96,682
Investment in available-for-sale securities 142,338 --
Trade accounts receivable (less allowances of $100,754 in 1999
and $55,904 in 1998) 2,853,509 2,562,050
Inventories 3,471,565 3,094,227
Other current assets 373,365 278,591
----------- -----------
Total current assets 6,968,929 6,031,550
Investment in available-for-sale securities 474,525 56,928
Property and equipment, net 316,643 254,718
Goodwill, net 455,473 232,112
Other 56,357 158,096
----------- -----------
Total assets $ 8,271,927 $ 6,733,404
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 4,322,303 $ 3,306,045
Accrued expenses 317,283 254,627
Current maturities of long-term debt 31,020 38,978
----------- -----------
Total current liabilities 4,670,606 3,599,650
Convertible debentures 440,943 473,475
Other long-term debt 876,172 1,208,003
Deferred income taxes and other liabilities 313,561 45,205
----------- -----------
Total liabilities 6,301,282 5,326,333
----------- -----------
Commitments and contingencies (Note 9) -- --
Redeemable Class B Common Stock 3,800 7,814
----------- -----------
Stockholders' equity:
Preferred Stock, $0.01 par value, 1,000,000 shares
authorized; no shares issued and outstanding -- --
Class A Common Stock, $0.01 par value, 265,000,000 shares
authorized; 71,212,517 and 66,520,715 shares issued
and outstanding in 1999 and 1998, respectively 712 665
Class B Common Stock, $0.01 par value, 135,000,000 shares
authorized; 73,280,871 and 75,459,710 shares issued
and outstanding in 1999 and 1998 (including 542,855
and 1,116,250 redeemable shares in 1999 and 1998), respectively 727 743
Additional paid in capital 645,182 591,235
Retained earnings 995,035 811,616
Accumulated other comprehensive income (loss) 328,285 (4,914)
Unearned compensation (3,096) (88)
----------- -----------
Total stockholders' equity 1,966,845 1,399,257
----------- -----------
Total liabilities and stockholders' equity $ 8,271,927 $ 6,733,404
=========== ===========
</TABLE>
See accompanying notes to these consolidated financial statements.
30
<PAGE> 15
INGRAM MICRO INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENT OF INCOME
(DOLLARS IN 000S, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
Net sales $ 28,068,642 $ 22,034,038 $ 16,581,539
Cost of sales 26,732,479 20,642,870 15,495,850
------------ ------------ ------------
Gross profit 1,336,163 1,391,168 1,085,689
------------ ------------ ------------
Expenses:
Selling, general and administrative 1,115,854 904,563 709,110
Reorganization costs 20,305 -- --
------------ ------------ ------------
1,136,159 904,563 709,110
------------ ------------ ------------
Income from operations 200,004 486,605 376,579
------------ ------------ ------------
Other (income) expense:
Interest income (4,338) (5,652) (3,924)
Interest expense 101,691 72,181 37,940
Gain on sale of available-for-sale securities (201,318) -- --
Net foreign currency exchange loss 2,583 6,247 2,430
Other 10,893 6,969 13,644
------------ ------------ ------------
(90,489) 79,745 50,090
------------ ------------ ------------
Income before income taxes, minority interest
and extraordinary item 290,493 406,860 326,489
Provision for income taxes 110,852 161,685 131,463
------------ ------------ ------------
Income before minority interest and
extraordinary item 179,641 245,175 195,026
Minority interest -- -- 1,386
------------ ------------ ------------
Income before extraordinary item 179,641 245,175 193,640
Extraordinary gain on repurchase of debentures,
net of $2,405 in income taxes 3,778 -- --
------------ ------------ ------------
Net income $ 183,419 $ 245,175 $ 193,640
============ ============ ============
Basic earnings per share:
Income before extraordinary item $ 1.25 $ 1.76 $ 1.43
Extraordinary gain on repurchase of debentures .03 -- --
------------ ------------ ------------
Net income $ 1.28 $ 1.76 $ 1.43
============ ============ ============
Diluted earnings per share:
Income before extraordinary item $ 1.21 $ 1.64 $ 1.32
Extraordinary gain on repurchase of debentures .03 -- --
------------ ------------ ------------
Net income $ 1.24 $ 1.64 $ 1.32
============ ============ ============
</TABLE>
See accompanying notes to these consolidated financial statements.
31
<PAGE> 16
INGRAM MICRO INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(DOLLARS IN 000S)
<TABLE>
<CAPTION>
ACCUMULATED
ADDITIONAL OTHER
COMMON STOCK PAID IN RETAINED COMPREHENSIVE UNEARNED
CLASS A CLASS B CAPITAL EARNINGS INCOME (LOSS) COMPENSATION TOTAL
------- ------- ---------- --------- ------------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C>
DECEMBER 28, 1996 $ 250 $1,066 $ 449,657 $ 372,801 $ 1,910 $ (534) $ 825,150
Noncash compensation charge
related to stock options 6,876 6,876
Stock options exercised 31 6,546 6,577
Income tax benefit from
exercise of stock options 21,833 21,833
Conversion of Class B Common
Stock to Class A Common Stock 93 (93) --
Amortization of unearned
compensation 276 276
Comprehensive income (loss) 193,640 (16,146) 177,494
------ ------ --------- --------- --------- -------- ----------
JANUARY 3, 1998 374 973 484,912 566,441 (14,236) (258) 1,038,206
Noncash compensation charge
related to stock options 4,392 4,392
Stock options exercised 50 36,337 36,387
Income tax benefit from
exercise of stock options 57,476 57,476
Vesting of Redeemable
Class B Common Stock 11 8,118 8,129
Conversion of Class B Common
Stock to Class A Common Stock 241 (241) -
Amortization of unearned
compensation 170 170
Comprehensive income 245,175 9,322 254,497
------ ------ --------- --------- --------- -------- ----------
JANUARY 2, 1999 665 743 591,235 811,616 (4,914) (88) 1,399,257
Noncash compensation charge
related to stock options 1,978 1,978
Stock options exercised 17 7,387 7,404
Income tax benefit from
exercise of stock options 13,428 13,428
Vesting of Redeemable
Class B Common Stock 6 3,901 3,907
Conversion of Class B
Common Stock to
Class A Common Stock 22 (22) --
Grant of restricted Class A
Common Stock 3 3,455 (3,458) --
Issuance of Class A Common
Stock related to Employee
Stock Purchase Plan 5 12,534 12,539
Warrants issued 11,264 11,264
Amortization of unearned
compensation 450 450
Comprehensive income 183,419 333,199 516,618
------ ------ --------- --------- --------- -------- ----------
JANUARY 1, 2000 $ 712 $ 727 $ 645,182 $ 995,035 $ 328,285 $ (3,096) $1,966,845
====== ====== ========= ========= ========= ======== ==========
</TABLE>
See accompanying notes to these consolidated financial statements.
32
<PAGE> 17
INGRAM MICRO INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENT OF CASH FLOWS
(DOLLARS IN 000S)
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
CASH PROVIDED (USED) BY OPERATING ACTIVITIES:
Net income $ 183,419 $ 245,175 $ 193,640
Adjustments to reconcile net income to
cash provided (used) by operating activities:
Depreciation 74,701 57,673 42,880
Amortization of goodwill 22,900 10,269 4,955
Deferred income taxes 22,524 3,532 8,226
Pre-tax gain on sale of available-for-sale
securities (201,318) -- --
Gain (net of tax) on repurchase of debentures (3,778) -- --
Minority interest -- -- 1,387
Noncash compensation charge 2,428 4,562 7,152
Noncash interest expense on debentures 26,442 14,248 --
Changes in operating assets and liabilities,
net of effects of acquisitions:
Trade accounts receivable (94,266) (786,727) (485,711)
Inventories (307,940) (445,324) (542,886)
Other current assets (101,127) (17,473) (61,642)
Accounts payable 899,574 694,880 92,396
Accrued expenses 49,449 (59,348) 91,912
--------- --------- ---------
Cash provided (used) by operating activities 573,008 (278,533) (647,691)
--------- --------- ---------
CASH (USED) PROVIDED BY INVESTING ACTIVITIES:
Purchase of property and equipment (135,260) (143,236) (101,458)
Proceeds from sale of property and equipment 10,433 75,321 12,963
Acquisitions, net of cash acquired (241,928) (96,550) (33,960)
Equity investment in subsidiary -- -- (71,212)
Purchase of available-for-sale securities -- (50,262) --
Net proceeds from sale of available-for-sale securities 230,109 -- --
Other (1,795) (3,867) 320
--------- --------- ---------
Cash used by investing activities (138,441) (218,594) (193,347)
--------- --------- ---------
CASH (USED) PROVIDED BY FINANCING ACTIVITIES:
Repurchase of Redeemable Class B Common Stock (107) (650) (630)
Exercise of stock options including tax benefits 20,832 93,863 28,410
Proceeds from issuance of convertible debentures, net of
issuance costs -- 449,604 --
Proceeds from (repayment of) debt 123,999 (80,689) 90,219
Repurchase of convertible debentures (50,321) -- --
Net (repayments) borrowings under revolving
credit facilities (508,250) 34,978 770,367
--------- --------- ---------
Cash (used) provided by financing activities (413,847) 497,106 888,366
--------- --------- ---------
Effect of exchange rate changes on cash 10,750 4,491 (3,395)
--------- --------- ---------
Increase in cash 31,470 4,470 43,933
Cash, beginning of year 96,682 92,212 48,279
--------- --------- ---------
Cash, end of year $ 128,152 $ 96,682 $ 92,212
========= ========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash payments during the year:
Interest $ 72,343 $ 61,706 $ 36,185
Income taxes 96,682 109,108 107,129
</TABLE>
See accompanying notes to these consolidated financial statements.
33
<PAGE> 18
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
NOTE 1 - ORGANIZATION AND BASIS OF PRESENTATION
Ingram Micro Inc. (the "Company" or "Ingram Micro") is primarily engaged,
directly and through its wholly- and majority-owned subsidiaries, in
distribution of information technology products and services worldwide. The
Company conducts the majority of its operations in the United States, Europe,
Canada, Latin America and Asia Pacific.
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES
BASIS OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly- and majority-owned subsidiaries. All significant intercompany
accounts and transactions have been eliminated in consolidation. The equity
method of accounting is used for the Company's 50% or less owned affiliates over
which the Company has the ability to exercise significant influence.
FISCAL YEAR
The fiscal year of the Company is a 52- or 53-week period ending on the Saturday
nearest to December 31. All references herein to "1999" represent the 52-week
fiscal year ended January 1, 2000. All references herein to "1998" represent the
52-week fiscal year ended January 2, 1999, and all references herein to "1997"
represent the 53-week fiscal year ended January 3, 1998.
USE OF ESTIMATES
Preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities, and disclosure of
contingent assets and liabilities at the financial statement date, and reported
amounts of revenue and expenses during the reporting period. Significant
estimates primarily relate to reserves for inventory, vendor programs and credit
losses on accounts receivable. Actual results could differ from these estimates.
REVENUE RECOGNITION
Revenue is recognized at the time of product shipment or upon the delivery of
services. The Company, under specific conditions, permits its customers to
return or exchange products. The provision for estimated sales returns is
recorded concurrently with the recognition of revenue.
VENDOR PROGRAMS
Funds received from vendors for price protection, product rebates, marketing or
training programs are recorded net of direct costs as adjustments to product
costs, selling, general and administrative expenses or revenue according to the
nature of the program.
The Company generated approximately 39% of its net sales in fiscal 1999, 40% in
1998, and 38% in 1997 from products purchased from three vendors.
WARRANTIES
The Company's suppliers generally warrant the products distributed by the
Company and allow returns of defective products, including those that have been
returned to the Company by its customers. The Company does not independently
warrant the products it distributes; however, the Company does warrant the
following: (1) its services with regard to products that it configured for its
customers, and (2) products that it builds to order from components purchased
from other sources. Provision for estimated warranty costs is recorded at the
time of sale and periodically adjusted to reflect actual experience. Warranty
expense was not material to the Company's Consolidated Statement of Income.
