EXHIBIT 4.6
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
dated as of October 3, 2002
between
ANIXTER INC.,
as Originator
AND
ANIXTER RECEIVABLES CORPORATION,
as Buyer
ARTICLE I AMOUNTS AND TERMS..................................................2
Section 1.1 Purchase of Receivables.....................................2
Section 1.2 Payment for the Purchase....................................3
Section 1.3 Purchase Price Credit Adjustments...........................5
Section 1.4 Payments and Computations, Etc..............................6
Section 1.5 Transfer of Records.........................................6
Section 1.6 Characterization............................................7
ARTICLE II REPRESENTATIONS AND WARRANTIES....................................7
Section 2.1 Representations and Warranties of Originator................7
ARTICLE III CONDITIONS OF PURCHASE..........................................11
Section 3.1 Conditions Precedent to Purchase...........................11
Section 3.2 Conditions Precedent to Subsequent Payments................11
ARTICLE IV COVENANTS........................................................11
Section 4.1 Affirmative Covenants of Originator........................11
Section 4.2 Negative Covenants of Originator...........................16
ARTICLE V AMORTIZATION EVENTS...............................................18
Section 5.1 Amortization Events........................................18
Section 5.2 Remedies...................................................19
ARTICLE VI INDEMNIFICATION..................................................19
Section 6.1 Indemnities by Originator..................................19
Section 6.2 Other Costs and Expenses...................................22
ARTICLE VII MISCELLANEOUS...................................................22
Section 7.1 Waivers and Amendments.....................................22
Section 7.2 Notices....................................................22
Section 7.3 Protection of Ownership Interests of Buyer.................22
Section 7.4 Confidentiality............................................23
Section 7.5 Bankruptcy Petition........................................24
Section 7.6 CHOICE OF LAW..............................................24
Section 7.7 CONSENT TO JURISDICTION....................................24
Section 7.8 WAIVER OF JURY TRIAL.......................................25
Section 7.9 Integration; Binding Effect; Survival of Terms.............25
Section 7.10 Counterparts; Severability; Section References............25
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Exhibits and Schedules
EXHIBIT I Definitions
EXHIBIT II Principal Place of Business; Location(s) of Records; Federal
Employer Identification Number; Other Names; State of
Incorporation; Organizational Identification Number
EXHIBIT III Lock-Boxes; Collection Accounts; Collection Banks
EXHIBIT IV Form of Compliance Certificate
EXHIBIT V Credit and Collection Policy
EXHIBIT VI Copy of Subscription Agreement
EXHIBIT VII Form of Amended and Restated Subordinated Note
SCHEDULE A List of Documents to Be Delivered to Buyer
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AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
THIS AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT, dated as of
October 3, 2002, is by and between ANIXTER INC., a Delaware corporation,
("Originator"), and ANIXTER RECEIVABLES CORPORATION, a Delaware corporation
("Buyer"). Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
Reference is hereby made to that certain
Receivables Sale Agreement
dated as of October 6, 2000 by and between Originator and Buyer (the "Original
Receivables Sale Agreement").
Originator and Buyer have agreed to amend and restate the Original
Receivables Sale Agreement on the terms and subject to the conditions set forth
herein.
Originator now owns, and from time to time hereafter will own,
Receivables. Originator wishes to sell and assign to Buyer, and Buyer wishes to
purchase from Originator, all of Originator's right, title and interest in and
to such Receivables, together with the Related Security and Collections with
respect thereto.
Originator and Buyer intend the transactions contemplated hereby to be
true sales of the Receivables from Originator to Buyer, providing Buyer with the
full benefits of ownership of the Receivables, and Originator and Buyer do not
intend these transactions to be, or for any purpose to be characterized as,
loans from Buyer to Originator.
Following the purchase of Receivables from Originator, Buyer will sell
undivided interests therein and in the associated Related Security and
Collections pursuant to that certain Amended and Restated Receivables Purchase
Agreement dated as of October 3, 2002 (as the same may from time to time
hereafter be amended, supplemented, restated or otherwise modified, the
"Purchase Agreement") among Buyer, Originator, as Servicer, Falcon Asset
Securitization Corporation and Three Pillars Funding Corporation, as Conduit
Purchasers, the financial institutions from time to time party thereto
("Financial Institutions" and, together with the Conduit Purchasers, the
"Purchasers"), Bank One, NA (Main Office Chicago) ("Bank One") and SunTrust
Bank, as managing agents (collectively, the "Managing Agents") and Bank One, or
any successor agent appointed pursuant to the terms of the Purchase Agreement,
as agent for the Purchasers (in such capacity, the "Agent").
ARTICLE I
AMOUNTS AND TERMS
Section 1.1 Purchase of Receivables.
