FIRST AMENDMENT TO
Exhibit 10.35B
FIRST AMENDMENT TO
THIS FIRST AMENDMENT TO INVENTORY FACILITY LOAN DOCUMENTS, dated as of September 29, 2016 (this “Amendment”), is made by and among ANIXTER INC., a Delaware corporation, (“Anixter”), the other parties listed on the signature pages hereof as a “Loan Party” (together with Anixter, each, a “Loan Party” and collectively, the “Loan Parties”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Xxxxx Fargo”), in its capacity as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”) and the Lenders (as defined in the Credit Agreement) party hereto.
R E C I T A L S:
WHEREAS, reference is made to that certain Credit Agreement, dated as of October 5, 2015, by and among the Borrowers (as defined therein), the Lenders and the Administrative Agent (as amended, restated or otherwise modified, the “Credit Agreement”) and that certain Guaranty and Security Agreement, dated as of October 5, 2015, by and among the Loan Parties and the Administrative Agent, on behalf of the Lenders (as amended, restated or otherwise modified, the “GSA”); and
WHEREAS, the parties hereto desire to amend certain terms of the GSA as hereinafter provided and the Administrative Agent, with the approval of the Required Lenders, is willing to make such modifications, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:
1.Definitions. Defined terms used herein unless otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement and the rules of construction set forth in Section 1.04 of the Credit Agreement shall apply to this Amendment.
2. Amendment of Credit Agreement. The Credit Agreement is hereby amended as follows:
(a) Section 6.15 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
“6.15 Inventory with Bailees. Each Borrower will not, and will not permit any other Loan Party to, store its Inventory at any time with a bailee, warehouseman, consignee, or similar party, unless either (i) the applicable Loan Party has provided Administrative Agent a Collateral Access Agreement with respect thereto or (ii) if the applicable Loan Party does not so provide Administrative Agent a Collateral Access Agreement with respect thereto, Administrative Agent has the option, in its discretion, to institute a reserve for rent in accordance with Section 2.1(c) hereof.”
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3. Amendment of GSA. The GSA is hereby amended as follows:
(a) Section 7(k)(iv) of the GSA is hereby amended and restated in its entirety to read as follows:
“(iv) Subject to Section 5.16 of the Credit Agreement, other than (A) an aggregate amount of not more than $1,000,000 at any one time, in the case of Grantors and the other Loan Parties, (B) subject to Section 6.1(a)(xv) of the Credit Agreement, amounts in Deposit Accounts with Bank Mendes Xxxx N.V. (or any successor thereto), (C) amounts in account no. 0000000000 in the name of Communication Cables, LLC maintained at Bank of America, N.A. so long as substantially all amounts in such account are routinely swept to a Deposit Account of ARC, and (D) amounts deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes. and other employee wage and benefit payments to or for Grantors’ or their Subsidiaries’ employees, no Grantor will, and no Grantor will permit any other Loan Party to, make, acquire, or permit to exist Investments consisting of cash, Cash Equivalents, or amounts credited to Deposit Accounts or Securities Accounts unless the applicable Grantor or the applicable Loan Party, as applicable, and the applicable bank or securities intermediary have entered into control agreements with Administrative Agent governing such Investments in order to perfect (and further establish) Administrative Agent’s Liens in such Investments.”
4. Representations and Warranties. Each of the Loan Parties, by executing this Amendment, hereby certifies and confirms that as of the date hereof and after giving effect to this Amendment: (a) the execution, delivery and performance of this Amendment and any and all other documents executed and/or delivered in connection herewith (i) have been authorized by all requisite action on the part of the Loan Parties, (ii) will not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or (iii) conflict with or violate any of the Loan Parties’ respective Organization Documents; (b) the representations and warranties of the Loan Parties contained in the Credit Agreement and GSA (as amended by this Amendment) and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on the date hereof with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the specific dates or times referred to therein); (c) no Event of Default or Default under the Credit Agreement shall have occurred and be continuing or shall exist which will not be cured by the execution and effectiveness of this Amendment; and (d) the Credit Agreement and GSA (as amended by this Amendment) and all other Loan Documents are and remain legal, valid, binding and enforceable obligations in accordance with the terms thereof.
5. Conditions of Effectiveness of the Amendment. The effectiveness of this Amendment is expressly conditioned upon satisfaction of each of the following conditions precedent:
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(a) Fees and Expenses. The Loan Parties shall pay to the Administrative Agent the costs and expenses of the Administrative Agent, including reasonable fees of the Administrative Agent’s counsel in connection with this Amendment.
(b) Execution and Delivery. The Loan Parties and the Required Lenders shall have executed and delivered to the Administrative Agent counterparts to this Amendment.
