EXHIBIT 4.7
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
dated as of October 3, 2002
Among
ANIXTER RECEIVABLES CORPORATION, as Seller,
ANIXTER INC., as Servicer,
FALCON ASSET SECURITIZATION CORPORATION
and
THREE PILLARS FUNDING CORPORATION, as Conduits,
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Financial Institutions,
BANK ONE, NA (MAIN OFFICE CHICAGO)
and
SUNTRUST CAPITAL MARKETS, INC., as Managing Agents
and
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent
<Table>
ARTICLE I
PURCHASE ARRANGEMENTS........................................................................3
Section 1.1 Purchase Facility............................................................3
Section 1.2 Increases....................................................................3
Section 1.3 Decreases....................................................................4
Section 1.4 Payment Requirements.........................................................4
Section 1.5 Assignment of Purchaser Interests to SunTrust................................4
ARTICLE II
PAYMENTS AND COLLECTIONS.....................................................................5
Section 2.1 Payments.....................................................................5
Section 2.2 Collections Prior to Amortization............................................6
Section 2.3 Collections Following Amortization...........................................6
Section 2.4 Application of Collections...................................................7
Section 2.5 Payment Recission............................................................7
Section 2.6 Maximum Purchaser Interests..................................................7
Section 2.7 Clean Up Call................................................................8
ARTICLE III
CONDUIT FUNDING..............................................................................8
Section 3.1 Yield........................................................................8
Section 3.2 Yield Payments...............................................................8
Section 3.3 Calculation of Yield.........................................................8
ARTICLE IV
FINANCIAL INSTITUTION FUNDING................................................................9
Section 4.1 Financial Institution Funding................................................9
Section 4.2 Yield Payments...............................................................9
Section 4.3 Selection and Continuation of Tranche Periods................................9
Section 4.4 Financial Institution Discount Rates.........................................9
Section 4.5 Suspension of the LIBO Rate.................................................10
ARTICLE V
REPRESENTATIONS AND WARRANTIES..............................................................10
Section 5.1 Representations and Warranties of The Seller Parties........................10
ARTICLE VI
CONDITIONS OF PURCHASES.....................................................................14
Section 6.1 Conditions Precedent to Initial Incremental Purchase........................14
Section 6.2 Conditions Precedent to All Purchases and Reinvestments.....................14
</Table>
<Table>
ARTICLE VII
COVENANTS...................................................................................15
Section 7.1 Affirmative Covenants of The Seller Parties.................................15
Section 7.2 Negative Covenants of the Seller Parties....................................23
ARTICLE VIII
ADMINISTRATION AND COLLECTION...............................................................24
Section 8.1 Designation of Servicer.....................................................24
Section 8.2 Duties of Servicer..........................................................25
Section 8.3 Collection Notices..........................................................26
Section 8.4 Responsibilities of Seller..................................................27
Section 8.5 Reports.....................................................................27
Section 8.6 Servicing Fees..............................................................27
ARTICLE IX
AMORTIZATION EVENTS.........................................................................27
Section 9.1 Amortization Events.........................................................27
Section 9.2 Remedies....................................................................29
ARTICLE X
INDEMNIFICATION.............................................................................29
Section 10.1 Indemnities by the Seller Parties...........................................29
Section 10.2 Increased Cost and Reduced Return...........................................32
Section 10.3 Other Costs and Expenses....................................................32
ARTICLE XI
THE AGENT...................................................................................33
Section 11.1 Authorization and Action....................................................33
Section 11.2 Delegation of Duties........................................................33
Section 11.3 Exculpatory Provisions......................................................33
Section 11.4 Reliance by Agent...........................................................34
Section 11.5 Non-Reliance on Agent and Other Purchasers..................................34
Section 11.6 Reimbursement and Indemnification...........................................35
Section 11.7 Agents in their Individual Capacities.......................................35
Section 11.8 Successor Agent.............................................................35
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS.................................................................36
Section 12.1 Assignments.................................................................36
Section 12.2 Participations..............................................................37
Section 12.3 Extension of Liquidity Termination Date.....................................37
ARTICLE XIII
MISCELLANEOUS...............................................................................38
</Table>
Page 2
<Table>
Section 13.1 Waivers and Amendments......................................................38
Section 13.2 Notices.....................................................................39
Section 13.3 Ratable Payments............................................................40
Section 13.4 Protection of Ownership Interests of the Purchasers.........................40
Section 13.5 Confidentiality.............................................................41
Section 13.6 Bankruptcy Petition.........................................................41
Section 13.7 Limitation of Liability; Limitation on Payment; No Recourse.................41
Section 13.8 CHOICE OF LAW...............................................................42
Section 13.9 CONSENT TO JURISDICTION.....................................................42
Section 13.10 WAIVER OF JURY TRIAL........................................................43
Section 13.11 Integration; Binding Effect; Survival of Terms..............................43
Section 13.12 Counterparts; Severability; Section References..............................43
Section 13.13 Agent Roles.................................................................43
Section 13.14 Characterization............................................................44
Exhibits and Schedules
Exhibit I Definitions
Exhibit II Form of Purchase Notice
Exhibit III Places of Business of the Seller Parties; Locations of Records; Federal
Employer Identification Number(s); Jurisdiction of Organization;
Organizational Identification Number
Exhibit IV Names of Collection Banks; Collection Accounts
Exhibit V Form of Compliance Certificate
Exhibit VI Form of Collection Account Agreement
Exhibit VII Form of Assignment Agreement
Exhibit VIII Credit and Collection Policy
Exhibit IX Form of Contract(s)
Exhibit X Form of Monthly Report
Exhibit XI Form of Mid-Month Report
Schedule A Commitments; Purchase Limits
Schedule B Closing Documents
Schedule 1 Fiscal Months
</Table>
Page 3
ANIXTER RECEIVABLES CORPORATION
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
This Amended and Restated Receivables Purchase Agreement dated as of
October 3, 2002 is among Anixter Receivables Corporation, a Delaware corporation
("Seller"), Anixter Inc., a Delaware corporation ("Anixter"), as initial
Servicer (Anixter, together with Seller, the "Seller Parties" and each a "Seller
Party"), Falcon Asset Securitization Corporation ("Falcon") and Three Pillars
Funding Corporation ("Three Pillars"), as conduits (collectively, the "Conduits"
and each individually, a "Conduit"), the entities listed on Schedule A to this
Agreement (together with any of their respective successors and assigns
hereunder, the "Financial Institutions"), Bank One, NA (Main Office Chicago)
("Bank One") and SunTrust Capital Markets, Inc. ("SunTrust"), as managing agents
(collectively, the "Managing Agents" and each individually, a "Managing Agent")
and Bank One, as agent for the Purchasers hereunder or any successor agent
hereunder (together with its successors and assigns hereunder, the "Agent").
Unless defined elsewhere herein, capitalized terms used in this Agreement shall
have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
A. Reference is made to that certain Receivables Purchase Agreement
dated as of October 6, 2000 by and among the Seller Parties, Falcon, and Bank
One, as a "Financial Institution" and as "Agent" (as heretofore amended, the
"Earlier Purchase Agreement").
B. The Seller Parties, the Conduit, the Financial Institutions, the
Managing Agents and the Agent have, on the terms and conditions set forth
herein, agreed to amend and restate the Earlier Purchase Agreement in its
entirety.
C. Seller desires to transfer and assign Purchaser Interests to the
Purchasers from time to time.
D. The Conduits may, in their absolute and sole discretion, purchase
Purchaser Interests from Seller from time to time.
E. In the event that a Conduit declines to make any purchase, the
Financial Institutions which are part of such Conduit's Purchase Group shall, at
the request of Seller, purchase Purchaser Interests from time to time in an
amount not to exceed the Group Purchase Limit for such Purchase Group. In
addition, the Financial Institutions in each Purchase Group have agreed to
provide a liquidity facility to the Conduit in such Purchase Group in accordance
with the terms of a Liquidity Agreement entered into by such Conduit with such
Financial Institutions.
F. Each Managing Agent has been requested and is willing to act as
Managing Agent on behalf of the Conduit and the Financial Institutions in its
Purchase Group in accordance with the terms hereof
G. Bank One, NA has been requested and is willing to act as Agent on
behalf of the Purchasers in accordance with the terms hereof.
AMENDMENT AND RESTATEMENT
(a) This Agreement amends and restates in its entirety the Earlier
Purchase Agreement. Upon the effectiveness of this Agreement, the terms and
provisions of the Earlier Purchase Agreement shall, subject to the following
clauses (b) and (c), be superseded hereby.
(b) Notwithstanding the amendment and restatement of the Earlier
Purchase Agreement by this Agreement:
(i) the Seller shall continue to be liable to Falcon and Bank
One with respect to (A) all unpaid CP Costs, Yield, fees, expenses and
(except as otherwise provided in Section 1.5 with respect to the
Capital of Falcon under the Earlier Purchase Agreement) other
obligations of the Seller accrued under the Earlier Purchase Agreement
prior to the effective date of this Agreement and (B) all agreements on
the part of the Seller under the Earlier Purchase Agreement to
indemnify Falcon or Bank One in connection with events or conditions
arising or existing prior to the effective date of this Agreement,
including, but not limited to, those events and conditions set forth in
Article X thereof;
(ii) Falcon and Bank One (in its capacity as a "Financial
Institution") shall continue to be liable in respect of each claim of
Bank One (in its capacity as "Agent") as against such Person arising
under the Earlier Purchase Agreement prior to the effective date of
this Agreement, including but not limited to, each claim arising under
Section 11.6 of the Earlier Purchase Agreement; and
(iii) Falcon and Bank One shall continue to be liable in
respect of any claim against such Person in favor of the Seller arising
under the Earlier Purchase Agreement prior to the effective date of
this Agreement.
(c) This Agreement is entered into in substitution for the Earlier
Purchase Agreement and not as payment of any of the obligations of the Seller
thereunder, and is in no way intended to constitute a novation of the Earlier
Purchase Agreement. Except as set forth in Section 1.5 with respect to the
Capital of Falcon under the Earlier Purchase Agreement, nothing contained herein
is intended to amend, modify or otherwise affect any obligation of, or grant of
authority by, the Seller existing prior to the date hereof.
(d) Upon the effectiveness of this Agreement, each reference to the
Earlier Purchase Agreement in any other document, instrument or agreement
executed and/or delivered in connection therewith shall mean and be a reference
to this Agreement unless the context otherwise requires.
(e) Upon the effectiveness of this Agreement, the terms of this
Agreement shall govern all aspects of the facility contemplated herein,
including, without limitation, the eligibility of Receivables purchased under
the Earlier Purchase Agreement and any settlements to be made with respect
thereto.
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ARTICLE I
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility.
(a) Upon the terms and subject to the conditions hereof,
Seller may, at its option, sell and assign Purchaser Interests to the Agent, for
the benefit of the Purchasers, in all of its Receivables, Related Security,
Collections, and proceeds of any of the foregoing, in each case, whether now
owned or hereafter arising. In accordance with the terms and conditions set
forth herein, each Conduit may, at its option, instruct the related Managing
Agent to purchase on its behalf through the Agent, or if any such Conduit shall
decline to purchase, the applicable Managing Agent shall purchase, on behalf of
the applicable Financial Institutions through the Agent, Purchaser Interests
from time to time in an aggregate amount not to exceed the Purchase Limit, and
for each Purchase Group, in an aggregate amount not to exceed the Group Purchase
Limit for such Purchase Group, during the period from the date hereof to but not
including the Facility Termination Date. Notwithstanding the foregoing, at no
time shall a Purchaser Interest be purchased for a Financial Institution
pursuant to this Section 1.1(a) if the Capital allocated to the Financial
Institution with respect to such Purchaser Interest would exceed such Financial
Institution's Unused Back-up Commitment at such time.
(b) Seller may, upon at least 30 days' notice to the Agent and
each Managing Agent, terminate in whole or reduce in part, ratably among the
Financial Institutions based on the amount of their Back-Up Commitments, the
Unused Purchase Limit; provided that each partial reduction of the Purchase
Limit shall be in an amount equal to $5,000,000 or an integral multiple thereof.
Each Financial Institution's Back-Up Commitment shall be reduced by its Pro Rata
Share of each reduction in the Purchase Limit, and each Financial Institution's
Liquidity Commitment shall be reduced by its Pro Rata Share of 102% of each such
reduction in the Purchase Limit.
Section 1.2 Increases. Seller shall provide each Managing Agent with at
least three (3) Business Days' prior notice in a form set forth as Exhibit II
hereto of each Incremental Purchase (collectively, a "Purchase Notice"). Each
Purchase Notice shall be subject to Section 6.2 hereof and, except as set forth
below, shall be irrevocable and shall specify the requested (i) Purchase Price
(which shall not be less than $500,000 per Purchase Group), (ii) date of
purchase (which in the case of any Incremental Purchase other than the initial
Incremental Purchase, shall be a Monthly Settlement Date or a Mid-Month Report
Date unless otherwise agreed to by the Purchasers), and (iii) in the event a
Conduit declines to make an Incremental Purchase and such Incremental Purchase
is to be funded by the related Financial Institutions, the type of Discount Rate
and Tranche Period. Following receipt of a Purchase Notice, each Managing Agent
will determine whether the Conduit in its Purchase Group agrees to make the
purchase. If any Conduit declines to make a proposed purchase, its Managing
Agent shall promptly notify the Agent and the Seller, and the Seller may cancel
the Purchase Notice in its entirety or, in the absence of such a cancellation,
the Incremental Purchase of the Purchaser Interest will be made by the Financial
Institutions in such Conduit's Purchase Group. Each Incremental Purchase to be
made hereunder shall be made ratably among the Purchase Groups in accordance
with their Group Purchase Limits. On the date of each Incremental Purchase, upon
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satisfaction of the applicable conditions precedent set forth in Article VI,
each Conduit or the applicable Financial Institutions, as applicable, shall make
available to the related Managing Agent at its address listed beneath its
signature on its signature page to this Agreement, for deposit to such account
as the Seller designates from time to time, in immediately available funds, no
later than 12:00 Noon (Chicago time), an amount equal to (i) in the case of a
Conduit, such Conduit's Pro Rata Share of the aggregate Purchase Price of the
Purchaser Interests then being purchased, which amount shall not exceed such
Conduit's Pro Rata Share of the Unused Purchase Limit, or (ii) in the case of a
Financial Institution, such Financial Institution's Pro Rata Share of the
aggregate Purchase Price of the Purchaser Interests then being purchased, such
amount not to exceed such Financial Institution's Unused Back-Up Commitment.
Section 1.3 Decreases. Seller shall provide each Managing Agent with at
least three (3) Business Days' prior written notice of any proposed reduction of
Aggregate Capital from Collections (a "Reduction Notice"). Such Reduction Notice
shall designate (i) the date (the "Proposed Reduction Date") which must be a
Monthly Settlement Date or a Mid-Month Report Date, upon which any such
reduction of Aggregate Capital shall occur, and (ii) the amount of Aggregate
Capital to be reduced which shall be applied by the Managing Agents ratably to
the Purchaser Interests of the Purchasers in accordance with the amount of
Capital (if any) owing to such Purchaser (ratably, based on such Purchaser's
Capital Pro Rata Share) (the "Aggregate Reduction"). Only one (1) Reduction
Notice shall be outstanding at any time.
Section 1.4 Payment Requirements. All amounts to be paid or deposited
by any Seller Party pursuant to any provision of this Agreement shall be paid or
deposited in accordance with the terms hereof no later than 11:00 a.m. (Chicago
time) on the day when due in immediately available funds, and if not received
before 11:00 a.m. (Chicago time) shall be deemed to be received on the next
succeeding Business Day. If such amounts are payable to a Purchaser they shall
be paid to the related Managing Agent, for the account of such Purchaser, at its
address listed beneath its signature on its signature page to this Agreement
until otherwise notified in writing by such Managing Agent. Upon notice to
Seller, the Agent may debit the Facility Account for all amounts due and payable
hereunder. All computations of Yield, per annum fees hereunder and per annum
fees under the Fee Letter shall be made on the basis of a year of 360 days for
the actual number of days elapsed. If any amount hereunder shall be payable on a
day which is not a Business Day, such amount shall be payable on the next
succeeding Business Day.
Section 1.5 Assignment of Purchaser Interests to SunTrust. On the
Closing Date:
(a) SunTrust, in its capacity as Managing Agent for Three
Pillars, shall pay to Bank One, in its capacity as Managing Agent for Falcon, in
immediately available funds, an amount equal to its Pro Rata Share of Falcon's
outstanding Capital at such time, whereupon, Falcon shall be deemed to have
sold, transferred and assigned to SunTrust, without recourse, representation or
warranty (except that Bank One and Falcon represent and warrant that the
undivided interest in Falcon's Purchaser Interest sold to SunTrust hereunder is
free and clear of any Lien created by or through Bank One or Falcon), and
SunTrust, on behalf of the Three Pillars Purchase Group, shall be deemed to have
hereby irrevocably taken, received and assumed from Falcon, an undivided
interest in Falcon's Purchaser Interest outstanding under the Earlier Purchase
Agreement. The amount of SunTrust's payment corresponding to its Pro Rata Share
of
4
outstanding Capital shall constitute Capital under this Agreement, so that
immediately upon giving effect to such payment, each Conduit will have a
Purchaser Interest hereunder based upon its outstanding Capital.
(b) The Seller shall pay to Bank One, in its capacity as
Managing Agent for Falcon, on the first Settlement Date following the date
hereof, in immediately available funds, (i) all accrued but unpaid CP Costs (as
defined in the Earlier Purchase Agreement) attributable to Falcon's outstanding
Capital under the Earlier Purchase Agreement through the Accrual Period ended
September 30, 2002; (ii) all accrued and unpaid Yield (under and as defined in
the Earlier Purchase Agreement) attributable to Falcon's outstanding Capital
hereunder accrued through the Accrual Period ended September 30, 2002; and (iii)
all accrued and unpaid fees and other costs and expenses payable in respect of
Falcon's outstanding Capital under the Earlier Purchase Agreement accrued
through the Accrual Period ended September 30, 2002. On the second Settlement
Date following the date hereof, the Seller shall pay to (i) Bank One, as
Managing Agent for the Falcon Purchase Group, for the benefit of the applicable
Purchasers in the Falcon Purchase Group, Yield (as defined in this Agreement) on
the outstanding Capital of the Purchasers of such Purchase Group for the period
commencing October 1, 2002 and ending on October 31, 2002, and (ii) to SunTrust,
as Managing Agent for the Three Pillars Purchase Group, for the benefit of the
applicable Purchasers in the Three Pillars Purchase Group, Yield (as defined in
this Agreement) on the outstanding Capital of the Purchasers of such Purchase
Group for the period commencing on the date hereof and ending on October 31,
2002.
ARTICLE II
PAYMENTS AND COLLECTIONS
Section 2.1 Payments. Notwithstanding any limitation on recourse
contained in this Agreement, Seller shall immediately pay to each Managing Agent
when due, for the account of the related Purchaser or Purchasers on a full
recourse basis, (i) such fees as set forth in the Fee Letter (which fees shall
be sufficient to pay all fees owing to the Financial Institutions), (ii) all
amounts payable as Yield, (iii) all amounts payable as Deemed Collections (which
shall be immediately due and payable by Seller and applied to reduce outstanding
Aggregate Capital hereunder in accordance with Sections 2.2 and 2.3 hereof),
(iv) all amounts payable pursuant to Section 2.6, (v) all amounts payable
pursuant to Article X, if any, (vi) all Servicer costs and expenses, including
the Servicing Fee, in connection with servicing, administering and collecting
the Receivables, (vii) all Broken Funding Costs and (viii) all Default Fees
(collectively, the "Obligations"). If any Person fails to pay any of the
Obligations when due, such Person agrees to pay, on demand, the Default Fee in
respect thereof until paid. Notwithstanding the foregoing, no provision of this
Agreement or the Fee Letter shall require the payment or permit the collection
of any amounts hereunder in excess of the maximum permitted by applicable law.
If at any time any Seller Party receives any Collections or is deemed to receive
any Collections, such Seller Party shall immediately pay such Collections or
Deemed Collections to the Servicer for application in accordance with the terms
and conditions hereof and, at all times prior to such payment, such Collections
or Deemed Collections shall be held in trust by such Seller Party for the
exclusive benefit of the Purchasers, the Managing Agents and the Agent.
5
Section 2.2 Collections Prior to Amortization. Prior to the
Amortization Date, any Collections and/or Deemed Collections received by the
Servicer shall be set aside and held in trust by the Servicer for the payment of
any accrued and unpaid Aggregate Unpaids or for a Reinvestment or an Aggregate
Reduction as provided in this Section 2.2. If at any time any Collections are
received by the Servicer prior to the Amortization Date, (i) the Servicer shall
set aside the Termination Percentage (as hereinafter defined) of Collections
evidenced by the Purchaser Interests of each Terminating Financial Institution
and (ii) Seller hereby requests and the Purchasers (other than any Terminating
Financial Institutions) hereby agree to make, simultaneously with such receipt,
a reinvestment of funds (each a "Reinvestment") with a portion of the balance of
each and every Collection received by the Servicer or Deemed Collection that is
part of any Purchaser Interest (other than any Purchaser Interests of
Terminating Financial Institutions), such that after giving effect to such
Reinvestment, the amount of Aggregate Capital immediately after such receipt and
corresponding Reinvestment shall be equal to the amount of Aggregate Capital
immediately prior to such receipt. On each Settlement Date prior to the
occurrence of the Amortization Date, the Servicer shall remit to the Managing
Agents' respective accounts in accordance with the applicable Group Pro Rata
Share of its Purchase Group, the amounts set aside during the preceding
Settlement Period that have not been subject to a Reinvestment and apply such
amounts (if not previously paid in accordance with Section 2.1) first, to reduce
unpaid Obligations and second, to reduce the Capital of all Purchaser Interests
of Terminating Financial Institutions, applied ratably to each such Terminating
Financial Institution according to its respective Termination Percentage. If
such Terminating Financial Institution's Capital and other Obligations shall be
reduced to zero, any additional Collections received by the Servicer shall (i)
if applicable, be remitted to the Managing Agents' respective accounts in
accordance with the applicable Pro Rata Shares of the related Purchasers no
later than 11:00 a.m. (Chicago time) to the extent required to fund any
Aggregate Reduction on such Settlement Date and (ii) thereafter, be remitted
from the Servicer to Seller on such Settlement Date. Each Terminating Financial
Institution shall be allocated a ratable portion of Collections from the date on
which it became a Terminating Financial Institution (the "Termination Date")
until such Terminating Financing Institution's Capital shall be paid in full.
This ratable portion shall be calculated on the Termination Date of each
Terminating Financial Institution as a percentage equal to (i) Capital of such
Terminating Financial Institution outstanding on its Termination Date, divided
by (ii) the Aggregate Capital outstanding on such Termination Date (the
"Termination Percentage"). Each Terminating Financial Institution's Termination
Percentage shall remain constant prior to the Amortization Date. On and after
the Amortization Date, each Termination Percentage shall be disregarded, and
each Terminating Financial Institution's Capital shall be reduced ratably with
all Financial Institutions in accordance with Section 2.3.
Section 2.3 Collections Following Amortization. On the Amortization
Date and on each day thereafter, the Servicer shall set aside and hold in trust,
for the holder of each Purchaser Interest, all Collections received on such day
and an additional amount of funds of the Seller for the payment of any accrued
and unpaid Aggregate Capital and other accrued and unpaid Obligations owed by
Seller and not previously paid by Seller in accordance with Section 2.1. On and
after the Amortization Date, the Servicer shall, at any time upon the request
from time to time by (or pursuant to standing instructions from) the Agent (i)
remit to the Managing Agents' respective accounts established for the benefit of
the related Purchasers, in accordance with the
6
applicable Capital Pro Rata Shares, the amounts set aside pursuant to the
preceding sentence, and (ii) apply such amounts to reduce the Aggregate Capital
and any other Aggregate Unpaids.