(a) Pursuant to the Original
Receivables Sale Agreement, Originator has
sold to Buyer, without recourse (except to the extent expressly provided
therein), all of Originator's right, title and interest in and to all
Receivables existing as of the close of business on the day immediately prior to
the closing date of the Original
Receivables Sale Agreement and all Receivables
arising thereafter, in each case, with all Related Security relating thereto and
all Collections thereof. Originator and Buyer hereby reaffirm that purchase and
sale, and, in consideration for the Purchase Price and upon the terms and
subject to the conditions set forth herein, Originator does hereby sell, assign,
transfer, set-over and otherwise convey to Buyer, without recourse (except to
the extent expressly provided herein), and Buyer does hereby purchase from
Originator, all of Originator's right, title and interest in and to all
Receivables hereafter arising through and including the Amortization Date,
together with all Related Security relating thereto and all Collections thereof;
provided that Buyer shall be obligated to pay the Purchase Price therefor in
accordance with Section 1.2. In connection with the payment of the Purchase
Price for any Receivables purchased hereunder, Buyer may request that Originator
deliver, and Originator shall deliver, such approvals, opinions, information,
reports or documents as Buyer may reasonably request.
(b) It is the intention of the parties hereto that the Purchase of
Receivables made hereunder shall constitute a "sale of accounts" (as such term
is used in Article 9 of the UCC), which sale is absolute and irrevocable and
provides Buyer with the full benefits of ownership of the Receivables. Except
for the Purchase Price Credits owed pursuant to Section 1.3, the sale of
Receivables hereunder is made without recourse to Originator; provided, however,
that (i) Originator shall be liable to Buyer for all representations, warranties
and covenants made by Originator pursuant to the terms of the Transaction
Documents to which Originator is a party, and (ii) such sale does not constitute
and is not intended to result in an assumption by Buyer or any assignee thereof
of any obligation of Originator or any other Person arising in connection with
the Receivables, the related Contracts and/or other Related Security or any
other obligations of Originator. In view of the intention of the parties hereto
that the Purchase of Receivables made hereunder shall constitute a sale of such
Receivables rather than loans secured thereby, Originator agrees that it will,
on or prior to the date hereof and in accordance with Section 4.1(e)(ii), cause
all Receivable reports relating to the Receivables to bear a legend acceptable
to Buyer and to the Agent or any Managing Agent, as Buyer's assignees,
evidencing that Buyer has purchased such Receivables as provided in this
Agreement
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and note in its financial statements that its Receivables have been sold to
Buyer. Upon the request of Buyer or the Agent or any Managing Agent, as Buyer's
assignees, Originator will execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such other
instruments or notices, as may be necessary or appropriate to perfect and
maintain the perfection of Buyer's ownership interest in the Receivables and the
Related Security and Collections with respect thereto, or as Buyer or the Agent
or any Managing Agent, as Buyer's assignees, may reasonably request.
Section 1.2 Payment for the Purchase.
(a) The Purchase Price for each Receivable coming into existence after
the date hereof shall be due and owing in full by Buyer to Originator or its
designee on the date each such Receivable came into existence (except that Buyer
may, with respect to any such Purchase Price, offset against such Purchase Price
any amounts owed by Originator to Buyer hereunder and which have become due but
remain unpaid) and shall be paid to Originator in the manner provided in the
following paragraphs (b), (c), (d) and (e).
(b) With respect to any Receivables coming into existence after the
date hereof, on each Settlement Date, Buyer shall pay the Purchase Price
therefor in accordance with Section 1.2(d) and (e) and in the following manner:
(i) first, by delivery of immediately available funds, to the
extent of funds available to Buyer from (i) its subsequent sale of an
interest in the Receivables to each Managing Agent for the benefit of the
Purchasers under the Purchase Agreement, (ii) Collections arising from any
Receivables previously sold to Buyer in which Buyer has retained an
interest, or (iii) other cash on hand;
(ii) second, by delivery of the proceeds of a subordinated
revolving loan from Originator to Buyer (a "Subordinated Loan"), provided
that the making of any such Subordinated Loan shall be subject to the
provisions set forth in below; and
(iii) third, unless the Originator has declared the Amortization
Date to have occurred pursuant to Section 5.2, by accepting a contribution
to its capital pursuant to the Subscription Agreement in an amount equal to
the remaining unpaid balance of such Purchase Price.
The Maximum amount of any Subordinated Loan that can be borrowed by Buyer
pursuant to clause (ii) above is limited to the maximum Subordinated Loan that
could be borrowed without rendering Buyer's Net Worth less than the Required
Capital Amount. The Originator is hereby authorized by Buyer to endorse on the
schedule attached to the Subordinated Note an appropriate notation evidencing
the date and amount of each advance thereunder, as well as the date of each
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payment with respect thereto, provided that the failure to make such notation
shall not affect any obligation of Buyer thereunder. Subject to the limitations
set forth in the second preceding sentence, Originator irrevocably agrees to
advance each Subordinated Loan requested by Buyer on or prior to the
Amortization Date. The Subordinated Loans shall be evidenced by, and shall be
payable in accordance with the terms and provisions of the Subordinated Note and
shall be payable solely from funds which Buyer is not required under the
Purchase Agreement to set aside for the benefit of, or otherwise pay over to,
the Purchasers, the Agent, the Managing Agents or any other Person then entitled
to any amounts as specified in the Purchase Agreement.