(c) Receivables Facility Amendment. The parties to that certain Waiver and First Amendment to Receivables Facility Loan Documents of even date herewith with respect to the Receivables Facility Credit Agreement shall have delivered executed counterparts thereto to the Receivables Facility Administrative Agent and all conditions to effectiveness thereto shall have been met to the satisfaction of the Receivables Facility Administrative Agent.
6. Force and Effect. Each Loan Party reconfirms, restates, and ratifies each of Loan Documents to which it is a party and except as amended by this Amendment each Loan Party confirms that all such Loan Documents to which it is party remain in full force and effect since the date of their execution.
7. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws (and not the law of conflicts) of the State of Illinois, but giving effect to federal laws applicable to national banks.
8. Counterparts. This Amendment may be signed in any number of counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and delivery of executed signature pages hereof by telecopy or other electronic transmission from one party to another shall constitute effective and binding execution and delivery of this Amendment by such party.
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9. Release; Indemnification.
(a) Release. In further consideration of the Administrative Agent’s and Required Lenders’ execution of this Amendment, each Loan Party, individually and on behalf of its respective successors (including any trustees acting on behalf of such party, and any debtor-in-possession with respect to such party), assigns, subsidiaries and affiliates, hereby forever releases the Lenders and the Administrative Agent and their successors, assigns, parents, subsidiaries, and affiliates and their respective officers, employees, directors, agents and attorneys (collectively, the “Releasees”) from any and all debts, claims, demands, liabilities, responsibilities, disputes, causes, damages, actions and causes of actions (whether at law or in equity), and obligations of every nature whatsoever, whether liquidated or unliquidated, whether matured or unmatured, whether fixed or contingent that any Loan Party has or may have against the Releasees, or any of them, which arise from or relate to any actions which the Releasees, or any of them, have or may have taken or omitted to take in connection with the Credit Agreement or the other Loan Documents prior to the date hereof (including with respect to the Obligations, any Collateral and any third parties liable in whole or in part for the Obligations). This provision shall survive and continue in full force and effect whether or not the Loan Parties shall satisfy all other provisions of the Credit Agreement (as amended by this Amendment) or the other Loan Documents.
(b) Related Indemnity. Each Loan Party hereby agrees that its release of the Releasees set forth in Section 9(a) shall include an obligation to indemnify and hold the Releasees, or any of them, harmless with respect to any and all liabilities, obligations, losses, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by the Releasees, or any of them, whether direct, indirect or consequential, as a result of or arising from or relating to any proceeding by, or on behalf of any Person, including officers, directors, agents, trustees, creditors, partners or shareholders of any such Loan Party or any parent, subsidiary or affiliate of any such Loan Party, whether threatened or initiated, asserting any claim for legal or equitable remedy under any statutes, regulation, common law principle or otherwise arising from or in connection with the negotiation, preparation, execution, delivery, performance, administration and enforcement of this Amendment or any other document executed in connection herewith; provided, that no any such Loan Party shall be liable for any indemnification to a Releasee to the extent that any such liability, obligation, loss, penalty, action, judgment, suit, cost, expense or disbursement results from the applicable Releasee’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction. The foregoing indemnity shall survive the payment in full of the Obligations and the termination of the Credit Agreement and the other Loan Documents.
10. Amendment as Loan Document. The parties hereto acknowledge and agree that this Amendment constitutes a Loan Document.
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IN WITNESS WHEREOF and intending to be legally bound hereby, the parties hereto have executed this Amendment as of the date first above written.
LOAN PARTIES:
ANIXTER INC.,
a Delaware corporation
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President – Treasurer
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President – Treasurer
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President – Treasurer
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President – Treasurer
ACCU-TECH CORPORATION,
a Georgia corporation
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President – Treasurer
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President – Treasurer
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TRI-NORTHERN HOLDINGS, INC., a Delaware corporation,
TRI-NORTHERN ACQUISITION INC., a Delaware corporation,
NORTHERN VIDEO SYSTEMS, INC., a California corporation,
SR DISTRIBUTION, INC., a Delaware corporation,
TRI-ED DISTRIBUTION INC., a California corporation
COMMUNICATION CABLES, LLC, a Delaware limited liability company,
ANIXTER POWER SOLUTIONS INC., a Michigan corporation,
ANIXTER POWER SOLUTIONS INC., a Michigan corporation,
ANIXTER POWER SOLUTIONS, LLC, a Florida limited liability company
By: /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Assistant Treasurer
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender and as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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Acknowledged and Agreed:
JPMORGAN CHASE BANK, N.A., as a Lender
By: /Xxxxxxxxx X. Xxx
Name: Xxxxxxxxx X. Xxx
Title: Authorized Officer
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Acknowledged and Agreed:
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
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Acknowledged and Agreed:
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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Acknowledged and Agreed:
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
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