34
<PAGE> 19
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
FOREIGN CURRENCY TRANSLATION AND REMEASUREMENT
Financial statements of foreign subsidiaries, for which the functional currency
is the local currency, are translated into United States ("U.S.") dollars using
the exchange rate at each balance sheet date for assets and liabilities and a
weighted average exchange rate for each period for statement of income items.
Translation adjustments are recorded in other comprehensive income. The
functional currency of the Company's subsidiaries in Latin America and certain
countries within the Company's Asian operations is the U.S. dollar; accordingly,
the monetary assets and liabilities of these subsidiaries are translated into
U.S. dollars at the exchange rate in effect at the balance sheet date. Revenues,
expenses, gains or losses are translated at the average exchange rate for the
period, and nonmonetary assets and liabilities are translated at historical
rates. The resultant remeasurement gains and losses of these subsidiaries are
recognized in the Consolidated Statement of Income. Gains and losses from
foreign currency transactions are included in the Consolidated Statement of
Income.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of cash, accounts receivable, accounts payable and other
accrued expenses approximate fair value because of the short maturity of these
items. The carrying amounts of outstanding debt issued pursuant to bank credit
agreements approximate fair value because interest rates over the relative term
of these instruments approximate current market interest rates. The estimated
fair value of the Zero Coupon Convertible Debentures including original issue
discount was $388,939 at January 1, 2000 based upon quoted market prices. The
carrying value at January 1, 2000 was $440,943.
CASH
Book overdrafts of $140,149 and $228,556 as of January 1, 2000, and January 2,
1999, respectively, are included in accounts payable. The Company considers all
highly liquid investments with original maturities of three months or less to be
cash equivalents.
INVENTORIES
Inventories are stated at the lower of average cost or market.
LONG-LIVED ASSETS
The Company assesses potential impairments to its long-lived assets when there
is evidence that events or changes in circumstances have made recovery of the
asset's carrying value unlikely. An impairment loss would be recognized when the
sum of the expected, undiscounted future net cash flows is less than the
carrying amount of the asset. The amount of an impairment loss would be
recognized as the excess of the asset's carrying value over the fair value.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost and depreciated using the
straight-line method over the following estimated useful lives. Leasehold
improvements are amortized over the shorter of the lease term or the estimated
useful life:
<TABLE>
<S> <C>
Buildings 40 years
Leasehold improvements 3-17 years
Distribution equipment 5-7 years
Computer equipment and software 2-5 years
</TABLE>
In 1998, the Company elected to adopt the provisions of Statement of Position
98-1, "Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use." This statement requires capitalization of computer software costs
that meet both the definition of internal-use software and defined criteria for
capitalization. The Company amortizes the costs of computer
35
<PAGE> 20
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
software developed or obtained for internal use on a straight-line basis over
the estimated life of the software. The impact of adoption was not material to
the Company's consolidated financial statements.
Maintenance, repairs and minor renewals are charged to expense as incurred.
Additions, major renewals and betterments to property and equipment are
capitalized.
GOODWILL
Goodwill represents the excess of the purchase price over the fair value of the
net assets acquired in an acquisition accounted for using the purchase method,
and is amortized on a straight-line basis over periods ranging from five to 30
years. Accumulated amortization was $54,521 at January 1, 2000, and $31,621 at
January 2, 1999. Amortization expense totaled $22,900, $10,269, and $4,955, for
1999, 1998, and 1997, respectively. The Company assesses the realizability of
goodwill consistent with its policy for long-lived assets.
INVESTMENTS IN AVAILABLE-FOR-SALE SECURITIES
The Company classifies its existing marketable equity securities as
available-for-sale in accordance with the provisions of Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities." These securities are carried at fair market value, with
unrealized gains and losses reported in stockholders' equity as a component of
other comprehensive income (loss). Gains or losses on securities sold are based
on the specific identification method.
In December 1998, the Company purchased 990,800 shares of common stock of
SOFTBANK Corp. ("Softbank"), Japan's largest distributor of software,
peripherals and networking products, for approximately $50,262. These securities
had a gross unrealized holding gain of $6,666 as of January 2, 1999. No tax
provision was provided in 1998 because of tax planning strategies that the
Company believes will reduce the tax consequences to an immaterial amount.
During December 1999, the Company sold 346,800 shares of Softbank common stock,
or approximately 35% of its original investment, for approximately $230,109
resulting in a pre-tax gain of approximately $201,318, net of related expenses
of approximately $18,609. As a result of the Company's reconsideration of
certain tax planning strategies, the Company provided for deferred taxes
totaling approximately $76,098 associated with this sale of stock. The Company
used the net proceeds from the sale to repay existing indebtedness. As of
January 1, 2000, the Company had an unrealized holding gain on the remaining
644,000 shares of Softbank common stock totaling $356,936, net of $227,248 in
deferred income taxes.
In connection with the December 1999 sale of Softbank common stock, the Company
issued warrants to Softbank for the purchase of 1,500,000 shares of the
Company's Class A Common Stock with an exercise price of $13.25 per share, which
approximated the market price of the Company's common stock on the warrant
issuance date. The warrants are exercisable immediately and have a 5-year term.
The estimated fair value of these warrants upon issuance was approximately
$11,264 and was determined using the Black-Scholes option-pricing model using
the following assumptions:
<TABLE>
<S> <C>
Risk-free interest rate 6.27%
Term of warrant 5 years
Expected stock volatility 55.4%
</TABLE>
The estimated fair value of the warrants has been included in other expenses in
the Statement of Income for fiscal 1999.
36
<PAGE> 21
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
In January 2000, the Company sold an additional 148,600 shares or approximately
15% of its original holdings in Softbank common stock for approximately $118,900
in net cash proceeds. The gain, net of expenses of $2,800, realized in the first
quarter of fiscal year 2000 related to this sale totaled approximately $69,000,
net of deferred income taxes of approximately $42,000.
CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject the Company to significant
concentrations of credit risk consist principally of trade accounts receivable
and derivative financial instruments. Credit risk with respect to trade accounts
receivable is limited due to the large number of customers and their dispersion
across geographic areas. The Company sells its products primarily in the United
States, Europe, Canada, Latin America and Asia Pacific. The Company performs
ongoing credit evaluations of its customers' financial conditions, obtains
credit insurance in certain locations and requires collateral in certain
circumstances. The Company maintains an allowance for potential credit losses.
DERIVATIVE FINANCIAL INSTRUMENTS
The Company operates internationally with distribution facilities in various
locations around the world. The Company reduces its exposure to fluctuations in
interest rates and foreign exchange rates by creating offsetting positions
through the use of derivative financial instruments. The market risk related to
the foreign exchange agreements is offset by changes in the valuation of the
underlying items being hedged. The majority of the Company's derivative
financial instruments have terms of 90 days or less. The Company currently does
not use derivative financial instruments for trading or speculative purposes,
nor is the Company a party to leveraged derivatives.
Foreign exchange risk is managed by using forward and option contracts to hedge
receivables and payables. Written foreign currency options are used to mitigate
currency risk in conjunction with purchased options. Currency interest rate
swaps and forward rate agreements are used to hedge foreign currency denominated
principal and interest payments related to intercompany and third-party loans.
Derivative financial instruments are accounted for on an accrual basis. Income
and expense are recorded in the same category as that arising from the related
asset or liability being hedged. Gains and losses resulting from effective
hedges of existing assets, liabilities or firm commitments are deferred and
recognized when the offsetting gains and losses are recognized on the related
hedged items. Gains or losses on written foreign currency options are adjusted
to market value at the end of each accounting period and have not been material
to date.
The notional amount of forward exchange contracts and options is the amount of
foreign currency bought or sold at maturity. The notional amount of currency
interest rate swaps and forward rate agreements are the underlying principal and
currency amounts used in determining the interest payments exchanged over the
life of the swap. Notional amounts are indicative of the extent of the Company's
involvement in the various types and uses of derivative financial instruments
and are not a measure of the Company's exposure to credit or market risks
through its use of derivatives. The estimated fair value of derivative financial
instruments represents the amount required to enter into like offsetting
contracts with similar remaining maturities based on quoted market prices.
Credit exposure for derivative financial instruments is limited to the amounts,
if any, by which the counterparties' obligations under the contracts exceed the
obligations of the Company to the counterparties. Potential credit losses are
minimized through careful evaluation of counterparty credit standing, selection
of counterparties from a limited group of high-quality institutions and other
contract provisions.
37
<PAGE> 22
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
Derivative financial instruments comprise the following:
<TABLE>
<CAPTION>
1999 1998
----------------------------------------------------
Notional Estimated Notional Estimated
Amounts Fair Value Amounts Fair Value
-------- ---------- -------- ----------
<S> <C> <C> <C> <C>
Foreign exchange forward contracts $365,931 $ (251) $702,343 $(1,648)
Purchased foreign currency options 54,149 1,215 32,604 78
Written foreign currency options 53,603 (503) 18,652 (111)
Currency interest rate swaps 211,534 27,457 200,732 628
Forward rate agreements -- -- 149,400 10
</TABLE>
COMPREHENSIVE INCOME
Statement of Financial Accounting Standards No. 130, "Reporting Comprehensive
Income" ("FAS 130") establishes standards for reporting and displaying
comprehensive income and its components in the Company's consolidated financial
statements. Comprehensive income is defined in FAS 130 as the change in equity
(net assets) of a business enterprise during a period from transactions and
other events and circumstances from nonowner sources.
The components of accumulated other comprehensive income (loss) are as follows:
<TABLE>
<CAPTION>
FOREIGN UNREALIZED ACCUMULATED
CURRENCY GAIN ON OTHER
TRANSLATION AVAILABLE FOR COMPREHENSIVE
ADJUSTMENT SALE SECURITIES INCOME (LOSS)
----------- --------------- -------------
<S> <C> <C> <C>
Balance at December 28, 1996 $ 1,910 $ -- $ 1,910
Change in foreign currency translation adjustment (16,146) -- (16,146)
-------- --------- ---------
Balance at January 3, 1998 (14,236) -- (14,236)
Change in foreign currency translation adjustment 2,656 -- 2,656
Unrealized holding gain arising during the period -- 6,666 6,666
-------- --------- ---------
Balance at January 2, 1999 (11,580) 6,666 (4,914)
Change in foreign currency translation adjustment (17,071) -- (17,071)
Unrealized holding gain arising during the period -- 475,490 475,490
Reclassification adjustment for gain included
in net income -- (125,220) (125,220)
-------- --------- ---------
Balance at January 1, 2000 $(28,651) $ 356,936 $ 328,285
======== ========= =========
</TABLE>
ACCOUNTING FOR STOCK-BASED COMPENSATION
The Company has adopted the disclosure requirements of Statement of Financial
Accounting Standards No. 123, "Accounting for Stock Based Compensation" ("FAS
123"). As permitted by FAS 123, the Company continues to measure compensation
cost in accordance with Accounting Principles Board Opinion No. 25, "Accounting
for Stock Issued to Employees" ("APB 25"), but provides pro forma disclosures of
net income and earnings per share as if the fair-value method had been applied.
EARNINGS PER SHARE
The Company reports a dual presentation of Basic Earnings per Share ("Basic
EPS") and Diluted Earnings per Share ("Diluted EPS"). Basic EPS excludes
dilution and is computed by dividing net income by the weighted average number
of common shares outstanding during the reported period. Diluted EPS reflects
the potential dilution that could occur if stock options and other commitments
to issue common stock were exercised using the treasury stock method or the
if-converted method, where applicable.