(c) From and after the Amortization Date, Originator shall not be
obligated to (but may, at its option): (i) sell Receivables to Buyer, or (ii)
contribute Receivables to Buyer's capital pursuant to clause third of Section
1.2(b) unless Originator reasonably determines that the Purchase Price therefor
will be satisfied with funds available to Buyer from sales of interests in the
Receivables pursuant to the Purchase Agreement, Collections, proceeds of
Subordinated Loans or otherwise.
(d) On each day prior to the Amortization Date (unless Buyer or the
Agent shall otherwise direct), Buyer may permit Originator to retain all or a
specified portion of the Collections received in respect of Receivables
theretofore transferred by Originator to Buyer hereunder, it being understood
that in the event Buyer shall have sold, assigned or otherwise transferred an
interest in such Receivables to the Agent for the benefit of the Purchasers
under the Purchase Agreement, such Collections in the possession of such
Originator or Buyer are made available to Buyer at the discretion of the Agent
and the Managing Agents. Any such Collections so retained by Originator
("Applied Collections") shall, on and as of the date of receipt thereof, be (i)
deemed applied toward the Purchase Price of any Receivables of Originator
arising on such date and then being transferred to Buyer pursuant to the terms
hereof, to the extent of any such Purchase Price, (ii) then, in respect of any
balance remaining, deemed applied toward the Purchase Price of any other
Receivables of Originator arising during such Accrual Period and in respect of
which the Purchase Price shall not theretofore have been paid, to the extent of
any such Purchase Price, and (iii) in respect of any balance remaining, held in
trust by Originator for the benefit of Buyer until the earlier to occur of (A)
application toward the Purchase Price for any Purchase occurring on any later
date and (B) the next following Settlement Date, in which case such amount shall
be remitted to Buyer.
(e) Although the Purchase Price for each Receivable coming into
existence after the date hereof shall be due and payable in full by Buyer to
Originator on the date such Receivable came into existence, and payment of such
Purchase Price shall be made from Applied Collections, to the extent available,
as provided in Section 1.2(d), final settlement of the Purchase Price between
Buyer and Originator shall be effected on a monthly basis on Settlement Dates
with respect to all Receivables coming into existence during the same
Calculation Period and based on the information contained in the Monthly Report
delivered by the Servicer pursuant
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to Article VIII of the Purchase Agreement for the Calculation Period then most
recently ended. On each Settlement Date, Buyer and Originator shall cause a
reconciliation to made in respect of all Purchases that shall have been made
during the Calculation Period then most recently ended. To the extent that the
aggregate amount of Applied Collections retained by Originator during such
Calculation Period shall have been less than the aggregate Purchase Price in
respect of all Purchases made by Buyer from Originator during such month, Buyer
shall pay the balance due in respect of such aggregate Purchase Price in the
manner described in Section 1.2(a). To the extent that the aggregate amount of
Applied Collections retained by Originator during such Calculation Period shall
have been greater than the aggregate Purchase Price in respect of all Purchases
made by Buyer from Originator during such Calculation Period, Originator shall
turn over such excess to Buyer either by remitting such excess in immediately
available funds to Buyer or by directing that a reduction in the outstanding
balance of the Subordinated Loan occur in an amount equal to such excess, or a
combination of both. Although settlement shall be effected on Settlement Dates,
increases or decreases in the amount owing under the Subordinated Note made
pursuant to Section 1.2(b) and any contribution of capital by Originator to
Buyer made pursuant to Section 1.2(b) shall be deemed to have occurred and shall
be effective as of the last Business Day of the Calculation Period to which such
settlement relates.
(f) At all times prior to the occurrence of the Amortization Date,
notwithstanding any delay in the making of any payment of the Purchase Price in
respect of any Purchase, all right, title and interest of Originator in and to
each Receivable shall be sold, assigned and otherwise transferred to Buyer
effective immediately and automatically upon the creation of such Receivable,
without any further action of any type or kind being required on the part of any
Person. The monthly settlement and reconciliation contemplated in this Section
1.2 has been devised solely for the administrative convenience of the parties
hereto. Buyer and Originator may at any time, as may agreed between themselves,
elect to effect settlement and reconciliation on a more (but not less) frequent
basis.
Section 1.3 Purchase Price Credit Adjustments. If on any day:
(a) the Outstanding Balance of a Receivable is:
(i) reduced as a result of any defective or rejected goods or
services, any discount or any adjustment or otherwise by Originator (other
than cash Collections on account of the Receivables); or
(ii) 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
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(b) any of the representations and warranties set forth in paragraphs
(i) and (s) of Section 2.1 are no longer true with respect to any Receivable;
then, in such event, Buyer shall be entitled to a credit (each, a "Purchase
Price Credit") against the Purchase Price otherwise payable hereunder equal to
the Outstanding Balance of such Receivable. If such Purchase Price Credit
exceeds the Original Balance of the Receivables coming into existence on any
day, then Originator shall pay the remaining amount of such Purchase Price
Credit in cash within three (3) Business Days thereafter, provided that if the
Amortization Date has not occurred, Originator shall be allowed to deduct the
remaining amount of such Purchase Price Credit from any indebtedness owed to it
under the Subordinated Note.
