Contract
EXHIBIT 10.1
EXECUTION COPY
This OMNIBUS AGREEMENT (this “Agreement”) is entered into as of July 23, 2010, 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 COMPANY LLC (“Falcon”) and
THREE PILLARS FUNDING LLC (f/k/a Three Pillars Funding Corporation) (“Three Pillars”), as
conduits, (collectively, the “Conduits” and each individually, a “Conduit”),
SUNTRUST XXXXXXXX XXXXXXXX, INC. and JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One,
NA) (“X.X. Xxxxxx”), as managing agents (collectively, the “Managing Agents” and
each individually, a “Managing Agent”) and X.X. Xxxxxx, as agent for the Purchasers (the
“Agent”). Capitalized terms used herein and not defined herein shall have the meanings
given to such terms in the RPA referred to below.
PRELIMINARY STATEMENTS
A. The parties hereto 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 “RPA”).
X. Xxxxxxx and the Seller (collectively, the “Seller Parties”) are parties to that
certain Amended and Restated Receivables Sale Agreement dated as of October 3, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the “RSA”).
X. Xxxxxxx has requested that the Seller transfer and assign to Anixter all of the Seller’s
interest in the unpaid Receivables owing by Obligors with the customer prefixes SIE and SG. (in
each case, as such customer prefixes are in effect or otherwise categorized as of the date
hereof)and all Related Security with respect to the such Receivables (collectively, the
“Specified Assets”) that were previously transferred and assigned to the Seller prior to
the date hereof pursuant to the RSA. The Seller is willing to transfer and assign the Specified
Assets to Anixter.
D. The Seller Parties have requested that the Agent, the Managing Agent, the Financial
Institutions and the Conduits consent to the transfer of the Specified Assets by Anixter to the
Seller.
E. The applicable parties hereto have agreed to (i) amend the RPA, (ii) amend the RSA, (iii)
transfer the Specified Assets from the Seller to Anixter and (iv) consent to the transfer of the
Specified Assets, in each case, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable
consideration (which, in the case of the transfer of the Specified Assets by the Seller to Anixter,
may be in the form of the reduction of Purchase Price Credits owing by the Seller to Anixter under
the RSA), the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. Amendments to RSA. Effective as of the “Agreement Effective Date” (as
defined below) and subject to the satisfaction of the conditions precedent set forth in Section
5 below, the RSA is hereby amended as follows:
1.1 Section 4.1(i) of the RSA is hereby amended to add the following sentence to the
end of such section:
“On or before September 23, 2010, the Originator shall instruct the Obligors with
the customer prefixes SIE and SG. to pay all amounts due with respect to their
Receivables to an account which is not a Lock-Box or Collection Account.”
1.2 The definition of “Excluded Receivable” set forth in Exhibit I to the RSA is hereby
amended and restated in its entirety to read as follows:
“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”,
“IMS” and “Pentacon” divisions which are not included in Originator’s main subledger
system, (iii) all accounts receivable generated by any of Originator’s divisions which are
acquired after July 24, 2009 which are not included in Originator’s main subledger system,
(iv) all accounts receivable owing by Obligors with the following customer prefixes: N-N,
NN+, SIE or SG. (in each case, as such customer prefixes are in effect or otherwise
categorized as of July 24, 2009), and thereafter, and (v) all accounts receivable existing
at Originator’s general corporate division coded WC (as such division is in effect or
otherwise structured as of July 24, 2009).
SECTION 2. Amendments to the RPA. Effective as of the Agreement Effective Date and
subject to the satisfaction of the conditions precedent set forth in Section 5 below, the
RPA is hereby amended as follows:
2.1 Section 7.1(b) of the RPA is hereby amended to add the following as a new clause (vii)
thereof:
“(vii) Appointment of Independent Director. The decision to appoint a new
director of Seller as the “Independent Director” for purposes of this Agreement, such
notice to be issued not less than ten (10) days prior to the effective date of such
appointment and to certify that the designated Person satisfies the criteria set forth in
the definition herein of “Independent Director.””
2.2 Section 7.1(j) of the RPA is hereby amended to add the following sentence to the end of
such section:
“On or before September 23, 2010, the Seller Parties shall instruct the Obligors with
the customer prefixes SIE and SG. to pay all amounts due with respect to their Receivables
to an account which is not a Lock-Box or Collection Account.”