38
<PAGE> 23
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
The composition of Basic EPS and Diluted EPS is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
--------------- --------------- ---------------
<S> <C> <C> <C>
Income before extraordinary item $ 179,641 $ 245,175 $ 193,640
=============== =============== ===============
Weighted average shares 143,404,207 139,263,810 135,764,053
=============== =============== ===============
Basic earnings per share before
extraordinary item $ 1.25 $ 1.76 $ 1.43
=============== =============== ===============
Weighted average shares including
the dilutive effect of stock options
(4,380,505; 10,274,060; and 10,543,479 for
Fiscal 1999, 1998, and 1997, respectively) 147,784,712 149,537,870 146,307,532
=============== =============== ===============
Diluted earnings per share before
extraordinary item $ 1.21 $ 1.64 $ 1.32
=============== =============== ===============
</TABLE>
At January 1, 2000 and January 2, 1999, there were $440,943 and $473,475,
respectively, in Zero Coupon Convertible Debentures that were convertible into
6,427,721 and 7,308,350 shares of Class A Common Stock (see Note 7). In 1999 and
1998, these potential shares were excluded from the computation of Diluted EPS
because their effect would be antidilutive. Additionally, there were
approximately 3,483,000, 388,000, and 262,000 options in 1999, 1998, and 1997,
respectively, that were not included in the computation of Diluted EPS because
the exercise price was greater than the average market price of the Class A
Common Stock, thereby resulting in an antidilutive effect.
NEW ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" ("FAS 133"), which will become effective for the Company
in fiscal 2001. FAS 133 establishes accounting and reporting standards for
derivative instruments, including certain derivative instruments embedded in
other contracts (collectively referred to as derivatives), and for hedging
activities. The Company does not expect the adoption of FAS 133 to have a
material impact on its reported consolidated financial condition or results of
operations.
RECLASSIFICATIONS
Certain prior year balances have been reclassified to conform with the current
year presentation.
NOTE 3 - REORGANIZATION COSTS
In February 1999, the Company initiated a plan primarily in the U.S., but also
in Europe, to streamline operations and reorganize resources to increase
flexibility and service and maximize cost savings and operational efficiencies.
This reorganization plan included several organizational and structural changes,
including the closing of the Company's California-based consolidation center and
certain other redundant locations, realignment of the Company's sales force and
the creation of a product management organization that integrates purchasing,
vendor services, and product marketing functions, as well as a realignment of
administrative functions and processes throughout the U.S. organization and in
certain of the Company's European operations. In addition, during the fourth
quarter of 1999, further organizational and strategic changes were implemented
in the Company's assembly and custom-configuration operations including the
selection of an outsource partner to produce unbranded systems and the
reallocation of resources to the Company's custom-configuration services
capabilities.
In connection with these reorganization efforts, the Company recorded a charge
of $20,305 for the fiscal year ended January 1, 2000. The reorganization charge
included $12,322 in employee termination benefits for approximately 597
employees, $6,381 for the write-off of software used in the production of
unbranded systems, $1,284 for closing and consolidation of redundant facilities
relating primarily to excess lease costs net of estimated sublease income, net
of adjustments, and $318 for other costs associated with the reorganization, net
of adjustments. This initiative is substantially complete at January 1, 2000.
39
<PAGE> 24
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
The reorganization charges and related activity for the fiscal year ended
January 1, 2000 are summarized as follows:
<TABLE>
<CAPTION>
Amounts Paid
1999 and Charged Remaining
Reorganization Against the Liability at
Charge Liability Adjustments January 1, 2000
-------------- ------------ ----------- ---------------
<S> <C> <C> <C> <C>
Employee termination benefits $12,322 $(10,614) $ -- $1,708
Software costs 6,381 (6,381) -- --
Facility costs 1,519 (672) (235) 612
Other costs 761 (318) (443) --
------- -------- ----- ------
Total $20,983 $(17,985) $(678) $2,320
======= ======== ===== ======
</TABLE>
NOTE 4 - ACQUISITIONS
In January 1999, the Company purchased 44,114,340 shares of the common stock of
Ingram Micro Asia Ltd. (formerly known as Electronic Resources Ltd., "ERL") from
certain shareholders, which increased the Company's ownership to 39.6% from the
21% ownership held in 1998. In accordance with Singapore law, the Company was
required to extend a tender offer for the remaining shares and warrants of ERL
as a result of its increased ownership. The Company offered to purchase the
remaining outstanding shares and warrants for approximately $1.20 and $0.65 per
share and warrant, respectively, during the tender offer period from January 4,
1999 to February 19, 1999. In addition, during January and February 1999, the
Company made open market purchases of ERL shares and warrants. As a result of
the open market purchases and the tender offer, the Company's ownership in ERL
increased to approximately 95%. In the third quarter of 1999, the Company
commenced a take-over offer for the remaining ERL shares and warrants not
already owned by Ingram Micro. As a result of the takeover, the Company
purchased an additional 12,151,748 shares and 1,337,962 warrants of ERL,
increasing the Company's ownership position to 100% of the outstanding shares of
ERL and approximately 99% of the outstanding warrants. The aggregate purchase
price paid during 1999 for these ERL shares and warrants, net of cash acquired,
was approximately $237,396.
Prior to 1999, the Company accounted for its investment in ERL, which totaled
approximately $71,212, under the equity method. Due to the purchase of ERL
common stock and warrants in 1999, the Company has consolidated the results of
ERL. The Company has accounted for the acquisition of ERL under the purchase
method; accordingly, the results of ERL's operations have been combined with
those of the Company for the year ended January 1, 2000. The purchase price was
allocated to the assets acquired and liabilities assumed based on their
estimated fair values at the date of acquisition. The excess of the purchase
price, including the $71,212 paid in December 1997, over the net assets acquired
was approximately $240,506 and is being amortized on a straight-line basis over
30 years.
In April 1999, the Company acquired ITG Computers, an Australian computer
products distributor. In addition, the Company's majority-owned Macrotron
subsidiary increased its ownership of Walton Kft., a Hungarian based computer
products distributor, from approximately 33% to 100% in September 1999. Total
cash paid for these acquisitions was approximately $4,532, net of cash acquired.
These acquisitions were accounted for using the purchase method, and the results
of their operations have been combined with those of the Company since their
acquisition dates. The purchase price was allocated to the assets acquired and
liabilities assumed based on their estimated fair values at the dates of
acquisition. The excess of the purchase prices over the net assets acquired
amounts to approximately $4,922 and is being amortized on a straight-line basis
over 10 years.
In July 1998, the Company completed the acquisition of approximately 99% and 91%
of the outstanding common and preferred stock, respectively, of Macrotron AG
("Macrotron") for approximately $100,000 in cash. Macrotron is based in Munich,
Germany, and operates primarily in Germany, Austria, and Switzerland. The
acquisition was accounted for using the purchase method, and the results of
Macrotron's operations have been combined with those of the Company since July
1, 1998, the effective date of acquisition. The purchase price was allocated to
the assets acquired and liabilities assumed based on their estimated fair values
40
<PAGE> 25
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
at the date of acquisition. The excess of the purchase price over the net assets
acquired was approximately $80,000 and is being amortized on a straight-line
basis over 30 years.
In June 1998, the Company completed its acquisition of Tulip Computer N.V.'s
assembly facility and related business in 's-Hertogenbosch, The Netherlands. In
October 1998, the Company completed its purchase of the remaining 30% minority
interest in Ingram Dicom S.A. de C.V. ("Dicom"), a Mexican subsidiary. In
December 1998, the Company completed the acquisition of Nordemaq Commercial de
Maquinas Nordeste Ltda, a Brazilian computer products distributor. The combined
consideration paid was approximately $19,000. The acquisitions were accounted
for using the purchase method of accounting and the results of operations have
been combined with those of the Company since the respective dates of
acquisition. The purchase price was allocated to the assets acquired and
liabilities assumed based on their estimated fair values at the date of
acquisition. The excess of the purchase price over net assets acquired for these
acquisitions totaled approximately $9,000 and is being amortized on a
straight-line basis over 20 years.
On July 18, 1997, the Company completed the acquisition of the Intelligent
Electronics Inc. indirect distribution business, its Reseller Network Division
("RND"). The purchase price was $73,000, payable by the assumption of
liabilities in excess of current assets (including $30,000 in cash acquired),
based on the balance sheet of RND at closing. This acquisition was accounted for
using the purchase method, and the results of RND's operations have been
combined with those of the Company since the date of acquisition. The purchase
price was allocated to the assets acquired and liabilities assumed based on
their estimated fair values at the date of acquisition. The excess of purchase
price over net assets acquired of approximately $88,000 is being amortized on a
straight-line basis over 20 years.
In April 1997, the Company acquired Tallgrass Technologies AS., a distributor of
computer products based in Norway. In August 1997, the Company acquired J&W
Computer GmbH, a distributor of computer products with operations in Germany,
France, Switzerland, and Austria. In November 1997, the Company acquired
Computacion Tecnica, S.A, a distributor of computer products with operations in
Chile, Brazil, Peru, and Florida. In December 1997, the Company acquired Latino
Americana de Software, a distributor of primarily software products with
operations in Brazil, and TT Microtrading Oy, a software distribution company
based in Finland. The combined consideration paid was approximately $75,053. The
acquisitions were accounted for using the purchase method of accounting and the
results of operations of the acquired companies have been combined with those of
the Company since the respective dates of acquisition. The purchase price was
allocated to the assets acquired and the liabilities assumed based upon their
estimated fair values at the respective dates of acquisition. The excess of
purchase price over net assets acquired for all five acquisitions totaled
approximately $50,000 and is being amortized on a straight-line basis over 20
years.
Pro forma financial information has not been presented because the effect of the
1999, 1998 and 1997 acquisitions was not significant.
NOTE 5 - ACCOUNTS RECEIVABLE
The Company has an arrangement pursuant to which certain U.S. trade accounts
receivable of the Company are transferred to a trust, which in turn has sold
certificates representing undivided interests in the total pool of trade
receivables without recourse. The trust has issued fixed-rate, medium-term
certificates to investors (which results in a reduction of trade accounts
receivable on the Company's Consolidated Balance Sheet) to reflect the sale of
such receivables and a variable-rate certificate to support a commercial paper
program. At January 1, 2000 and January 2, 1999, the amount of medium-term
certificates outstanding totaled $75,000 and $100,000, respectively. The
amortization period for the commercial paper program began October 1, 1999 and
terminated effective December 31, 1999. Accordingly, there were no amounts
outstanding under this commercial paper program at January 1, 2000. The amount
outstanding under this commercial paper program at January 2, 1999 totaled
$150,000.
In March 2000, the Company completed a new 5-year accounts receivable
securitization program in the U.S., which provides for the issuance of up to
$700,000 in commercial paper.
41
<PAGE> 26
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
The Company also established certain other facilities relating to accounts
receivable in Europe and Canada during 1999. Under these programs, the Company
has sold approximately $188,000 of trade accounts receivable in the aggregate
resulting in a further reduction of trade accounts receivable on the Company's
Consolidated Balance Sheet at January 1, 2000.
Fees in the amount of $7,223, $8,667, and $11,102 in 1999, 1998 and 1997,
respectively, related to the sale of trade accounts receivable facilities are
included in other expenses in the Consolidated Statement of Income.
NOTE 6 - PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
FISCAL YEAR END
1999 1998
--------- ---------
<S> <C> <C>
Land $ 8,237 $ 9,443
Buildings and leasehold improvements 93,282 59,370
Distribution equipment 180,147 188,045
Computer equipment and software 249,753 171,364
--------- ---------
531,419 428,222
Accumulated depreciation (214,776) (173,504)
--------- ---------
$ 316,643 $ 254,718
========= =========
</TABLE>
Depreciation expense was $74,701, $57,673 and $42,880 in 1999, 1998, and 1997,
respectively.
NOTE 7 - LONG-TERM DEBT
The Company has a $1,000,000 revolving credit agreement (the "U.S. Credit
Facility") with a syndicate of banks. The U.S. Credit Facility is unsecured and
matures on October 30, 2001. The Company also has two additional multicurrency
revolving credit agreements of $500,000 (the "European Credit Facility") and
$150,000 (the "Canadian Credit Facility") with two bank syndicates. The European
Credit Facility and the Canadian Credit Facility are unsecured and mature on
October 28, 2002 and October 28, 2001, respectively. The Company intends to
exercise its option to extend its U.S. and Canadian credit facilities, subject
to concurrence from the banks, to match the European Credit Facility term.
Collectively, the U.S. Credit Facility, the European Credit Facility and the
Canadian Credit Facility are referred to as the "Credit Facilities."