Section 1.4 Payments and Computations, Etc. All amounts to be paid or
deposited by Buyer hereunder shall be paid or deposited in accordance with the
terms hereof on the day when due in immediately available funds to the account
of Originator designated from time to time by Originator or as otherwise
directed by Originator. In the event that any payment owed by any Person
hereunder becomes due on a day that is not a Business Day, then such payment
shall be made on the next succeeding Business Day. If any Person fails to pay
any amount hereunder when due, such Person agrees to pay, on demand, the Default
Fee in respect thereof until paid in full; provided, however, that such Default
Fee shall not at any time exceed the maximum rate permitted by applicable law.
All computations of interest payable hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
Section 1.5 Transfer of Records.
(a) In connection with the Purchase of Receivables hereunder,
Originator hereby sells, transfers, assigns and otherwise conveys to Buyer all
of Originator's right and title to and interest in the Records relating to all
Receivables sold hereunder, without the need for any further documentation in
connection with the Purchase. In connection with such transfer, Originator
hereby grants to each of Buyer, the Agent and the Servicer, an irrevocable,
non-exclusive license to use, without royalty or payment of any kind, all
software used by Originator to account for the Receivables, to the extent
necessary to administer the Receivables, whether such software is owned by
Originator or is owned by others and used by Originator under license agreements
with respect thereto, provided that should the consent of any licensor of
Originator to such grant of the license described herein be required, Originator
hereby agrees that upon the request of Buyer (or the Agent or any Managing Agent
as Buyer's assignees), Originator will use its reasonable efforts to obtain the
consent of such third-party licensor. The license granted hereby shall be
irrevocable, and shall terminate on the date this Agreement terminates in
accordance with its terms.
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(b) Originator (i) shall take such action requested by Buyer (or the
Agent or any Managing Agent as Buyer's assignees), from time to time hereafter,
that may be necessary or appropriate to ensure that Buyer and its assigns under
the Purchase Agreement have an enforceable ownership interest in the Records
relating to the Receivables purchased from Originator hereunder, and (ii) shall
use its reasonable efforts to ensure that each of the Buyer, the Agent and the
Servicer has an enforceable right (whether by license, sublicense or otherwise)
to use all of the computer software used by Originator to account for the
Receivables and/or to recreate such Records.
Section 1.6 Characterization. If, notwithstanding the intention of the
parties expressed in Section 1.1(b), any sale or contribution by Originator to
Buyer of Receivables hereunder shall be characterized as a secured loan and not
a sale, or such sale shall for any reason be ineffective or unenforceable, then
this Agreement shall be deemed to constitute a security agreement under the UCC
and other applicable law. For this purpose and without being in derogation of
the parties' intention that the sale of Receivables hereunder shall constitute a
true sale thereof, Originator hereby grants to Buyer a duly perfected security
interest in all of Originator's right, title and interest in, to and under all
Receivables now existing and hereafter arising, all Collections, Related
Security and Records with respect thereto, each Lock-Box and Collection Account
and all proceeds of the foregoing, which security interest shall be prior to all
other Adverse Claims thereto. After the occurrence of an Amortization Event,
Buyer (and the Agent and each Managing Agent, as Buyer's assignees) shall have,
in addition to the rights and remedies which they may have under this Agreement,
all other rights and remedies provided to a secured creditor after default under
the UCC and other applicable law, which rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Originator. Originator hereby
represents and warrants to Buyer, as of the date hereof and as of the date of
each purchase hereunder, that:
(a) Corporate Existence and Power. Originator 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 such
jurisdiction, and is duly 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 could not reasonably be expected to have a Material
Adverse Effect.
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(b) Power and Authority; Due Authorization Execution and Delivery. The
execution and delivery by Originator of this Agreement and each other
Transaction Document to which it is a party, and the performance of its
obligations hereunder and thereunder and, Originator's use of the proceeds of
the Purchase 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 Originator is a party has
been duly executed and delivered by Originator.
(c) No Conflict. The execution and delivery by Originator 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 or articles 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 Originator or its
Subsidiaries (except as created hereunder), except, in any case, where such
contravention or violation could not reasonably be 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 Originator 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 Originator's knowledge, threatened, against or affecting
Originator, 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.
Originator 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.
(f) Binding Effect. This Agreement and each other Transaction Document
to which Originator is a party constitute the legal, valid and binding
obligations of Originator enforceable against Originator 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
Originator or any of its Affiliates to Buyer (or to the Agent or any Managing
Agent, as Buyer's assignees) for purposes of or in connection with this
Agreement, any of the other Transaction Documents or any transaction
contemplated hereby or thereby is, and all such information hereafter furnished
by Originator or any of its Affiliates to Buyer (or to the Agent or any Managing
Agent, as Buyer's assignees) 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 the Purchase hereunder will be used
(i) for a purpose that violates, or would be inconsistent with, Regulations 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 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) Good Title. Immediately prior to the time each Receivable came into
existence, Originator shall be the legal and beneficial owner of each such
Receivables and Related Security with respect thereto, free and clear of any
Adverse Claim, except as created by the Transaction Documents.
(j) Perfection. This Agreement, together with the filing of the
financing statements contemplated hereby, is effective to transfer to Buyer (and
Buyer shall acquire from Originator) legal and equitable title to, with the
right to sell and encumber each Receivable existing and hereafter arising,
together with 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 Buyer's ownership interest in the Receivables, the
Related Security and the Collections.