Section 2.4 Application of Collections. If there shall be insufficient
funds on deposit for the Servicer to distribute funds in payment in full of the
aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable), the
Servicer shall distribute funds:
(i) first, to the payment of the Servicer's reasonable
out-of-pocket costs and expenses in connection with servicing,
administering and collecting the Receivables, including the Servicing
Fee, if Seller or one of its Affiliates is not then acting as the
Servicer,
(ii) second, to the reimbursement of the reasonable costs of
collection and enforcement of this Agreement incurred by the Agent or
any Managing Agent,
(iii) third, ratably to the payment of all accrued and unpaid
fees under the Fee Letter and Yield,
(iv) fourth, (if applicable) to the ratable reduction of the
Aggregate Capital (without regard to any Termination Percentage),
(v) fifth, for the ratable payment of all other unpaid
Obligations, provided that to the extent such Obligations relate to the
payment of Servicer costs and expenses, including the Servicing Fee,
when Seller or one of its Affiliates is acting as the Servicer, such
costs and expenses will not be paid until after the payment in full of
all other Obligations, and
(vi) sixth, after the Aggregate Unpaids have been indefeasibly
reduced to zero, to Seller.
Collections applied to the payment of Aggregate Unpaids shall be distributed in
accordance with the aforementioned provisions, and, giving effect to each of the
priorities set forth in this Section 2.4 above, shall be shared ratably (within
each priority) among the Agent, the Managing Agents and the Purchasers in
accordance with the amount of such Aggregate Unpaids owing to each of them in
respect of each such priority.
Section 2.5 Payment Recission. No payment of any of the Aggregate
Unpaids shall be considered paid or applied hereunder to the extent that, at any
time, all or any portion of such payment or application is rescinded by
application of law or judicial authority, or must otherwise be returned or
refunded for any reason. Seller shall remain obligated for the amount of any
payment or application so rescinded, returned or refunded, and shall promptly
pay to the Agent (for application to the Person or Persons who suffered such
recission, return or refund) the full amount thereof, plus the Default Fee from
the date of any such recission, return or refunding.
Section 2.6 Maximum Purchaser Interests. Seller shall ensure that the
Purchaser Interests of the Purchasers shall at no time exceed in the aggregate
100%. If the aggregate of the Purchaser Interests of the Purchasers exceeds
100%, Seller shall pay to the Managing Agent of
7
each Purchase Group within three (3) Business Days of Seller's knowledge
thereof, such Purchase Group's Group Pro Rata Share of an amount to be applied
to reduce the Aggregate Capital, such that after giving effect to such payment
the aggregate of the Purchaser Interests equals or is less than 100%.
Section 2.7 Clean Up Call. In addition to Seller's rights pursuant to
Section 1.3, Seller shall have the right (after providing three (3) Business
Days' written notice to each Managing Agent), at any time following the
reduction of the Aggregate Capital to a level that is less than ten percent
(10.00%) of the original Purchase Limit, to repurchase from the Purchasers all,
but not less than all, of the then outstanding Purchaser Interests. The purchase
price in respect thereof shall be an amount equal to the Aggregate Unpaids
through the date of such repurchase, payable in immediately available funds.
Such repurchase shall be without representation, warranty or recourse of any
kind by, on the part of, or against any Purchaser, any Managing Agent or the
Agent.
ARTICLE III
CONDUIT FUNDING
Section 3.1 Yield. Seller shall pay Yield at the applicable CP Rate
with respect to the Capital associated with each Purchaser Interest of each
Conduit for each day that any Capital in respect of such Purchaser Interest is
outstanding; provided, that any Purchaser Interest, or portion thereof, which,
or an undivided interest in which, is being funded by the Financial Institutions
of such Conduit's Purchase Group pursuant to such Conduit's Liquidity Agreement
shall accrue Yield pursuant to Article IV. Each Purchaser Interest funded by
Falcon substantially with Pooled Commercial Paper will accrue Yield at the
Falcon CP Rate each day on a pro rata basis, based upon the percentage share the
Capital in respect of such Purchaser Interest represents in relation to all
assets held by Falcon and funded substantially with Pooled Commercial Paper.
Each Purchaser Interest funded by Three Pillars will accrue Yield at the Three
Pillars CP Rate each day.
Section 3.2 Yield Payments. On each Monthly Settlement Date, Seller
shall pay to each Managing Agent (for the benefit of each Conduit in its
Purchase Group) an aggregate amount equal to all accrued and unpaid Yield in
respect of the Capital associated with all Purchaser Interests of such Conduit
for the immediately preceding Accrual Period in accordance with Article II.
Section 3.3 Calculation of Yield. On or before the third Business Day
immediately preceding each Monthly Settlement Date, each Conduit shall calculate
the aggregate amount of Yield in respect of the Capital associated with all
Purchaser Interests of such Conduit for the immediately preceding Accrual Period
and shall notify Seller of such aggregate amount.
8
ARTICLE IV
FINANCIAL INSTITUTION FUNDING
Section 4.1 Financial Institution Funding. Each Purchaser Interest of
the Financial Institutions shall accrue Yield for each day during its Tranche
Period at either the LIBO Rate or the Base Rate in accordance with the terms and
conditions hereof. Until Seller gives notice to the Managing Agents of another
Discount Rate in accordance with Section 4.4, the initial Discount Rate for any
Purchaser Interest transferred to the Financial Institutions pursuant to the
terms and conditions hereof shall be the Base Rate. If any Financial Institution
acquires by assignment from the Conduit in its Purchase Group all or any portion
of a Purchaser Interest (or an undivided interest therein) pursuant to such
Conduit's Liquidity Agreement, each Purchaser Interest so assigned shall each be
deemed to have a new Tranche Period commencing on the date of any such
assignment.
Section 4.2 Yield Payments. On the Settlement Date for each Purchaser
Interest of the Financial Institutions, Seller shall pay to each Managing Agent
(for the benefit of the Financial Institutions) an aggregate amount equal to the
accrued and unpaid Yield for the entire Tranche Period of such Purchaser
Interest in accordance with Article II.
Section 4.3 Selection and Continuation of Tranche Periods.
(a) With consultation from (and approval by) each related
Managing Agent, Seller shall from time to time request Tranche Periods for the
Purchaser Interests of the Financial Institutions. Seller shall select Tranche
Periods such that (i) each Purchase Group shall have Purchaser Interests with an
amount of Capital allocated to each Tranche Period based on such Purchase
Group's Group Pro Rata Share and (ii) at least one Tranche Period for each
Purchase Group shall end on a Monthly Settlement Date.
(b) The Seller or the Agent, with the consent or at the
direction of the Managing Agent for the Purchasers holding such Purchaser
Interest, may, upon notice to and consent by the other received at least three
(3) Business Days prior to the last day of a Tranche Period (the "Terminating
Tranche") for any Purchaser Interest, effective on such last day, (i) divide any
such Purchaser Interest into multiple Purchaser Interests, or (ii) combine any
such Purchaser Interest with one or more other Purchaser Interests which either
have a Terminating Tranche ending on such day or are newly created on such day
(subject to the Conduits' ability to accommodate such division or combination),
provided that in no event may a Purchaser Interest of a Conduit be combined with
a Purchaser Interest of the Financial Institutions.
Section 4.4 Financial Institution Discount Rates. The Seller may,
subject to the terms of this Agreement, select the LIBO Rate or the Base Rate
for each Purchaser Interest of the Financial Institutions. Seller shall by 11:00
a.m. (Chicago time): (i) at least three (3) Business Days prior to the
expiration of any Terminating Tranche with respect to which the LIBO Rate is
being requested as a new Discount Rate and (ii) at least one (1) Business Day
prior to the expiration of any Terminating Tranche with respect to which the
Base Rate is being requested as a new Discount Rate, give each related Managing
Agent irrevocable notice of the new Discount Rate for the Purchaser Interest
associated with such Terminating Tranche. Agent will, from time
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to time, at Seller's request make available non-binding indications of the LIBO
Rate for a new Tranche Period with respect to any Terminating Tranche. Until
Seller gives notice to the Managing Agents of another Discount Rate, the initial
Discount Rate for any Purchaser Interest transferred to Financial Institutions
pursuant to the terms and conditions hereof shall be the Base Rate.
Section 4.5 Suspension of the LIBO Rate.
(a) If any Financial Institution notifies its related Managing
Agent that (i) it has determined that funding its Pro Rata Share of the
Purchaser Interests of the Financial Institutions at a LIBO Rate would violate
any applicable law, rule, regulation, or directive of any governmental or
regulatory authority, whether or not having the force of law, or (ii) deposits
of a type and maturity appropriate to match fund its Purchaser Interests at such
LIBO Rate are not available, or (iii) such LIBO Rate does not accurately reflect
the cost of acquiring or maintaining a Purchaser Interest at such LIBO Rate,
then such Managing Agent shall notify the Agent and shall suspend the
availability of such LIBO Rate at the end of any then current Tranche Period,
provided that if required by any applicable law, rule, regulation or directive,
any then current Tranche Period for such Purchaser Interest based on the LIBO
Rate shall terminate immediately and a new Tranche Period based on the Base Rate
shall commence.
(b) If less than all of the Financial Institutions give a
notice to the Managing Agents pursuant to Section 4.5(a), each Financial
Institution which gave such a notice shall be obligated, at the request of
Seller or such Financial Institution's Managing Agent (on behalf of the related
Conduit or Conduits), to assign all of its rights and obligations hereunder to
(i) another Financial Institution or (ii) another funding entity nominated by
Seller that is acceptable to the related Conduit or Conduits and willing to
participate in this Agreement and the related Liquidity Agreement through the
Liquidity Termination Date in the place of such notifying Financial Institution;
provided that (x) the notifying Financial Institution receives payment in full,
pursuant to an Assignment Agreement, of an amount equal to such notifying
Financial Institution's Capital Pro Rata Share of the Capital and Yield owing to
all of the Financial Institutions and all accrued but unpaid fees and other
costs and expenses payable in respect of its Capital Pro Rata Share of the
Purchaser Interests of the Financial Institutions, and (y) the replacement
Financial Institution otherwise satisfies the requirements of Section 12.1(b).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of The Seller Parties. Each
Seller Party hereby represents and warrants to the Agent, the Managing Agents
and the Purchasers, as to itself, as of the date hereof and as of the date of
each Incremental Purchase and the date of each Reinvestment that:
(a) Corporate Existence and Power. Such Seller Party is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, is a "registered organization" as defined in the UCC
in effect in such jurisdiction and is duly
10
qualified to do business and is in good standing as a foreign corporation, and
has and holds all corporate power and all governmental licenses, authorizations,
consents and approvals required to carry on its business in each jurisdiction in
which its business is conducted, except where the failure to so qualify or so
hold could not reasonably be expected to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and
Delivery. The execution and delivery by such Seller Party of this Agreement and
each other Transaction Document to which it is a party, and the performance of
its obligations hereunder and thereunder and, in the case of Seller, Seller's
use of the proceeds of purchases made hereunder, are within its corporate powers
and authority and have been duly authorized by all necessary corporate action on
its part. This Agreement and each other Transaction Document to which such
Seller Party is a party has been duly executed and delivered by such Seller
Party.
(c) No Conflict. The execution and delivery by such Seller
Party of this Agreement and each other Transaction Document to which it is a
party, and the performance of its obligations hereunder and thereunder do not
contravene or violate (i) its certificate of incorporation 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 by which it 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 assets of such Seller Party or
its Subsidiaries (except as created hereunder), except, in any case, where such
contravention or violation could not be reasonably expected to have a Material
Adverse Effect; and no transaction contemplated hereby requires compliance with
any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, 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 and delivery by such Seller
Party of this Agreement and each other Transaction Document to which it is a
party and the performance of its obligations hereunder and thereunder.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of such Seller Party's knowledge, threatened, against or
affecting such Seller Party, or any of its properties, in or before any court,
arbitrator or other body, that could reasonably be expected to have a Material
Adverse Effect. Anixter is not in default with respect to any order of any
court, arbitrator or governmental body, which defaults, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. The
Seller is not in default with respect to any order of any court, arbitrator or
governmental body.
(f) Binding Effect. This Agreement and each other Transaction
Document to which such Seller Party is a party constitute the legal, valid and
binding obligations of such Seller Party enforceable against such Seller Party
in accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
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(g) Accuracy of Information. All information heretofore
furnished by such Seller Party or any of its Affiliates to the Agent, the
Managing Agents or the Purchasers for purposes of or in connection with this
Agreement, any Monthly Report, any Mid-Month Report, any of the other
Transaction Documents or any transaction contemplated hereby or thereby is, and
all such information hereafter furnished by such Seller Party or any of its
Affiliates to the Agent, the Managing Agents or the Purchasers will be, true and
accurate in every material respect on the date such information is stated or
certified and does not and will not contain any material misstatement of fact or
omit to state a material fact or any fact necessary to make the statements
contained therein not misleading.
(h) Use of Proceeds. No proceeds of any purchase hereunder
will be used (i) for a purpose that violates, or would be inconsistent with,
Regulation T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction which is subject to Section 12, 13 or 14 of the Securities Exchange
Act of 1934, as amended.
(i) Good Title. Immediately prior to each purchase hereunder,
Seller shall be the legal and beneficial owner of the Receivables and Related
Security with respect thereto, free and clear of any Adverse Claim, except as
created by the Transaction Documents. There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect Seller's
ownership interest in each Receivable, its Collections and the Related Security.
(j) Perfection. This Agreement, together with the filing of
the financing statements contemplated hereby, is effective to, and shall, upon
each purchase hereunder, transfer to the Agent for the benefit of the Purchasers
(and the Agent for the benefit of the Purchasers shall acquire from Seller) a
valid and perfected first priority undivided percentage ownership or security
interest in each Receivable existing or hereafter arising and in the Related
Security and Collections with respect thereto, free and clear of any Adverse
Claim, except as created by the Transactions Documents. There have been duly
filed all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Agent's (on behalf of the Purchasers) ownership or security
interest in the Receivables, the Related Security and the Collections.
(k) Places of Business and Locations of Records. The principal
places of business and chief executive office of such Seller Party and the
offices where it keeps all of its Records are located at the address(es) listed
on Exhibit III or such other locations of which the Agent has been notified in
accordance with Section 7.2(a) in jurisdictions where all action required by
Section 13.4(a) has been taken and completed. Each Seller Party's state of
organization, organizational identification number (if any) and Federal Employer
Identification Number are correctly set forth on Exhibit III.
(l) Collections. The conditions and requirements set forth in
Section 7.1(j) and Section 8.2 have at all times been satisfied and duly
performed. The names and addresses of all Collection Banks, together with the
account numbers of the Collection Accounts of Seller at each Collection Bank and
the post office box number of each Lock-Box, are listed on Exhibit IV.
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Seller has not granted any Person, other than the Agent as contemplated by this
Agreement, dominion and control of any Lock-Box or Collection Account, or the
right to take dominion and control of any such Lock-Box or Collection Account at
a future time or upon the occurrence of a future event.
(m) Material Adverse Effect. (i) The initial Servicer
represents and warrants that since June 30, 2002, no event has occurred that
would have a material adverse effect on the financial condition or operations of
the initial Servicer and its Subsidiaries, taken as a whole, or the ability of
the initial Servicer to perform its obligations under this Agreement, and (ii)
Seller represents and warrants that since June 30, 2002, no event has occurred
that would have a material adverse effect on (A) the financial condition or
operations of Seller, (B) the ability of Seller to perform its obligations under
the Transaction Documents, or (C) the collectibility of the Receivables
generally or any material portion of the Receivables.
(n) Names. In the past five (5) years, Seller has not used any
corporate names, trade names or assumed names other than the name in which it
has executed this Agreement.
(o) Ownership of Seller. Originator owns, directly or
indirectly, 100% of the issued and outstanding capital stock of Seller, free and
clear of any Adverse Claim. Such capital stock is validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to acquire
securities of Seller.
(p) Not a Holding Company or an Investment Company. Such
Seller Party is not a "holding company" or a "subsidiary holding company" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. Such Seller Party is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or any successor statute.
(q) Compliance with Law. Such Seller Party has complied in all
material respects with all applicable laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Each Receivable, together with the Contract related
thereto, does not contravene any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating to truth in
lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy), and no part of such Contract is in
violation of any such law, rule or regulation, except where such contravention
or violation could not reasonably be expected to have a Material Adverse Effect.
(r) Compliance with Credit and Collection Policy. Such Seller
Party has complied in all material respects with the Credit and Collection
Policy with regard to each Receivable and the related Contract, and has not made
any change to such Credit and Collection Policy, except such material change as
to which the Agent has been notified in accordance with Section 7.1(a)(vii).
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(s) Enforceability of Contracts. Each Contract with respect to
each Receivable is effective to create, and has created, a legal, valid and
binding obligation of the related Obligor to pay the Outstanding Balance of the
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(t) Eligible Receivables. (i) As of the date of this
Agreement, each Receivable included in the Net Receivables Balance under the
Earlier Agreement is an "Eligible Receivable" as defined hereunder as of the
date of this Agreement; provided, however, that Receivables included in the Net
Receivables Balance under the Earlier Agreement with an aggregate Outstanding
Balance of up to $268,766.62 may be ineligible as a result of clause (i)(c) of
the definition of "Eligible Receivable," it being understood that the aggregate
Outstanding Balance of such Receivables will be excluded from the Net
Receivables Balance as of the first Determination Date following the date of
this Agreement. (ii) Each Receivable included in the Net Receivables Balance as
an Eligible Receivable on the date of its purchase under the Receivables Sale
Agreement was an Eligible Receivable on such purchase date, and, as of the date
of each Monthly Report, Mid-Month Report and any other report delivered pursuant
to Section 8.5, each Receivable included in the Net Receivables Balance on such
Monthly Report, Mid-Month Report or other report was an Eligible Receivable.
(u) Net Receivables Balance. Seller has determined that,
immediately after giving effect to each Incremental Purchase hereunder, the Net
Receivables Balance is at least equal to the sum of (i) the Aggregate Capital,
plus (ii) the Aggregate Reserves.
(v) Accounting. The manner in which each Seller Party accounts
for the transactions contemplated by this Agreement and the Receivables Sale
Agreement does not jeopardize true sale analysis.
ARTICLE VI
CONDITIONS OF PURCHASES
Section 6.1 Conditions Precedent to Initial Incremental Purchase. (a)
The effectiveness of this Agreement and the initial Incremental Purchase under
this Agreement are subject to the conditions precedent that (i) the Agent and
each Managing Agent shall have received on or before the Closing Date those
documents listed on Schedule B and (b) the Agent and each Managing Agent shall
have received all fees and expenses required to be paid on or prior to the
Closing Date pursuant to the terms of this Agreement and the Fee Letters.
Section 6.2 Conditions Precedent to All Purchases and Reinvestments.
Each Incremental Purchase of a Purchaser Interest and each Reinvestment shall be
subject to the further conditions precedent that (a) in the case of each such
Incremental Purchase or Reinvestment, the Servicer shall have delivered to the
Managing Agents on or prior to the date of such Incremental Purchase or
Reinvestment, in form and substance satisfactory to the Managing
14
Agents, (i) all Monthly Reports, Mid-Month Reports and other reports as and when
due under Section 8.5 and (ii) upon the Agent's or any Managing Agent's request,
the Servicer shall have delivered to the Managing Agents at least three (3)
Business Days prior to any Incremental Purchase or Reinvestment an interim
report the form of a Monthly Report showing the amount of Eligible Receivables;
(b) the Facility Termination Date shall not have occurred; (c) the Agent and
each Managing Agent shall have received such other approvals, opinions or
documents as it may reasonably request; and (d) on the date of each such
Incremental Purchase or Reinvestment, the following statements shall be true
(and acceptance of the proceeds of such Incremental Purchase or Reinvestment
shall be deemed a representation and warranty by Seller that such statements are
then true):
(i) the representations and warranties set forth in Section
5.1 are true and correct on and as of the date of such Incremental
Purchase or Reinvestment as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from such Incremental Purchase or Reinvestment, that will constitute an
Amortization Event, and no event has occurred and is continuing, or
would result from such Incremental Purchase or Reinvestment, that would
constitute a Potential Amortization Event; and
(iii) the Aggregate Capital does not exceed the Purchase Limit
and the aggregate Purchaser Interests do not exceed 100%.
It is expressly understood that each Reinvestment shall, unless otherwise
directed by any Managing Agent or any Purchaser, occur automatically on each day
that the Servicer shall receive any Collections without the requirement that any
further action be taken on the part of any Person and notwithstanding the
failure of Seller to satisfy any of the foregoing conditions precedent in
respect of such Reinvestment. The failure of Seller to satisfy any of the
foregoing conditions precedent in respect of any Reinvestment shall give rise to
a right of the Agent, which right may be exercised at any time on demand of the
Agent (with the consent or at the direction of the Required Financial
Institutions), to rescind the related purchase and direct Seller to pay to the
Agent for the benefit of the Purchasers an amount equal to the Collections prior
to the Amortization Date that shall have been applied to the affected
Reinvestment.
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants of The Seller Parties. Until the date
on which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, as set forth below:
(a) Financial Reporting. Such Seller Party will maintain, for
itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish or cause to be furnished to
the Agent and each Managing Agent:
15
(i) Annual Reporting. Within 90 days after the close of each
of its respective fiscal years, audited financial statements (which
shall include balance sheets, statements of income and retained
earnings and a statement of cash flows) for Anixter and its
consolidated Subsidiaries for such fiscal year certified in a manner
acceptable to each Managing Agent by Ernst & Young or other independent
public accountants reasonably acceptable to each Managing Agent.
(ii) Quarterly Reporting. Within 45 days after the close of
the first three (3) quarterly periods of each of its respective fiscal
years, balance sheets of Anixter and its consolidated Subsidiaries as
at the close of each such period and statements of income and retained
earnings and a statement of cash flows for Anixter and its consolidated
Subsidiaries for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its respective chief
financial officer or treasurer.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate in
substantially the form of Exhibit V signed by such Seller Party's
Authorized Officer on behalf of such Seller Party and dated the date of
such annual financial statement or such quarterly financial statement,
as the case may be.
(iv) Shareholders Statements and Reports. Promptly upon the
furnishing thereof to the shareholders of such Seller Party copies of
all financial statements, reports and proxy statements so furnished.
(v) S.E.C. Filings. Promptly upon the filing thereof, copies
of all registration statements and annual, quarterly, monthly or other
regular reports which Originator or any of its Subsidiaries files with
the Securities and Exchange Commission.
(vi) Copies of Notices. Promptly upon its receipt of any
notice, request for consent, financial statements, certification,
report or other communication under or in connection with any
Transaction Document from any Person other than the Agent, any Managing
Agent or any Purchaser, copies of the same.
(vii) Change in Credit and Collection Policy. At least thirty
(30) days prior to the effectiveness of any material change in or
material amendment to the Credit and Collection Policy, a notice (A)
indicating such change or amendment, and (B) if such proposed change or
amendment would be reasonably likely to adversely affect the
collectibility of the Receivables or decrease the credit quality of any
newly created Receivables, requesting the consent of the Managing
Agents to such proposed change or amendment; provided that if such
change or amendment was required pursuant to any change in any
applicable law, rule or regulation, such Seller Party shall only be
required to give notice of such change or amendment and shall not be
required to request the consent of the Managing Agents.