Revolving loan rate and competitive bid interest rate options are available
under the Credit Facilities. The spread over LIBOR for revolving rate loans and
associated facility fees are determined by reference to certain financial ratios
or credit ratings by recognized rating agencies on the Company's senior
unsecured debt. At January 1, 2000 and January 2, 1999, the Company had $503,537
and $994,549 in outstanding borrowings under the Credit Facilities. The weighted
average interest rate on outstanding borrowings under the Credit Facilities at
January 1, 2000 and January 2, 1999, was 6.52% and 4.95%, respectively.
The Company is required to comply with certain financial covenants, including
minimum tangible net worth, restrictions on funded debt and interest coverage.
The credit facilities also restrict the amount of dividends the Company can pay
as well as the amount of common stock that the Company can repurchase annually.
At January 1, 2000, the Company was in compliance with these covenants.
At January 1, 2000 and January 2, 1999, commercial paper outstanding was
$155,470 and $199,673, respectively, and is included in other long-term debt.
The 1998 amount includes $150,000 of commercial paper issued under the Company's
accounts receivable program (see Note 5) with the remainder issued in Europe.
The weighted average interest rate on the commercial paper was 3.68% and 5.27%
at January 1, 2000, and January 2, 1999, respectively.
42
<PAGE> 27
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
On June 9, 1998, the Company sold $1,330,000 aggregate principal amount at
maturity of its Zero Coupon Convertible Senior Debentures due 2018 in a private
placement. The Company subsequently registered the resale of these debentures
with the SEC. Gross proceeds from the offering were $460,400. The debentures
were sold at an issue price of $346.18 per $1,000 principal amount at maturity
(representing a yield to maturity of 5.375% per annum), and are convertible into
shares of the Company's Class A Common Stock at a rate of 5.495 shares per
$1,000 principal amount at maturity, subject to adjustment under certain
circumstances. In March 1999, the Company repurchased Zero Coupon Convertible
Senior Debentures with a carrying value of $56,504 as of the repurchase date for
approximately $50,321 in cash. The debenture repurchase resulted in an
extraordinary gain of $3,778 (net of $2,405 in income taxes).
As of January 1, 2000, the debentures were convertible into approximately 6.4
million shares of the Company's Class A Common Stock. The debentures are
redeemable at the option of the Company on or after June 9, 2003 at the issue
price plus accrued original issue discount to the date of redemption. Each
debenture is subject to repurchase at the option of the holder, as of June 9,
2001, June 9, 2003, June 9, 2008, and June 9, 2013, or if there is a Fundamental
Change (as defined), at the issue price plus accrued original issue discount to
the date of the redemption. In the event of a repurchase at the option of the
holder (other than upon a Fundamental Change), the Company may, at its option,
satisfy the redemption in cash or Class A Common Stock, or any combination
thereof. In the case of any such repurchase as of June 9, 2001, the Company may
elect, in lieu of the payment of cash or Class A Common Stock, to satisfy the
redemption in new Zero Coupon Convertible Senior Debentures due 2018. At January
1, 2000 and January 2, 1999, the issue price plus accrued original issue
discount was $440,943 and $473,475, respectively.
The Company has additional lines of credit, short-term overdraft facilities, and
other credit facilities with various financial institutions worldwide
aggregating $601,024 and $209,924 in 1999 and 1998, respectively. Most of these
arrangements are on an uncommitted basis and are reviewed periodically for
renewal. At January 1, 2000, and January 2, 1999, the Company had $248,185 and
$52,759, respectively, outstanding under these facilities. The weighted average
interest rate on the outstanding borrowings under these lines of credit and
short-term overdraft facilities was 6.24% and 7.17% at January 1, 2000, and
January 2, 1999, respectively.
Other long-term debt, excluding the convertible debentures, consists of the
following:
<TABLE>
<CAPTION>
FISCAL YEAR END
1999 1998
----------- -----------
<S> <C> <C>
Revolving credit facilities $ 503,537 $ 994,549
Commercial paper 155,470 199,673
Overdraft facilities 31,020 38,978
Other 217,165 13,781
----------- -----------
907,192 1,246,981
Current maturities of other long-term debt (31,020) (38,978)
----------- -----------
$ 876,172 $ 1,208,003
=========== ===========
</TABLE>
Annual maturities of long-term debt as of January 1, 2000, including the
convertible debentures, are as follows:
<TABLE>
<S> <C>
2000 $ 31,020
2001 --
2002 876,172
2003 --
2004 --
Thereafter 440,943
--------------
$ 1,348,135
==============
</TABLE>
43
<PAGE> 28
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
NOTE 8 - INCOME TAXES
The components of income before taxes, minority interest and extraordinary item
consist of the following:
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
----------------------------------
<S> <C> <C> <C>
United States $275,013 $350,631 $279,762
Foreign 15,480 56,229 46,727
----------------------------------
Total $290,493 $406,860 $326,489
==================================
</TABLE>
The provision for income taxes consists of the following:
<TABLE>
<CAPTION>
FISCAL YEAR
Current: 1999 1998 1997
---------------------------------------
<S> <C> <C> <C>
Federal $ 62,832 $ 111,862 $ 87,156
State 8 15,146 16,697
Foreign 25,488 31,145 19,384
---------------------------------------
88,328 158,153 123,237
---------------------------------------
Deferred:
Federal 27,867 4,057 7,355
State 7,832 6,926 1,582
Foreign (13,175) (7,451) (711)
---------------------------------------
22,524 3,532 8,226
---------------------------------------
Total income tax provision $ 110,852 $ 161,685 $ 131,463
=======================================
</TABLE>
Deferred income taxes reflect the tax effect of temporary differences between
the carrying amount of assets and liabilities for financial reporting purposes
and the amounts used for income tax purposes. Significant components of the
Company's net deferred tax assets and liabilities are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR END
1999 1998
-----------------------
<S> <C> <C>
Net deferred tax assets and (liabilities):
Tax in excess of book basis of foreign operations $ 37,466 $ 31,391
Items not currently taxable (31,045) (8,049)
Depreciation (25,485) (3,659)
Credits not currently utilizable 23,525 12,426
-----------------------
4,461 32,109
Unrealized gain on available for sale securities (227,248) --
-----------------------
Total $(222,787) $ 32,109
=======================
</TABLE>
Net current deferred tax assets of $51,460 and $15,562 are included in other
current assets at January 1, 2000, and January 2, 1999, respectively. Net
non-current deferred tax (liabilities) assets of ($274,247) and $16,547 are
included in other (liabilities) assets at January 1, 2000 and January 2, 1999,
respectively.
44
<PAGE> 29
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
Reconciliation of the statutory U.S. federal income tax rate to the Company's
effective tax rate is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
----------------------
<S> <C> <C> <C>
U.S. statutory rate 35% 35% 35%
State income taxes, net of federal income tax benefit 3 4 4
Foreign rates in excess of statutory rate 2 1 1
Other (2) 0 0
----------------------
Effective tax rate 38% 40% 40%
======================
</TABLE>
At January 1, 2000, the Company had foreign net operating tax loss carryforwards
of $103,000 of which approximately 80% have no expiration date. The remaining
foreign net operating tax loss carryforwards expire through the year 2008.
The Company does not provide for income taxes on undistributed earnings of
foreign subsidiaries as such earnings are intended to be permanently reinvested
in those operations.
NOTE 9 - COMMITMENTS AND CONTINGENCIES
There are various claims, lawsuits and pending actions against the Company
incident to the Company's operations. It is the opinion of management that the
ultimate resolution of these matters will not have a material adverse effect on
the Company's financial position or results of operations.
The Company has arrangements with certain finance companies that provide
accounts receivable and inventory financing facilities for its customers. In
conjunction with certain of these arrangements, the Company has agreements with
the finance companies that would require it to repurchase certain inventory
which might be repossessed from the customers by the finance companies. Such
repurchases have been insignificant to date.
The Company leases the majority of its facilities and certain equipment under
noncancelable operating leases. Renewal and purchase options at fair values
exist for a substantial portion of the leases. Rental expense for the years
ended January 1, 2000, January 2, 1999, and January 3, 1998 was $82,781,
$55,906, and $42,321, respectively.
Future minimum rental commitments on operating leases that have remaining
noncancelable lease terms in excess of one year as of January 1, 2000 are as
follows:
<TABLE>
<S> <C>
2000 $ 57,573
2001 53,151
2002 47,739
2003 36,812
2004 35,002
Thereafter 236,333
--------
$466,610
========
</TABLE>
45
<PAGE> 30
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
NOTE 10 - SEGMENT INFORMATION
The Company operates predominantly in a single industry segment as a distributor
of information technology products and services. The Company's reportable
operating segments are based on geographic location, and the measure of segment
profit is income from operations. The accounting policies of the segments are
the same as those described in the summary of significant accounting policies.
Geographic areas in which the Company operates include the United States, Europe
(Austria, Belgium, Denmark, Finland, France, Germany, Hungary, Italy, The
Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United
Kingdom) and Other international (Argentina, Australia, Brazil, Canada, Chile,
China, India, Indonesia, Malaysia, Mexico, New Zealand, Peru, Singapore, and
Thailand). Inter-geographic sales primarily represent intercompany sales which
are accounted for based on established sales prices between the related
companies and are eliminated in consolidation.
Financial information by geographic segments is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
NET SALES
United States
Sales to unaffiliated customers $ 16,813,414 $ 14,393,295 $ 11,539,623
Intergeographic sales 183,208 163,199 190,765
Europe 7,344,142 5,624,074 3,352,451
Other international 3,911,086 2,016,669 1,689,465
Eliminations of intergeographic sales (183,208) (163,199) (190,765)
------------ ------------ ------------
Total $ 28,068,642 $ 22,034,038 $ 16,581,539
============ ============ ============
INCOME FROM OPERATIONS
United States $ 143,496 $ 397,194 $ 304,003
Europe 19,118 62,172 41,045
Other international 37,390 27,239 31,531
------------ ------------ ------------
Total $ 200,004 $ 486,605 $ 376,579
============ ============ ============
IDENTIFIABLE ASSETS
United States $ 5,827,382 $ 3,939,573 $ 3,139,114
Europe 1,644,354 2,051,827 1,180,792
Other international 800,191 742,004 612,245
------------ ------------ ------------
Total $ 8,271,927 $ 6,733,404 $ 4,932,151
============ ============ ============
CAPITAL EXPENDITURES
United States $ 93,059 $ 119,838 $ 82,281
Europe 27,192 19,109 13,749
Other international 15,009 4,289 5,428
------------ ------------ ------------
Total $ 135,260 $ 143,236 $ 101,458
============ ============ ============
DEPRECIATION AND AMORTIZATION
United States $ 54,819 $ 44,067 $ 32,333
Europe 23,668 15,904 9,538
Other international 19,114 7,971 5,964
------------ ------------ ------------
Total $ 97,601 $ 67,942 $ 47,835
============ ============ ============
</TABLE>
No single customer accounts for 10% or more of the Company's net sales.
46
<PAGE> 31
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
NOTE 11 - TRANSACTIONS WITH RELATED PARTIES
The Company has in the past leased warehouse or office space from certain of its
shareowners, but no such leases remained in effect at January 1,2000 or January
2, 1999. Total rental payments to shareowners were $1,460 in 1998, and $1,645 in
1997, respectively.
NOTE 12 - STOCK OPTIONS AND INCENTIVE PLANS
The Company adopted the disclosure requirements of Statement of Financial
Accounting Standards No. 123 ("FAS 123") in 1996. As permitted by FAS 123, the
Company continues to measure compensation cost in accordance with APB 25.