(k) Places of Business. The principal places of business and chief
executive office of Originator and the offices where it keeps all of its Records
are located at the address(es) listed on Exhibit II or such other locations of
which Buyer has been notified in accordance with Section 4.2(a) in jurisdictions
where all action required by Section 4.2(a) has been taken and completed.
Originator's state of organization, organizational identification number (if
any), and Federal Employer Identification Number are correctly set forth on
Exhibit II.
(l) Collections. The conditions and requirements set forth in Section
4.1(i) 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 Originator at each Collection Bank and the post office
box number of each Lock-Box, are listed on Exhibit III.
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(m) Material Adverse Effect. Since June 30, 2002 no event has occurred
that would have a Material Adverse Effect.
(n) Names. Except for those listed on Exhibit II, in the past five (5)
years, Originator 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 Buyer. Originator owns, directly or indirectly, 100%
of the issued and outstanding capital stock of Buyer, 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 Buyer.
(p) Not a Holding Company or an Investment Company. Originator 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. Originator 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. Originator has complied 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. 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. Originator 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 4.1(a)(iii).
(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).
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(t) Eligible Receivables. As of the date of this Agreement, each
Receivable included in the Net Receivables Balance under the Original Agreement
is an "Eligible Receivable" as defined under the Purchase Agreement 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. Each Receivable included in the Net Receivables Balance as an
Eligible Receivable on the date it came into existence was an Eligible
Receivable on such date.
(u) Accounting. The manner in which Originator accounts for the
transactions contemplated by this Agreement does not jeopardize the true sale
analysis.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to Purchase. The effectiveness of this
Agreement is subject to the condition precedent that Buyer shall have received
on or before the date of such purchase those documents listed on Schedule A.
Section 3.2 Conditions Precedent to Subsequent Payments. Buyer's obligation
to pay for Receivables coming into existence after the date hereof shall be
subject to the further conditions precedent that (a) the Facility Termination
Date shall not have occurred; and (b) Buyer shall have received such other
approvals, opinions or documents as it may reasonably request. Originator
represents and warrants that the representations and warranties set forth in
Article II are true and correct on and as of the date each Receivable came into
existence as though made on and as of such date.
ARTICLE IV
COVENANTS
Section 4.1 Affirmative Covenants of Originator. Until the date on which
this Agreement terminates in accordance with its terms, Originator hereby
covenants as set forth below:
(a) Financial Reporting. Originator will maintain, for itself and each
of its Subsidiaries, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to Buyer
(and to the Agent and each Managing Agent, as Buyer's assignees):
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(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 Originator for such fiscal year certified in a
manner acceptable to Buyer (and to the Agent and the Managing Agents, as
Buyer's assignees) by Ernst & Young or other independent public accountants
reasonably acceptable to Buyer (and to the Agent and the Managing Agents,
as Buyer's assignees).
(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 Originator as at the close of each such period and
statements of income and retained earnings and a statement of cash flows
for Originator for the period from the beginning of such fiscal year to the
end of such quarter, all certified by its chief financial officer or
treasurer.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate in substantially
the form of Exhibit IV signed by Originator's Authorized Officer on behalf
of Originator 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 Originator 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 Buyer, the Agent, the Managing Agents or the Purchasers,
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 each Managing Agent thereto; provided that if such change or
amendment was required pursuant to any change in any applicable law,
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rule or regulation, the Originator 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 operations, financial or otherwise, of Originator as Buyer
(or the Agent or any Managing Agent, as Buyer's assignees) may from time to
time reasonably request in order to protect the interests of Buyer (and its
assigns) under or as contemplated by this Agreement.
(b) Notices. Originator will notify the Buyer (and the Agent and each
Managing Agent, as Buyer's assignees) 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 Originator.
(ii) Judgment and Proceedings. (A) The entry of any judgment or
decree against Originator or any of its Subsidiaries if the aggregate
amount of all judgments and decrees then outstanding against Originator and
its Subsidiaries exceeds $25,000,000, or (B) the institution of any
litigation, arbitration proceeding or governmental proceeding against
Originator, 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.
(iii) Material Adverse Effect. The occurrence of any event or
condition that has, or could reasonably be expected to have, a Material
Adverse Effect.
(iv) Defaults Under Other Agreements. The occurrence of a default
or an event of default under any other financing arrangement or
arrangements governing indebtedness, individually or in the aggregate for
all such arrangements, in a principal amount greater than or equal to
$25,000,000, pursuant to which Originator is a debtor or an obligor.
(v) Downgrade of the Originator. Any downgrade in the rating of
any Indebtedness of the Originator by Standard and Poor's Ratings Group or
by ▇▇▇▇▇'▇ Investors Service, Inc., setting forth the Indebtedness affected
and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate Existence.
Originator will comply in all respects with all applicable laws, rules,
regulations, orders, writs,
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judgments, injunctions, decrees or awards to which it may be subject except
where the failure to comply could not reasonably be expected to have a Material
Adverse Effect. Originator will preserve and maintain its corporate existence,
rights, franchises and privileges in the 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
maintain or qualify could not reasonably be expected to have a Material Adverse
Effect.