(viii) Other Information. Promptly, from time to time, such
other information, documents, records or reports relating to the
Receivables or the condition or
16
operations, financial or otherwise, of such Seller Party as either
Managing Agent may from time to time reasonably request in order to
protect the interests of the Agent, the Managing Agents and the
Purchasers under or as contemplated by this Agreement.
(ix) Fiscal Months. No less frequently than annually, an
updated list of fiscal months.
(b) Notices. Such Seller Party will notify each Managing Agent in
writing of any of the following promptly upon learning of the occurrence
thereof, describing the same and, if applicable, the steps being taken with
respect thereto:
(i) Amortization Events or Potential Amortization Events. The
occurrence of each Amortization Event and each Potential Amortization
Event, by a statement of an Authorized Officer of such Seller Party.
(ii) Judgment and Proceedings. (A) (1) The entry of any
judgment or decree against the Servicer or any of its respective
Subsidiaries if the aggregate amount of all judgments and decrees then
outstanding against the Servicer and its Subsidiaries exceeds
$25,000,000 and (2) the institution of any litigation, arbitration
proceeding or governmental proceeding against the Servicer which,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect, or which seeks to enjoin performance of or
otherwise relates to the Transaction Documents; and (B) the entry of
any judgment or decree or the institution of any litigation,
arbitration proceeding or governmental proceeding against Seller.
(iii) Material Adverse Effect. The occurrence of any event or
condition that has had, or could reasonably be expected to have, a
Material Adverse Effect.
(iv) Termination Date. The occurrence of the "Amortization
Date" under and as defined in the Receivables Sale Agreement.
(v) Defaults Under Other Agreements. (A) The occurrence of a
default or an event of default under any other financing arrangement
pursuant to which Seller is a debtor or an obligor and (B) the
occurrence of any default or event of default under any other financing
arrangement or arrangements governing Indebtedness, individually or in
the aggregate, in a principal amount greater than or equal to
$25,000,000 pursuant to which Servicer is a debtor or obligor.
(vi) Downgrade of Originator. Any downgrade in the rating of
any Indebtedness of Originator by S&P or by Moody's, setting forth the
Indebtedness affected and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate
Existence. Such Seller Party will comply in all respects with all applicable
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect. Such Seller Party
will preserve and maintain its corporate existence, rights, franchises and
privileges in the
17
jurisdiction of its incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where its business is
conducted, except where the failure to preserve and maintain or qualify could
not reasonably be expected to have a Material Adverse Effect.
(d) Audits. Such Seller Party will furnish to each Managing
Agent from time to time such information with respect to it and the Receivables
as either Managing Agent may reasonably request. Such Seller Party will, from
time to time during regular business hours as requested by either Managing Agent
upon reasonable notice and at the sole cost of such Seller Party (except as
provided below), permit each Managing Agent, or its respective agents or
representatives, (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Person relating to the
Receivables and the Related Security, including, without limitation, the related
Contracts, and (ii) to visit the offices and properties of such Person for the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to such Person's financial condition or the Receivables
and the Related Security or any Person's performance under any of the
Transaction Documents or any Person's performance under the Contracts and, in
each case, with any of the officers or employees of Seller or the Servicer
having knowledge of such matters. So long as no Potential Amortization Event or
Amortization Event exists, the visits under this Section 7.1(d) that are at the
sole cost of the applicable Seller Party shall be limited to once per calendar
year.
(e) Keeping and Marking of Records and Books.
(i) The Servicer will maintain and implement administrative
and operating procedures (including, without limitation, an ability to
recreate records evidencing Receivables in the event of the destruction
of the originals thereof), and keep and maintain all documents, books,
records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records
adequate to permit the immediate identification of each new Receivable
and all Collections of and adjustments to each existing Receivable).
The Servicer will give each Managing Agent notice of any material
change in the administrative and operating procedures referred to in
the previous sentence.
(ii) Such Seller Party will (A) on or prior to the date
hereof, cause all Receivable reports relating to the Purchaser
Interests to bear a legend, acceptable to each Managing Agent,
describing the Purchaser Interests and (B) from and after the
occurrence of an Amortization Event (x) mark each Contract with a
legend describing the Purchaser Interests and (y) deliver to the Agent
all Contracts (including, without limitation, all multiple originals of
any such Contract) relating to the Receivables.
(f) Compliance with Contracts and Credit and Collection
Policy. Such Seller Party will timely and fully (i) perform and comply with all
provisions, covenants and other promises required to be observed by it under the
Contracts related to the Receivables, and (ii) comply in all respects with the
Credit and Collection Policy in regard to each Receivable and the related
Contract.
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(g) Performance and Enforcement of Receivables Sale Agreement.
Seller will, and will require Originator to, perform each of their respective
obligations and undertakings under and pursuant to the Receivables Sale
Agreement, will purchase Receivables thereunder in strict compliance with the
terms thereof and will vigorously enforce the rights and remedies accorded to
Seller under the Receivables Sale Agreement. Seller will take all actions to
perfect and enforce its rights and interests (and the rights and interests of
the Agent, the Managing Agents and the Purchasers as assignees of Seller) under
the Receivables Sale Agreement as either Managing Agent may from time to time
reasonably request, including, without limitation, making claims to which it may
be entitled under any indemnity, reimbursement or similar provision contained in
the Receivables Sale Agreement.
(h) Ownership. Seller will (or will cause Originator to) take
all necessary action to (i) vest legal and equitable title to the Receivables,
the Related Security and the Collections purchased under the Receivables Sale
Agreement irrevocably in Seller, free and clear of any Adverse Claims other than
Adverse Claims in favor of the Agent and the Purchasers (including, without
limitation, the filing of all financing statements or other similar instruments
or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Seller's interest in such Receivables, Related Security
and Collections and such other action to perfect, protect or more fully evidence
the interest of Seller therein as either Managing Agent may reasonably request),
and (ii) establish and maintain, in favor of the Agent, for the benefit of the
Purchasers, a valid and perfected first priority undivided percentage ownership
interest (and/or a valid and perfected first priority security interest) in all
Receivables, Related Security and Collections to the full extent contemplated
herein, free and clear of any Adverse Claims other than Adverse Claims in favor
of the Agent for the benefit of the Purchasers (including, without limitation,
the filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Agent's (for the benefit of the Purchasers) interest in such
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interest of the Agent for the benefit of the
Purchasers as either Managing Agent may reasonably request).
(i) Purchasers' Reliance. Seller acknowledges that the
Purchasers are entering into the transactions contemplated by this Agreement in
reliance upon Seller's identity as a legal entity that is separate from
Originator. Therefore, from and after the date of execution and delivery of this
Agreement, Seller shall take all reasonable steps, including, without
limitation, all steps that either Managing Agent or any Purchaser may from time
to time reasonably request, to maintain Seller's identity as a separate legal
entity and to make it manifest to third parties that Seller is an entity with
assets and liabilities distinct from those of Originator and any Affiliates
thereof and not just a division of Originator or any such Affiliate. Without
limiting the generality of the foregoing and in addition to the other covenants
set forth herein, Seller will:
(A) conduct its own business in its own name and
require that all full-time employees of Seller, if any,
identify themselves as such and not as employees of Originator
(including, without limitation, by
19
means of providing appropriate employees with business or
identification cards identifying such employees as Seller's
employees);
(B) compensate all employees, consultants and agents
directly, from Seller's own funds, for services provided to
Seller by such employees, consultants and agents and, to the
extent any employee, consultant or agent of Seller is also an
employee, consultant or agent of Originator or any Affiliate
thereof, allocate the compensation of such employee,
consultant or agent between Seller and Originator or such
Affiliate, as applicable, on a basis that reflects the
services rendered to Seller and Originator or such Affiliate,
as applicable;
(C) clearly identify its offices (by signage or
otherwise) as its offices and, if such office is located in
the offices of Originator, Seller shall lease such office at a
fair market rent;
(D) have a separate telephone number, which will be
answered only in its name and separate stationery, invoices
and checks in its own name;
(E) conduct all transactions with Originator
(including, without limitation, any delegation of its
obligations hereunder as Servicer) strictly on an arm's-length
basis, allocate all overhead expenses (including, without
limitation, telephone and other utility charges) for items
shared between Seller and Originator on the basis of actual
use to the extent practicable and, to the extent such
allocation is not practicable, on a basis reasonably related
to actual use;
(F) at all times have a Board of Directors consisting
of three members, at least one member of which is an
Independent Director;
(G) observe all corporate formalities as a distinct
entity, and ensure that all corporate actions relating to (A)
the selection, maintenance or replacement of the Independent
Director, (B) the dissolution or liquidation of Seller or (C)
the initiation of, participation in, acquiescence in or
consent to any bankruptcy, insolvency, reorganization or
similar proceeding involving Seller, are duly authorized by
unanimous vote of its Board of Directors (including the
Independent Director);
(H) maintain Seller's books and records separate from
those of Originator and any Affiliate thereof and otherwise
readily identifiable as its own assets rather than assets of
Originator and any Affiliate thereof;
(I) prepare its financial statements separately from
those of Originator and insure that any consolidated financial
statements of Originator or any Affiliate thereof that include
Seller and that are filed
20
with the Securities and Exchange Commission or any other
governmental agency have notes clearly stating that Seller is
a separate corporate entity and that its assets will be
available first and foremost to satisfy the claims of the
creditors of Seller;
(J) except as herein specifically otherwise provided,
maintain the funds or other assets of Seller separate from,
and not commingled with, those of Originator or any Affiliate
thereof and only maintain bank accounts or other depository
accounts to which Seller alone is the account party, into
which Seller alone makes deposits and from which Seller alone
(or the Agent or Managing Agents hereunder) has the power to
make withdrawals;
(K) pay all of Seller's operating expenses from
Seller's own assets (except for certain payments by Originator
or other Persons pursuant to allocation arrangements that
comply with the requirements of this Section 7.1(i));
(L) operate its business and activities such that it
does not engage in any business or activity of any kind, or
enter into any transaction or indenture, mortgage, instrument,
agreement, contract, lease or other undertaking, other than
the transactions contemplated and authorized by this Agreement
and the Receivables Sale Agreement; and does not create,
incur, guarantee, assume or suffer to exist any indebtedness
or other liabilities, whether direct or contingent, other than
(1) as a result of the endorsement of negotiable instruments
for deposit or collection or similar transactions in the
ordinary course of business, (2) the incurrence of obligations
under this Agreement, (3) the incurrence of obligations, as
expressly contemplated in the Receivables Sale Agreement, to
make payment to Originator thereunder for the purchase of
Receivables from Originator under the Receivables Sale
Agreement, and (4) the incurrence of operating expenses in the
ordinary course of business of the type otherwise contemplated
by this Agreement;
(M) maintain its corporate charter in conformity with
this Agreement, such that it does not amend, restate,
supplement or otherwise modify its Certificate of
Incorporation or By-Laws in any respect that would impair its
ability to comply with the terms or provisions of any of the
Transaction Documents, including, without limitation, Section
7.1(i) of this Agreement;
(N) maintain the effectiveness of, and continue to
perform under the Receivables Sale Agreement, such that it
does not amend, restate, supplement, cancel, terminate or
otherwise modify the Receivables Sale Agreement, or give any
consent, waiver, directive or approval thereunder or waive any
default, action, omission or breach
21
under the Receivables Sale Agreement or otherwise grant any
indulgence thereunder, without (in each case) the prior
written consent of each Managing Agent;
(O) maintain its corporate separateness such that it
does not merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions, and except as
otherwise contemplated herein) all or substantially all of its
assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets of, any Person,
nor at any time create, have, acquire, maintain or hold any
interest in any Subsidiary.
(P) maintain at all times the Required Capital Amount
(as defined in the Receivables Sale Agreement) and refrain
from making any dividend, distribution, redemption of capital
stock or payment of any subordinated indebtedness which would
cause the Required Capital Amount to cease to be so
maintained; and
(Q) take such other actions as are necessary on its
part to ensure that the facts and assumptions set forth in the
opinion issued by Schiff Hardin & Waite, as counsel for
Seller, in connection with the closing or initial Incremental
Purchase under this Agreement and relating to substantive
consolidation issues, and in the certificates accompanying
such opinion, remain true and correct in all material respects
at all times.
(j) Collections. Such Seller Party will cause (1) all proceeds
from all Lock-Boxes to be directly deposited by a Collection Bank into a
Collection Account and (2) each Lock-Box and Collection Account to be subject at
all times to a Collection Account Agreement that is in full force and effect. In
the event any payments relating to Receivables are remitted directly to Seller
or any Affiliate of Seller, Seller will remit (or will cause all such payments
to be remitted) directly to a Collection Bank and deposited into a Collection
Account within two (2) Business Days following receipt thereof, and, at all
times prior to such remittance, Seller will itself hold or, if applicable, will
cause such payments to be held in trust for the exclusive benefit of the Agent,
the Managing Agents and the Purchasers. Seller will maintain exclusive
ownership, dominion and control (subject to the terms of this Agreement and the
applicable Collection Agreement) of each Lock-Box and Collection Account and
shall not grant the right to take dominion and control of any Lock-Box or
Collection Account at a future time or upon the occurrence of a future event to
any Person, except to the Agent as contemplated by this Agreement.
(k) Taxes. Such Seller Party will file all tax returns and
reports required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing; provided, however, that no Seller Party
shall be required to pay any such taxes which are not yet delinquent or are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books, unless the failure to make any such payment (1) in the case of either
Seller Party, shall give rise to an
22
immediate right to foreclosure on an Adverse Claim securing such amounts, (2) in
the case of the Seller, shall result in the attachment of an Adverse Claim
securing such amounts, or (3) could reasonably be expected to have a Material
Adverse Effect. Seller will pay when due any taxes payable in connection with
the Receivables, exclusive of taxes on or measured by income or gross receipts
of any Purchaser, Managing Agent or the Agent.
(l) Insurance. Seller will maintain in effect, or cause to be
maintained in effect, at Seller's own expense, such casualty and liability
insurance as Seller shall deem appropriate in its good faith business judgment.
Seller will pay or cause to be paid, the premiums therefor and deliver to each
Managing Agent evidence satisfactory to such Managing Agent of such insurance
coverage. Copies of each policy shall be furnished to each Managing Agent in
certificated form upon such Managing Agent's request. The foregoing requirements
shall not be construed to negate, reduce or modify, and are in addition to,
Seller's obligations hereunder.
(m) Payment to Originator. With respect to any Receivable
purchased by Seller from Originator, such sale shall be effected under, and in
strict compliance with the terms of, the Receivables Sale Agreement, including,
without limitation, the terms relating to the amount and timing of payments to
be made to Originator in respect of the purchase price for such Receivable.
Section 7.2 Negative Covenants of the Seller Parties. Until the date on
which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, that:
(a) Name Change, Offices and Records. Such Seller Party will
not change its name, identity, state of incorporation, corporate structure or
organizational number, if any, or relocate its chief executive office or any
office where Records are kept unless it shall have: (i) given each Managing
Agent at least forty-five (45) days' prior written notice thereof and (ii)
delivered to each Managing Agent all financing statements, instruments and other
documents requested by such Managing Agent in connection with such change or
relocation.
(b) Change in Payment Instructions to Obligors. Except as may
be required by the Agent pursuant to Section 8.2(b), such Seller Party will not
add or terminate any bank as a Collection Bank, or make any change in the
instructions to Obligors regarding payments to be made to any Lock-Box or
Collection Account, unless the Agent and each Managing Agent shall have
received, at least ten (10) days before the proposed effective date therefor,
(i) written notice of such addition, termination or change and (ii) with respect
to the addition of a Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement with respect to the new Collection Account
or Lock-Box; provided, however, that the Servicer may make changes in
instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Collection Account.
(c) Modifications to Contracts and Credit and Collection
Policy. Such Seller Party will not make any change to the Credit and Collection
Policy that could reasonably be expected to adversely affect the collectibility
of the Receivables or decrease the credit quality of
23
any newly created Receivables, unless required to do so by a change in any
applicable law, rule or regulation. Except as provided in Section 8.2(d), the
Servicer will not extend, amend or otherwise modify the terms of any Receivable
or any Contract related thereto other than in accordance with the Credit and
Collection Policy.
(d) Sales, Liens. Seller will not sell, assign (by operation
of law or otherwise) or otherwise dispose of, or grant any option with respect
to, or create or suffer to exist any Adverse Claim upon (including, without
limitation, the filing of any financing statement) or with respect to, any
Receivable, Related Security or Collections, or upon or with respect to any
Contract under which any Receivable arises, or any Lock-Box or Collection
Account, or assign any right to receive income with respect thereto (other than,
in each case, the creation of the interests therein in favor of the Agent and
the Purchasers provided for herein), and Seller will defend the right, title and
interest of the Agent and the Purchasers in, to and under any of the foregoing
property, against all claims of third parties claiming through or under Seller
or Originator. Seller will not create or suffer to exist any mortgage, pledge,
security interest, encumbrance, lien, charge or other similar arrangement on any
of its inventory, the sale or lease of which would give rise to a Receivable.
(e) Net Receivables Balance. At no time prior to the
Amortization Date shall Seller permit the Net Receivables Balance to be less
than an amount equal to the sum of (i) the Aggregate Capital plus (ii) the
Aggregate Reserves.
(f) Amortization Date Determination. Seller will not designate
the "Amortization Date" (as defined in the Receivables Sale Agreement), or send
any written notice to Originator in respect thereof, without the prior written
consent of each Managing Agent, except with respect to the occurrence of such
Amortization Date arising pursuant to Section 5.1(d) of the Receivables Sale
Agreement.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer.
(a) The servicing, administration and collection of the
Receivables shall be conducted by such Person (the "Servicer") so designated
from time to time in accordance with this Section 8.1. Anixter is hereby
designated as, and hereby agrees to perform the duties and obligations of, the
Servicer pursuant to the terms of this Agreement. Anixter shall not resign as
the Servicer without the prior written consent of each Managing Agent. After the
occurrence and during the continuation of an Amortization Event, the Managing
Agents may at any time designate as Servicer any Person to succeed Anixter or
any successor Servicer.
(b) Without the prior written consent of the Managing Agents,
Anixter shall not be permitted to delegate any of its duties or responsibilities
as Servicer to any Person other than (i) Seller and (ii) with respect to certain
Charged-Off Receivables, outside collection agencies in accordance with its
customary practices. Seller shall not be permitted to further delegate to any
other Person any of the duties or responsibilities of the Servicer delegated to
it by
24
Anixter. If at any time the Managing Agents shall designate as Servicer any
Person other than Anixter, all duties and responsibilities theretofore delegated
by Anixter to Seller may, at the discretion of the Managing Agents, be
terminated forthwith on notice given by the Agent to Anixter and to Seller.
(c) Notwithstanding the foregoing subsection (b), if Anixter
shall have delegated its duties and responsibilities as Servicer to any Person,
(i) Anixter shall be and remain primarily liable to the Agent, the Managing
Agents and the Purchasers for the full and prompt performance of all duties and
responsibilities of the Servicer (other than any Servicer appointed by the
Managing Agents without Anixter's consent) hereunder, (ii) the Agent, the
Managing Agents and the Purchasers shall be entitled to deal exclusively with
Anixter in matters relating to the discharge by the Servicer (other than any
Servicer appointed by the Managing Agents without Anixter's consent) of its
duties and responsibilities hereunder and (iii) none of the Agent, the Managing
Agents or the Purchasers shall be required to give notice, demand or other
communication to any Person other than Anixter in order for communication to the
Servicer (other than any Servicer appointed by the Managing Agents without
Anixter's consent) and its sub-servicer or other delegate with respect thereto
to be accomplished. Anixter, at all times that it is the Servicer, shall be
responsible for providing any sub-servicer or other delegate of the Servicer
with any notice given to the Servicer under this Agreement.
Section 8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such
actions as may be necessary or advisable to collect each Receivable from time to
time, all in accordance with applicable laws, rules and regulations, with
reasonable care and diligence, and in accordance with the Credit and Collection
Policy.
(b) The Servicer will instruct all Obligors to pay all
Collections directly to a Lock-Box or Collection Account. The Servicer shall
effect a Collection Account Agreement substantially in the form of Exhibit VI
with each bank maintaining a Collection Account at any time. In the case of any
remittances received in any Lock-Box or Collection Account that shall have been
identified, to the satisfaction of the Servicer, to not constitute Collections
or other proceeds of the Receivables or the Related Security, the Servicer shall
promptly remit such items to the Person identified to it as being the owner of
such remittances. From and after the date the Agent delivers to any Collection
Bank a Collection Notice pursuant to Section 8.3, the Agent may request that the
Servicer, and the Servicer thereupon promptly shall instruct all Obligors with
respect to the Receivables, to remit all payments thereon to a new depositary
account specified by the Agent and, at all times thereafter, Seller and the
Servicer shall not deposit or otherwise credit, and shall not permit any other
Person to deposit or otherwise credit to such new depositary account any cash or
payment item other than Collections.
(c) The Servicer shall administer the Collections in
accordance with the procedures described herein and in Article II. The Servicer
shall set aside and hold in trust for the account of Seller and the Purchasers
their respective shares of the Collections in accordance with Article II. The
Servicer shall, upon the request of the Agent, in its discretion or at the
direction of the Required Financial Institutions, segregate, in a manner
acceptable to the Agent
25
and the Required Financial Institutions, all cash, checks and other instruments
received by it from time to time constituting Collections from the general funds
of the Servicer or Seller prior to the remittance thereof in accordance with
Article II. If the Servicer shall be required to segregate Collections pursuant
to the preceding sentence, the Servicer shall segregate and deposit with a bank
designated by the Agent such allocable share of Collections of Receivables set
aside for the Purchasers on the first Business Day following receipt by the
Servicer of such Collections, duly endorsed or with duly executed instruments of
transfer.
(d) The Servicer may, in accordance with the Credit and
Collection Policy, extend the maturity of any Receivable or adjust the
Outstanding Balance of any Receivable as the Servicer determines to be
appropriate to maximize Collections thereof; provided, however, that such
extension or adjustment shall not alter the status of such Receivable as a
Delinquent Receivable or Charged-Off Receivable or limit the rights of the
Agent, the Managing Agents or the Purchasers under this Agreement.
Notwithstanding anything to the contrary contained herein, at any time that an
Amortization Event is continuing, the Agent, in its discretion or at the
direction of the Required Financial Institutions, shall have the absolute and
unlimited right to direct the Servicer to commence or settle any legal action
with respect to any Receivable or to foreclose upon or repossess any Related
Security.
(e) The Servicer shall hold for Seller and the Purchasers all
Records that (i) evidence or relate to the Receivables, the related Contracts
and Related Security or (ii) are otherwise necessary or desirable to collect the
Receivables and shall, as soon as practicable upon demand of the Agent, in its
discretion or at the direction of the Required Financial Institutions, at any
time following an Amortization Event or a Potential Amortization Event, deliver
or make available to the Agent all such Records, at a place selected by the
Agent, with the consent or at the direction of the Required Financial
Institutions. The Servicer shall, from time to time at the request of any
Managing Agent, furnish to such Managing Agent (promptly after any such
request) a calculation of the amounts set aside for the Purchasers pursuant to
Article II.