Therefore, the adoption of FAS 123 had no impact on the Company's financial
condition or results of operations. Had compensation cost for the Company's
stock option plans been determined based on the fair value of the options
consistent with the method of FAS 123, the Company's net income and earnings per
share would have been reduced to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
-------------------------------------------
<S> <C> <C> <C> <C>
Net Income As reported $ 183,419 $ 245,175 $ 193,640
Pro forma $ 152,789 $ 225,772 $ 182,977
Diluted earnings per share As reported $ 1.24 $ 1.64 $ 1.32
Pro forma $ 1.03 $ 1.51 $ 1.25
</TABLE>
For pro forma disclosure, the fair value of compensatory stock options,
restricted stock grants and stock purchase rights was estimated using the
Black-Scholes option pricing model using the following weighted average
assumptions:
<TABLE>
<CAPTION>
FISCAL YEAR
1999 1998 1997
----------------------------------------------------------
<S> <C> <C> <C>
Risk-free interest rate 5.45% 5.01% 6.39%
Expected years until exercise 2.7 years 4.0 years 4.0 years
Expected stock volatility 55.5% 57.4% 47.0%
Expected dividends -- -- --
</TABLE>
ROLLOVER STOCK OPTION PLAN
Certain of the Company's employees participated in the qualified and
non-qualified stock option and stock appreciation right ("SAR") plans of the
Company's former parent, Ingram Industries Inc. ("Industries"). In conjunction
with the Company's split-off from Industries, Industries options and SARs held
by the Company's employees and certain other Industries options, SARs and
Incentive Stock Units ("ISUs") were converted to or exchanged for Ingram Micro
options ("Rollover Stock Options"). Approximately 11.0 million Rollover Stock
Options were outstanding immediately following the conversion. The majority of
the Rollover Stock Options will be fully vested by the year 2000 and no such
options expire later than 10 years from the date of grant. The Company recorded
a non-cash compensation charge of approximately $1,978 ($1,400 net of tax) in
1999, $4,392 ($3,659, net of tax) in 1998, and $6,876 ($5,915, net of tax) in
1997 related to the vested portion of the Rollover Stock Options.
1996 AND 1998 INCENTIVE PLANS
The Company has two equity incentive plans ("the 1996 and 1998 Plans"), which
provide for the granting of stock based awards including incentive stock
options, non-qualified stock options, restricted stock, and stock appreciation
rights, among others, to key employees and members of the Company's Board of
Directors. Under the two plans, the Company's board of directors authorized 27.0
million shares to be made available for granting. As of January 1, 2000, 13.8
million shares were available for granting. Options granted under the 1996 and
1998 Plans were issued at exercise prices ranging from $7.00 to $53.56 per share
47
<PAGE> 32
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
and have expiration dates not longer than 10 years. Options granted under the
1996 and 1998 Plans generally vest over a period of one to five years. In
October 1999, the Company also granted a total of 272,250 shares of restricted
Class A Common Stock to certain executives under the 1998 Plan. These shares
have no purchase price and vest ratably over a two year period. The Company
recorded unearned compensation of $3,458 as a component of stockholders' equity.
The unearned compensation will be amortized and charged to operations over the
vesting period.
The weighted average fair value per option granted in 1999, 1998 and 1997 for
pro forma disclosure was $7.66, $16.54 and $11.34, respectively.
A summary of the status of the Company's stock option plans is presented below:
<TABLE>
<CAPTION>
WEIGHTED
SHARES AVERAGE
(000S) EXERCISE PRICE
------ --------------
<S> <C> <C>
OUTSTANDING AT DECEMBER 28, 1996 19,647 $ 7.30
Stock options granted during the year 1,888 23.22
Stock options exercised (3,085) 2.13
Forfeitures (417) 5.67
------
OUTSTANDING AT JANUARY 3, 1998 18,033 9.89
Stock options granted during the year 2,709 32.52
Stock options exercised (4,992) 7.29
Forfeitures (569) 8.12
------
OUTSTANDING AT JANUARY 2, 1999 15,181 14.85
Stock options granted during the year 7,833 18.45
Stock options exercised (1,674) 4.42
Forfeitures (2,297) 24.06
------
OUTSTANDING AT JANUARY 1, 2000 19,043 16.90
======
</TABLE>
The following table summarizes information about stock options outstanding and
exercisable at January 1, 2000.
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
-------------------------------------------------------------------------------
WEIGHTED- WEIGHTED-
NUMBER AVERAGE AVERAGE NUMBER WEIGHTED-
RANGE OF EXERCISE OUTSTANDING REMAINING OUTSTANDING EXERCISABLE AT AVERAGE
PRICES AT 1/1/00 (000S) LIFE PRICE 1/1/00 (000S) EXERCISE PRICE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 0.68 - $ 3.32 2,809 2.7 $ 2.12 2,429 $ 2.03
$ 7.00 2,081 4.3 7.00 883 7.00
$11.13 - $14.56 4,679 9.6 12.56 47 13.60
$18.00 - $27.00 5,344 5.7 20.05 3,120 18.96
$27.06 - $40.38 3,394 6.5 29.75 584 29.56
$40.94 - $53.56 736 6.8 46.74 197 46.82
-------------- ---------------------------------------
19,043 $ 16.90 7,260 $ 13.42
============== =======================================
</TABLE>
Stock options exercisable totaled approximately 7,260,184, 4,717,000 and
3,004,000 at January 1, 2000, January 2, 1999, and January 3, 1998,
respectively, at weighted average exercise prices of $13.42, $10.29, and $3.49,
respectively.
48
<PAGE> 33
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
EMPLOYEE STOCK PURCHASE PLANS
In 1996 and 1998, the Board of Directors and the Company's shareholders approved
Employee Stock Purchase Plans (the "1996 and 1998 ESPP Plans") under which
1,000,000 and 3,000,000 shares, respectively, of the Company's Class A Common
Stock could be sold to employees. Under the Plans, employees can elect to have
between 1% and 6% of their earnings withheld to be applied to the purchase of
these shares. The purchase price under the Plans is generally the lesser of the
market price on the beginning or ending date of the offering periods under such
Plans. On December 31, 1998, the offering period was completed for all 1996 ESPP
offerings. In January 1999, the Company issued 582,362 of the 1,000,000
authorized shares and converted approximately $12,500 in accrued employee
contributions into stockholders' equity. The 1996 ESPP terminated on December
31, 1998. Under the 1998 Plan, offerings were made in January and in June 1999.
Both offerings ended on December 31, 1999. In January 2000, the Company issued
approximately 145,000 of the authorized 3,000,000 shares and converted
approximately $1,900 in accrued employee contributions into stockholders' equity
as a result.
EMPLOYEE BENEFIT PLANS
The Company's employee benefit plans permit eligible employees to make
contributions up to certain limits which are matched by the Company at
stipulated percentages. The Company's contributions charged to expense were
$4,484 in 1999, $3,314 in 1998 and $2,678 in 1997.
NOTE 13 - COMMON STOCK
The Company has two classes of Common Stock, consisting of 265,000,000
authorized shares of $0.01 par value Class A Common Stock and 135,000,000
authorized shares of $0.01 par value Class B Common Stock, and 1,000,000
authorized shares of $0.01 par value Preferred Stock. Class A stockholders are
entitled to one vote on each matter to be voted on by the stockholders whereas
Class B stockholders are entitled to ten votes on each matter to be voted on by
the stockholders. The two classes of stock have the same rights in all other
respects. Each share of Class B Common Stock may at any time be converted to a
share of Class A Common Stock; however, conversion will occur automatically on
the earliest to occur of (1) November 6, 2001; (2) the sale or transfer of such
share of Class B Common Stock to any person not specifically authorized to hold
such shares by the Company's Certificate of Incorporation; or (3) the date on
which the number of shares of Class B Common Stock then outstanding represents
less than 25% of the aggregate number of shares of Class A Common Stock and
Class B Common Stock then outstanding.
KEY EMPLOYEE STOCK PURCHASE PLAN
As of April 30, 1996, the Company adopted the Key Employee Stock Purchase Plan
(the "Stock Purchase Plan") which provides for the issuance of up to 4,000,000
shares of Class B Common Stock to certain employees. In June 1996, the Company
offered 2,775,000 shares of its Class B Common Stock for sale to certain
employees pursuant to the Stock Purchase Plan, and subsequently sold 2,510,400
shares at $7.00 per share with aggregate proceeds of approximately $17,573. The
shares sold thereby are subject to certain restrictions on transfer and to
repurchase by the Company at the original offering price upon termination of
employment prior to certain specified vesting dates (50% of the shares vested on
April 1, 1998; 25% on April 1, 1999; and the remaining 25% vest on April 1,
2000). The Company has repurchased 248,170 of such shares.
49
<PAGE> 34
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in 000s, except per share data)
In addition, the Company granted, pursuant to the Stock Purchase Plan, 107,000
restricted shares of Class B Common Stock to certain officers and employees of
the Company. These shares generally vest over four years. Prior to vesting,
these restricted shares are subject to forfeiture to the Company without
consideration upon termination of employment. At January 1, 2000, 10,000 of such
shares have been forfeited to the Company. Unearned compensation in the amount
of $714 related to the restricted shares is recorded as a separate component of
stockholders' equity and is amortized to noncash compensation over the vesting
period. The amount amortized to noncash compensation in 1999, 1998 and 1997 was
$88, $170 and $276, respectively.
The detail of changes in the number of issued and outstanding shares of Class A
Common Stock, Class B Common Stock, and Redeemable Class B Common Stock for the
three year period ended January 1, 2000, is as follows:
<TABLE>
<CAPTION>
COMMON STOCK
---------------------------------------------------
CLASS B
CLASS A CLASS B REDEEMABLE
---------- ----------- ----------
<S> <C> <C> <C>
DECEMBER 28, 1996 25,047,696 106,583,362 2,460,400
Stock options exercised 3,084,603
Repurchase of Redeemable Class B
Common Stock (90,000)
Forfeiture of restricted Class B Common Stock (5,000)
Conversion of Class B Common Stock to
Class A Common Stock 9,234,090 (9,234,090)
---------- ----------- ---------
JANUARY 3, 1998 37,366,389 97,344,272 2,370,400
Stock options exercised 4,992,264
Repurchase of Redeemable Class B
Common Stock (92,900)
Conversion of Class B Common Stock
to Class A Common Stock 24,162,062 (24,162,062)
Vesting of Redeemable Class B
Common Stock 1,161,250 (1,161,250)
---------- ----------- ---------
JANUARY 2, 1999 66,520,715 74,343,460 1,116,250
Stock options exercised 1,673,621
Repurchase of Redeemable Class B Common
Stock (15,270)
Conversion of Class B Common Stock
to Class A Common Stock 2,163,569 (2,163,569)
Vesting of Redeemable
Class B Common Stock 558,125 (558,125)
Issuance of Class A Common Stock
related to Employee Stock
Purchase Plan 582,362
Grant of restricted Class A
Common Stock 272,250
---------- ----------- ---------
JANUARY 1, 2000 71,212,517 72,738,016 542,855
========== =========== =========
</TABLE>
50
<PAGE> 35
MANAGEMENT'S STATEMENT OF FINANCIAL RESPONSIBILITY
Management is responsible for the integrity of the financial information
contained in this annual report, including the Company's consolidated financial
statements, which have been prepared in conformity with generally accepted
accounting principles and include amounts based upon management's informed
estimates and judgments.
Management believes it maintains an effective system of internal accounting
controls, including an internal audit program, that is designed to provide
reasonable, but not absolute, assurance that assets are safeguarded and that
accounting records provide a reliable basis for the preparation of financial
statements. This system is continuously reviewed, improved and modified in
response to changing business conditions and operations and recommendations made
by the independent accountants and internal auditors. Management believes that
the accounting and control systems provide reasonable assurance that assets are
safeguarded and financial information is reliable.
The Company's Bylaws provide that a majority of members of the Audit Committee
of the Board of Directors shall be Independent Directors who are not employees
of the Company. The Audit Committee is currently comprised entirely of
Independent Directors. The Audit Committee represents the shareowners and the
Board of Directors on matters relating to corporate accounting, financial
reporting, internal accounting control and auditing including the ongoing
assessment of the activities of the independent accountants and internal
auditors. The independent accountants and internal auditors advise the Audit
Committee of significant findings and recommendations arising from their
activities and have free access to the Audit Committee, with or without the
presence of management.