(d) Audits. Originator will furnish to Buyer (and the Agent and each
Managing Agent, as Buyer's assignees) from time to time such information with
respect to it and the Receivables as Buyer (or the Agent or any Managing Agent,
as Buyer's assignees) may reasonably request. Originator will, from time to time
during regular business hours as requested by Buyer (or the Agent or any
Managing Agent, as Buyer's assignees), upon reasonable notice and at the sole
cost of Originator except as provided below, permit Buyer (or the Agent or any
Managing Agent, as Buyer's assignees) or their respective agents or
representatives, (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of Originator relating to the
Receivables and the Related Security, including, without limitation, the related
Contracts, and (ii) to visit the offices and properties of Originator for the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to Originator's financial condition or the Receivables
and the Related Security or Originator's performance under any of the
Transaction Documents or Originator's performance under the Contracts and, in
each case, with any of the officers or employees of Originator having knowledge
of such matters. So long as no Potential Amortization Event or Amortization
Event exists, the visits under this Section 4.1(d) that are at the sole cost of
the Originator and that are requested by the Agent or any Managing Agent shall
be limited to one per calendar year.
(e) Keeping and Marking of Records and Books.
(i) Originator 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). Originator will give Buyer
(and the Agent and each Managing Agent, as Buyer's assignees) notice of any
material change in the administrative and operating procedures referred to
in the previous sentence.
(ii) Originator will (A) on or prior to the date hereof, cause
all reports relating to the Receivables to bear a legend, acceptable to
Buyer (and the Agent and each Managing Agent, as Buyer's assignees),
describing Buyer's ownership interests in the
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Receivables and further describing the Purchaser Interests of the
Purchasers under the Purchase Agreement and (B) from and after the
occurrence of an Amortization Event, (x) ▇▇▇▇ each Contract with a legend
describing Buyer's ownership interests in the Receivables and further
describing the Purchaser Interests of the Purchasers and (y) deliver to
Buyer (and the Agent and each Managing Agent, as Buyer's assignees) 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.
Originator 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.
Originator will pay when due any taxes payable in connection with the
Receivables, exclusive of taxes on or measured by income or gross receipts of
Buyer and its assigns.
(g) Ownership. Originator will take all necessary action to establish
and maintain, irrevocably in Buyer, legal and equitable title to the
Receivables, the Related Security and the Collections, free and clear of any
Adverse Claims other than Adverse Claims in favor of Buyer (and the Agent and
each Managing Agent, as Buyer's assignees) (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 Buyer's interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Buyer (and the Agent and each Managing Agent, as Buyer's assignees)
as Buyer (or the Agent or any Managing Agent, as Buyer's assignees) may
reasonably request).
(h) Purchasers' Reliance. Originator acknowledges that the Agent, the
Managing Agents and the Purchasers are entering into the transactions
contemplated by the Purchase Agreement in reliance upon Buyer's identity as a
legal entity that is separate from Originator and any Affiliates thereof.
Therefore, from and after the date of execution and delivery of this Agreement,
Originator shall take all reasonable steps including, without limitation, all
steps that Buyer (or the Agent or any Managing Agent, as Buyer's assignees) may
from time to time reasonably request to maintain Buyer's identity as a separate
legal entity and to make it manifest to third parties that Buyer is an entity
with assets and liabilities distinct from those of Originator and any Affiliates
thereof and not just a division of Originator. Without limiting the generality
of the foregoing and in addition to the other covenants set forth herein,
Originator (i) will not hold itself out to third parties as liable for the debts
of Buyer nor purport to own the Receivables and other assets acquired by Buyer
from Originator, (ii) will take all other actions necessary on its part to
ensure that Buyer is at all times in compliance with the covenants set forth in
Section 7.1(i) of the Purchase Agreement and (iii) will cause all tax
liabilities arising in connection with the transactions contemplated herein or
otherwise to be allocated between
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Originator and Buyer on an arm's-length basis and in a manner consistent with
the procedures set forth in U.S. Treasury Regulations Sections 1.1502-33(d) and
1.1552-1.
(i) Collections. Originator 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 Originator or any
Affiliate of Originator, Originator will remit (or will cause all such payments
to be remitted) directly to a Collection Bank for deposit into a Collection
Account within two (2) Business Days following receipt thereof and, at all times
prior to such remittance, Originator will itself hold or, if applicable, will
cause such payments to be held in trust for the exclusive benefit of Buyer (and
the Agent and each Managing Agent, as Buyer's assignees). Originator will
transfer exclusive ownership, dominion and control of each Lock-Box and
Collection Account to Buyer and, will 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 Buyer (or the Agent, as
Buyer's assignee) as contemplated by this Agreement and the Purchase Agreement.
(j) Taxes. Originator will file all tax returns and reports required by
law to be filed by it and promptly pay all taxes and governmental charges at any
time owing , except 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 generally accepted accounting principles
shall have been set aside on its books, unless the failure to make any such
payment (1) shall give rise to an immediate right to foreclosure on an Adverse
Claim securing such amounts, or (2) could reasonably be expected to have a
Material Adverse Effect.