Section 8.3 Collection Notices. Upon the occurrence of and during the
continuation of an Amortization Event or Potential Amortization Event, the Agent
is authorized at any time to date and to deliver to the Collection Banks the
Collection Notices, and shall deliver such Collection Notices if directed to do
so by the Required Financial Institutions. Seller hereby transfers to the Agent
for the benefit of the Purchasers, effective when the Agent delivers such
notice, the exclusive ownership and control of each Lock-Box and the Collection
Accounts. In case any authorized signatory of Seller whose signature appears on
a Collection Account Agreement shall cease to have such authority before the
delivery of such notice, such Collection Notice shall nevertheless be valid as
if such authority had remained in force. Seller hereby authorizes the Agent, and
agrees that the Agent shall be entitled to, following the delivery of the
Collection Notice (i) endorse Seller's name on checks and other instruments
representing Collections, (ii) enforce the Receivables, the related Contracts
and the Related Security and (iii) take such action as shall be necessary or
desirable to cause all cash, checks and other instruments constituting
Collections of Receivables to come into the possession of the Agent rather than
Seller.
26
Section 8.4 Responsibilities of Seller. Anything herein to the contrary
notwithstanding, the exercise by the Agent, the Managing Agents and the
Purchasers of their rights hereunder shall not release the Servicer, Originator
or Seller from any of their duties or obligations with respect to any
Receivables or under the related Contracts. None of the Agent, the Managing
Agents or the Purchasers shall have any obligation or liability with respect to
any Receivables or related Contracts, nor shall any of them be obligated to
perform the obligations of Seller.
Section 8.5 Reports. The Servicer shall prepare and forward to each
Managing Agent (i) on each Determination Date, a Monthly Report, (ii) on the
last Business Day of each calendar month (each such date, a "Mid-Month Report
Date"), a Mid-Month Report containing information relating to the period from
the first day of the related fiscal month (a list of fiscal months is set forth
on Schedule 1 hereto) to and including the Friday closest to the fifteenth day
of such calendar month, (iii) at such times as either Managing Agent shall
reasonably request, a report in the form of a Monthly Report updating the
information contained in the most recent Monthly Report, and (iv) at such times
as either Managing Agent shall request, a listing by Obligor of all Receivables
together with an aging of such Receivables.
Section 8.6 Servicing Fees. In consideration of Anixter's agreement to
act as Servicer hereunder, the Purchasers hereby agree that, so long as Anixter
shall continue to perform as Servicer hereunder, Seller shall pay over to
Anixter a fee (the "Servicing Fee") on the first calendar day of each month, in
arrears for the immediately preceding month, equal to 0.36% times the
Outstanding Balance of all Receivables generated during such immediately
preceding calendar month, as compensation for its servicing activities.
ARTICLE IX
AMORTIZATION EVENTS
Section 9.1 Amortization Events. The occurrence of any one or more of
the following events shall constitute an Amortization Event:
(a) Any Seller Party shall fail (i) to make any payment or
deposit required hereunder when due, or (ii) to perform or observe any term,
covenant or agreement hereunder (other than as referred to in clause (i) of this
paragraph (a) and Section 9.1(e)) and such failure shall continue for three (3)
consecutive Business Days.
(b) Any representation, warranty, certification or statement
made by any Seller Party in this Agreement, any other Transaction Document or in
any other document delivered pursuant hereto or thereto shall prove to have been
incorrect when made or deemed made; provided, however, that any breach of the
representations and warranties set forth in Sections 5.1(i), (s) or (t) shall
not constitute an Amortization Event unless such breach or breaches apply in the
aggregate to a material portion of the Receivables.
(c) Failure of Seller to pay any Indebtedness when due or the
failure of any other Seller Party to pay when due any Indebtedness having an
outstanding principal balance in excess of $25,000,000; or the default by any
Seller Party in the performance of any term,
27
provision or condition contained in any agreement under which any such
Indebtedness was created or is governed, the effect of which is to cause, or to
permit the holder or holders of such Indebtedness to cause, such Indebtedness to
become due prior to its stated maturity; or any such Indebtedness of any Seller
Party shall be declared to be due and payable or required to be prepaid (other
than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) (i) Any Seller Party or any of its Significant
Subsidiaries shall generally not pay its debts as such debts become due or shall
admit in writing its inability to pay its debts generally or shall make a
general assignment for the benefit of creditors; or (ii) any proceeding shall be
instituted by or against any Seller Party or any of its Significant Subsidiaries
seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee or other similar official for it or
any substantial part of its property, provided that in the event any such
proceedings shall have been instituted against such Seller Party or Significant
Subsidiary, such proceedings shall have continued undismissed or unstayed and in
effect for a period of sixty (60) consecutive days or an order for relief shall
have been entered in such proceedings, or (iii) any Seller Party or any of its
Significant Subsidiaries shall take any corporate action to authorize any of the
actions set forth in clauses (i) or (ii) above in this subsection (d).
(e) Seller shall fail to comply with the terms of Section 2.6.
(f) As at the end of any Collection Period: (i) the average of
the Delinquency Ratios as of the end of such Collection Period and the two
preceding Collection Periods shall exceed 11.875%; (ii) the average of the
Dilution Trigger Ratios as of the end of such Collection Period and the two
preceding Collection Periods shall exceed 4.0%; or (iii) the average of the
Loss-to-Liquidation Ratios as of the end of such Collection Period and the two
preceding Collection Periods shall exceed 4.875%.
(g) A Change of Control shall occur.
(h) (i) One or more final judgments for the payment of money
shall be entered against Seller or (ii) one or more final judgments for the
payment of money in an amount in excess of $25,000,000, individually or in the
aggregate, shall be entered against the Servicer, and such judgment shall
continue unsatisfied and in effect for ten (10) consecutive days without a stay
of execution.
(i) The "Amortization Date" under and as defined in the
Receivables Sale Agreement shall occur under the Receivables Sale Agreement or
Originator shall for any reason cease to transfer, or cease to have the legal
capacity to transfer, or otherwise be incapable of transferring Receivables to
Seller under the Receivables Sale Agreement.
(j) Anixter shall fail to comply with any of the financial
covenants set forth in Sections 7.16, 7.17 or 7.18 of the Credit Agreement, as
amended from time to time pursuant to
28
any amendment which (i) becomes effective while Bank One is a party to the
Credit Agreement, and (ii) is consented to in writing by Bank One as a party to
the Credit Agreement.
(k) This Agreement shall terminate in whole or in part (except
in accordance with its terms), or shall cease to be effective or to be the
legally valid, binding and enforceable obligation of Seller, or the Agent for
the benefit of the Purchasers shall cease to have a valid and perfected first
priority security interest in the Receivables, the Related Security and the
Collections with respect thereto, and the Collection Accounts.
Section 9.2 Remedies. Upon the occurrence and during the continuation
of an Amortization Event, the Agent may, and upon the direction of the Required
Financial Institutions, shall, take any of the following actions: (i) replace
the Person then acting as Servicer, (ii) declare the Amortization Date to have
occurred, whereupon the Amortization Date shall forthwith occur, without demand,
protest or further notice of any kind, all of which are hereby expressly waived
by each Seller Party; provided, however, that upon the occurrence of an
Amortization Event described in Section 9.1(d)(ii), or of an actual or deemed
entry of an order for relief with respect to any Seller Party under the
Bankruptcy Code, the Amortization Date shall automatically occur, without
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Seller Party, (iii) to the fullest extent permitted by applicable
law, declare that the Default Fee shall accrue with respect to any of the
Aggregate Unpaids outstanding at such time, (iv) deliver the Collection Notices
to the Collection Banks, and (v) notify Obligors of the Purchasers' interest in
the Receivables. The aforementioned rights and remedies shall be without
limitation, and shall be in addition to all other rights and remedies of the
Agent, the Managing Agents and the Purchasers otherwise available under any
other provision of this Agreement, by operation of law, at equity or otherwise,
all of which are hereby expressly preserved, including, without limitation, all
rights and remedies provided under the UCC, all of which rights shall be
cumulative.
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnities by the Seller Parties. Without limiting any
other rights that the Agent, any Managing Agent or any Purchaser may have
hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and
pay upon demand to) the Agent, the Managing Agents and each Purchaser and their
respective assigns, officers, directors, agents and employees (each an
"Indemnified Party") from and against any and all damages, losses, claims,
taxes, liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them arising out of or as a result of this Agreement or the
acquisition, either directly or indirectly, by a Purchaser of an interest in the
Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon
demand to) each Indemnified Party for Indemnified Amounts awarded against or
incurred by any of them arising out of the Servicer's activities as Servicer
hereunder excluding, however, in all of the foregoing instances under the
preceding clauses (A) and (B):
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(a) Indemnified Amounts to the extent a final judgment of a
court of competent jurisdiction holds that such Indemnified Amounts resulted
from gross negligence or willful misconduct on the part of the Indemnified Party
seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses
in respect of Receivables that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located, on or measured by the
overall net income of such Indemnified Party to the extent that the computation
of such taxes is consistent with the characterization for income tax purposes of
the acquisition by the Purchasers of Purchaser Interests as a loan or loans by
the Purchasers to Seller secured by the Receivables, the Related Security, the
Collection Accounts and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Seller Party or limit the recourse of the Purchasers to any
Seller Party for amounts otherwise specifically provided to be paid by such
Seller Party under the terms of this Agreement.
Without limiting the generality of the foregoing
indemnification, Seller shall indemnify the Agent, the Managing Agents and the
Purchasers for Indemnified Amounts (including, without limitation, losses in
respect of uncollectible receivables, regardless of whether reimbursement
therefor would constitute recourse to Seller or the Servicer) relating to or
resulting from:
(i) any representation or warranty made by any Seller
Party or Originator (or any officers of any such Person) under or in
connection with this Agreement, any other Transaction Document or any
other information or report delivered by any such Person pursuant
hereto or thereto, which shall have been false or incorrect when made
or deemed made;
(ii) the failure by Seller, the Servicer or
Originator to comply with any applicable law, rule or regulation with
respect to any Receivable or Contract related thereto, or the
nonconformity of any Receivable or Contract included therein with any
such applicable law, rule or regulation or any failure of Originator to
keep or perform any of its obligations, express or implied, with
respect to any Contract;
(iii) any failure of Seller, the Servicer or
Originator to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any other
Transaction Document;
(iv) any products liability, personal injury or
damage suit, or other similar claim arising out of or in connection
with merchandise, insurance or services that are the subject of any
Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable (including,
30
without limitation, a defense based on such Receivable or the related
Contract 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 service
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) the commingling of Collections of Receivables at
any time with other funds;
(vii) any investigation, litigation or proceeding
related to or arising from this Agreement or any other Transaction
Document, the transactions contemplated hereby, the use of the proceeds
of an Incremental Purchase or a Reinvestment, the ownership of the
Purchaser Interests or any other investigation, litigation or
proceeding relating to Seller, the Servicer or Originator in which any
Indemnified Party becomes involved as a result of any of the
transactions contemplated hereby;
(viii) any inability to litigate any claim against
any Obligor in respect of any Receivable as a result of such Obligor
being immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section
9.1(d);
(x) any failure of Seller to acquire and maintain
legal and equitable title to, and ownership of any Receivable and the
Related Security and Collections with respect thereto from Originator,
free and clear of any Adverse Claim (other than as created hereunder);
or any failure of Seller to give reasonably equivalent value to
Originator under the Receivables Sale Agreement in consideration of the
transfer by Originator of any Receivable, or any attempt by any Person
to void such transfer under statutory provisions or common law or
equitable action;
(xi) any failure to vest and maintain vested in the
Agent for the benefit of the Purchasers, or to transfer to the Agent
for the benefit of the Purchasers, legal and equitable title to, and
ownership of, a first priority perfected undivided percentage ownership
interest (to the extent of the Purchaser Interests contemplated
hereunder) or security interest in the Receivables, the Related
Security and the Collections, free and clear of any Adverse Claim
(except as created by the Transaction Documents);
(xii) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws
with respect to any Receivable, the Related Security and Collections
with respect thereto, and the proceeds of any thereof, whether at the
time of any Incremental Purchase or Reinvestment or at any subsequent
time;
(xiii) any action or omission by any Seller Party
which reduces or impairs the rights of the Agent or the Purchasers with
respect to any Receivable or the value of any such Receivable;
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(xiv) any attempt by any Person, other than a
Purchaser, to void any Incremental Purchase or Reinvestment hereunder
under statutory provisions or common law or equitable action; and
(xv) the failure of any Receivable included in the
calculation of the Net Receivables Balance as an Eligible Receivable to
be an Eligible Receivable at the time so included.
Section 10.2 Increased Cost and Reduced Return. If after the date
hereof, any Funding Source shall be charged any fee, expense or increased cost
on account of the adoption of any applicable law, rule or regulation (including
any applicable law, rule or regulation regarding capital adequacy) or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency: (i) that subjects any Funding Source to any
charge or withholding on or with respect to any Funding Agreement or a Funding
Source's obligations under a Funding Agreement, or on or with respect to the
Receivables, or changes the basis of taxation of payments to any Funding Source
of any amounts payable under any Funding Agreement (except for changes in the
rate of tax on the overall net income of a Funding Source or taxes excluded by
Section 10.1) or (ii) that imposes, modifies or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of a Funding Source, or credit
extended by a Funding Source pursuant to a Funding Agreement or (iii) that
imposes any other condition the result of which is to increase the cost to a
Funding Source of performing its obligations under a Funding Agreement, or to
reduce the rate of return on a Funding Source's capital as a consequence of its
obligations under a Funding Agreement, or to reduce the amount of any sum
received or receivable by a Funding Source under a Funding Agreement or to
require any payment calculated by reference to the amount of interests or loans
held or interest received by it, then, upon demand by the Agent or the relevant
Managing Agent, Seller shall pay to the applicable Managing Agent, for the
benefit of the relevant Funding Source, such amounts charged to such Funding
Source or such amounts to otherwise compensate such Funding Source for such
increased cost or such reduction.
Section 10.3 Other Costs and Expenses. Seller shall pay to the Agent,
the Managing Agents and Purchasers on demand all reasonable out-of-pocket costs
and expenses in connection with the preparation, execution, delivery and
administration of this Agreement, the transactions contemplated hereby and the
other documents to be delivered hereunder, including without limitation, the
cost of any Purchaser's auditors auditing the books, records and procedures of
Seller, reasonable fees and out-of-pocket expenses of legal counsel for the
Purchasers, Managing Agents and the Agent with respect thereto and with respect
to advising Purchasers, the Managing Agents and the Agent as to their respective
rights and remedies under this Agreement. Seller shall pay to the Agent or the
applicable Managing Agent on demand any and all costs and expenses of the Agent,
the Managing Agents and the Purchasers, if any, including reasonable counsel
fees and expenses in connection with the enforcement of this Agreement and the
other documents delivered hereunder and in connection with any restructuring or
workout of this
32
Agreement or such documents, or the administration of this Agreement following
an Amortization Event.
ARTICLE XI
THE AGENT
Section 11.1 Authorization and Action. Each Purchaser hereby designates
and appoints Bank One to act as Agent hereunder and under each other Transaction
Document, and authorizes the Agent and such Purchaser's related Managing Agent
to take such actions as Agent or Managing Agent, as the case may be, on its
behalf and to exercise such powers as are delegated to the Agent or such
Managing Agent by the terms of this Agreement and the other Transaction
Documents together with such powers as are reasonably incidental thereto.
Neither the Agent nor any Managing Agent shall have any duties or
responsibilities, except those expressly set forth herein or in any other
Transaction Document, or any fiduciary relationship with any Purchaser, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Agent or the Managing Agents shall be read into
this Agreement or any other Transaction Document or otherwise exist for the
Agent or the Managing Agents. In performing their respective functions and
duties hereunder and under the other Transaction Documents, (i) the Agent shall
act solely as agent for the Purchasers, (ii) each Managing Agent shall act
solely as agent for the Conduits and Financial Institutions in the related
Purchase Group and (iii) neither the Agent nor any Managing Agent shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for any Seller Party or any of such Seller Party's successors or assigns.
Neither the Agent nor any Managing Agent shall be required to take any action
that exposes the Agent or the Managing Agents to personal liability or that is
contrary to this Agreement, any other Transaction Document or applicable law.
The appointment and authority of the Agent and the Managing Agents hereunder
shall terminate upon the indefeasible payment in full of all Aggregate Unpaids.
Each Purchaser hereby authorizes the Agent and the Managing Agent for its
Purchase Group, as applicable, to execute each of the Uniform Commercial Code
financing statements, this Agreement and such other Transaction Documents as may
require the Agent's or such Managing Agent's signature on behalf of such
Purchaser (the terms of which shall be binding on such Purchaser).
Section 11.2 Delegation of Duties. The Agent and the Managing Agents
may execute any of their respective duties under this Agreement and each other
Transaction Document by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
Neither the Agent nor any Managing Agent shall be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
Section 11.3 Exculpatory Provisions. None of the Agent, the Managing
Agents or any of their respective directors, officers, agents or employees shall
be (i) liable for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement or any other Transaction Document
(except for its, their or such Person's 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 any Seller Party
contained in this Agreement,
33
any other Transaction Document or any certificate, report, statement or other
document referred to or provided for in, or received under or in connection
with, this Agreement, or any other Transaction Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, or any other Transaction Document or any other document furnished in
connection herewith or therewith, or for any failure of any Seller Party to
perform its obligations hereunder or thereunder, or for the satisfaction of any
condition specified in Article VI, or for the perfection, priority, condition,
value or sufficiency of any collateral pledged in connection herewith. Neither
the Agent nor any Managing Agent shall be under any obligation to any Purchaser
to ascertain or to inquire as to the observance or performance of any of the
agreements or covenants contained in, or conditions of, this Agreement or any
other Transaction Document, or to inspect the properties, books or records of
the Seller Parties. Neither the Agent nor any Managing Agent shall be deemed to
have knowledge of any Amortization Event or Potential Amortization Event unless
the Agent or such Managing Agent has received notice from Seller or a Purchaser.
No Managing Agent shall have any responsibility hereunder to any Purchaser other
than the Purchasers in its Purchase Group.
Section 11.4 Reliance by Agent. The Agent and the Managing Agents shall
in all cases be entitled to rely, and shall be fully protected in relying, upon
any 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
Seller), independent accountants and other experts selected by the Agent or any
Managing Agent. The Agent and the Managing Agents shall in all cases be fully
justified in failing or refusing to take any action under this Agreement or any
other Transaction Document unless it shall first receive such advice or
concurrence of the Conduits or the Required Financial Institutions or all of the
Purchasers, as applicable, as they deem appropriate and they shall first be
indemnified to their satisfaction by the Purchasers, provided that unless and
until the Agent or any Managing Agent shall have received such advice, or unless
the Required Financial Institutions or each Managing Agent, as applicable, shall
have directed the Agent to take or refrain from taking any action, the Agent or
such Managing Agent may take or refrain from taking any action, as the Agent or
such Managing Agent shall deem advisable and in the best interests of the
Purchasers. The Agent and the Managing Agents shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of the related Conduits or the Required Financial Institutions or all of the
Purchasers, as applicable, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Purchasers.
Section 11.5 Non-Reliance on Agent and Other Purchasers. Each Purchaser
expressly acknowledges that none of the Agent, the Managing Agents or any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Agent or any Managing Agent hereafter taken, including, without limitation,
any review of the affairs of any Seller Party, shall be deemed to constitute any
representation or warranty by the Agent or such Managing Agent. Each Purchaser
represents and warrants to the Agent and the Managing Agents that it has and
will, independently and without reliance upon the Agent, any Managing 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, prospects, financial and other conditions
34
and creditworthiness of Seller and made its own decision to enter into this
Agreement, the other Transaction Documents and all other documents related
hereto or thereto.
Section 11.6 Reimbursement and Indemnification. The Financial
Institutions agree to reimburse and indemnify the Agent, and the Financial
Institutions in each Purchase Group agree to reimburse the Managing Agent for
such Purchase Group, and their respective officers, directors, employees,
representatives and agents ratably according to their Pro Rata Shares or
Adjusted Pro Rata Shares, as applicable, to the extent not paid or reimbursed by
the Seller Parties (i) for any amounts for which the Agent, acting in its
capacity as Agent, or any Managing Agent, acting in its capacity as a Managing
Agent, is entitled to reimbursement by the Seller Parties hereunder and (ii) for
any other expenses incurred by the Agent, in its capacity as Agent, or any
Managing Agent, acting in its capacity as a Managing Agent, and acting on behalf
of the related Purchasers, in connection with the administration and enforcement
of this Agreement and the other Transaction Documents. If there is a Terminating
Financial Institution, for purposes of this Section, Pro Rata Share and Adjusted
Pro Rata Share shall be calculated based on such Terminating Financial
Institution's Back-up Commitment immediately prior to its becoming a Terminating
Financial Institution; provided, however, that no Terminating Financial
Institution shall be required to reimburse or indemnify the Agent or any
Managing Agent, or their respective officers, directors, employees,
representatives or agents for any amounts referenced in this Section 11.6
resulting from events occurring after such Terminating Financial Institution's
Capital shall have been paid in full.
Section 11.7 Agents in their Individual Capacities. The Agent, each
Managing Agent and each of its respective Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any Seller Party
or any Affiliate of any Seller Party as though it were not the Agent or a
Managing Agent hereunder. With respect to the acquisition of Purchaser Interests
pursuant to this Agreement, the Agent and each Managing Agent shall have the
same rights and powers under this Agreement in its individual capacity as any
Purchaser and may exercise the same as though it were not the Agent or a
Managing Agent, and the terms "Financial Institution," "Purchaser," "Financial
Institutions" and "Purchasers" shall include the Agent and each Managing Agent
in its individual capacity.
Section 11.8 Successor Agent. The Agent may, upon fifteen (15) days'
notice to Seller and the Purchasers, and the Agent will, upon the direction of
all of the Purchasers (other than such Agent, in its individual capacity) resign
as Agent. Each Managing Agent may, upon fifteen (15) days' notice to Seller and
the Purchasers in its Purchase Group, and a Managing Agent will, upon the
direction of all the Purchasers in its Purchase Group (other than such Managing
Agent in its individual capacity), resign as Managing Agent. If the Agent shall
resign, then the Required Financial Institutions during such fifteen-day period
shall appoint from among the Purchasers a successor agent. If a Managing Agent
shall resign, then the Purchasers in the related Purchase Group shall appoint a
successor agent during such fifteen-day period. If for any reason no successor
agent is appointed by the Required Financial Institutions or the applicable
Purchase Group, as applicable, during such fifteen-day period, then effective
upon the termination of such fifteen-day period, the Purchasers shall perform
all of the duties of the Agent, or the Purchasers in the related Purchase Group
shall perform all of the duties of the applicable Managing Agent, as applicable,
hereunder and under the other Transaction
35
Documents and Seller and the Servicer (as applicable) shall make all payments in
respect of the Aggregate Unpaids directly to the applicable Purchasers and for
all purposes shall deal directly with the Purchasers. After the effectiveness of
any retiring Agent's or Managing Agent's resignation hereunder as Agent or
Managing Agent, as applicable, the retiring Agent or Managing Agent shall be
discharged from its duties and obligations hereunder and under the other
Transaction Documents and the provisions of this Article XI and Article X shall
continue in effect for its benefit with respect to any actions taken or omitted
to be taken by it while it was Agent or Managing Agent under this Agreement and
under the other Transaction Documents.
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Assignments.
(a) The Seller, each Financial Institution and each other
party hereto hereby agree and consent to the complete or partial assignment (or
participation) by each Conduit of all or any portion of its rights under,
interest in, title to and obligations under this Agreement to the Financial
Institutions pursuant to a Liquidity Agreement, and upon such assignment, such
Conduit shall be released from its obligations, if any, so assigned. Further,
with the consent of the Seller (not to be unreasonably withheld), each Conduit
may assign all of its rights and obligations hereunder to another commercial
paper issuing conduit for which the Managing Agent of such assigning Conduit
acts as administrator. Further, Seller and each Financial Institution hereby
agree that any assignee of a Conduit of this Agreement or all or any of the
Purchaser Interests of such Conduit shall have all of the rights and benefits
under this Agreement as if the term "Conduit" explicitly referred to such party,
and no such assignment shall in any way impair the rights and benefits of the
Conduits hereunder. Neither the Seller nor the Servicer shall have the right to
assign its rights or obligations under this Agreement.