2.3 Clause (M) of Section 7.1(i) of the RPA is hereby amended and restated in its entirety to
read as follows:
“(M) maintain its corporate charter in conformity with this Agreement, such that (1)
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; and (2) its corporate charter, at all times that this
Agreement is in effect, provides for not less than ten (10) days’ prior written notice to
the Agent of the replacement or appointment of any director that is to serve as an
Independent
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Director for purposes of this Agreement and the condition precedent to giving
effect to such replacement or appointment that Seller certify that the designated Person
satisfied the criteria set forth in the definition herein of “Independent Director” and the
Agent’s written
acknowledgement that in its reasonable judgment the designated Person satisfies the
criteria set forth in the definition herein of “Independent Director;”
2.4 Section 9.1 of the RPA is hereby amended to (i) delete the period at the end of clause (k)
thereof and replace such period with “; and” and (ii) add the following as a new clause (l)
thereof:
“(l) Any Person shall be appointed as an Independent Director of Seller without prior
notice thereof having been given to the Agent in accordance with Section
7.1(b)(vii) or without the written acknowledgement by the Agent that such Person
conforms, to the satisfaction of the Agent, with the criteria set forth in the definition
herein of “Independent Director.”
2.5 Section 10.2 of the RPA is hereby amended and restated in its entirety to read as follows:
“Section 10.2 Increased Cost and Reduced Return. (a) If any Regulatory
Change (i) subjects any Purchaser or any Funding Source to any charge or withholding on or
with respect to any Funding Agreement or a Purchaser’s or 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 Purchaser or 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
Purchaser or Funding Source or taxes excluded by Section 10.1) or (ii) imposes,
modifies or deems applicable any reserve, assessment, fee, tax, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the account of, or
liabilities of a Funding Source or a Purchaser, or credit extended by a Funding Source or a
Purchaser pursuant to a Funding Agreement or (iii) imposes any other condition the result
of which is to increase the cost to a Funding Source or a Purchaser of performing its
obligations under a Funding Agreement, or to reduce the rate of return on a Funding
Source’s or Purchaser’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 or
a Purchaser 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 or Purchaser, such amounts charged to such
Funding Source or Purchaser or such amounts to otherwise compensate such Funding Source or
such Purchaser for such increased cost or such reduction. The term “Regulatory
Change” shall mean (i) the adoption after the date hereof of any applicable law, rule
or regulation (including any applicable law, rule or regulation regarding capital adequacy)
or any change therein after the date hereof, (ii) any change after the date hereof 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, or (iii) the compliance, commenced after the
date hereof, by any Funding Source or Purchaser with the final rule titled Risk-Based
Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital;
Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of
Asset-Backed Commercial Paper Programs; and
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Other Related Issues, adopted by the United
States bank regulatory agencies on December 15, 2009, or any rules or regulations
promulgated in connection therewith by any such agency.
(b) A certificate of the applicable Purchaser or Funding Source setting forth the
amount or amounts necessary to compensate such Purchaser or Funding Source pursuant to
paragraph (a) of this Section 10.2 shall be delivered to Seller and shall be
conclusive absent manifest error. The Seller shall pay such Purchaser or Funding Source
the amount as due on any such certificate on the next Settlement Date following receipt of
such notice.
(c) If any Purchaser or any Funding Source has or anticipates having any claim for
compensation from the Seller pursuant to clause (iii) of the definition of Regulatory
Change appearing in paragraph (a) of this Section 10.2, and such Purchaser or
Funding Source believes that having the facility publicly rated by one credit rating agency
would reduce the amount of such compensation by an amount deemed by such Purchaser or
Funding Source to be material, such Purchaser or Funding Source shall provide written
notice to Seller and the Servicer (a “Ratings Request”) that such Purchaser or
Funding Source intends to request a public rating of the facility from one credit rating
agency selected by such Purchaser or Funding Source and reasonably acceptable to Seller, of
at least the equivalent of A by S&P and A2 by Xxxxx’x (the “Specified Rating”).
Seller and the Servicer agree that they shall cooperate with such Purchaser’s or Funding
Source’s efforts to obtain the Specified Rating, and shall provide the applicable credit
rating agency (either directly or through distribution to the Agent, Purchaser or Funding
Source), any information requested by such credit rating agency for purposes of providing
and monitoring the Specified Rating. The Purchasers shall pay the initial fees payable to
the credit rating agency for providing the rating and all ongoing fees payable to the
credit rating agency for their continued monitoring of the rating. Nothing in this
Section 10.2(c) shall preclude any Purchaser or Funding Source from demanding
compensation from Seller pursuant to Section 10.2(a) hereof at any time and without
regard to whether the Specified Rating shall have been obtained, or shall require any
Purchaser or Funding Source to obtain any rating on the facility prior to demanding any
such compensation from Seller.”
