EXHIBIT 4.10
EXECUTION COPY
AMENDMENT NO. 1 TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT (the "Amendment"), dated as of October 2, 2003, among ANIXTER
RECEIVABLES CORPORATION, a Delaware corporation (the "Seller"), ANIXTER INC., a
Delaware corporation ("Anixter"), as the initial Servicer, each financial
institution party hereto as a Financial Institution, FALCON ASSET SECURITIZATION
CORPORATION ("Falcon") and THREE PILLARS FUNDING CORPORATION ("Three Pillars"),
as conduits, (collectively, the "Conduits" and each individually, a "Conduit")
and SUNTRUST CAPITAL MARKETS and BANK ONE, NA ("Bank One"), as managing agents
(collectively, the "Managing Agents" and each individually, a "Managing Agent")
and Bank One, as agent for the Purchasers (the "Agent").
W I T N E S S E T H:
WHEREAS, the Seller, Anixter, the Financial Institutions, Falcon, Three
Pillars, the Managing Agents and the Agent are parties to that certain Amended
and Restated Receivables Purchase Agreement, dated as of October 3, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Agreement"); and
WHEREAS the parties hereto desire to amend the Agreement on the terms
and conditions set forth below;
NOW THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Agreement.
2. Amendments to the Agreement.
2.1 Section 7.1(i)(J) of the Agreement is hereby amended to add the
following to the end thereof:
"(the parties hereto acknowledge that Receivables of the Seller are
paid into Lock-Boxes to which certain Excluded Receivables of the
Originator are paid)"
2.2 Section 9.1(j) of the Agreement is hereby amended and restated in
its entirety to read as follows:
"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 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; provided that
if the Credit Agreement terminates, or Bank One ceases to be a party to
the Credit Agreement, the financial covenants referred to by this
Section 9.1(j) shall be those in effect, pursuant to the preceding
provisions of this Section 9.1(j), as of the date of termination of the
Credit Agreement or, if earlier, the date Bank One ceases to be a party
to the Credit Agreement."
2.3 The definition of Section 10.2 is hereby amended to insert the
following sentence at the end of such Section:
"For the avoidance of doubt, if the issuance of FASB Interpretation No.
46, or any other change in accounting standards or the issuance of any
other pronouncement, release or interpretation, causes or requires the
consolidation of all or a portion of the assets and liabilities of
Originator or Seller with the assets and liabilities of the Agent, any
Financial Institution or any other Funding Source, such event shall
constitute a circumstance on which such Funding Source may base a claim
for reimbursement under this Section."
2.4 The definition of Section 13.5(a) is hereby amended to insert the
following sentence at the end of such Section:
"Anything herein to the contrary notwithstanding, each Seller Party,
each Purchaser, the Agent, each Indemnified Party and any successor or
assign of any of the foregoing (and each employee, representative or
other agent of any of the foregoing) may disclose to any and all
Persons, without limitation of any kind, the "tax treatment" and "tax
structure" (in each case, within the meaning of Treasury Regulation
Section 1.6011-4) of the transactions contemplated herein and all
materials of any kind (including opinions or other tax analyses) that
are or have been provided to any of the foregoing relating to such tax
treatment or tax structure, and it is hereby confirmed that each of the
foregoing have been so authorized since the commencement of discussions
regarding the transactions."
2.5 The following defined term is hereby added to Exhibit I in the
proper alphabetical location:
"Excluded Receivable" means indebtedness and other obligations
owed to Originator, in respect of: (i) all accounts receivable generated by
Originator's Latin American export locations; (ii) all accounts receivable
generated by Originator's "Pacer" division, (iii) all accounts receivable
generated by Originator's "Pentacon" division which are not included in
Originator's main subledger system, (iv) all accounts receivable owing by
Obligors with the following customer numbers: 139661, 804470, 544876, 520222,
037690 or 608556 and (v) all accounts receivable existing at Originator's
general corporate division coded WC.
- 2 -
2.6 The definition of the term "Liquidity Termination Date" set forth
in Exhibit I to the Agreement is hereby amended and restated in its entirety to
read as follows:
"Liquidity Termination Date" means, September 30, 2004.
2.7 The defined term "Receivable" set forth in Exhibit I is hereby
amended to insert the words "other than Excluded Receivables" immediately
following the parenthetical in the third line thereof.
2.8 Exhibit X, "Form of Monthly Report," is amended by adding the
following sentence at the end of the first paragraph of such Exhibit:
"The Monthly Report shall also set forth the amount of collections of
Excluded Receivable received in Collection Accounts during such
Collection Period."
3. Effective Date. This Amendment shall become effective and shall be
deemed effective as of the date first written above when the Agent shall have
received a copy of this Amendment duly executed by each of the parties hereto.
4 Representations and Warranties of the Seller Parties. In order to
induce the parties hereto to enter into this Amendment, each of the Seller
Parties represents and warrants to the Agent and the Purchasers, as to itself,
that:
4.1. The representations and warranties of such Seller Party set forth
in Section 5.1 of the Agreement, as hereby amended, are true, correct and
complete on the date hereof as if made on and as of the date hereof and there
exists no Amortization Event or Potential Amortization Event on the date hereof,
provided that in the case of any representation or warranty in Section 5.1 that
expressly relates to facts in existence on an earlier date, the reaffirmation
thereof under this Section 4.1 shall be made as of such earlier date.
4.2. The execution and delivery by such Seller Party of this Amendment
has been duly authorized by proper corporate proceedings of such Seller Party
and this Amendment, and the Agreement, as amended by this Amendment, constitutes
the legal, valid and binding obligation of such Seller Party, enforceable
against such Seller Party in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general applicability affecting the
enforcement of creditors' rights generally.
5. Ratification. The Agreement, as amended hereby, is hereby
ratified, approved and confirmed in all respects.
6. Reference to Agreement. From and after the effective date hereof,
each reference in the Agreement to "this Agreement", "hereof", or "hereunder" or
words of like import, and all references to the Agreement in any and all
agreements, instruments, documents, notes, certificates and other writings of
every kind and nature shall be deemed to mean the Agreement, as amended by this
Amendment.
- 3 -
7. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
8. Execution of Counterparts. This Amendment 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 taken together shall constitute one and the same agreement.
- 4 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
written above:
ANIXTER RECEIVABLES CORPORATION,
as the Seller
By: ___________________________
Name:
Title:
ANIXTER INC.,
as the initial Servicer
By: ___________________________
Name:
Title:
FALCON ASSET SECURITIZATION
CORPORATION
By: ___________________________
Name:
Title: Authorized Signatory
THREE PILLARS FUNDING
CORPORATION
By: ___________________________
Name:
Title: Authorized Signatory
Amendment No.1
to
Amended and Restated Receivables Purchase Agreement
BANK ONE, NA, as a Financial Institution
and as Agent
By: ___________________________
Name:
Title:
SUNTRUST BANK, as a
Financial Institution
By :___________________________
Name:
Title:
SUNTRUST CAPITAL MARKETS INC., as an
Agent
By: ___________________________
Name:
Title:
Amendment No.1
to
Amended and Restated Receivables Purchase Agreement