(b) Any Financial Institution may at any time and from time to
time, assign to one or more Persons ("Purchasing Financial Institutions") all or
any part of its rights and obligations under this Agreement and its Liquidity
Agreement pursuant to an assignment agreement, substantially in the form set
forth in Exhibit VII hereto (the "Assignment Agreement") executed by such
Purchasing Financial Institution and such selling Financial Institution. The
consent of the Conduit or Conduits in such Financial Institution's Purchase
Group and the Agent shall be required prior to the effectiveness of any such
assignment. Each assignee of a Financial Institution must have a short-term debt
rating of A-1 or better by S&P and P-1 by Moody's (the "Required Ratings") and
must agree to deliver to the Agent, promptly following any request therefor by
the Managing Agent for its Purchase Group or the affected Conduit or Conduits,
an enforceability opinion in form and substance satisfactory to such Managing
Agent and such Conduit or Conduits. Upon delivery of the executed Assignment
Agreement to the Agent (with a copy to the Seller), such selling Financial
Institution shall be released from its obligations hereunder to the extent of
such assignment. Thereafter the Purchasing Financial Institution shall for all
purposes be a Financial Institution party to this Agreement and shall have all
the rights and obligations of a Financial Institution under this
36
Agreement to the same extent as if it were an original party hereto and no
further consent or action by Seller, the Purchasers or the Agent shall be
required.
(c) Each of the Financial Institutions agrees that in the
event that it shall cease to have the Required Ratings (an "Affected Financial
Institution"), such Affected Financial Institution shall be obliged, at the
request of the Conduits in such Financial Institution's Purchase Group or the
applicable Managing Agent, to assign all of its rights and obligations hereunder
and under its Liquidity Agreement to (x) another Financial Institution or (y)
another funding entity nominated by such Managing Agent and acceptable to the
affected Conduit or Conduits that has the Required Ratings, and willing to
participate in this Agreement through the Liquidity Termination Date in the
place of such Affected Financial Institution; provided that the Affected
Financial Institution receives payment in full, pursuant to an Assignment
Agreement, of an amount equal to such Financial Institution's Pro Rata Share of
the Capital and Yield owing to the Financial Institutions and all accrued but
unpaid fees and other costs and expenses payable in respect of its Pro Rata
Share of the Purchaser Interests of the Financial Institutions. In the event and
on the date that an Affected Financial Institution becomes a Terminating
Financial Institution, the Purchase Limit shall be reduced by an amount equal to
such Affected Financial Institution's Back-up Commitment.
Section 12.2 Participations. Any Financial Institution may, in the
ordinary course of its business at any time sell to one or more Persons (each a
"Participant") participating interests in its Pro Rata Share of the Purchaser
Interests of the Financial Institutions, its obligation to purchase Purchaser
Interests from the applicable Conduits under a Liquidity Agreement or any other
interest of such Financial Institution hereunder. Notwithstanding any such sale
by a Financial Institution of a participating interest to a Participant, such
Financial Institution's rights and obligations under this Agreement shall remain
unchanged, such Financial Institution shall remain solely responsible for the
performance of its obligations hereunder, and Seller, the Conduits, the Managing
Agents and the Agent shall continue to deal solely and directly with such
Financial Institution in connection with such Financial Institution's rights and
obligations under this Agreement. Each Financial Institution agrees that any
agreement between such Financial Institution and any such Participant in respect
of such participating interest shall not restrict such Financial Institution's
right to agree to any amendment, supplement, waiver or modification to this
Agreement, except for any amendment, supplement, waiver or modification
described in Section 13.1(b)(i).
Section 12.3 Extension of Liquidity Termination Date. The Seller may
advise any Managing Agent in writing of its desire to extend the Liquidity
Termination Date for an additional 364 days, provided such request is made not
more than 60 days prior to, and not less than 40 days prior to, the then current
Liquidity Termination Date. Each Managing Agent so advised by the Seller shall
promptly notify each Financial Institution in its related Purchase Group of any
such request and each such Financial Institution shall notify its related
Managing Agent, the Agent and the Seller of its decision to accept or decline
the request for such extension no later than 30 days prior to the then current
Liquidity Termination Date (it being understood that each Financial Institution
may accept or decline such request in its sole discretion and on such terms as
it may elect, and the failure to so notify its Managing Agent, the Agent and the
Seller shall be deemed an election not to extend by such Financial Institution
and, with respect to
37
SunTrust and Bank One, their respective Conduits; it being further understood
that SunTrust's or Bank One's decision to decline an extension request shall
also constitute the decision of its related Conduit to decline such extension
request). In the event that at least one Financial Institution and the Conduit
in its Purchase Group agree to extend the Liquidity Termination Date, the Seller
Parties, the Agent, the applicable Conduit or Conduits, the extending Financial
Institutions and the applicable Managing Agent or Agents shall enter into such
documents as such extending Financial Institutions may deem necessary or
appropriate to reflect such extension, and all reasonable costs and expenses
incurred by such Financial Institutions, such Conduit or Conduits, such Managing
Agent or Agents and the Agent (including reasonable attorneys' fees) shall be
paid by the Seller. In the event that any Financial Institution (a) declines the
request to extend the Liquidity Termination Date or (b) is in a Purchase Group
with respect to which the Seller did not seek an extension of the Liquidity
Termination Date (each such Financial institution being referred to herein as a
"Non-Renewing Financial Institution"), and, in the case of a Non-Renewing
Financial Institution described in clause (a), the Back-up Commitment and
Liquidity Commitment of such Non-Renewing Financial Institution are not assigned
to another Person in accordance with the terms of this Article XII prior to the
then current Liquidity Termination Date, the Purchase Limit shall be reduced by
an amount equal to each such Non-Renewing Financial Institution's Back-up
Commitment on the then current Liquidity Termination Date.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Waivers and Amendments.
(a) No failure or delay on the part of the Agent, any Managing
Agent or any Purchaser in exercising any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other further exercise
thereof or the exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of any rights or
remedies provided by law. Any waiver of this Agreement shall be effective only
in the specific instance and for the specific purpose for which given.
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing in accordance with the
provisions of this Section 13.1(b); it being understood that notwithstanding
anything in this Section 13.1(b) to the contrary, no material amendment to this
Agreement shall become effective with respect to any Conduit unless, if required
by the documents governing such Conduit's commercial paper program, such Conduit
(or the applicable Managing Agent on its behalf) shall have received written
confirmation from each of the Rating Agencies that such amendment shall not
result in the reduction or withdrawal of the rating of such Conduit's Commercial
Paper. The Conduits, the Seller, the Servicer, the Managing Agents and the
Agent, at the direction of the Required Financial Institutions, may enter into
written modifications or waivers of any provisions of this Agreement, provided,
however, that no such modification or waiver shall:
38
(i) without the consent of each affected Purchaser, (A) extend
the Liquidity Termination Date or the date of any payment or deposit of
Collections by Seller or the Servicer, (B) reduce the rate or extend
the time of payment of Yield (or any component thereof), (C) reduce any
fee payable to the Agent or the Managing Agents for the benefit of the
Purchasers, (D) except pursuant to Article XII hereof, change the
amount of the Capital of any Purchaser, any Financial Institution's Pro
Rata Share (except as may be required pursuant to a Conduit's Liquidity
Agreement) or any Financial Institution's Back-up Commitment or
Liquidity Commitment, (E) amend, modify or waive any provision of the
definition of Required Financial Institutions, this Section 13.1(b),
(F) consent to or permit the assignment or transfer by Seller of any of
its rights and obligations under this Agreement, (G) change the
definition of "Facility Termination Date", "Eligible Receivable", "Loss
Reserve", "Default Proxy Ratio", "Delinquency Ratio", "Delinquent
Receivable", "Dilution Reserve", "Dilution Reserve Ratio", "Dilution
Trigger Ratio", "Loss Reserve", "Loss Reserve Ratio",
"Loss-to-Liquidation Ratio", or "Yield Reserve", or (H) amend or modify
any defined term (or any defined term used directly or indirectly in
such defined term) used in clauses (A) through (G) above in a manner
that would circumvent the intention of the restrictions set forth in
such clauses; or
(ii) without the written consent of the Agent or any Managing
Agent, amend, modify or waive any provision of this Agreement if the
effect thereof is to affect the rights or duties of the Agent or such
Managing Agent, as applicable.
Notwithstanding the foregoing, (i) without the consent of the Financial
Institutions in any Purchase Group (other than the Purchase Group to which such
Financial Institutions are being added), the Agent may, with the consent of
Seller, amend this Agreement solely to add additional Persons as Financial
Institutions hereunder and (ii) the Agent, the Required Financial Institutions,
the Managing Agents, and the Conduits may enter into amendments to modify any of
the terms or provisions of Article XI, Article XII and Section 13.13 or any
other provision of this Agreement without the consent of Seller, provided that
such amendment has no negative impact upon Seller. Any modification or waiver
made in accordance with this Section 13.1 shall apply to each of the Purchasers
equally and shall be binding upon Seller, the Purchasers, the Managing Agents
and the Agent.
Section 13.2 Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including bank wire,
telecopy or electronic facsimile transmission or similar writing) and shall be
given to the other parties hereto at their respective addresses or telecopy
numbers set forth on the signature pages hereof or at such other address or
telecopy number as such Person may hereafter specify for the purpose of notice
to each of the other parties hereto. Each such notice or other communication
shall be effective (i) if given by telecopy, upon the receipt thereof, (ii) if
given by mail, three (3) Business Days after the time such communication is
deposited in the mail with first class postage prepaid or (iii) if given by any
other means, when received at the address specified in this Section 13.2. Seller
hereby authorizes the Agent to effect purchases and each Managing Agent to make
Tranche Period and Discount Rate selections based on telephonic notices made by
any Person whom the Agent or such Managing Agent, as applicable, in good faith
believes to be acting on behalf of Seller.
39
Seller agrees to deliver promptly to the Agent or the applicable Managing Agent
a written confirmation of each telephonic notice signed by an authorized officer
of Seller; provided, however, the absence of such confirmation shall not affect
the validity of such notice. If the written confirmation differs from the action
taken by the Agent or such Managing Agent, the records of the Agent or such
Managing Agent shall govern absent manifest error.
Section 13.3 Ratable Payments. If any Purchaser, whether by setoff or
otherwise, has payment made to it with respect to any portion of the Aggregate
Unpaids owing to such Purchaser (other than payments received pursuant to
Section 10.2 or 10.3) in a greater proportion than that received by any other
Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such
Purchaser agrees, promptly upon demand, to purchase for cash without recourse or
warranty a portion of such Aggregate Unpaids held by the other Purchasers so
that after such purchase each Purchaser will hold its ratable proportion of such
Aggregate Unpaids; provided that if all or any portion of such excess amount is
thereafter recovered from such Purchaser, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest.
Section 13.4 Protection of Ownership Interests of the Purchasers.
(a) Seller agrees that from time to time, at its expense, it
will promptly execute and deliver all instruments and documents, and take all
actions, that may be necessary or desirable, or that the Agent or any Managing
Agent may request, to perfect, protect or more fully evidence the Purchaser
Interests, or to enable the Agent or the Purchasers to exercise and enforce
their rights and remedies hereunder. At any time after the occurrence of an
Amortization Event, the Agent may (or at the direction of the Managing Agents,
shall), or the Agent may (or at the direction of the Managing Agents, shall)
direct Seller or the Servicer to, notify the Obligors of Receivables, at
Seller's expense, of the ownership or security interests of the Purchasers under
this Agreement and may (or at the direction of the Managing Agents, shall) also
direct that payments of all amounts due or that become due under any or all
Receivables be made directly to the Agent or its designee. Seller or the
Servicer (as applicable) shall, at any Purchaser's request, withhold the
identity of such Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its
obligations hereunder, the Agent or any Purchaser may (but shall not be required
to) perform, or cause performance of, such obligations, and the Agent's or such
Purchaser's costs and expenses incurred in connection therewith shall be payable
by Seller as provided in Section 10.3. Each Seller Party irrevocably authorizes
the Agent at any time and from time to time in the sole discretion of the Agent,
and appoints the Agent as its attorney-in-fact, to act on behalf of such Seller
Party (i) to execute on behalf of Seller as debtor and to file financing
statements necessary or desirable in the Agent's sole discretion to perfect and
to maintain the perfection and priority of the interest of the Purchasers in the
Receivables and (ii) to file a carbon, photographic or other reproduction of
this Agreement or any financing statement with respect to the Receivables as a
financing statement in such offices as the Agent in its sole discretion deems
necessary or desirable to perfect and to maintain the perfection and priority of
the interests of the Purchasers in the Receivables. This appointment is coupled
with an interest and is irrevocable.
40
Section 13.5 Confidentiality.
(a) Each Seller Party and each Purchaser shall maintain and
shall cause each of its employees and officers to maintain the confidentiality
of this Agreement and the other confidential or proprietary information with
respect to the Agent, the Managing Agents and the Purchasers and their
respective businesses obtained by it or them in connection with the structuring,
negotiating and execution of the transactions contemplated herein, except that
such Seller Party and such Purchaser and its officers and employees may disclose
such information to such Seller Party's and such Purchaser's external
accountants and attorneys and as required by any applicable law or order of any
judicial or administrative proceeding.
(b) Anything herein to the contrary notwithstanding, each
Seller Party hereby consents to the disclosure of any nonpublic information with
respect to it (i) to the Agent, the Managing Agents or the Purchasers by each
other, (ii) by the Agent, the Managing Agents or the Purchasers to any
prospective or actual assignee or participant of any of them and (iii) by the
Agent or the Managing Agents to any rating agency, Commercial Paper dealer or
provider of a surety, guaranty or credit or liquidity enhancement to the
Conduits or any entity organized for the purpose of purchasing, or making loans
secured by, financial assets for which either Managing Agent acts as the
administrative agent and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing, provided that any Person
receiving information shall be advised by the Agent or the applicable Managing
Agent, as applicable, of the obligation to keep such information confidential.
In addition, the Purchasers, the Managing Agents and the Agent may disclose any
such nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force or effect of law), provided that
Purchasers, the Managing Agents and Agent shall, if practicable, notify Seller
in advance prior to disclosure and will use reasonable efforts to cooperate with
Seller at Seller's expense in obtaining any protective order for such
information.
Section 13.6 Bankruptcy Petition. Each of the Seller, the Servicer, the
Agent, each Managing Agent and each Financial Institution hereby covenants and
agrees that, prior to the date that is one year and one day after the payment in
full of all outstanding senior indebtedness of a Conduit, it will not institute
against, or join any other Person in instituting against, such Conduit or any
such entity any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
Section 13.7 Limitation of Liability; Limitation on Payment; No
Recourse.
(a) Except with respect to any claim arising out of the
willful misconduct or gross negligence of any Purchaser, Financial Institution,
Managing Agent or the Agent, no claim may be made by any Seller Party or any
other Person against any Conduit, the Agent, any Managing Agent, or any
Financial Institution or their respective Affiliates, directors, officers,
employees, attorneys or agents for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement, or any act, omission or event occurring in
41
connection therewith; and each Seller Party hereby waives, releases, and agrees
not to sue upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
(b) No Conduit shall be required to make payment of the
amounts required to be paid pursuant hereto unless, and then only to the extent
that, such Conduit has Excess Funds (as defined below). If a Conduit does not
have Excess Funds, the excess of the amount due hereunder over the amount paid
shall not constitute a "claim" (as defined in Section 101(5) of the Bankruptcy
Code) against such Conduit until such time as such Conduit has Excess Funds. If
a Conduit does not have sufficient Excess Funds to make any payment due
hereunder, then such Conduit may pay a lesser amount and make additional
payments that in the aggregate equal the amount of deficiency as soon as
possible thereafter. The term "Excess Funds" means with respect to a Conduit the
excess of (1) the aggregate projected value of such Conduit's assets and other
property (including cash and cash equivalents), over (2) the sum of (A) the sum
of all scheduled payments of principal, interest and other amounts payable on
publicly or privately placed indebtedness of such Conduit for borrowed money,
plus (B) the sum of all other liabilities, indebtedness and other obligations of
such Conduit for borrowed money or owed to any credit or liquidity provider,
together with all unpaid interest then accrued thereon, plus (C) all taxes
payable by such Conduit to the Internal Revenue Service, plus (D) all other
indebtedness, liabilities and obligations of such Conduit then due and payable,
but the amount of any liability, indebtedness or obligation of such Conduit
shall not exceed the projected value of the assets to which recourse for such
liability, indebtedness or obligation is limited. Excess Funds shall be
calculated once each Business Day.
Section 13.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, BUT NOT LIMITED TO,
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS
OF LAW PROVISIONS) OF THE STATE OF ILLINOIS.
Section 13.9 CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT, ANY MANAGING AGENT OR ANY
PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE
AGENT, ANY MANAGING AGENT OR ANY PURCHASER OR ANY AFFILIATE OF SUCH PARTIES
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH THIS AGREEMENT OR
42
ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
Section 13.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY
SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER.
Section 13.11 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain
the final and complete integration of all prior expressions by the parties
hereto with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns (including any trustee in bankruptcy). This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms and shall remain in full force and effect until terminated in
accordance with its terms; provided, however, that the rights and remedies with
respect to (i) any breach of any representation and warranty made by any Seller
Party pursuant to Article V, (ii) the indemnification and payment provisions of
Article X, and Sections 13.5 and 13.6 shall be continuing and shall survive any
termination of this Agreement.
Section 13.12 Counterparts; Severability; Section References. This
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. Any provisions of this Agreement which are 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. Unless otherwise expressly indicated, all references herein
to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
Section 13.13 Agent Roles.
(a) Bank One Roles. Each of the Financial Institutions
acknowledges that Bank One acts, or may in the future act, (i) as Agent for the
Purchasers, (ii) as Managing Agent for Falcon, (iii) as issuing and paying agent
for Falcon's Commercial Paper, (iv) to provide credit or liquidity enhancement
for the timely payment for the Commercial Paper and (v) to provide other
services from time to time for some or all of the Conduits (collectively, the
"Bank One Roles"). Without limiting the generality of this Section 13.13(a),
each Financial Institution
43
hereby acknowledges and consents to any and all Bank One Roles and agrees that
in connection with any Bank One Role, Bank One may take, or refrain from taking,
any action that it, in its discretion, deems appropriate, including, without
limitation, in its role as Agent and Managing Agent for the related Conduits,
and the giving of notice to the Agent or Managing Agent of a mandatory purchase
pursuant its Liquidity Agreement.
(b) Managing Agent Institution Roles. Each of the Financial
Institutions acknowledges that each Financial Institution that serves as a
Managing Agent hereunder (a "Managing Agent Institution") acts, or may in the
future act, (i) as Managing Agent for a Conduit or Conduits, (ii) as issuing and
paying agent for such Conduit's Commercial Paper, (iii) to provide credit or
liquidity enhancement for the timely payment for the Commercial Paper and (iv)
to provide other services from time to time for some or all of the Conduits
(collectively, the "Managing Agent Institution Roles"). Without limiting the
generality of this Section 13.13(b), each Financial Institution hereby
acknowledges and consents to any and all Managing Agent Institution Roles and
agrees that in connection with any Managing Agent Institution Role, the
applicable Managing Agent Institution may take, or refrain from taking, any
action that it, in its discretion, deems appropriate, including, without
limitation, in its role as Managing Agent for the related Conduits, and the
giving of notice to the Agent or Managing Agent of a mandatory purchase pursuant
to its liquidity back-stop program.
Section 13.14 Characterization.
(a) It is the intention of the parties hereto that each
purchase hereunder shall constitute and be treated as an absolute and
irrevocable sale, which purchase shall provide the applicable Purchaser with the
full benefits of ownership of the applicable Purchaser Interest. Except as
specifically provided in this Agreement, each sale of a Purchaser Interest
hereunder is made without recourse to Seller; provided, however, that (i) Seller
shall be liable to each Purchaser and the Agent for all representations,
warranties, covenants and indemnities made by Seller pursuant to the terms of
this Agreement, and (ii) such sale does not constitute and is not intended to
result in an assumption by any Purchaser or the Agent or any assignee thereof of
any obligation of Seller or Originator or any other person arising in connection
with the Receivables, the Related Security, or the related Contracts, or any
other obligations of Seller or Originator.
(b) In addition to any ownership interest which the Agent may
from time to time acquire pursuant hereto, Seller hereby grants to the Agent for
the ratable benefit of the Purchasers a valid and perfected security interest in
all of Seller's right, title and interest in, to and under all Receivables now
existing or hereafter arising, the Collections, each Lock-Box, each Collection
Account, all Related Security, all other rights and payments relating to such
Receivables, and all proceeds of any thereof prior to all other liens on and
security interests therein to secure the prompt and complete payment of the
Aggregate Unpaids. The Agent and the Purchasers shall have, in addition to the
rights and remedies that they may have under this Agreement, all other rights
and remedies provided to a secured creditor under the UCC and other applicable
law, which rights and remedies shall be cumulative.
[SIGNATURE PAGES FOLLOW]
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
ANIXTER RECEIVABLES CORPORATION
By:
---------------------------
Name:
Title:
Address:
ANIXTER INC.
By:
---------------------------
Name:
Title:
Address:
Signature Page
to
Amended and Restated Receivables Purchase Agreement
FALCON ASSET SECURITIZATION CORPORATION,
as a Conduit
By:
-------------------------------------
Authorized Signatory
Address: c/o Bank One, NA, as Managing Agent
Asset Backed Finance
Suite IL1-0079, 1-19
1 Bank One Plaza
Chicago, Illinois 60670-0079
FAX: (312) 732-1844
BANK ONE, NA (MAIN OFFICE CHICAGO), as a
Financial Institution, a Managing Agent and as Agent
By:
-------------------------------------
Name:
Title:
Address: Bank One, NA
Asset Backed Finance
Suite IL1-0596, 1-21
1 Bank One Plaza
Chicago, Illinois 60670-0596
Fax: (312) 732-4487
Signature Page
to
Amended and Restated Receivables Purchase Agreement
THREE PILLARS FUNDING CORPORATION, as a Conduit
By:
-------------------------------------
Name:
Title:
Address: Three Pillars Funding Corporation
c/o Amacar Group, L.L.C.
6525 Morrison Boulevard
Suite 318
Charlotte, NC 28211
Fax: (704) 365-1362
SUNTRUST BANK, as a Financial Institution
By:
-------------------------------------
Name:
Title:
Address: SunTrust Bank
24th Floor MC 3950
303 Peachtree Street
Atlanta, GA 30308
Fax: (404) 230-1344
Signature Page
to
Amended and Restated Receivables Purchase Agreement
SUNTRUST CAPITAL MARKETS, INC., as a Managing Agent
By:
-------------------------------------
Name:
Title:
Address: SunTrust Capital Markets, Inc.
24th Floor MC 3950
303 Peachtree Street
Atlanta, GA 30308
Fax: (404) 230-1344
Signature Page
to
Amended and Restated Receivables Purchase Agreement
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Accrual Period" means each calendar month, provided that the initial
Accrual Period hereunder means the period from (and including) the date of the
initial purchase hereunder to (and including) the last day of the calendar month
thereafter.
"Adjusted Pro Rata Share" means, for each Financial Institution, the
Back-up Commitment of such Financial Institution within a given Purchase Group
divided by the sum of the Back-up Commitments of each Financial Institution in
such Purchase Group, adjusted as necessary to give effect to any assignments
pursuant to Section 12.1(b) and to the termination of the Back-up Commitment of
any Terminating Financial Institution in such Purchase Group.