2.6 Section 13.14 of the RPA is hereby amended to add the following as a new clause (c)
thereof:
“(c) If, notwithstanding the intention of the parties expressed above, any sale or
transfer by Seller hereunder shall be characterized as a secured loan and not a sale or
such sale shall for any reason be ineffective or unenforceable (any of the foregoing being
a “Recharacterization”), then this Agreement shall be deemed to constitute a
security agreement under the UCC and other applicable law. In the case of any
Recharacterization, Seller represents and warrants that each remittance of Collections to
the Agent or the Purchasers hereunder will have been (i) in payment of a debt incurred in
the ordinary course of business or financial affairs and (ii) made in the ordinary course
of business or financial affairs.”
2.7 The definition of “Liquidity Termination Date” set forth in Exhibit I to the RPA is hereby
amended and restated in its entirety to read as follows:
“Liquidity Termination Date” means July 22, 2011.
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2.8 The definitions of “Amortization Date”, “Applicable Margin”, “Default Fee” and “Excluded
Receivable” set forth in Exhibit I to the RPA are hereby amended and restated in their entirety
to read as follows:
“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 Business Day specified in a written notice from the Agent following the
failure to obtain the Specified Rating within 90 days following delivery of a Ratings
Request to Seller and the Servicer, and (v) the date which is thirty (30) Business Days
after the Agent’s receipt of written notice from Seller that it wishes to terminate the
facility evidenced by this Agreement.
“Applicable Margin” means 3.15%.
“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 4.15% above the Base Rate.
“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”,
“IMS” and “Pentacon” divisions which are not included in Originator’s main subledger
system, (iii) all accounts receivable generated by any of Originator’s divisions which are
acquired after July 24, 2009 which are not included in Originator’s main subledger system,
(iv) all accounts receivable owing by Obligors with the following customer prefixes: N-N,
NN+, SIE or SG. (in each case, as such customer prefixes are in effect or otherwise
categorized as of July 24, 2009), and thereafter, and (v) all accounts receivable existing
at Originator’s general corporate division coded WC (as such division is in effect or
otherwise structured as of July 24, 2009).
2.9 Exhibit I to the RPA is hereby amended to insert the following definitions thereto in
appropriate alphabetical order:
“Independent Director” shall mean a member of the Board of Directors of
Seller who (i) shall not have been at the time of such Person’s appointment or at any time
during the preceding five years, and shall not be as long as such Person is a director of
Seller, (A) a director, officer, employee, partner, shareholder, member, manager or
Affiliate of any of the following Persons (collectively, the “Independent
Parties”): the Servicer, Originator, or any of their respective Subsidiaries or
Affiliates (other than Seller), (B) a supplier to any of the Independent Parties, (C) a
Person controlling or under common control with any partner, shareholder, member, manager,
Affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate
family of any director,
officer, employee,
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partner, shareholder, member, manager, Affiliate
or supplier of any of the Independent Parties; (ii) has prior experience as an independent
director for a corporation or limited liability company whose charter documents required
the unanimous consent of all independent directors thereof before such corporation or
limited liability company could consent to the institution of bankruptcy or insolvency
proceedings against it or could file a petition seeking relief under any applicable federal
or state law relating to bankruptcy and (iii) has at least three years of employment
experience with one or more entities that provide, in the ordinary course of their
respective businesses, advisory, management or placement services to issuers of
securitization or structured finance instruments, agreements or securities.
“Ratings Request” has the meaning set forth in Section 10.2(c) hereof.
“Recharacterization” has the meaning set forth in Section 13.14(c)
hereof.
“Regulatory Change” has the meaning set forth in Section 10.2(a)
hereof.
“Specified Rating” has the meaning set forth in Section 10.2(c)
hereof.
SECTION 3. Transfer of Specified Assets. Effective as of the Agreement Effective Date
and subject to the satisfaction of the conditions precedent set forth in Section 5 below,
(i) the Seller does hereby sell and assign to Anixter, without representation, recourse or warranty
of any kind, all of the Seller’s right, title and interest in and to the Specified Assets and (ii)
Anixter does hereby purchase from the Seller, without representation, recourse or warranty of any
kind, all of the Seller’s right, title and interest in and to the Specified Assets.
SECTION 4. Consent to Transfer of Specified Assets. Effective as of the Agreement
Effective Date and subject to the satisfaction of the conditions precedent set forth in Section
5 below:
4.1 each of the Conduits, the Managing Agents, the Financial Institution and the Agent hereby
releases the security interest in the Specified Assets that was granted by the Seller pursuant to
the RPA; and
4.2 each of the Conduits, the Managing Agents, the Financial Institutions and the Agent hereby
consents to the Seller’s sale and transfer to Anixter of all of the Seller’s right, title and
interest in and to the Specified Assets in accordance with Section 3 hereof.