<TABLE>
<S> <C> <C>
/s/ JERRE L. STEAD /s/ KENT B. FOSTER /s/ MICHAEL J. GRAINGER
- --------------------- --------------------------- ---------------------------------
Jerre L. Stead Kent B. Foster Michael J. Grainger
Chairman of the Board Chief Executive Officer and Executive Vice President and
President Worldwide Chief Financial Officer
</TABLE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of Ingram Micro Inc.
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of income, stockholders' equity and cash flows present
fairly, in all material respects, the financial position of Ingram Micro Inc.
and its subsidiaries at January 1, 2000 and January 2, 1999, and the results of
their operations and their cash flows for each of the three years in the period
ended January 1, 2000 in conformity with accounting principles generally
accepted in the United States. These financial statements are the responsibility
of the Company's management; our responsibility is to express an opinion on
these financial statements based on our audits. We conducted our audits of these
statements in accordance with auditing standards generally accepted in the
United States, which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------------------
PricewaterhouseCoopers LLP
Costa Mesa, California
February 17, 2000, except as to the second
paragraph of Note 5, which is as of
March 8, 2000
51
<PAGE> 36
BOARD OF DIRECTORS
JERRE L. STEAD
Chairman of the Board,
Ingram Micro Inc.
DON H. DAVIS, JR.
Chairman and Chief Executive Officer,
Rockwell International Corporation
KENT B. FOSTER
Chief Executive Officer and President,
Ingram Micro Inc.
JOHN R. INGRAM
Vice Chairman,
Ingram Industries Inc.
MARTHA R. INGRAM
Chairman of the Board,
Ingram Industries Inc.
ORRIN H. INGRAM II
President and Chief Executive Officer,
Ingram Industries Inc.
PHILIP M. PFEFFER
President and Chief Executive Officer,
Treemont Capital Inc.
GERHARD SCHULMEYER
President and Chief Executive Officer,
Siemens Corporation
JOE B. WYATT
Chancellor,
Vanderbilt University
52
<PAGE> 37
CORPORATE MANAGEMENT
KENT B. FOSTER
Chief Executive Officer and President (Principal Executive Officer)
MICHAEL J. GRAINGER
Executive Vice President and Worldwide Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
GUY P. ABRAMO
Senior Vice President and Chief Information Officer
JAMES E. ANDERSON, JR.
Senior Vice President, Secretary and General Counsel
DAVID M. FINLEY
Senior Vice President, Worldwide Human Resources
JAMES F. RICKETTS
Corporate Vice President and Worldwide Treasurer
REGIONAL MANAGEMENT
KEVIN M. MURAI
Executive Vice President and President
Ingram Micro U. S.
GREGORY M.E. SPIERKEL
Executive Vice President and President
Ingram Micro Europe
ASGER FALSTRUP
Senior Vice President and President
Ingram Micro Canada
HENRI T. KOPPEN
Senior Vice President and President
Ingram Micro Asia-Pacific
DONALD R. LYMAN
Senior Vice President and President
Ingram Micro Latin America
53
<PAGE> 38
CORPORATE OFFICES
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
Phone: 714.566.1000
ANNUAL MEETING
The 2000 Annual Meeting of Shareowners will be held at 10 a.m. (Eastern Time)
Wednesday, May 17, 2000, at the Ingram Micro Distribution Center, 80 Micro
Drive, Jonestown, Pa. Shareowners are cordially invited to attend.
TRANSFER AGENT & REGISTRANT
First Chicago Trust Company of New York
A Division of EquiServe
Post Office Box 2500
Jersey City, NJ 07303-2500
Phone: 201.324.1644
INDEPENDENT AUDITORS
PricewaterhouseCoopers LLP
575 Anton Boulevard, Suite 1100
Costa Mesa, CA 92626
Phone: 714.435.8600
54
<PAGE> 39
COMMON STOCK
The Class A Common Stock of Ingram Micro is traded on the New York Stock
Exchange under the symbol "IM".
Price Range of Class A Common Stock
<TABLE>
<CAPTION>
HIGH LOW
<S> <C> <C> <C>
Fiscal 1998 First Quarter $ 40.75 $ 26.63
Second Quarter 49.25 36.75
Third Quarter 54.63 43.31
Fourth Quarter 50.38 32.88
Fiscal 1999 First Quarter $ 36.31 $ 16.13
Second Quarter 31.75 20.50
Third Quarter 33.88 12.56
Fourth Quarter 15.44 10.00
</TABLE>
SHAREOWNER INQUIRIES
Request for information may be sent to the Investor Relations Department at our
corporate offices.
Investor relations telephone line: 714.382.8282.
Investor relations e-mail address: [email protected]
Additional information also is available on our web site, www.ingrammicro.com.
55
<PAGE> 1
EXHIBIT 21.01
INGRAM MICRO INC.,
A DELAWARE CORPORATION,
GLOBAL SUBSIDIARIES AS OF MARCH 1, 2000
NORTH AMERICA REGION
NAME OF SUBSIDIARY JURISDICTION
------------------ ------------
1. CD Access Inc. Iowa
2. IMI Washington Inc. Delaware
3. Ingram Funding Inc. Delaware
4. Ingram Micro Asia Holdings Inc. (1) California
5. Ingram Micro CLBT Inc. Delaware
6. Ingram Micro Delaware Inc. Delaware
7. Ingram Micro CLBT (2) Pennsylvania
8. Ingram Micro L.P. (3) Tennessee
9. Ingram Micro Texas L.P. (4) Texas
10. Ingram Micro Inc. Canada
11. Ingram Micro Japan Inc. Delaware
12. Ingram Micro Management Company California
13. Ingram Micro Singapore Inc. California
14. Ingram Micro Taiwan Inc. Delaware
15. Ingram Micro Texas LLC (5) Delaware
16. Intelligent Advanced Systems, Inc. (6) Delaware
17. Intelligent Distribution Services, Inc. (6) Delaware
18. Intelligent Express, Inc. (6) Pennsylvania
19. Intelligent SP, Inc. Colorado
20. RND, Inc. (6) Colorado
LATIN AMERICA REGION
NAME OF SUBSIDIARY JURISDICTION
------------------ ------------
21. Ingram Export Company Ltd. Barbados
22. Ingram Micro Argentina, S.A. (7) Argentina
23. Ingram Micro Compania de Servicios, S.A. de C.V. (8) Mexico
24. Ingram Micro de Costa Rica, S. de R.L. (7) Costa Rica
25. Ingram Micro Latin America Cayman Islands
26. Computek Enterprises (U.S.A.) Inc. (6) Florida
27. Ingram Micro Caribbean Cayman Islands
28. Ingram Micro Chile, S.A. (9) Chile
29. Ingram Micro do Brazil Holdings Ltda. (10) Brazil
30. Ingram Micro Brazil Ltda (11) Brazil
31. Ingram Micro Peru, S.A. (12) Peru
32. Ingram Micro Logistics Inc. (13) Cayman Islands
33. CIM Ventures Inc. (14) Cayman Islands
34. Ingram Micro Mexico, S.A. de C.V. (8) Mexico
35. Export Services Inc. California
36. Ingram Micro Panama, S. de R.L. (7) Panama
37. Ingram Micro SB Holdings Inc. Cayman Islands
38. Ingram Micro SB Inc. California
1
<PAGE> 2
INGRAM MICRO INC.,
A DELAWARE CORPORATION,
GLOBAL SUBSIDIARIES AS OF MARCH 1, 2000
EUROPE REGION
NAME OF SUBSIDIARY JURISDICTION
------------------ ------------
39. Ingram European Coordination Center N.V. (15) Belgium
40. Ingram Micro AB Sweden
41. Ingram Micro AS Norway
42. Ingram Micro Purchasing & Warehousing AS Norway
43. Ingram Micro A/S Denmark
44. Ingram Micro Purchasing & Warehousing A/S Denmark
45. Ingram Micro Purchasing & Warehousing OY Finland
46. Ingram Micro Acquisition Gmbh Germany
47. Ingram Micro B.V. The Netherlands
48. Micro Communications Services B.V. The Netherlands
49. Bright Communications B.V. The Netherlands
50. Ingram Micro Frameworks B.V. The Netherlands
51. Ingram Micro Purchasing & Warehousing B.V. The Netherlands
52. Ingram Micro Europe AG Switzerland
53. Ingram Micro Holdings Gmbh Germany
54. Ingram Micro Hungary kft (16) Germany
55. Ingram Micro Deutschland Gmbh Germany
56. Ingram Micro Gmbh Zweigniederlassung Oesterriech Austria
57. Ingram Micro Components (Europe) GmbH Germany
58. Ingram Micro Europe GmbH Germany
59. Ingram Micro Development GmbH Germany
60. Ingram Macrotron AG (96.64%) Germany
61. Compu-Shack Electronic Gmbh Germany
62. Allied Technology (66.6%) California
63. Compu-Shack Praha Czechoslovakia
64. Compushack Distribution Germany
65. Compushack Production Germany
66. Future Software Gmbh (90%) Germany
67. Ingram Macrotron AG Switzerland
68. Ingram Macrotron Distribution Gmbh Germany
69. Macrotron Computer Manufacturing Germany
70. Ingram Macrotron Gmbh Austria
71. Macrokom Gmbh Germany
72. Macrotron Systems Gmbh Germany
73. Macrotron CAD-CAM Systems Germany
74. Macrotron Process Technologies (51%) Germany
75. Macrotron (UK) Ltd. England
76. Ingram Micro Management Gmbh Germany
77. Ingram Micro Germany Verwaltungs Gmbh Germany
78. WSH kft Hungary
2
<PAGE> 3
INGRAM MICRO INC.,
A DELAWARE CORPORATION,
GLOBAL SUBSIDIARIES AS OF MARCH 1, 2000
EUROPE REGION
NAME OF SUBSIDIARY JURISDICTION
------------------ ------------
79. Ingram Micro Holding Limited United Kingdom
80. Document Technology Limited (17) United Kingdom
81. Ingram Micro Finance Center of Excellence Ltd United Kingdom
82. Ingram Micro Purchasing Ltd United Kingdom
83. Ingram Micro (UK) Limited United Kingdom
84. Metrocom Computer Systems Limited (17) United Kingdom
85. Software Limited (17) United Kingdom
86. Ingram Micro N.V. (15) Belgium
87. Ingram Micro OY Finland
88. Ingram Micro Purchasing & Warehousing AB Sweden
89. Ingram Micro S.A. Spain
90. Ingram Micro Purchasing & Warehousing SA (18) Spain
91. Ingram Micro S.A.R.L. France
92. Ingram Micro Purchasing & Warehousing S.A.R.L. France
93. Ingram Micro S.p.A. (19) Italy
94. Ingram Micro Purchasing & Warehousing SRL (20) Italy
95. IMICRO Lda. Portugal
3
<PAGE> 4
INGRAM MICRO INC.,
A DELAWARE CORPORATION,
GLOBAL SUBSIDIARIES AS OF MARCH 1, 2000
ASIA-PACIFIC REGION
NAME OF SUBSIDIARY JURISDICTION
------------------ ------------
96. Ingram Micro Asia Ltd (21) Singapore
97. Electronic Resources Australia (Qld) Pty Ltd Australia
98. Electronic Resources Pakistan Pte Ltd (6) Singapore
99. Electronic Resources Systems Pte Ltd (6) Singapore
100. Eltee Electronics Pte Ltd (6) Singapore
101. Erijaya Pte Ltd (60%) Singapore
102. Ingram Micro (Thailand) Ltd (95%) Thailand
103. Ingram Micro Australia Pty Ltd Australia
104. Electronic Resources Australia (Vic) Pty Ltd Australia
105. Ingram Micro Gulf Fze (6) United Arab
Emirates
106. Ingram Micro Holding (Thailand) Ltd Thailand
107. Ingram Micro Hong Kong (Holding) Ltd Hong Kong
108. Chinam Electronics Limited Hong Kong
109. Ingram Micro (China) Ltd Hong Kong
110. Ingram Micro International Trading (Shanghai)
Co., Ltd China
111. Ingram Micro India Limited (51%) India
112. Ingram Micro Malaysia Sdn Bhd Malaysia
113. Ingram Micro NZ Ltd (70%) New Zealand
114. Ingram Micro Singapore (Indo-China) Pte Ltd (60%) Singapore
115. Ingram Micro Singapore (South Asia) Pte Ltd (51%) Singapore
116. Ingram Micro Singapore Pte Ltd (6) Singapore
117. ERIM Malaysia Sdn Bhd (6) Malaysia
118. LT Electronics Sdn Bhd (6) Malaysia
119. Megawave Pte Ltd (51%) (22) Singapore
FOOTNOTES:
(1) Parent of Ingram Micro Asia Ltd, under Asia-Pacific region.