"Adverse Claim" means a lien, security interest, charge or encumbrance,
or other right or claim in, of or on any Person's assets or properties in favor
of any other Person.
"Affected Financial Institution" has the meaning specified in Section
12.1(c).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person owns 20% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Aggregate Capital" means, as of any date of determination, the
aggregate amount of Capital of all Purchaser Interests outstanding on such date.
"Aggregate Reduction" has the meaning set forth in Section 1.3.
"Aggregate Reserves" means, on any date of determination, the sum of
the Loss Reserve, the Servicer Reserve, the Yield Reserve, and the Dilution
Reserve.
"Aggregate Unpaids" means, at any time, an amount equal to the sum of
all accrued and unpaid fees under the Fee Letter, Yield, Aggregate Capital and
all other unpaid Obligations (whether due or accrued) at such time.
"Agreement" means this Receivables Purchase Agreement, as it may be
amended or modified and in effect from time to time.
Exh. I-1
"Amortization Date" means the earliest to occur of (i) the day on which
any of the conditions precedent set forth in Section 6.2 (except for Section
6.2(d)(iii)) are not satisfied, (ii) the Business Day immediately prior to the
occurrence of an Amortization Event set forth in Section 9.1(d)(ii), (iii) the
Business Day specified in a written notice from the Agent pursuant to Section
9.2 following the occurrence of any other Amortization Event, and (iv) the date
which is thirty (30) days after the Agent's receipt of written notice from
Seller that it wishes to terminate the facility evidenced by this Agreement.
"Amortization Event" has the meaning set forth in Article IX.
"Assignment Agreement" has the meaning set forth in Article IX.
"Applicable Margin" means, as of any date of determination, the
percentage set forth in the table below opposite the then applicable Debt
Rating:
<Table>
<Caption>
Debt Ratings
Pricing Level S&P/Moody's/Fitch Applicable Margin
------------- -------------------- -----------------
1 less than A-/A3 0.750%
2 BBB+/Baa1 0.875%
3 BBB/Baa2 1.000%
4 BBB-/Baa3 1.125%
5 BB+/Ba1 1.375%
6 greater than BB+/Ba1 1.625%
</Table>
"Authorized Officer" means, with respect to any Person, its president,
corporate controller, treasurer or chief financial officer.
"Back-up Commitment" means, for each Financial Institution, the
commitment of such Financial Institution to purchase Purchaser Interests from
the Seller, in an amount not to exceed (x) in the aggregate, the amount set
forth opposite such Financial Institution's name under the Back-up Commitment
column on Schedule A to this Agreement, as such amount may be modified in
accordance with the terms hereof, and (y) with respect to any individual
purchase from the Seller hereunder, its Pro Rata Share of the Purchase Price
therefor.
"Bank One" means Bank One, NA (Main Office Chicago) in its individual
capacity and its successors.
"Bank One Federal Funds Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such
Exh. I-2
day on such transactions received by Bank One from three Federal funds brokers
of recognized standing selected by Bank One in its sole discretion.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as amended, and any successor statute thereto.
"Base Rate" means a rate per annum equal to:
(a) with respect to each Financial Institution in the Falcon
Purchase Group, the greater of (i) the Bank One Federal Funds Rate plus
one half of one percent (0.50%), and (ii) the corporate base rate of
interest announced by Bank One from time to time, changing as and when
said corporate base rate changes; and
(b) with respect to each Financial Institution in the Three
Pillars Purchase Group, the greater of (i) the SunTrust Federal Funds
Rate most recently determined by SunTrust Bank plus one half of one
percent (0.50%), and (ii) the SunTrust Prime Rate.
"Broken Funding Costs" means, with respect to the Falcon Purchase
Group, Falcon Broken Funding Costs and, with respect to the Three Pillars
Purchase Group, Three Pillars Broken Funding Costs.
"Business Day" means any day on which banks are not authorized or
required to close in New York, New York or Chicago, Illinois and The Depository
Trust Company of New York is open for business, and, if the applicable Business
Day relates to any computation or payment to be made with respect to the LIBO
Rate, any day on which dealings in dollar deposits are carried on in the London
interbank market.
"Capital" means with respect to any Purchaser Interest, at any time,
(A) the Purchase Price of such Purchaser Interest, minus (B) the sum of the
aggregate amount of Collections and other payments received by the Agent or the
applicable Managing Agent which in each case have been applied to reduce the
Capital of such Purchaser Interest in accordance with the terms and conditions
of this Agreement; provided that such Capital shall be restored (in accordance
with Section 2.5) in the amount of any Collections or other payments so received
and applied if at any time the distribution of such Collections or payments are
rescinded, returned or refunded for any reason.
"Capital Pro Rata Share" means, for any Purchaser at any time, the
amount of Capital allocated to the Purchaser Interests of such Purchaser at such
time divided by the Aggregate Capital at such time.
"Change of Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of any
Seller Party.
"Charged-Off Receivable" means a Receivable: (i) as to which the
Obligor thereof has taken any action, or suffered any event to occur, of the
type described in Section 9.1(d) (as if
Exh. I-3
references to Seller Party therein refer to such Obligor); (ii) as to which the
Obligor thereof, if a natural person, is deceased, (iii) which, consistent with
the Credit and Collection Policy, would be written off Seller's books as
uncollectible, (iv) which has been identified by Seller as uncollectible or (v)
as to which any payment, or part thereof, remains unpaid for 120 days or more
from the original invoice date for such Receivable.
"Collection Account" means each concentration account, depositary
account, lock-box account or similar account in which any Collections are
collected or deposited and which is listed on Exhibit IV.
"Collection Account Agreement" means an agreement substantially in the
form of Exhibit VI among Originator, Seller, the Agent and a Collection Bank.
"Collection Bank" means, at any time, any of the banks holding one or
more Collection Accounts.
"Collection Notice" means a notice, in substantially the form of Annex
A to Exhibit VI, from the Agent to a Collection Bank.
"Collection Period" means each fiscal month of the Seller Parties.
"Collections" means, with respect to any Receivable, all cash
collections and other cash proceeds in respect of such Receivable, including,
without limitation, all yield, Finance Charges or other related amounts accruing
in respect thereof and all cash proceeds of Related Security with respect to
such Receivable.
"Commercial Paper" means promissory notes of any Conduit issued by such
Conduit in the commercial paper market.
"Conduit" means each of Falcon and Three Pillars, and their respective
successors and assigns as Conduits hereunder.
"Contingent Obligation" means, with respect to any Person, any
agreement, undertaking or arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes or is contingently liable upon, the obligation or liability
of any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or application for a letter of
credit.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Receivable arises or which evidences such Receivable.
"CP Rate" means for any Accrual Period, with respect to any Purchaser
Interest owned by the Falcon Purchase Group, the Falcon CP Rate and with respect
to any Purchaser Interest owned by the Three Pillars Purchase Group, the Three
Pillars CP Rate.
Exh. I-4
"Credit Agreement" means that certain Credit Agreement dated as of
October 6, 2000 by and among Anixter, the Subsidiaries of Anixter identified as
Borrowing Subsidiaries thereunder, Bank One, as Syndication Agent, The Bank of
Nova Scotia, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent, and the lenders party thereto from time to time, as
amended, supplemented or otherwise modified from time to time.
"Credit and Collection Policy" means Seller's credit and collection
policies and practices relating to Contracts and Receivables existing on the
date hereof and summarized in Exhibit VIII, as modified from time to time in
accordance with this Agreement.
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P, Moody's or Fitch (provided that the Originator shall
have at least two such ratings and at least one of such ratings shall be from
S&P or Moody's) (collectively, the "Debt Ratings") of the Originator's
noncredit-enhanced, senior unsecured long-term debt; provided that if the
existing Debt Ratings are not the same level, then (i) if there are two Debt
Ratings, the higher of such Debt Ratings shall apply (with Pricing Level 1 being
the highest and Pricing Level 6 being the lowest), (ii) if there are three Debt
Ratings and no two Debt Ratings are at the same level, the intermediate Debt
Rating shall apply, or (iii) if there are three Debt Ratings and two Debt
Ratings are at the same level, then the level with the two Debt Ratings shall
apply.
"Deemed Collections" means the aggregate of all amounts Seller shall
have been deemed to have received as a Collection of a Receivable. Seller shall
be deemed to have received a Collection in full of a Receivable if at any time
(i) the Outstanding Balance of any such Receivable is either (x) reduced as a
result of any defective or rejected goods or services, any discount or any
adjustment or otherwise by Seller (other than cash Collections on account of the
Receivables) or (y) reduced or canceled as a result of a setoff in respect of
any claim by any Person (whether such claim arises out of the same or a related
transaction or an unrelated transaction) or (ii) any of the representations or
warranties in Article V are no longer true with respect to such Receivable.
"Default Fee" means with respect to any amount due and payable by
Seller in respect of any Aggregate Unpaids, an amount equal to interest on any
such unpaid Aggregate Unpaids at a rate per annum equal to 2% above the Base
Rate.
"Default Proxy Ratio" means, for any Collection Period, a fraction
(calculated as a percentage) equal to (i) the aggregate Outstanding Balance of
all Receivables (without duplication) which, as of the last day of such
Collection Period, remain unpaid for at least one hundred twenty (120) but less
than one hundred fifty (150) days from the original invoice date plus the
aggregate Outstanding Balance of all Receivables (without duplication) which,
consistent with the Credit and Collection Policy, were or should have been
written off the Seller's books as uncollectible and are less than one hundred
twenty (120) days past invoice date during such period, divided by (ii) the
aggregate Outstanding Balance of all Receivables generated during the Collection
Period which ended on the date four (4) months prior to the last day of the
current Collection Period.
Exh. I-5
"Delinquency Ratio" means, at any time, a percentage equal to (i) the
aggregate Outstanding Balance of all Receivables that were Delinquent
Receivables at such time divided by (ii) the aggregate Outstanding Balance of
all Receivables at such time.
"Delinquent Receivable" means a Receivable as to which any payment, or
part thereof, remains unpaid for 91 days or more from the original invoice date
for such Receivable.
"Determination Date" means the third Business Day prior to each Monthly
Settlement Date.
"Dilution Horizon Ratio" means, as of any date as set forth in the most
recent Monthly Report, a ratio computed by dividing (i) the aggregate of all
Receivables generated during the two (2) most recently ended Collection Periods
by (ii) the aggregate Outstanding Balance of non-Delinquent Receivables as at
the last day of the most recently ended Collection Period.
"Dilution Ratio" means, for any Collection Period, the ratio (expressed
as a percentage) computed as of the last day of such Collection Period by
dividing (i) the aggregate amount of Dilutions during such Collection Period by
(ii) the aggregate Outstanding Balance of all Receivables generated during the
preceding Collection Period.
"Dilution Reserve" means, on any date, an amount equal to (x) the
Dilution Reserve Ratio then in effect times (y) the Net Receivables Balance as
of the close of business on the immediately preceding Business Day.
"Dilution Reserve Ratio" means, as of any date, an amount calculated as
follows:
DRR = [(2.0 x ADR) + [(HDR-ADR) x (HDR/ADR)]] x DHR
where:
DRR = the Dilution Reserve Ratio;
ADR = the average of the Dilution Ratios for the
past twelve Collection Periods;
HDR = the highest average Dilution Ratio for any
two (2) consecutive Collection Periods
during the most recent twelve months; and
DHR = the Dilution Horizon Ratio.
The Dilution Reserve Ratio shall be calculated monthly in each Monthly Report
and such Dilution Reserve Ratio shall, absent manifest error, be effective from
the corresponding Monthly Settlement Date until the next succeeding Monthly
Settlement Date.
"Dilutions" means, at any time, the aggregate amount of reductions or
cancellations described in clause (i) of the definition of "Deemed Collections".
Exh. I-6
"Dilution Trigger Ratio" means, as of the end of any Collection Period,
the ratio (expressed as a percentage), computed as of the last day of such
Collection Period by dividing (i) the aggregate amount of Dilutions during such
Collection Period by (ii) the aggregate Outstanding Balance of all Receivables
at the end of such Collection Period minus the aggregate outstanding amount of
all credit memos from Originators outstanding at the end of such Collection
Period.
"Discount Rate" means, the LIBO Rate or the Base Rate, as applicable,
with respect to each Purchaser Interest of the Financial Institutions, and any
Purchaser Interest of a Conduit, an undivided interest in which has been
assigned by such Conduit to a Financial Institution pursuant to the applicable
Liquidity Agreement.
"Eligible Receivable" means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is
a resident of the United States or, if a corporation or other business
organization, is organized under the laws of the United States or any
political subdivision thereof and has its chief executive office in the
United States; (b) is not an Affiliate of any of the parties hereto;
(c) is not the subject of a proceeding under the Bankruptcy Code or any
other insolvency proceeding and (d) is not a government or a
governmental subdivision or agency;
(ii) due from an Obligor that is the Obligor on
another Receivable or Receivables, and the Outstanding Balance of all
Receivables from such Obligor which are Charged-Off Receivables is less
than 20% of the Outstanding Balance of all Receivables from such
Obligor;
(iii) which is not a Charged-Off Receivable or a
Delinquent Receivable;
(iv) which by its terms is due and payable within 90
days of the original billing date therefor and has not had its payment
terms extended; provided, however, that no more than 25% of the
aggregate Outstanding Balance of all Receivables which are due and
payable between 61 and 90 days of the original billing date therefor
will be deemed to be "Eligible Receivables";
(v) which is "an "account" within the meaning of
Section 9-102(a)(2) of the UCC of all applicable jurisdictions, and
which represents all or part of the sales price of merchandise,
insurance and services within the meaning of Section 3(c)(5) of the
Investment Company Act of 1940, as amended;
(vi) which is denominated and payable only in United
States dollars in the United States;
(vii) which arises under a Contract in substantially
the form of one of the form contracts set forth on Exhibit IX hereto or
otherwise approved by the Managing Agents in writing, which, together
with such Receivable, is in full force and effect and
Exh. I-7
constitutes the legal, valid and binding obligation of the related
Obligor enforceable against such Obligor in accordance with its terms;
(viii) which arises under a Contract which (A) does
not require the Obligor under such Contract to consent to the transfer,
sale or assignment of the rights and duties of Originator or any of its
assignees under such Contract (unless such consent has been obtained)
and (B) does not contain a confidentiality provision that purports to
restrict the ability of any Purchaser to exercise its rights under this
Agreement, including, without limitation, its right to review the
Contract;
(ix) which arises under a Contract that contains an
obligation to pay a specified sum of money, contingent only upon the
sale of goods or the provision of services by Originator;
(x) which, together with the Contract related
thereto, does not contravene any law, rule or regulation applicable
thereto (including, without limitation, any law, rule and regulation
relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract related
thereto is in violation of any such law, rule or regulation;
(xi) which satisfies all applicable requirements of
the Credit and Collection Policy;
(xii) which was generated in the ordinary course of
Originator's business;
(xiii) which arises solely from the sale of goods or
the provision of services to the related Obligor by Originator, and not
by any other Person (in whole or in part);
(xiv) as to which the Agent has not notified Seller
that the Agent has determined that such Receivable or class of
Receivables is not acceptable as an Eligible Receivable, including,
without limitation, because such Receivable arises under a Contract
that is not acceptable to the Agent; provided, that Agent shall not
determine a Receivable to be ineligible pursuant to this clause (xiv)
because the Obligor is in a particular industry if on the date hereof
the Originator has outstanding Receivables from Obligors in such
industry; and provided further, that Agent shall not determine a
Receivable to be ineligible pursuant to this clause (xiv) because it is
generated by a particular type of business of the Originator if the
Originator is engaged in such type of business on the date hereof.
(xv) except to the extent (but then only to the
extent) that it is subject to any right of rescission, set-off,
counterclaim, any other defense (including defenses arising out of
violations of usury laws) of the applicable Obligor against Originator
or any other Adverse Claim;
Exh. I-8
(xvi) due from an Obligor that holds no right as
against Originator to cause Originator to repurchase the goods or
merchandise the sale of which shall have given rise to such Receivable
(except with respect to sale discounts effected pursuant to the
Contract, or defective goods returned in accordance with the terms of
the Contract);
(xvii) as to which Originator has satisfied and fully
performed all obligations on its part with respect to such Receivable
required to be fulfilled by it, and no further action is required to be
performed by any Person with respect thereto other than payment thereon
by the applicable Obligor;
(xviii) all right, title and interest to and in which
has been validly transferred by Originator directly to Seller under and
in accordance with the Receivables Sale Agreement, and Seller has good
and marketable title thereto free and clear of any Adverse Claim;
(xix) for which Seller has given reasonably
equivalent value to Originator in consideration therefor pursuant to
the Receivables Sale Agreement, which was not made for or on account of
an antecedent debt and which is not voidable under any section of the
Bankruptcy Code; and
(xx) in which the Agent, for the benefit of the
Purchasers, has a valid and perfected first priority undivided
percentage ownership or security interest, free and clear of any
Adverse Claim.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Facility Account" means Seller's Account No. 1069533 at Bank One.
"Facility Termination Date" means the earliest of (i) the Liquidity
Termination Date, (ii) the Amortization Date and (iii) September 29, 2005.
"Falcon" has the meaning set forth in the preamble in this Agreement.
"Falcon Broken Funding Costs" means (a) for any Purchaser Interest
owned by Bank One on behalf of the Purchasers in the Falcon Purchase Group
which: (i) has its Capital reduced without compliance by Seller with the notice
requirements hereunder or (ii) does not become subject to an Aggregate Reduction
following the delivery of any Reduction Notice or (iii) is assigned pursuant to
the Falcon Liquidity Agreement or has a Tranche Period to which it is subject
terminated prior to the date on which it was originally scheduled to end; an
amount equal to the excess, if any, of (A) the Yield that would have accrued
during the remainder of the Tranche Periods or the tranche periods for
Commercial Paper determined by Bank One to relate to such Purchaser Interest (as
applicable) subsequent to the date of such reduction, assignment or termination
(or in respect of clause (ii) above, the date such Aggregate Reduction was
designated to occur pursuant to the Reduction Notice) of the Capital of such
Purchaser Interest if such reduction, assignment or termination had not occurred
or such Reduction Notice had not been delivered, over (B) the sum of (x) to the
extent all or a portion of such Capital is allocated to
Exh. I-9
another Purchaser Interest with respect to the same Purchaser, the amount of
Yield actually accrued during the remainder of such period on such Capital for
the new Purchaser Interest, and (y) to the extent such Capital is not allocated
to another Purchaser Interest, the income, if any, actually received during the
remainder of such period by the holder of such Purchaser Interest from investing
the portion of such Capital not so allocated, and (b) any loss or expense
incurred by any Purchaser (including any loss or expense incurred by reason of
the liquidation or reemployment of funds acquired by such Purchaser in order to
make any such requested Incremental Purchase) as a result of any Incremental
Purchase not being made in accordance with a request therefor under Section 1.2
(whether because of the failure of the conditions precedent with respect to such
Incremental Purchase to be satisfied or for any other reason, other than default
by the relevant Purchaser). All Falcon Broken Funding Costs shall be due and
payable upon demand.
"Falcon CP Rate" means for any Accrual Period for any Purchaser
Interest owned by Falcon if and to the extent it funds the Purchase or
maintenance of its Purchaser Interest by the issuance of commercial paper notes
during such Settlement Period, the per annum rate that reflects, for each day
during such Settlement Period, the sum of (i) discount accrued on Pooled
Commercial Paper of Falcon on such day, plus (ii) any and all accrued
commissions in respect of placement agents and commercial paper dealers, and
issuing and paying agent fees incurred, in respect of Pooled Commercial Paper of
such Conduit for such day, plus (iii) other costs associated with funding small
or odd-lot amounts with respect to all receivable purchase facilities which are
funded by Pooled Commercial Paper of Falcon for such day, minus (iv) any accrual
of income net of expenses received on such day from investment of collections
received under all receivable purchase facilities funded substantially with
Pooled Commercial Paper of Falcon, minus (v) any payment received on such day
net of expenses in respect of Broken Funding Costs related to the prepayment of
any Purchaser Interest of Falcon pursuant to the terms of any receivable
purchase facilities funded substantially with Pooled Commercial Paper; provided,
however, that in addition to the foregoing costs, if the Seller shall request
any additional Purchase by Falcon during any period of time determined by
Falcon's Managing Agent in its sole discretion to result in an incrementally
higher CP Rate applicable to such additional Purchase, the Capital associated
with any such additional Purchase shall, during such period, be deemed to be
funded by Falcon in a special pool (which may include capital associated with
other receivable purchase facilities) for purposes of determining such higher CP
Rate applicable only to such special pool and charged each day during such
period against such Capital.
"Falcon LIBO Rate" means, with respect to any Tranche Period, the rate
per annum equal to the sum of:
(i) (a) the applicable British Bankers' Association Interest Settlement
Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00
a.m. (London time) two Business Days prior to the first day of the relevant
Tranche Period, and having a maturity equal to such Tranche Period, provided
that, (1) if Reuters Screen FRBD is not available to the Agent for any reason,
the applicable LIBO Rate for the relevant Tranche Period shall instead be the
applicable British Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two
Exh. I-10
Business Days prior to the first day of such Tranche Period, and having a
maturity equal to such Tranche Period, and (2) if no such British Bankers'
Association Interest Settlement Rate is available to the Agent, the applicable
LIBO Rate for the relevant Tranche Period shall instead be the rate determined
by the applicable Managing Agent to be the rate at which such Managing Agent
offers to place deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Tranche Period, in the approximate amount to be
funded at the LIBO Rate and having a maturity equal to such Tranche Period,
divided by (b) one minus the maximum aggregate reserve requirement (including
all basic, supplemental, marginal or other reserves) which is imposed against
the Agent (or, in the case of clause (ii), such Managing Agent) in respect of
Eurocurrency liabilities, as defined in Regulation D of the Board of Governors
of the Federal Reserve System as in effect from time to time (expressed as a
decimal), applicable to such Tranche Period; plus
(ii) the Applicable Margin in effect from time to time.
"Falcon Liquidity Agreement" means an agreement entered into by Falcon
with its Financial Institutions in connection herewith for the purpose of
providing liquidity with respect to the Capital funded by Falcon under this
Agreement.
"Falcon Purchase Group" means Falcon, Bank One and each of the
Financial Institutions identified as a member of the Falcon Purchase Group on
Schedule A hereto, together with their respective successors, assigns and
participants.
"Fee Letter" means that certain letter agreement dated as of the date
hereof among Seller, Originator and each Managing Agent, as it may be amended or
modified and in effect from time to time.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
"Financial Institutions" has the meaning set forth in the preamble in
this Agreement.
"Funding Agreement" means this Agreement and any agreement or
instrument executed by any Funding Source with or for the benefit of a Conduit,
including any Liquidity Agreement.
"Funding Source" means (i) any Financial Institution or (ii) any
insurance company, bank or other funding entity providing liquidity, credit
enhancement or back-up purchase support or facilities to a Conduit.
"GAAP" means generally accepted accounting principles in effect in the
United States of America as of the date of this Agreement.
"Group Pro Rata Share" means, with respect to any Purchase Group and as
of any date of determination, an amount equal to (expressed as a percentage) the
Back-Up Commitment of such Purchase Group on such date divided by the Purchase
Limit as of such date.
Exh. I-11
"Group Purchase Limit" means, for each Purchase Group, the sum of the
Back-up Commitments of the Financial Institutions in such Purchase Group,
adjusted as necessary to give effect to the termination of the Back-up
Commitment of any Terminating Financial Institution in such Purchase Group.