(k) Insurance. Originator will maintain in effect, or cause to be
maintained in effect, at Originator's own expense, such casualty and liability
insurance as Originator deems appropriate in its good faith business judgement.
Originator will pay or cause to be paid, the premiums therefor and deliver to
Buyer and each Managing Agent evidence satisfactory to Buyer and each Managing
Agent of such insurance coverage. Copies of each policy shall be furnished to
Buyer, each Managing Agent, the Agent and any Purchaser in certificated form
upon Buyer's, any Managing Agent's, the Agent's or such Purchaser's request. The
foregoing requirements shall not be construed to negate, reduce or modify, and
are in addition to, Originator's obligations hereunder.
Section 4.2 Negative Covenants of Originator. Until the date on which this
Agreement terminates in accordance with its terms, Originator hereby covenants
that:
(a) Name Change, Offices and Records. Originator will not change its
name, identity, state of incorporation or corporate structure (within the
meaning of Section 9-507(c) of
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Revised Article 9 of the UCC) or relocate its chief executive office or any
office where Records are kept unless it shall have: (i) given Buyer (and the
Agent and each Managing Agent, as Buyer's assignees) at least forty-five (45)
days' prior written notice thereof and (ii) delivered to Buyer (and the Agent
and each Managing Agent, as Buyer's assignees) all financing statements,
instruments and other documents requested by Buyer (or the Agent or any Managing
Agent, as Buyer's assignees) 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) of the Purchase Agreement,
Originator 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 Buyer (and the Agent and each Managing
Agent, as Buyer's assignees) 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
Originator 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.
Originator 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 any newly created Receivables
unless required to do so by any applicable law, rule or regulation. Except as
otherwise permitted in its capacity as Servicer pursuant to Section 8.2(d) of
the Purchase Agreement, Originator 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. Originator 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 Buyer provided for herein), and
Originator will defend the right, title and interest of Buyer (and the Agent and
each Managing Agent, as Buyer's assignees) in, to and under any of the foregoing
property, against all claims of third parties claiming through or under
Originator. Originator shall not create or suffer to exist any mortgage, pledge,
security interest, encumbrance, lien, charge or other similar arrangement on any
of its inventory.
17
(e) Accounting for Purchase. Originator will not, and will not permit
any Affiliate to, account for or treat (whether in financial statements or
otherwise) the transactions contemplated hereby in any manner other than the
sale of the Receivables and the Related Security by Originator to Buyer or in
any other respect account for or treat the transactions contemplated hereby in
any manner other than as a sale of the Receivables and the Related Security by
Originator to Buyer except to the extent that such transactions are not
recognized on account of consolidated financial reporting in accordance with
generally accepted accounting principles.
ARTICLE V
AMORTIZATION EVENTS
Section 5.1 Amortization Events. The occurrence of any one or more of the
following events shall constitute an Amortization Event:
(a) Originator 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)) or any other Transaction Document to which it is a party and such failure
shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by
Originator 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 2.1(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 Originator to pay when due any Indebtedness having an
outstanding principal balance in excess of $25,000,000; or the default by
Originator in the performance of any term, 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 Originator 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) Originator 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 Originator or any of its Significant Subsidiaries seeking to adjudicate
it bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement,
18
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 Originator or any 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) Originator or any of its Significant Subsidiaries shall
take any corporate action to authorize any of the actions set forth in the
foregoing clause (i) or (ii) of this subsection (d).
(e) A Change of Control shall occur.
(f) 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 Originator, and such judgment shall continue unsatisfied and in effect
for ten (10) consecutive days without a stay of execution.
Section 5.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, Buyer may take any of the following actions: (i) 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 Originator; provided, however, that upon
the occurrence of Amortization Event described in Section 5.1(d)(ii), or of an
actual or deemed entry of an order for relief with respect to Originator under
the Federal 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 Originator and (ii) to the fullest extent permitted by
applicable law, declare that the Default Fee shall accrue with respect to any
amounts then due and owing by Buyer to Originator. The aforementioned rights and
remedies shall be in addition to all other rights and remedies of Buyer and its
assigns available under 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 VI
INDEMNIFICATION
Section 6.1 Indemnities by Originator. Without limiting any other rights
that Buyer may have hereunder or under applicable law, Originator hereby agrees
to indemnify Buyer and its 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
19
them arising out of or as a result of this Agreement or the acquisition, either
directly or indirectly, by Buyer of an interest in the Receivables, excluding,
however:
(i) 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;
(ii) 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
(iii) 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 Intended Characterization;
provided, however, that nothing contained in this sentence shall limit the
liability of Originator or limit the recourse of Buyer to Originator for amounts
otherwise specifically provided to be paid by Originator under the terms of this
Agreement.
