EXHIBIT 4.10
AMENDMENT NO. 2 TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT (the "Amendment"), dated as of September 30, 2004, 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 LLC (f/k/a 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:
SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Agreement.
SECTION 2. Amendments to the Agreement. The Agreement is hereby amended as
follows:
(a) The first sentence of Section 2.7 of the Agreement is hereby
restated in its entirety as follows:
"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, to repurchase
from the Purchasers all, but not less than all, of the then
outstanding Purchaser Interests."
(b) Clause (ii) of Section 5.1(t) of the Agreement is hereby
restated in its entirety as follows:
"(ii) Each Receivable included in the Net Receivables Balance as an
Eligible Receivable on any Monthly Report, Mid-Month Report and any
other report delivered pursuant to Section 8.5 was an Eligible
Receivable as of the date of such Monthly Report, Mid-Month Report
or other report."
(c) Section 7.1(i)(J) of the Agreement is hereby amended to add the
following immediately after the clause "except as herein specifically
provided":
"or in connection with collections in respect of Excluded
Receivables, which Collections the Servicer has indicated are
readily identifiable"
(d) Section 7.1(i)(Q) of the Agreement is hereby restated in its
entirety as follows:
"(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
Xxxxxx Xxxxxx LLP, 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, it being acknowledged that the
assumption set forth in the ninth paragraph of Section 1 of such
opinion to the extent it indicated that the Seller would not be
consolidated with Anixter Inc. for financial reporting purposes, is
no longer true."
(e) The last sentence of Section 8.1(a) of the Agreement is hereby
restated in its entirety as follows:
"The Managing Agents may at any time designate as Servicer any
Person to succeed Anixter or any Successor Servicer."
(f) Section 8.5 of the Agreement is hereby amended to add the
following sentence at the end thereof:
"In addition to the foregoing, upon the request of the Agent, the Servicer
shall provide to the Agent a list of Receivables (including such
information regarding such Receivables as the Agent may request) as to
which (as of the date specified by the Agent in such request) any payment
of part thereof remains unpaid 90 days or more past the original due date
therefor but less than 120 days past the original invoice date with
respect to such Receivable."
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(g) Section 10.1 of the Agreement is hereby amended to delete the
words "or the Servicer" from the parenthetical in the sentence immediately
following the proviso to Section 10.1.
(h) The definition of the term "Affiliate" set forth in Exhibit I to
the Agreement is hereby restated in its entirety as follows:
"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;
provided that so long as Ariel Capital Management, Inc. ("Ariel") does not
own more than 30% of any class of voting stock of Anixter International
Inc., "Affiliate" shall exclude (with respect to Anixter) any other Person
under direct or indirect control of Ariel, unless such other Person
directly or indirectly controls or is controlled by Anixter. 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.
(i) The definition of the term "Applicable Margin" set forth in
Exhibit I to the Agreement is hereby restated in its entirety as follows:
"Applicable Margin" means, as of any date of determination, the percentage
set forth in the table below opposite the then applicable Debt Rating:
Debt Ratings
Pricing Level S&P/Xxxxx'x/Fitch Applicable Margin
------------- ----------------- -----------------
1 >A-/A3 0.45%
2 BBB+/Baa1 0.60%
3 BBB/Baa2 0.70%
4 BBB-/Baa3 0.775%
5 BB+/Ba1 0.975%
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