"Incremental Purchase" means a purchase of one or more Purchaser
Interests which increases the total outstanding Aggregate Capital hereunder.
"Indebtedness" means, with respect to any Person, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by liens or payable
out of the proceeds or production from property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) capitalized lease obligations, (vi) net
liabilities under interest rate swap, exchange or cap agreements, (vii)
Contingent Obligations and (viii) liabilities in respect of unfunded vested
benefits under plans covered by Title IV of ERISA.
"Independent Director" means a member of the Board of Directors of
Seller who is not, (A) and has not been at any time during the five (5) years
preceding his or her election to such Board of Directors, a director, officer,
employee or affiliate of Seller, Originator, or any of their respective
Subsidiaries or Affiliates, or (B) the beneficial owner (at the time of such
individual's appointment as an Independent Director or at any time thereafter
while serving as an Independent Director) of any of the outstanding common
shares of Seller, Originator, or any of their respective Subsidiaries or
Affiliates, having general voting rights;
"LIBO Rate" means the Falcon LIBO Rate or the Three Pillars LIBO Rate,
as the case may be.
"Liquidity Agreement" means the Falcon Liquidity Agreement and/or the
Three Pillars Liquidity Agreement, as the case may be.
"Liquidity Commitment" means, for each Financial Institution, the
commitment of such Financial Institution to purchase Purchaser Interests from
the Conduit in its Purchase Group in an amount not to exceed (a) in the
aggregate, the amount set forth opposite such Financial Institution's name under
the Liquidity Commitment Column on Schedule A to this Agreement, as such amount
may be modified in accordance with the terms hereof, and (b) with respect to any
individual purchase from such Conduit, its Adjusted Pro Rata Share of the
Purchase Price therefor.
"Liquidity Termination Date" means October 2, 2003.
"Lock-Box" means each locked postal box with respect to which a bank
who has executed a Collection Account Agreement has been granted exclusive
access for the purpose of retrieving and processing payments made on the
Receivables and which is listed on Exhibit IV.
Exh. I-12
"Loss Horizon Ratio" means, for any Collection Period, a fraction
(calculated as a percentage) computed by dividing (i) the aggregate Outstanding
Balance of all Receivables generated during the three (3) most recently ended
Collection Periods by (ii) the aggregate Outstanding Balance of all
non-Delinquent Receivables as at the last day of the most recently ended
Collection Period.
"Loss Reserve" means, on any date, an amount equal to (x) the greater
of (i) 12% and (ii) the Loss Reserve Ratio then in effect times (y) the
aggregate Net Receivables Balance as of the close of business on the immediately
preceding Business Day.
"Loss Reserve Ratio" means, as of any date, an amount calculated as
follows:
LRR = 2.0 x DPR x LHR, where
LRR = the Loss Reserve Ratio;
DPR = the highest average of the Default
Proxy Ratios for any three consecutive
Collection Periods during the most recent
twelve months; and
LHR = the Loss Horizon Ratio.
The Loss Reserve Ratio shall be calculated monthly in each Monthly Report and
such Loss Reserve Ratio shall, absent manifest error, be effective from the
corresponding Monthly Settlement Date until the next succeeding Monthly
Settlement Date.
"Loss-to Liquidation Ratio" means, for any Collection Period, a
fraction (calculated as a percentage) equal to (i) the aggregate Outstanding
Balance of all Receivables (without duplication) which, as of the last day of
such Collection Period, remain unpaid for at least one hundred twenty (120) but
less than one hundred fifty (150) days from the original invoice date plus the
aggregate Outstanding Balance of all Receivables (without duplication) which,
consistent with the Credit and Collection Policy, were or should have been
written off the Seller's books as uncollectible and are less than one hundred
twenty (120) days past invoice date during such period, divided by (ii) the
aggregate amount of Collections during such Collection Period.
"Managing Agent" means, as to any Conduit, the financial institution
responsible for the administration of such Conduit's Commercial Paper program
and related activities. As of the date hereof, Bank One is the Managing Agent
for Falcon and its Financial Institutions, and SunTrust is the Managing Agent
for Three Pillars and its Financial Institutions.
"Mandate Letter" means that certain mandate letter dated as of July 24,
2000 addressed to Anixter from Banc One Capital Markets, Inc.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of any Seller Party and its Subsidiaries, (ii)
the ability of any Seller Party to perform its obligations under this Agreement,
(iii) the legality, validity or enforceability of this
Exh. I-13
Agreement or any other Transaction Document, (iv) any Purchaser's interest in
the Receivables generally or in any significant portion of the Receivables, the
Related Security or the Collections with respect thereto, or (v) the
collectibility of the Receivables generally or of any material portion of the
Receivables.
"Mid-Month Report" means a report, in substantially the form of Exhibit
XI hereto (appropriately completed), furnished by the Servicer to the Managing
Agents pursuant to Section 8.5.
"Mid-Month Report Date" has the meaning set forth in Section 8.5.
"Monthly Report" means a report, in substantially the form of Exhibit X
hereto (appropriately completed), furnished by the Servicer to the Managing
Agents pursuant to Section 8.5.
"Monthly Settlement Date" means the 17th day of each month, or if such
day is not a Business Day, the next succeeding Business Day.
"Moody's" means Moody's Investors Service, Inc., and any successor
thereto.
"Net Receivables Balance" means, at any time, the aggregate Outstanding
Balance of Eligible Receivables at such time reduced by the aggregate amount by
which the Outstanding Balance of Eligible Receivables from each Obligor and its
Affiliates exceeds the Standard Concentration Limit or Special Concentration
Limit for such Obligor, as the case may be.
"Non-Renewing Financial Institution" has the meaning set forth in
Section 12.3.
"Obligations" has the meaning set forth in Section 2.1.
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Originator" means Anixter, in its capacity as seller under the
Receivables Sale Agreement.
"Outstanding Balance" means, with respect to any Receivable at any
time, the then outstanding principal balance thereof.
"Outstanding Balance of Eligible Receivables" means, for purposes of
the definitions of "Net Receivables Balance", "Special Concentration Limit" and
"Standard Concentration Limit", the Outstanding Balance of all Eligible
Receivables (the Outstanding Balance of an Eligible Receivable subject to any
right of rescission, set-off, counterclaim or other defense as described in
clause (xv) of the definition of "Eligible Receivable" being the outstanding
principal balance of such Receivable less the amount of such right of
rescission, set-off, counterclaim or other defense).
"Participant" has the meaning set forth in Section 12.2.
Exh. I-14
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Pooled Commercial Paper" means Commercial Paper notes of a Conduit
subject to any particular pooling arrangement by such Conduit, but excluding
Commercial Paper issued by such Conduit for a tenor and in an amount
specifically requested by any Person in connection with any agreement effected
by such Conduit.
"Potential Amortization Event" means an event which, with the passage
of time or the giving of notice, or both, would constitute an Amortization
Event.
"Proposed Reduction Date" has the meaning set forth in Section 1.3.
"Pro Rata Share" means, (1) for each Financial Institution, the Back-up
Commitment of such Financial Institution divided by the Purchase Limit, adjusted
as necessary to give effect to the application of any assignments pursuant to
Article XII and (2) for each Conduit, the Group Pro Rata Share of its Purchase
Group.
"Purchase Group" means each Conduit, its Financial Institutions and
their related Managing Agent.
"Purchase Limit" means $225,000,000, as such amount may be increased or
decreased in accordance with the provisions of Article XII.
"Purchase Notice" has the meaning set forth in Section 1.2.
"Purchase Price" means, with respect to any Incremental Purchase of a
Purchaser Interest, the amount paid to Seller for such Purchaser Interest which
shall not exceed the least of the amount requested by Seller in the applicable
Purchase Notice, the Unused Purchase Limit on the applicable purchase date and
the excess, if any, of the Net Receivables Balance (less the Aggregate Reserves)
on the applicable purchase date over the aggregate outstanding amount of
Aggregate Capital determined as of the date of the most recent Monthly Report.
"Purchaser" means any Conduit or Financial Institution, as applicable
and "Purchasers" means, collectively, all Conduits and Financial Institutions.
"Purchaser Interest" means, at any time, an undivided percentage
ownership interest (computed as set forth below) associated with a designated
amount of Capital, selected pursuant to the terms and conditions hereof in (i)
each Receivable arising prior to the time of the most recent computation or
recomputation of such undivided interest, (ii) all Related Security with respect
to each such Receivable, and (iii) all Collections with respect to, and other
proceeds of, each such Receivable. Each such undivided percentage interest shall
equal:
C
- --------
NRB - AR
Exh. I-15
where:
C = the aggregate outstanding Capital of such Purchaser
Interest.
AR = the Aggregate Reserves.
NRB = the Net Receivables Balance.
Such undivided percentage ownership interest shall be initially computed on its
date of purchase. Thereafter, until the Amortization Date, each Purchaser
Interest shall be automatically recomputed (or deemed to be recomputed) on each
day prior to the Amortization Date. The variable percentage represented by any
Purchaser Interest as computed (or deemed recomputed) as of the close of the
business day immediately preceding the Amortization Date shall remain constant
at all times thereafter.
"Purchasing Financial Institution" has the meaning set forth in Section
12.1(b).
"Receivable" means all indebtedness and other obligations owed to
Seller or Originator (at the time it arises, and before giving effect to any
transfer or conveyance under the Receivables Sale Agreement or hereunder) or in
which Seller has a security interest or other interest, including, without
limitation, any indebtedness, obligation or interest constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale of goods or the rendering of services by Originator, and further includes,
without limitation, the obligation to pay any Finance Charges with respect
thereto. Indebtedness and other rights and obligations arising from any one
transaction, including, without limitation, indebtedness and other rights and
obligations represented by an individual invoice, shall constitute a Receivable
separate from a Receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction; provided further, that any
indebtedness, rights or obligations referred to in the immediately preceding
sentence shall be a Receivable regardless of whether the account debtor or
Seller treats such indebtedness, rights or obligations as a separate payment
obligation.
Receivables Sale Agreement" means that certain Amended and Restated
Receivables Sale Agreement, dated as of October 3, 2002, between Originator and
Seller, as the same may be amended, restated or otherwise modified from time to
time.
"Records" means, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"Reduction Notice" has the meaning set forth in Section 1.3.
"Reference Bank" means Bank One or such other bank as Bank One shall
designate with the consent of Seller.
"Reinvestment" has the meaning set forth in Section 2.2.
Exh. I-16
"Related Security" means, with respect to any Receivable:
(A) all of Seller's interest in the
inventory and goods (including returned or repossessed
inventory or goods), if any, the sale, financing or lease of
which by Originator gave rise to such Receivable, and all
insurance contracts with respect thereto,
(B) all other security interests or liens
and property subject thereto from time to time, if any,
purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or
otherwise, together with all financing statements and security
agreements describing any collateral securing such Receivable,
(C) all guaranties, letters of credit,
insurance 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,
(D) all service contracts and other
contracts and agreements associated with such Receivable,
(E) all Records related to such Receivable,
(F) all of Seller's right, title and
interest in, to and under the Receivables Sale Agreement in
respect of such Receivable, and
(G) all proceeds of any of the foregoing.
"Required Financial Institutions" means, at any time, (a) if any
Conduit holds any Purchaser Interests, the Managing Agent for each such Conduit
and Financial Institutions with Back-Up Commitments equal to or greater than 50%
of the Purchase Limit, and (b) if no Conduit holds any Purchaser Interests,
Financial Institutions with Back-up Commitments equal to or greater than 50% of
the Purchase Limit.
"Required Ratings" has the meaning set forth in Section 12.1(b).
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Parties" has the meaning set forth in the preamble to this
Agreement.
"Servicer" means at any time the Person (which may be the Agent) then
authorized pursuant to Article VIII to service, administer and collect
Receivables.
Exh. I-17
"Servicer Reserve" means, on any date, an amount equal to (a) if
Anixter or any Affiliate of Anixter is the Servicer on such date, the product of
(x) 0.36% and (y) the Outstanding Balance of all Receivables generated during
the most recently ended Collection Period immediately preceding such date, or
(b) if a Person other than Anixter or any Affiliate of Anixter is the Servicer
on such date, the product of (i) 0.33% and (ii) the Outstanding Balance of all
Receivables as at the end of the most recently ended Collection Period
immediately preceding such date, or such other amount as the Managing Agents
shall determine in its reasonable judgment.
"Servicing Fee" has the meaning set forth in Section 8.6.
"Settlement Date" means (A) the Monthly Settlement Date, and (B) the
last day of the relevant Tranche Period in respect of each Purchaser Interest of
the Financial Institutions.
"Settlement Period" means (A) in respect of each Purchaser Interest of
the Conduits, the immediately preceding Accrual Period, and (B) in respect of
each Purchaser Interest of the Financial Institutions, the entire Tranche Period
of such Purchaser Interest.
"Significant Subsidiary" has the meaning set forth in Regulation S-X of
the Securities and Exchange Commission, 17 C.F.R. Part 210, as in effect on the
date hereof.
"Special Concentration Limit" means, at any time, with respect to any
Special Obligor, a dollar amount equal to a percentage of the aggregate
Outstanding Balance of Eligible Receivables or such other limit as the Agent,
with the consent of Moody's and S&P, may designate for such Special Obligor;
provided, that the Agent may, upon notice to Seller, cancel or reduce any
Special Concentration Limit.
"Special Obligor" means any Obligor as may be designated by the Agent
from time to time as a "Special Obligor."
"Standard Concentration Limit" means, at any time, with respect to any
Obligor other than a Special Obligor, 4% of the aggregate Outstanding Balance of
Eligible Receivables at such time.
"Subsidiary" means, with respect to any Person, (i) any corporation
more than 50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, association, limited liability
company, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a Subsidiary of Anixter.
"SunTrust" has the meaning set forth in the preamble to this Agreement.
"SunTrust Bank" means SunTrust Bank in its individual capacity and its
successors.
Exh. I-18
"SunTrust Federal Funds Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the federal funds rates as quoted by SunTrust Bank and confirmed in the Federal
Reserve Board Statistical Release as H.15(519), or any successor or substitute
publication selected by SunTrust Bank (or, if such day is not a Business Day,
for the next preceding Business Day), or if, for any reason, such rate is not
available on any day, the rate determined in the sole opinion of SunTrust Bank,
to be the rate at which federal funds are being offered for sale in the national
federal funds market at 9:00 a.m. (New York time).
"SunTrust Prime Rate" means, as of any date of determination, the rate
of interest most recently announced by SunTrust Bank at its principal office in
Atlanta, Georgia as its prime rate (it being understood that at any one time
there shall exist only one such prime rate so announced, which rate is not
necessarily intended to be the lowest rate of interest determined by SunTrust
Bank in connection with extensions of credit).
"Terminating Financial Institution" means (i) any Affected Financial
Institution or Non-Renewing Financial Institution which has not assigned all of
its rights and obligations hereunder pursuant to Article XII, and (ii) a
Financial Institution (a) to which the related Conduit has assigned such
Financial Institution's Pro Rata Share of the Purchaser Interests then held by
such Conduit, or (b) which, pursuant to the applicable Liquidity Agreement, has
had its Liquidity Commitment under the Liquidity Agreement and Back-up
Commitment hereunder terminated by the Conduit, in either such case in
connection with such Financial Institution's decision not to renew its Liquidity
Commitment under such Liquidity Agreement or its Back-up Commitment hereunder or
such Financial Institution's becoming an Affected Financial Institution.
"Terminating Tranche" has the meaning set forth in Section 4.3(b).
"Termination Date" has the meaning set forth in Section 2.2.
"Termination Percentage" has the meaning set forth in Section 2.2.
"Three Pillars" has the meaning set forth in the preamble to this
Agreement.
"Three Pillars Broken Funding Costs" means, with respect to any
Purchaser Interest owned by SunTrust on behalf of the Members of the Three
Pillars Purchase Group, any net loss or expense which any member of the Three
Pillars Purchase Group may sustain or incur (including, without limitation, any
net loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Person to fund or maintain any
Purchaser Interest hereunder), as reasonably determined by such Person, as a
result of any payment or prepayment (including any mandatory prepayment) of any
Capital on a date other than the last day of the Accrual Period or Tranche
Period, as the case may be, for such Purchaser Interest, or any failure of the
Seller to sell any Purchaser Interest on a date specified therefor in a related
Purchase Notice. The Managing Agent's calculation of such Three Pillars Broken
Funding Costs shall, in the absence of manifest error, be rebuttably presumptive
evidence of the subject matter thereof. All Three Pillars Broken Funding Costs
shall be payable upon demand.
Exh. I-19
"Three Pillars Credit Agreement" means any program-wide agreement
entered into by any Three Pillars Credit Bank providing for the issuance of one
or more letters of credit for the account of Three Pillars, the issuance of one
or more surety bonds for which Three Pillars is obligated to reimburse the
applicable Three Pillars Credit Bank for any drawings hereunder, the sale by
Three Pillars to any Three Pillars Credit Bank of receivables or other financial
assets owned or held by Three Pillars (or portions thereof) and/or the making of
loans and/or other extensions of credit to Three Pillars in connection with its
commercial paper program, together with any cash collateral agreement, letter of
credit, surety bond or other agreement or instrument executed and delivered in
connection therewith (but excluding the Three Pillars Liquidity Agreement, or
similar agreement, or any voluntary advance agreement).
"Three Pillars Credit Bank" means SunTrust Bank and any other or
additional bank or other Person (other than the Seller or any other customer of
Three Pillars or any liquidity provider as such) now or hereafter extending
credit or a purchase commitment to or for the account of Three Pillars or
issuing a letter of credit, surety bond or other instrument, in each case to
support any obligations arising under or in connection with Three Pillar's
commercial paper program.
"Three Pillars CP Rate" means, for any day during any Accrual Period,
the per annum rate equivalent to the sum of the weighted average of the per
annum rates paid or payable by Three Pillars from time to time as interest on or
otherwise in respect of the Commercial Paper issued by Three Pillars that are
allocated, in whole or in part, by the Managing Agent for the Three Pillars
Purchase Group (on behalf of Three Pillars) to fund or maintain the Purchaser
Interests owned by Three Pillars, the commissions and charges charged by
placement agents and commercial paper dealers with respect to such Commercial
Paper.
"Three Pillars LIBO Rate" means, for any Tranche Period (i) the rate
per annum, determined by SunTrust Bank, on the Rate Setting Day (as defined
below) of such Tranche Period on the basis of the offered rates shown on
Telerate Page 3750 or any successor page as the composite offered rate for
London interbank deposits, as shown under the heading "USD" as of 11:00 a.m.
(London time); provided that in the event no such rate is shown, the LIBOR Rate
shall be the rate per annum (rounded upwards, if necessary, to the nearest one
thousandth of one percent), determined by SunTrust Bank, based on the offered
rates at which Dollar deposits for are displayed on the Reuters Screen as of
11:00 a.m. (London time) on the Rate Setting Day (it being understood that if at
least two such offered rates appear on such page, the rate will be the
arithmetic mean of such displayed rates); provided further, that in the event
fewer than two such rates are displayed, or if no such offered rate is relevant,
the LIBO Rate shall be the rate per annum, determined by SunTrust Bank, equal to
the average of the rates at which deposits in Dollars are offered by the
Managing Agent for the Three Pillars Purchase Group at approximately 11:00 a.m.
(London time) on the Rate Setting Day to prime banks in the London interbank
market plus (ii) the Applicable Margin. The "Rate Setting Day" for any Tranche
Period shall mean, two (2) Business Days prior to the commencement of such
Tranche Period. In the event such day is not a Business Day, then the Rate
Setting Day shall be the immediately preceding Business Day.
Exh. I-20
"Three Pillars Liquidity Agreement" means (i) the Liquidity Asset
Purchase Agreement (regarding the Seller), dated as of October 3, 2002, among
Three Pillars, as borrower, SunTrust Bank, as liquidity agent for the Liquidity
Banks, SunTrust Capital Markets, Inc., as administrator for Three Pillars, and
the Liquidity Banks, and (ii) any other agreement hereafter entered into by
Three Pillars providing for the sale by Three Pillars of Purchaser Interests
owned by it (or portions thereof), or the making of loans or other extensions of
credit to Three Pillars secured by security interests in the Purchaser Interests
owned by it (or portions thereof), to support all or part of Three Pillar's
payment obligations under its Commercial Paper or to provide an alternate means
of funding Three Pillars' investments in accounts receivable or other financial
assets, in each case as amended, supplemented or otherwise modified from time to
time.
"Three Pillars Liquidity Bank" means SunTrust Bank and the various
financial institutions as are, or may become, parties to the Three Pillars
Liquidity Agreement, as purchasers thereunder.
"Three Pillars Purchase Group" means Three Pillars, SunTrust, each
Three Pillars Credit Bank and each of the Financial Institutions identified as a
member of the Three Pillars Purchase Group on Schedule A hereto, together with
each of their respective successors, assigns and participants.
"Tranche Period" means, with respect to any Purchaser Interest held by
a Financial Institution, including any Purchaser Interest or undivided interest
in a Purchaser Interest assigned to a Financial Institution pursuant to a
Liquidity Agreement:
(a) if Yield for such Purchaser Interest is calculated on the
basis of the LIBO Rate, a period of one, two, three or six months, or
such other period as may be mutually agreeable to the applicable
Managing Agent and Seller, commencing on a Business Day selected by
Seller or such Managing Agent pursuant to this Agreement. Such Tranche
Period shall end on the day in the applicable succeeding calendar month
which corresponds numerically to the beginning day of such Tranche
Period, provided, however, that if there is no such numerically
corresponding day in such succeeding month, such Tranche Period shall
end on the last Business Day of such succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the
basis of the Base Rate, a period selected by Seller and agreed to by
the applicable Managing Agent, commencing and ending on a Business Day,
provided no such period shall exceed one month.
If any Tranche Period would end on a day which is not a Business Day, such
Tranche Period shall end on the next succeeding Business Day, provided, however,
that in the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day. In the case of any Tranche Period for
any Purchaser Interest which commences before the Amortization Date and would
otherwise end on a date occurring after the Amortization Date, such Tranche
Period shall end on the Amortization Date. The duration of each Tranche Period
which commences after the Amortization Date shall be of such duration as
selected by the applicable
Exh. I-21
Managing Agent. In no event shall any Tranche Period extend beyond the Facility
Termination Date.
"Transaction Documents" means, collectively, this Agreement, each
Purchase Notice, the Receivables Sale Agreement, each Collection Account
Agreement, the Fee Letter, the Subordinated Note (as defined in the Receivables
Sale Agreement) and all other instruments, documents and agreements executed and
delivered in connection herewith.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the specified jurisdiction.
"Unused Back-up Commitment" means, with respect to any Financial
Institution at any time, such Financial Institution's Back-up Commitment at such
time minus such Financial Institution's Pro Rata Share of the Aggregate Capital
outstanding at such time.
"Unused Purchase Limit" means, at any time, the Purchase Limit at such
time minus the Aggregate Capital outstanding at such time.
"Yield" means (a) for each respective Tranche Period relating to
Purchaser Interests of the Financial Institutions, including any Purchaser
Interests or undivided interest in a Purchaser Interest assigned to a Financial
Institution pursuant to a Liquidity Agreement, an amount equal to the product of
the applicable Discount Rate for each Purchaser Interest multiplied by the
Capital of such Purchaser Interest for each day elapsed during such Tranche
Period, annualized on a 360 day basis, and (b) for each respective Settlement
Period relating to Purchaser Interests of the Conduits, other than a Purchaser
Interest which, or an undivided interest in which, has been assigned by a
Conduit to a Financial Institution pursuant to a Liquidity Agreement, an amount
equal to the product of the applicable CP Rate multiplied by the Capital of such
Purchaser Interest for each day elapsed during such Settlement Period,
annualized on a 360 day basis.