(2) Pennsylvania business trust, with Ingram Micro Delaware Inc. as trustee and
Ingram Micro CLBT Inc. as beneficiary.
(3) Tennessee limited partnership, with Ingram Micro Inc. (Delaware) as general
partner and Ingram Micro Delaware Inc. as limited partner.
(4) Texas limited partnership, with Ingram Micro Texas LLC (dba IMTX LLC) as
general partner and Ingram Micro Delaware Inc. as limited partner.
(5) Single member limited liability company with Ingram Micro Inc. (Delaware)
as its sole member, dba IMTX LLC in Texas.
(6) Dormant.
(7) 99.998% owned by Ingram Micro Latin America and .002% owned by Ingram Micro
Caribbean.
(8) 99.998% owned by Ingram Micro Inc. (Delaware) and .002% owned by Ingram
Micro Caribbean.
(9) 99% owned by Ingram Micro Latin America and 1% owned by Ingram Micro
Caribbean.
(10) 99.999% owned by Ingram Micro Latin America and .001% owned by Ingram Micro
Caribbean.
(11) 99% owned by Ingram Micro do Brazil Holdings Ltda. and 1% owned by Ingram
Micro Caribbean.
(12) 99.998% owned by Ingram Micro Latin America, .001% owned by Ingram Micro
Caribbean and .001% owned by Ingram Micro Inc. (Delaware).
4
<PAGE> 5
(13) 40,000,000 voting preferred shares owned by Ingram Micro Inc. (Delaware)
and 10,000,000 non-voting common shares owned by Ingram Micro SB Inc.
(14) 346,800 non-voting shares owned by Ingram Micro Logistics Inc. and 55 Class
A preferred voting shares owned by Ingram Micro SB Holdings Inc.
(15) 1 share owned by Ingram Micro Delaware Inc.
(16) 65.6% owned by Ingram Micro Holding Gmbh and 34.4% owned by Compu-Shack
Electronic Gmbh.
(17) Under liquidation.
(18) 6,099 shares owned by Ingram Micro S.A. and 1 share owned by Ingram Micro
N.V.
(19) 97% owned by Ingram Micro Inc. and 3% by Ingram Micro N.V.
(20) 99% owned by Ingram Micro SpA and 1% by Ingram Micro N.V.
(21) Ingram Micro Asia Holdings Inc. owns 100% of the issued share capital and
99.46% of the outstanding warrants.
(22) The minority shareholders are in the process of transferring the 49% to
Ingram Micro Asia Ltd.
5
<PAGE> 1
Exhibit 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 333-23821, 333-23823, 333-23825, 333-23827,
333-43447, 333-52807 and 333-52809) of Ingram Micro Inc. of our report dated
February 17, 2000, except as to the second paragraph of Note 5, which is as of
March 8, 2000, relating to the financial statements, which appears in the Annual
Report to Shareowners, which is incorporated in this Annual Report on Form 10-K.
We also consent to the incorporation by reference of our report dated February
17, 2000, except as to the second paragraph of Note 5, which is as of March 8,
2000, relating to the financial statement schedule, which appears in this Form
10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Costa Mesa, California
March 27, 2000
<PAGE> 1
Exhibit 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-3 (Nos. 333-39457 and 333-58857) of Ingram Micro Inc. of
our report dated February 17, 2000, except as to the second paragraph of Note 5,
which is as of March 8, 2000, relating to the financial statements, which
appears in the Annual Report to Shareowners, which is incorporated in this
Annual Report on Form 10-K. We also consent to the incorporation by reference of
our report dated February 17, 2000, except as to the second paragraph of Note 5,
which is as of March 8, 2000, relating to the financial statement schedule,
which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Costa Mesa, California
March 27, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JAN-01-2000
<PERIOD-START> JAN-03-1999
<PERIOD-END> JAN-01-2000
<CASH> 128,152
<SECURITIES> 142,338
<RECEIVABLES> 2,954,263
<ALLOWANCES> (100,754)
<INVENTORY> 3,471,565
<CURRENT-ASSETS> 6,968,929
<PP&E> 531,419
<DEPRECIATION> (214,776)
<TOTAL-ASSETS> 8,271,927
<CURRENT-LIABILITIES> 4,670,606
<BONDS> 440,943
0
0
<COMMON> 1,439
<OTHER-SE> 1,965,406
<TOTAL-LIABILITY-AND-EQUITY> 8,271,927
<SALES> 28,068,642
<TOTAL-REVENUES> 28,068,642
<CGS> 26,732,479
<TOTAL-COSTS> 27,868,638
<OTHER-EXPENSES> (90,489)
<LOSS-PROVISION> 75,835
<INTEREST-EXPENSE> 101,691
<INCOME-PRETAX> 290,493
<INCOME-TAX> 110,852
<INCOME-CONTINUING> 179,641
<DISCONTINUED> 0
<EXTRAORDINARY> 3,778
<CHANGES> 0
<NET-INCOME> 183,419
<EPS-BASIC> 1.28
<EPS-DILUTED> 1.24
</TABLE>
<PAGE> 1
EXHIBIT 99.01
CAUTIONARY STATEMENTS FOR PURPOSES OF THE
"SAFE HARBOR" PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
"safe harbor" for "forward-looking statements" to encourage companies to provide
prospective information, so long as such information is identified as
forward-looking and is accompanied by meaningful cautionary statements
identifying important factors that could cause actual results to differ
materially from those discussed in the forward-looking statement(s). Ingram
Micro desires to take advantage of the safe harbor provisions of the Act.
Our Annual Report on Form 10-K for the year ended January 1, 2000 to which
this exhibit is appended, our quarterly reports on Form 10-Q, our current
reports on Form 8-K, periodic press releases, as well as other public documents
and statements may contain forward-looking statements within the meaning of the
Act.
In addition, our representatives participate from time to time in:
- speeches and calls with market analysts,
- conferences, meetings and calls with investors and potential investors in
our securities, and
- other meetings and conferences.
Some of the information presented in these calls, meetings and conferences may
be forward-looking within the meaning of the Act.
It is not reasonable for us to itemize all of the factors that could affect
us and/or the information technology products and services distribution industry
as a whole. In some cases, we may convey additional information regarding
important factors that could cause actual results to differ materially from
those projected in forward-looking statements made by or on behalf of Ingram
Micro. The following factors (in addition to other possible factors not listed)
could affect our actual results and cause these results to differ materially
from those projected or otherwise expressed in forward-looking statements made
by or on behalf of Ingram Micro:
WE ARE SUBJECT TO INTENSE COMPETITION, BOTH IN THE U.S. AND
INTERNATIONALLY. We operate in a highly competitive environment, both in the
United States and internationally. The intense competition that characterizes
the information technology products and services distribution industry is based
primarily on:
- breadth, availability and quality of product lines and services,
- price,
- terms and conditions of sale,
- credit terms and availability,
- speed and accuracy of delivery,
- effectiveness of sales and marketing programs, and
- availability of technical and product information.
Our competitors include regional, national, and international distributors,
as well as hardware manufacturers, networking equipment manufacturers and
software publishers that sell directly to resellers and large end-users. We
cannot assure you that we will not lose market share in the United States or in
international markets, or that we will not be forced in the future to reduce our
prices in response to the actions of our competitors and thereby experience a
further reduction in our gross margins.
We may initiate other business activities and may face competition from
companies with more experience in those new markets. For example, providing
logistics and other fulfillment services may put us in competition
-1-
<PAGE> 2
with major transportation and logistics suppliers, such as UPS, Federal Express
and Excel Logistics. In addition, as we enter new business areas, we may also
encounter increased competition from current competitors and/or from new
competitors, some of which may be our current customers or suppliers. We cannot
ensure that increased competition and adverse reaction from customers or
suppliers resulting from our expansion into new business areas will not have a
material adverse effect on our business, financial condition or results of
operations.
OUR GROSS MARGINS HAVE BEEN HISTORICALLY NARROW, AND WE EXPECT THEM TO
CONTINUE TO BE NARROW; THIS MAGNIFIES THE IMPACT OF VARIATIONS IN COSTS ON OUR
OPERATING RESULTS. As a result of intense price competition in the information
technology products and services distribution industry, our gross margins have
historically been narrow and we expect them to continue to be narrow in the
future. We receive purchase discounts and rebates from suppliers based on
various factors, including sales or purchase volume and breadth of customers.
These purchase discounts and rebates directly affect gross margins. Because many
purchase discounts from suppliers are based on percentage increases in sales of
products, it may become more difficult for us to achieve the percentage growth
in sales required for larger discounts due to the current size of our revenue
base. In addition, the percentage of purchase discounts as a component of gross
margins has declined. Our gross margin percentages have been further reduced by
the rapid increase in the amount of revenue related to sales of systems, which
produces lower gross margins than our traditional distribution business.
A significant percentage of our revenues relates to products sold to us by
ten manufacturers or publishers. They each have the ability to make rapid and
significantly adverse changes in their sales terms and conditions, such as
reducing the amount of price protection and return rights as well as reducing
the level of purchase discounts and rebates they make available to us. Our
inability to pass through to our 175,000 reseller customers the impact of these
changes as well as our failure to develop systems to manage on-going supplier
pass through programs could have a material negative impact on our gross
margins. These narrow gross margins magnify the impact of variations in
operating costs, bad debts or interest expense on our operating results.
To partially offset the decline in gross margins, we seek to continually
institute more effective operational and expense controls to reduce selling,
general and administrative ("SG&A") expenses as a percentage of net sales.
However, the reduction in SG&A expenses may not be large enough to offset a
decline in gross margins and as a result, operating margins may decline. There
can be no assurance that we will be able to reduce operating expenses as a
percentage of net sales to mitigate any further reductions in gross margins in
the future. A continuation of the decline in gross margins could have a material
adverse effect on our business, financial condition and results of operations.
OUR QUARTERLY RESULTS HAVE FLUCTUATED SIGNIFICANTLY IN THE PAST AND WILL
LIKELY CONTINUE TO DO SO. Our quarterly net sales and operating results have
varied significantly in the past and will likely continue to do so in the future
as a result of:
- seasonal variations in the demand for our products and services,
- competitive conditions including pricing,
- variations in the amount of provisions for excess inventory, vendor
sponsored programs and doubtful accounts,
- changes in the level of operating expenses,
- the impact of acquisitions,
- the introduction of new products and services offering improved features
and functionality (by us and our competitors),
- the loss or consolidation of a significant supplier or customer,
- product supply constraints,
- interest rate fluctuations,
-2-
<PAGE> 3
- currency fluctuations, and
- general economic conditions.
Our narrow margins may magnify the impact of these factors on our operating
results. We believe that you should not rely on period-to-period comparisons of
our operating results as an indication of future performance. In addition, the
results of any quarterly period are not indicative of results to be expected for
a full fiscal year. In certain future quarters, our operating results may be
below the expectations of public market analysts or investors. In this regard,
we did not meet consensus analyst earnings estimates in the fourth fiscal
quarter of 1998 and in several fiscal quarters of 1999. This event may
materially adversely affect the market price of our common stock.
BECAUSE OF THE CAPITAL INTENSIVE NATURE OF OUR BUSINESS, WE NEED CONTINUED
ACCESS TO CAPITAL WHICH MAY OR MAY NOT BE AVAILABLE TO US. Our business requires
significant levels of capital to finance accounts receivable and product
inventory that is not financed by trade creditors. In order to continue
expanding our business, including acquisitions, we will continue to need access
to capital, including debt financing, which may or may not be available on terms
acceptable to us, or at all. In addition to our prospects, financial condition
and results of operations, macroeconomic factors such as fluctuations in
interest rates or a general economic downturn may restrict our ability to raise
the necessary capital. We cannot assure you that we will continue to be able to
raise capital in adequate amounts for these or other purposes on terms
acceptable to us, and the failure to do so could have a material adverse effect
on our business, financial condition and results of operations.