SECTION 5. Effective Date. This Agreement shall become effective, as of the date
first above written (the “Agreement Effective Date”) upon the Agent’s receipt of each of
the following:
5.1 counterparts hereof executed by each party for which a signature block is attached hereto;
5.2 evidence that the Seller has amended its Certificate of Incorporation to, among other
things, amend the definition of “Independent Director” set forth therein to be consistent with the
definition thereof set forth herein;
5.3 counterparts to the Fourth Amended and Restated Fee Letter duly executed by each Person
for which a signature block is attached thereto; and
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5.4 all fees payable on the date hereof pursuant to such Fourth Amended and Restated Fee
Letter.
SECTION 6. Covenants, Representations and Warranties of the Seller Parties. In order
to induce the parties hereto to enter into this Agreement, each of the Seller Parties represents
and warrants to the Agent and the Purchasers, as to itself, that:
(a) The representations and warranties of such Seller Party set forth in Section 5.1
of the RPA, 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 6.1(a) shall be made as of such
earlier date.
(b) The representations and warranties of Anixter set forth in Section 2.1 of the
RSA, 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 2.1 that expressly relates to facts in existence on an earlier date, the
reaffirmation thereof under this Section 6.1(b) shall be made as of such earlier
date.
(c) The execution and delivery by such Seller Party of this Agreement has been duly
authorized by proper corporate proceedings of such Seller Party and this Agreement, and the
RPA and the RSA, as amended by this Agreement, 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.
SECTION 7. Ratification. The RPA and the RSA, as amended hereby, are hereby ratified,
approved and confirmed in all respects.
SECTION 8. Effect on the RPA and the RSA.
8.1 On and after the Agreement Effective Date, each reference in the RPA and the RSA, as
applicable, to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and all
references to the RPA and the RSA, as applicable, in any and all agreements, instruments,
documents, notes, certificates and other writings of every kind and nature shall be deemed to mean
and be a reference to the RPA and the RSA, as applicable, as amended hereby. The RPA, the RSA and
other documents, instruments and agreements executed and/or delivered in connection therewith shall
remain in full force and effect and are hereby ratified and confirmed.
8.2 The execution, delivery and effectiveness of this Agreement shall not operate as a waiver
of any right, power or remedy of any party to the RPA, the RSA or any of the other Transaction
Documents, nor constitute a waiver of any provision contained therein, except as specifically set
forth herein.
8.3 Each party hereto agrees and acknowledges that this Agreement constitutes a “Transaction
Document” under and as defined in the RPA.
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SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
SECTION 10. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement
by facsimile or other electronic transmission shall be deemed as effective as delivery of an
originally executed counterpart. Any party delivering an executed counterpart of this Agreement by
facsimile or other electronic transmission will also deliver an original executed counterpart, but
the failure of any party to so deliver an original executed counterpart of this Agreement will not
affect the validity or effectiveness of this Agreement.
SECTION 11. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of each party hereto and their respective successors and assigns.
SECTION 12. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
SECTION 13. Integration. This Agreement contains the entire understanding of the
parties hereto with regard to the subject matter contained herein. This Agreement supersedes all
prior or contemporaneous negotiations, promises, covenants, agreements and representations of every
nature whatsoever with respect to the matters referred to in this Agreement, all of which have
become merged and finally integrated into this Agreement. Each of the parties hereto understands
that in the event of any subsequent litigation, controversy or dispute concerning any of the terms,
conditions or provisions of this Agreement, no party shall be entitled to offer or introduce into
evidence any oral promises or oral agreements between the parties relating to the subject matter of
this Agreement not included or referred to herein and not reflected by a writing included or
referred to herein.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
date first set forth above to be effective as hereinabove provided.
| ANIXTER RECEIVABLES CORPORATION, as the Seller |
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| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | V.P. — Treasurer | |||
| ANIXTER INC., as the initial Servicer |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | V.P. — Treasurer | |||
Signature Page to Omnibus Agreement
| FALCON ASSET SECURITIZATION COMPANY LLC |
||||
| By: | JPMorgan Chase Bank, N.A., its attorney-in- | |||
| fact | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Executive Director | |||
| JPMORGAN CHASE BANK, N.A., as a Financial Institution, a Managing Agent and as Agent |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Executive Director | |||
Signature Page to Omnibus Agreement
| THREE PILLARS FUNDING LLC (f/k/a Three Pillars Funding Corporation) |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
| SUNTRUST BANK, as a Financial Institution |
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| By: | /s/ Xxxxxxx Xxxxxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxxxxx | |||
| Title: | Vice President | |||
| SUNTRUST XXXXXXXX XXXXXXXX, INC., as a Managing Agent |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
Signature Page to Omnibus Agreement