"Yield Reserve" means, on any date, an amount equal to the product of
(a) the Purchase Limit and (b) 1.875%.
All accounting terms not specifically defined herein shall be construed
in accordance with GAAP. All terms used in Article 9 of the UCC in the State of
Illinois, and not specifically defined herein, are used herein as defined in
such Article 9.
Exh. I-22
EXHIBIT II
FORM OF PURCHASE NOTICE
[Date]
Bank One, NA, as Managing Agent
1 Bank One Plaza, 21st Floor
Asset-Backed Finance
Chicago, Illinois 60670-0596
SunTrust Capital Markets, Inc., as Managing Agent
303 Peachtree Street, 24th Floor
Mail Code 3950
Atlanta, Georgia 30308
Attention:
Re: PURCHASE NOTICE
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables
Purchase Agreement, dated as of October 3, 2002, by and among Anixter
Receivables Corporation, a Delaware corporation (the "Seller"), Anixter Inc., as
Servicer, the Financial Institutions, Falcon Asset Securitization Corporation
and Three Pillars Funding Corporation (collectively, the "Conduits"), certain
Financial Institutions parties thereto, Bank One, NA (Main Office Chicago)
("Bank One") and SunTrust Capital Markets, Inc., as Managing Agents and Bank
One, as Agent for the Conduits and Financial Institutions (the "Receivables
Purchase Agreement"). Capitalized terms used herein shall have the meanings
assigned to such terms in the Receivables Purchase Agreement.
The Managing Agents are hereby notified of the following Incremental
Purchase:
<Table>
Purchase Price: $
--------------------------
Date of Purchase:
--------------------------
Requested Discount Rate: [LIBO Rate] [Base Rate]
[Commercial Paper rate]
Request CP Maturity
for Matched Commercial Paper:
--------------------------
</Table>
Exh. II-1
Please credit the Purchase Price in immediately available funds to our
Facility Account [and then wire-transfer the Purchase Price in immediately
available funds on the above-specified date of purchase to:
[Account Name]
[Account No.]
[Bank Name & Address]
[ABA #]
Reference:
Telephone advice to: [Name] @ tel. No. ( )
Please advise [Name] at telephone no ( ) _________________ if the
Conduits will not be making this purchase.
In connection with the Incremental Purchase to be made on the above
listed "Date of Purchase" (the "Purchase Date"), the Seller hereby certifies
that the following statements are true on the date hereof, and will be true on
the Purchase Date (before and after giving effect to the proposed Incremental
Purchase):
(i) the representations and warranties of the Seller set forth
in Section 5.1 of the Receivables Purchase Agreement are true and correct on and
as of the Purchase Date as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from the proposed Incremental Purchase, that will constitute an Amortization
Event or a Potential Amortization Event;
(iii) the Facility Termination Date has not occurred, the
Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser
Interests do not exceed 100%; and
(iv) the amount of Aggregate Capital is $_________ after
giving effect to the Incremental Purchase to be made on the Purchase Date.
Very truly yours,
Anixter Receivables Corporation
By:
----------------------------
Name:
Title:
Exh. II-2
EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
Exh. III-1
EXHIBIT IV
NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS
<Table>
<Caption>
Lock-Box Related Collection Account
-------- --------------------------
-------- --------------------------
</Table>
Exh. IV-1
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA, as Agent
This Compliance Certificate is furnished pursuant to that certain
Amended and Restated Receivables Purchase Agreement, dated as of October 3,
2002, by and among Anixter Receivables Corporation, a Delaware corporation (the
"Seller"), Anixter Inc., as Servicer, the Financial Institutions, Falcon Asset
Securitization Corporation and Three Pillars Funding Corporation (collectively,
the "Conduits"), certain Financial Institutions parties thereto, Bank One, NA
(Main Office Chicago) ("Bank One") and SunTrust Capital Markets, Inc.
("SunTrust"), as Managing Agents and Bank One, as Agent for the Conduits and
Financial Institutions (the "Agreement", capitalized terms used herein and not
otherwise defined herein shall have the meanings given such terms in the
Agreement).
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________ of Seller.
2. I have reviewed the terms of the Agreement and I have made, or have caused
to be made under my supervision, a detailed review of the transactions and
conditions of Seller and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes an
Amortization Event or Potential Amortization Event, as each such term is
defined under the Agreement, during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth in paragraph 5 below.
4. Schedule I attached hereto sets forth financial data and computations
evidencing the compliance with certain covenants of the Agreement, all of
which data and computations are true, complete and correct.
5. Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it
has existed and the action which Seller has taken, is taking, or proposes
to take with respect to each such condition or event:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ______ day of ______,
_________.
Exh. V-1
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of __________, ____ with Section ___ of the
Agreement. Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the
Agreement.
This schedule relates to the month ended:
-------------
Exh. V-2
EXHIBIT VI
FORM OF COLLECTION ACCOUNT AGREEMENT
[On letterhead of Anixter Inc.]
, 2000
----------
[Lock-Box Bank/Concentration Bank/Depositary Bank]
Re: Anixter Inc.
Ladies and Gentlemen:
Reference is hereby made to P.O. Box # in [city, state, zip
code] (the "Lock-Box") of which you have exclusive control for the purpose of
receiving mail and processing payments therefrom pursuant to that certain [name
of lock-box agreement) between you and Anixter Inc. (the "Company") dated
_________, _____ (the "Agreement"). You hereby confirm your agreement to perform
the services described therein. Among the services you have agreed to perform
therein, is to endorse all checks and other evidences of payment, and credit
such payments to the Company's checking account no. maintained with you in the
name of the Company (the "Lock-Box Account").
The Company hereby informs you that pursuant to that certain
Amended and Restated Receivables Sale Agreement, dated as of October 3, 2002
between the Company and Anixter Receivables Corporation (the "Seller"), the
Company has transferred all of its right, title and interest in and to, and
exclusive ownership and control of, the Lock-Box and the Lock-Box Account to
Seller. The Company and Seller hereby request that the name of the Lock-Box
Account be changed to "Anixter Inc., as Servicer."
The Company and Seller hereby irrevocably instruct you, and
you hereby agree, that upon receiving notice from Bank One, NA ("Bank One") in
the form attached hereto as Annex A: (i) the name of the Lock-Box Account will
be changed to Bank One for itself and as agent (or any designee of Bank One) and
Bank One will have exclusive ownership of and access to the Lock-Box and the
Lock-Box Account, and neither the Company, Seller, nor any of their respective
affiliates will have any control of the Lock-Box or the Lock-Box Account or any
access thereto, (ii) you will either continue to send the funds from the
Lock-Box to the Lock-Box Account, or will redirect the funds as Bank One may
otherwise request, (iii) you will transfer monies on deposit in the Lock-Box
Account, at any time, as directed by Bank One, (iv) all services to be performed
by you under the Agreement will be performed on behalf of Bank One, and (v) all
correspondence or other mail which you have agreed to send to the Company or
Seller will be sent to Bank One at the following address:
Exh. VI-1
Bank One, NA
Suite _____, 21st Floor
1 Bank One Plaza
Chicago, Illinois 60670- ____
Attention: Credit Manager, Asset Backed
Securities Division
Moreover, upon such notice, Bank One for itself and as agent
will have all rights and remedies given to the Company (and Seller, as the
Company's assignee) under the Agreement. Seller agrees, however, to continue to
pay all fees and other assessments due thereunder at any time.
You hereby acknowledge that monies deposited in the Lock-Box
Account or any other account established with you by Bank One for the purpose of
receiving funds from the Lock-Box are subject to the liens of Bank One for
itself and as agent, and will not be subject to deduction, set-off, banker's
lien or any other right you or any other party may have against the Company or
Seller except that you may debit the Lock-Box Account for any items deposited
therein that are returned or otherwise not collected and for all charges, fees,
commissions and expenses incurred by you in providing services hereunder, all in
accordance with your customary practices for the charge back of returned items
and expenses.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS. This letter agreement may be
executed in any number of counterparts and all of such counterparts taken
together will be deemed to constitute one and the same instrument.
This letter agreement contains the entire agreement between
the parties, and may not be altered, modified, terminated or amended in any
respect, nor may any right, power or privilege of any party hereunder be waived
or released or discharged, except upon execution by all parties hereto of a
written instrument so providing. In the event that any provision in this letter
agreement is in conflict with, or inconsistent with, any provision of the
Agreement, this letter agreement will exclusively govern and control. Each party
agrees to take all actions reasonably requested by any other party to carry out
the purposes of this letter agreement or to preserve and protect the rights of
each party hereunder.
Exh. VI-2
Please indicate your agreement to the terms of this letter agreement by
signing in the space provided below. This letter agreement will become effective
immediately upon execution of a counterpart of this letter agreement by all
parties hereto.
Very truly yours,
Anixter Inc.
By:
-----------------------------
Name:
Title:
Anixter Receivables Corporation
By:
-----------------------------
Name:
Title:
Acknowledged and agreed to
this day of
---- --------
[Collection Bank]
By:
-----------------------------
Name:
Title:
Bank One, NA, as Agent
By:
-----------------------------
Name:
Title:
Exh. VI-3
ANNEX A
FORM OF NOTICE
[On letterhead of Bank One]
,
------------ --------
[Collection Bank/Depositary Bank/Concentration Bank]
Re: Anixter Inc./Anixter Receivables Corporation
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights
pursuant to that certain letter agreement among Anixter Inc., Anixter
Receivables Corporation, you and us, to have the name of, and to have exclusive
ownership and control of, account number ______ (the "Lock-Box Account")
maintained with you, transferred to us. [The Lock-Box Account will henceforth be
a zero-balance account, and funds deposited in the Lock-Box Account should be
sent at the end of each day to ______ .] You have further agreed to perform all
other services you are performing under that certain agreement dated ______
between you and [Anixter Inc.] on our behalf.
We appreciate your cooperation in this matter.
Very truly yours,
BANK ONE, NA, as Agent
By:
----------------------------
Title:
-------------------------
Annex A-1
EXHIBIT VII
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment Agreement") is entered into
as of the ___ day of ____________, ____, by and between _____________________
("Assignor") and __________________ ("Assignee").
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered
in accordance with Section 12.1(b) of that certain Amended and Restated
Receivables Purchase Agreement, dated as of October 3, 2002, by and among
Anixter Receivables Corporation, a Delaware corporation (the "Seller"), Anixter
Inc., as Servicer, the Financial Institutions, Falcon Asset Securitization
Corporation and Three Pillars Funding Corporation (collectively, the
"Conduits"), certain Financial Institutions parties thereto, Bank One, NA (Main
Office Chicago) ("Bank One") and SunTrust Capital Markets, Inc. ("SunTrust"), as
Managing Agents and Bank One, as Agent for the Conduits and Financial
Institutions (as amended, modified or restated from time to time, the "Purchase
Agreement"). Capitalized terms used and not otherwise defined herein are used
with the meanings set forth or incorporated by reference in the Purchase
Agreement.
B. Assignor is a Financial Institution party to the Purchase
Agreement, and is also a party to a Liquidity Agreement dated as of October 3,
2002 among Assignor, [Falcon] [Three Pillars], and [Bank One][SunTrust], as
agent (the "Liquidity Agreement"). Assignee wishes to become a Financial
Institution thereunder; and
C. Assignor is selling and assigning to Assignee an undivided
____________% (the "Transferred Percentage") interest in all of Assignor's
rights and obligations under the Purchase Agreement, the Liquidity Agreement and
the Transaction Documents, including, without limitation, Assignor's Back-up
Commitment and Liquidity Commitment and (if applicable) the Capital of
Assignor's Purchaser Interests as set forth herein.
AGREEMENT
The parties hereto hereby agree as follows:
1. The sale, transfer and assignment effected by this
Assignment Agreement shall become effective (the "Effective Date") two (2)
Business Days (or such other date selected by the Agent in its sole discretion)
following the date on which a notice substantially in the form of Schedule II to
this Assignment Agreement ("Effective Notice") is delivered by the Agent to
Conduit or Conduits which are in Assignor's Purchase Group, Assignor and
Assignee. From and after the Effective Date, Assignee shall be a Financial
Institution party to the Purchase Agreement for all purposes thereof as if
Assignee were an original party thereto and Assignee agrees to be bound by all
of the terms and provisions contained therein.
Exh. VII-1
2. If Assignor has no outstanding Capital under the Purchase
Agreement, on the Effective Date, Assignor shall be deemed to have hereby
transferred and assigned to Assignee, without recourse, representation or
warranty (except as provided in paragraph 6 below), and the Assignee shall be
deemed to have hereby irrevocably taken, received and assumed from Assignor, the
Transferred Percentage of Assignor's Back-up Commitment and Liquidity Commitment
and all rights and obligations associated therewith under the terms of the
Purchase Agreement and the Liquidity Agreement, including, without limitation,
the Transferred Percentage of Assignor's future funding obligations under
Section 4.1 of the Purchase Agreement and under the Liquidity Agreement.
3. If Assignor has any outstanding Capital under the Purchase
Agreement or the Liquidity Agreement, at or before 12:00 noon, local time of
Assignor, on the Effective Date Assignee shall pay to Assignor, in immediately
available funds, an amount equal to the sum of (i) the Transferred Percentage of
the outstanding Capital of Assignor's Purchaser Interests (such amount, being
hereinafter referred to as the "Assignee's Capital"); (ii) all accrued but
unpaid (whether or not then due) Yield attributable to Assignee's Capital; and
(iii) accruing but unpaid fees and other costs and expenses payable in respect
of Assignee's Capital for the period commencing upon each date such unpaid
amounts commence accruing, to and including the Effective Date (the "Assignee's
Acquisition Cost"); whereupon, Assignor shall be deemed to have sold,
transferred and assigned to Assignee, without recourse, representation or
warranty (except as provided in paragraph 6 below), and Assignee shall be deemed
to have hereby irrevocably taken, received and assumed from Assignor, the
Transferred Percentage of Assignor's Back-up Commitment and Liquidity Commitment
and the Capital of Assignor's Purchaser Interests (if applicable) and all
related rights and obligations under the Purchase Agreement, the Liquidity
Agreement and the Transaction Documents, including, without limitation, the
Transferred Percentage of Assignor's future funding obligations under Section
4.1 of the Purchase Agreement and under the Liquidity Agreement.
4. Concurrently with the execution and delivery hereof,
Assignor will provide to Assignee copies of all documents requested by Assignee
which were delivered to Assignor pursuant to the Purchase Agreement.
5. Each of the parties to this Assignment Agreement 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 Assignment Agreement.
6. By executing and delivering this Assignment Agreement,
Assignor and Assignee confirm to and agree with each other, the Agent, the
Managing Agents and the Financial Institutions as follows: (a) other than the
representation and warranty that it has not created any Adverse Claim upon any
interest being transferred hereunder, Assignor makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made by any other Person in or in connection with
the Purchase Agreement, the Liquidity Agreement or the Transaction Documents or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of Assignee, the Purchase Agreement or any other instrument or document
furnished pursuant thereto or the perfection, priority,
Exh. VII-2
condition, value or sufficiency of any collateral; (b) Assignor makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Seller, any Obligor, any Affiliate of Seller or the
performance or observance by the Seller, any Obligor, any Affiliate of Seller of
any of their respective obligations under the Transaction Documents or any other
instrument or document furnished pursuant thereto or in connection therewith;
(c) Assignee confirms that it has received a copy of the Purchase Agreement and
the Liquidity Agreement and copies of such other Transaction Documents, and
other documents and information as it has requested and deemed appropriate to
make its own credit analysis and decision to enter into this Assignment
Agreement; (d) Assignee will, independently and without reliance upon the Agent,
any Conduit, any Managing Agent, the Seller or any other Financial Institution
or 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 Purchase Agreement, the Liquidity Agreement and the
Transaction Documents; (e) Assignee appoints and authorizes the Agent and the
Managing Agent of Assignor's Purchase Group to take such action as agent on its
behalf and to exercise such powers under the Transaction Documents as are
delegated to the Agent and such Managing Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; and (f) Assignee agrees
that it will perform in accordance with their terms all of the obligations
which, by the terms of the Purchase Agreement, the Liquidity Agreement and the
other Transaction Documents, are required to be performed by it as a Financial
Institution or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees
with the Agent and the Managing Agent of its Purchase Group that it is aware of
and will comply with the provisions of the Purchase Agreement (including,
without limitation, Sections 4.1 and 14.6 thereof) and the Liquidity Agreement.
8. Schedule I hereto sets forth the revised Back-up Commitment
and Liquidity Commitment of Assignor and the Back-up Commitment and Liquidity
Commitment of Assignee, as well as administrative information with respect to
Assignee.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
10. Assignee hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in full of all senior
indebtedness for borrowed money of Company, it will not institute against, or
join any other Person in instituting against, Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
Exh. VII-3
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed by their respective duly authorized officers
of the date hereof.
[ASSIGNOR]
By:
-------------------------
Title:
[ASSIGNEE]
By:
-------------------------
Title:
Exh. VII-4
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
DATE: ,
--------------- ----
TRANSFERRED PERCENTAGE: %
--------
<Table>
<Caption>
- -----------------------------------------------------------------------------------------------------------------------
A-1 A-2 A-3 A-4 B-1 B-2
- -----------------------------------------------------------------------------------------------------------------------
ASSIGNOR BACK-UP BACK-UP LIQUIDITY LIQUIDITY
COMMITMENT COMMITMENT COMMITMENT COMMITMENT
(PRIOR TO GIVING (AFTER GIVING (PRIOR TO GIVING (AFTER GIVING RATABLE
EFFECT TO THE EFFECT TO THE EFFECT TO THE EFFECT TO THE OUTSTANDING SHARE OF
ASSIGNMENT ASSIGNMENT ASSIGNMENT ASSIGNMENT CAPITAL OUTSTANDING
AGREEMENT) AGREEMENT) AGREEMENT) AGREEMENT) (IF ANY) CAPITAL
- -----------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</Table>
<Table>
<Caption>
- ------------------------------------------------------------------------------------------------------------------------
A-2 A-4 B-1 B-2
- -----------------------------------------------------------------------------------------------------------------------
ASSIGNEE BACK-UP LIQUIDITY
COMMITMENT COMMITMENT
(AFTER GIVING (AFTER GIVING RATABLE
EFFECT TO THE EFFECT TO THE OUTSTANDING SHARE OF
ASSIGNMENT ASSIGNMENT CAPITAL OUTSTANDING
AGREEMENT) AGREEMENT) (IF ANY) CAPITAL
- -----------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</Table>
ADDRESS FOR NOTICES
- -------------------
- -------------------
Attention:
Phone:
Fax:
Exh. VII-5
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
TO: , Assignor
------------------------
------------------------
------------------------
------------------------
TO: , Assignee
------------------------
------------------------
------------------------
------------------------
The undersigned, as Agent under the Amended and Restated
Receivables Purchase Agreement, dated as of October 3, 2002, by and among
Anixter Receivables Corporation, a Delaware corporation (the "Seller"), Anixter
Inc., as Servicer, the Financial Institutions, Falcon Asset Securitization
Corporation and Three Pillars Funding Corporation (collectively, the
"Conduits"), certain Financial Institutions parties thereto, Bank One, NA (Main
Office Chicago) ("Bank One") and SunTrust Capital Markets, Inc. ("SunTrust"), as
Managing Agents and Bank One, as Agent for the Conduits and Financial
Institutions, hereby acknowledges receipt of executed counterparts of a
completed Assignment Agreement dated as of ____________, ____ between
__________________, as Assignor, and __________________, as Assignee. Terms
defined in such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that
the Effective Date will be
--------------, ----.
2. The Managing Agent, on behalf of the affected Conduit(s),
hereby consents to the Assignment Agreement as required by Section 12.1(b) of
the Receivables Purchase Agreement.
Exh. VII-6
[3. Pursuant to such Assignment Agreement, the Assignee is
required to pay $____________ to Assignor at or before 12:00 noon (local time of
Assignor) on the Effective Date in immediately available funds.]
Very truly yours,
BANK ONE, NA, individually and as
Agent [and as Managing Agent]
By:
------------------------------
Title:
----------------------------
SUNTRUST CAPITAL MARKETS, INC., as
Managing Agent
By:
------------------------------
Title:
----------------------------
Exh. VII-7
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
See Exhibit V to Receivables Sale Agreement
Exh. VIII-1
EXHIBIT IX
FORM OF CONTRACT(S)
See Attached
Exh. IX-1
EXHIBIT X
FORM OF MONTHLY REPORT
In addition to such other information as may be included on
this exhibit, each Monthly Report should set forth the following with respect to
the related Calculation Period (as defined in the Receivables Sale Agreement):
(i) the aggregate Outstanding Balance of Receivables created and conveyed by
Originator to Seller in purchases pursuant to the Receivables Sale Agreement
during such Calculation Period, as well as the Net Receivables Balance included
therein, (ii) the aggregate purchase price payable to Originator in respect of
such purchases, specifying the Discount Factor (as defined in the Receivables
Sale Agreement) in effect for such Calculation Period and the aggregate Purchase
Price Credits (as defined in the Receivables Sale Agreement) deducted in
calculating such aggregate purchase price, (iii) the aggregate amount of funds
received by the Servicer during such Calculation Period which are to be applied
as Reinvestments, (iv) the increase or decrease in the amount outstanding under
the Subordinated Note (as defined in the Receivables Sale Agreement) as of the
end of such Calculation Period after giving effect to the application of funds
toward the aggregate purchase price and the restrictions on Subordinated Loans
(as defined in the Receivables Sale Agreement) set forth in Section 1.2(a)(ii)
of the Receivables Sale Agreement, and (v) the amount of any capital
contribution made by Originator to Seller as of the end of such Calculation
Period pursuant to Section 1.2(b) of the Receivables Sale Agreement.
The above is a true and accurate accounting pursuant to the
terms of the Amended and Restated Receivables Purchase Agreement, dated as of
October 3, 2002 (the "Agreement"), by and among Anixter Receivables Corporation,
a Delaware corporation (the "Seller"), Anixter Inc., as Servicer, the Financial
Institutions, Falcon Asset Securitization Corporation and Three Pillars Funding
Corporation (collectively, the "Conduits"), certain Financial Institutions
parties thereto, Bank One, NA (Main Office Chicago) ("Bank One") and SunTrust
Capital Markets, Inc. ("SunTrust"), as Managing Agents and Bank One, as Agent
for the Conduits and Financial Institutions, and I have no knowledge of the
existence of any conditions or events which constitute an Amortization Event or
Potential Amortization Event, as each such term is defined under the Agreement,
during or at the end of the accounting period covered by this monthly report or
as of the date of this certificate, except as set forth below.
By:
-----------------------
Name:
---------------------
Title:
--------------------
Company Name:
-------------
Date:
---------------------
Exh. X-1
EXHIBIT X
FORM OF MID-MONTH REPORT
(Attached)
Exh. X-2
SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS; PURCHASE LIMITS
FALCON PURCHASE GROUP
PURCHASE GROUP LIMIT: $125,000,000
<Table>
<Caption>
Financial Institution Back-up Commitment Liquidity Commitment
--------------------- ------------------ --------------------
Bank One, NA $125,000,000 $127,500,000
</Table>
THREE PILLARS PURCHASE GROUP
PURCHASE GROUP LIMIT: $100,000,000
<Table>
<Caption>
Financial Institution Back-up Commitment Liquidity Commitment
--------------------- ------------------ --------------------
SunTrust Bank $100,000,000 $[_________]
</Table>
Sch. A-1
SCHEDULE B
CLOSING DOCUMENTS
(Attached)
i
SCHEDULE 1
LIST OF FISCAL MONTHS
(Attached)
i