RAPID CHANGES IN THE TECHNOLOGY MARKETPLACE, INCLUDING MAJOR CHANGES IN OUR
MANUFACTURERS' AND PUBLISHERS' TERMS AND CONDITIONS OF SALE, COMBINED WITH OUR
RAPID GROWTH, HAS CAUSED SIGNIFICANT CHANGES TO OUR COMPANY, AND WE CANNOT
ASSURE YOU OF OUR SUCCESS IN MANAGING OUR GROWTH IN THE FUTURE. This growth in
combination with the dynamic changes in the industry has resulted in new and
increased responsibilities for management personnel and has placed and continues
to place a significant strain upon our management, operating and financial
systems, and other resources. This strain may be exacerbated when we seek to
fill open executive positions. We cannot assure you that the strain placed upon
our management, operating and financial systems, and other resources will not
have a material adverse effect on our business, financial condition and results
of operations, nor can we assure you that we will be able to attract or retain
sufficient personnel to continue the expansion of our operations. Also crucial
to our success in managing our growth will be our ability to achieve additional
economies of scale. Although we have experienced significant sales growth in
recent years, you should not consider this growth indicative of future sales
growth. Therefore, we cannot assure you that we will be able to increase our
economies of scale, and the failure to do so could have a material adverse
effect on our business, financial condition and results of operations.
WE ARE DEPENDENT ON A VARIETY OF INFORMATION SYSTEMS AND A FAILURE OF THESE
SYSTEMS COULD ADVERSELY IMPACT OUR BUSINESS. We depend on a variety of
information systems for our operations, particularly our centralized IMpulse
information processing system which supports more than 40 operational functions,
including:
- inventory management,
- order processing,
- shipping,
- receiving, and
- accounting.
At the core of IMpulse is on-line, real-time distribution software which
supports basic order entry and processing and customers' shipments and returns.
Although we have not in the past experienced significant system-wide failures or
downtime of IMpulse or any of our other information systems, we have experienced
failures in IMpulse in certain specific geographies. Failures or significant
downtime for IMpulse could prevent us from taking customer orders, printing
product pick-lists, and/or shipping product. It could also prevent customers
from accessing our price and product availability information. From time to time
we may acquire
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other businesses having information systems and records which must be converted
and integrated into IMpulse or other Ingram Micro information systems. This can
be a lengthy and expensive process that results in a significant diversion of
resources from other operations. We also rely on the Internet for a percentage
of our orders and information exchanges with our customers. The Internet
generally and individual web sites have experienced a number of disruptions and
slowdowns, some of which were caused by organized attacks. In addition, some web
sites have experienced security breakdowns. To date, our web site has not
experienced any material breakdowns or disruptions; however, we cannot assure
you that this will not occur in the future. If we were to experience a security
breakdown that compromised sensitive information, this could harm our
relationship with our customers or vendors. Disruption of our web site or the
Internet in general could impair our order processing or more generally prevent
our customers and vendors from accessing information. This could cause us to
lose business.
We believe that customer information systems and product ordering and
delivery systems, including Internet-based systems, are becoming increasingly
important in the distribution of technology products and services. As a result,
we are continually enhancing our customer information systems by adding new
features, including on-line ordering through the Internet. However, we cannot
assure you that competitors will not develop customer information systems that
are superior to those offered by us. Our inability to develop competitive
customer information systems could adversely affect our business, financial
condition and results of operations.
OUR INTERNATIONAL OPERATIONS IMPOSE RISKS UPON OUR BUSINESS, SUCH AS
EXCHANGE RATE FLUCTUATIONS. We operate, through our subsidiaries, in a number of
countries outside the United States, and we expect our international net sales
to increase as a percentage of total net sales in the future. Our international
net sales are primarily denominated in currencies other than the U.S. dollar.
Accordingly, our international operations impose risks upon our business as a
result of exchange rate fluctuations. Through our recent acquisitions in Latin
America and Asia Pacific, we now have operations in countries which may have a
greater risk of exchange rate fluctuations. We cannot assure you that exchange
rate fluctuations will not have a material adverse effect on our business,
financial condition or results of operations in the future. In some countries
outside the United States, operations are accounted for primarily on a U.S.
dollar denominated basis. In the event of an unexpected devaluation of the local
currency in those countries (as occurred in Mexico in December 1994 and more
recently in 1997 in Asia and Latin America), we may experience significant
foreign exchange losses. In addition, our operations may be significantly
adversely affected as a result of the general economic impact of the devaluation
of the local currency. We engage in various activities to mitigate most of these
risks, including matching the currencies of our non-U.S. costs and revenues,
borrowing in foreign currencies and utilizing derivative financial instruments
such as forward exchange contracts and interest rate swaps.
Our international operations are subject to other risks such as:
- the imposition of governmental controls,
- export license requirements,
- restrictions on the export of certain technology,
- political instability,
- trade restrictions,
- tariff changes,
- difficulties in staffing and managing international operations,
- difficulties in collecting accounts receivable and longer collection
periods, and
- the impact of local economic conditions and practices.
WE ARE DEPENDENT ON KEY INDIVIDUALS IN OUR COMPANY, AND OUR ABILITY TO
RETAIN OUR PERSONNEL. We are dependent in large part on our ability to retain
the services of our key management, finance, sales, IT, and
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operational personnel. Our continued success is also dependent upon our ability
to retain and attract other qualified employees, including highly skilled
technical, managerial and marketing personnel, to meet our needs. Competition
for qualified personnel is intense, particularly in technical areas such as IT.
We may not be successful in attracting and retaining the personnel we require,
which could have a material adverse effect on our business, financial condition
and results of operations.
WE ARE DEPENDENT ON SUPPLIERS TO MAINTAIN AN ADEQUATE SUPPLY OF PRODUCTS TO
FULFILL CUSTOMER ORDERS ON A TIMELY BASIS. Our ability to obtain particular
products or product lines in the required quantities and to fulfill customer
orders on a timely basis is critical to our success. In most cases, we have no
guaranteed price or delivery agreements with suppliers. In certain product
categories, such as systems, limited price protection or return rights offered
by manufacturers may have a bearing on the amount of product we may be willing
to stock. The personal computer industry experiences significant product supply
shortages and customer order backlogs from time to time due to the inability of
certain manufacturers to supply certain products on a timely basis. As a result,
we have experienced, and may in the future continue to experience, short-term
inventory shortages. In addition, manufacturers who currently distribute their
products through us may decide to distribute, or to substantially increase their
existing distribution, through other distributors, their own dealer networks or
directly to resellers. In addition, in the case of software, there is the
emergence of alternative means of distribution, such as site licenses and
electronic distribution. We cannot assure you that suppliers will be able to
maintain an adequate supply of products to fulfill our customer orders on a
timely basis or that we will be able to obtain particular products or that a
product line currently offered by suppliers will continue to be available.
WE CURRENTLY PURSUE A STRATEGY OF ACQUISITIONS, WHICH INVOLVES VARIOUS
RISKS AND DIFFICULTIES. As part of our growth strategy, we pursue the
acquisition of companies that either complement or expand our existing business.
Acquisitions involve a number of risks and difficulties, including:
- the diversion of management's attention to the integration of the
operations and personnel of the acquired companies,
- the retention of key personnel and customers,
- the conversion of the acquired companies' management information systems
to ours,
- potential adverse short-term effects on our operating results,
- the possibility that we could incur or acquire substantial debt in
connection with the acquisitions,
- expansion into new geographic markets and business areas,
- the requirement to understand local business practices,
- the amortization of acquired intangible assets, and
- the need to present a unified corporate image.
WE ARE SUBJECT TO THE RISK THAT OUR INVENTORY VALUES MAY DECLINE. The
information technology products industry is subject to rapid technological
change, new and enhanced product specification requirements, and evolving
industry standards. These changes may cause inventory in stock to decline
substantially in value or to become obsolete. It is the policy of most suppliers
of information technology products to protect distributors such as Ingram Micro,
who purchase directly from these suppliers, from the loss in value of inventory
due to technological change or the supplier's price reductions. These policies
are sometimes not embodied in written agreements and do not protect us in all
cases from declines in inventory value. Furthermore, the manufacturers have
significantly adversely changed their price protection policies resulting in a
much greater likelihood of our having inventory that is not protected. We cannot
assure you that price protection will continue, that unforeseen new product
developments will not materially adversely affect us or that we will be able to
successfully manage our existing and future inventories. If major PC suppliers
continue to decrease the availability of price protection to distributors, such
a change in policy could have a material adverse effect on our business,
financial condition and results of operations. For example, during 1999 we
experienced higher expenses related to excess and obsolete inventory as compared
to 1998 primarily resulting from the
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rapid changes in the technology marketplace and the significant changes in
supplier terms and conditions in 1999. We are implementing and continually
refining changes to our inventory management processes and management of our
vendor subsidized programs which we believe will help mitigate the impact of
changes in our vendors' terms and conditions.
WE MAY EXPERIENCE AN INCREASED RISK OF CREDIT LOSS AS A RESULT OF OUR
RESELLER CUSTOMERS' BUSINESSES BEING NEGATIVELY IMPACTED BY DRAMATIC CHANGES IN
THE INFORMATION TECHNOLOGY PRODUCTS AND SERVICES INDUSTRY AS WELL AS INTENSE
COMPETITION AMONG RESELLERS. In addition, our risk of collectibility on
receivables may increase if our reseller customers experience decreases in
demand for their products and services. We engage in a variety of credit
management programs to mitigate these risks. For example, we offer several
credit programs to customers based on our assessment of their credit worthiness
as well as prepay, credit card, and cash on delivery terms. We also offer
"end-user" financing based upon the end-user's credit worthiness and collect
accounts receivable on behalf of our reseller customers. We closely monitor
reseller customers' credit worthiness through IMpulse, which contains detailed
information on each customer's payment history as well as other relevant
information. In addition, we participate in a U.S. credit association whose
members exchange customer credit rating information. In most markets, we utilize
various levels of credit insurance. In addition, we are implementing certain
changes to the terms and conditions we offer our customers, including those
which address product returns, to reflect changes being imposed by our vendors.
We also establish reserves for estimated credit losses in the normal course of
business. For example, during 1999, we experienced significantly higher bad debt
expense as compared to 1998 principally as a result of negotiations with several
large customers primarily in the area of unauthorized product returns. We
believe that these plans will help mitigate the impact of changes in vendor
terms and conditions and the intense price competition. However, if there is a
substantial deterioration in the collectibility of our receivables or if we
cannot obtain credit insurance at reasonable rates, our financial condition and
results of operations may be adversely impacted.
WE ARE DEPENDENT ON INDEPENDENT SHIPPING COMPANIES FOR THE DELIVERY OF OUR
PRODUCTS. We rely almost entirely on arrangements with independent shipping
companies for the delivery of our products. The termination of our arrangements
with one or more of these independent shipping companies, or the failure or
inability of one or more of these independent shipping companies to deliver
products from suppliers to us or products from Ingram Micro to our reseller
customers or their end-user customers, could have a material adverse effect on
our business, financial condition or results of operations.
WE ARE SUBJECT TO THE RISK OF TERMINATION OF SUBSIDIZED FLOOR PLAN
FINANCING BY OUR SYSTEMS MANUFACTURERS. Our revenue from sales of systems is
characterized by gross margins and operating margins that are even narrower than
those of other information technology products and services. A substantial
majority of our U.S. systems sales are funded by floor plan financing companies.
We currently receive payment from these financing institutions within fifteen
business days from the date of the sale, allowing this business to operate at
much lower relative working capital levels than our traditional distribution
business. Such floor plan financing is typically subsidized for our reseller
customers by the systems manufacturers. If the arrangements for such subsidies
are terminated or substantially reduced, such change in policy could have a
material adverse effect on our business, financial condition and results of
operations.
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