Without limiting the generality of the foregoing indemnification,
Originator shall indemnify Buyer for Indemnified Amounts (including, without
limitation, losses in respect of uncollectible receivables, regardless of
whether reimbursement therefor would constitute recourse to Originator) relating
to or resulting from:
(1) any representation or warranty made by Originator (or any officers
of Originator) under or in connection with this Agreement, any other
Transaction Document or any other information or report delivered by
Originator pursuant hereto or thereto, which shall have been false or
incorrect when made or deemed made;
(2) the failure by 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;
(3) any failure of Originator to perform its duties, covenants or
other obligations in accordance with the provisions of this Agreement or
any other Transaction Document;
20
(4) any products liability, personal injury or damage suit or similar
claim arising out of or in connection with merchandise, insurance or
services that are the subject of any Contract or any Receivable;
(5) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
(including, 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;
(6) the commingling of Collections of Receivables at any time with
other funds;
(7) any investigation, litigation or proceeding related to or arising
from this Agreement or any other Transaction Document, the transactions
contemplated hereby or thereby, the use of the proceeds of a Purchase, the
ownership of the Receivables, or any other investigation, litigation or
proceeding relating to Buyer or Originator in which any Indemnified Party
becomes involved as a result of any of the transactions contemplated
hereby;
(8) 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;
(9) any Amortization Event described in Section 5.1(d);
(10) any failure to vest and maintain vested in Buyer, or to transfer
to Buyer, legal and equitable title to, and ownership of, the Receivables,
the Related Security and the Collections, free and clear of any Adverse
Claim;
(11) 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 the Purchase or at any
subsequent time;
(12) any action or omission by Originator which reduces or impairs the
rights of Buyer with respect to any Receivable or the value of any such
Receivable; and
(13) any attempt by any Person to void the Purchase hereunder under
statutory provisions or common law or equitable action.
21
Section 6.2 Other Costs and Expenses. Originator shall pay to Buyer on
demand all costs and out-of-pocket 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.
Originator shall pay to Buyer on demand any and all costs and expenses of Buyer,
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 Agreement or such
documents, or the administration of this Agreement following an Amortization
Event.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Waivers and Amendments. No failure or delay on the part of
Buyer (or the Agent or any Managing Agent, as Buyer's assignees) 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. No provision of this Agreement may be
amended, supplemented, modified or waived except in writing signed by Originator
and Buyer and, to the extent required under the Purchase Agreement, the Agent
and the Financial Institutions or the Required Financial Institutions.
Section 7.2 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 7.2.
Section 7.3 Protection of Ownership Interests of Buyer.
(a) Originator 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 Buyer (or the Agent or any
Managing Agent, as Buyer's assignees) may request, to perfect, protect or more
fully evidence the Purchaser Interests, or to enable Buyer (or the Agent or any
Managing Agent, as Buyer's assignees) to exercise and enforce their rights and
remedies hereunder. At any time, Buyer (or following the occurrence of an
Amortization Event,
22
the Agent, or any Managing Agent, as Buyer's assignees) may, at Originator's
sole cost and expense, direct Originator to notify the Obligors of Receivables
of the ownership interests of Buyer and its assigns under this Agreement and the
other Transaction Documents and may also direct that payments of all amounts due
or that become due under any or all Receivables be made directly to Buyer or its
designee (or the Agent or any Managing Agent, as Buyer's assignee).
(b) If Originator fails to perform any of its obligations hereunder,
Buyer (or the Agent or any Managing Agent, as Buyer's assignees) may (but shall
not be required to) perform, or cause performance of, such obligation, and the
costs and expenses incurred by Buyer (or the Agent or any Managing Agent, as
Buyer's assignees) in connection therewith shall be payable by Originator as
provided in Section 6.2. Originator irrevocably authorizes Buyer (and the Agent
or any Managing Agent, as Buyer's assignees) at any time and from time to time
in the sole discretion of Buyer (or the Agent or any Managing Agent, as Buyer's
assignees), and appoints Buyer (and the Agent and each Managing Agent, as
Buyer's assignees) as its attorney(s)-in-fact, to act on behalf of Originator
(i) to execute on behalf of Originator as debtor and to file financing
statements necessary or desirable in the sole discretion of Buyer (or the Agent
or any Managing Agent, as Buyer's assignees) to perfect and to maintain the
perfection and priority of the interest of Buyer 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 Buyer (or the Agent or any Managing Agent, as Buyer's assignees)
in its sole discretion deems necessary or desirable to perfect and to maintain
the perfection and priority of Buyer's interests in the Receivables. This
appointment is coupled with an interest and is irrevocable.
Section 7.4 Confidentiality.
(a) Originator shall maintain and shall cause each of its employees and
officers to maintain the confidentiality of this Agreement and the other
confidential 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 Originator and its officers and
employees may disclose such information to Originator'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, Originator hereby
consents to the disclosure of any nonpublic information with respect to it (i)
to Buyer, the Agent, the Managing Agents or the Purchasers by each other, (ii)
by Buyer, the Agent, the Managing Agents or the Purchasers to any prospective or
actual assignee or participant of any of them or (iii) by the Agent or any
Managing Agent 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
23
any of the Managing Agents acts as the administrative agent and to any officers,
directors, employees, outside accountants and attorneys of any of the foregoing,
provided that each such Person is informed of the confidential nature of such
information. 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 such Purchaser, Managing Agent or the Agent, as applicable, shall,
if practicable, notify Originator in advance prior to disclosure and will use
reasonable efforts to cooperate with Originator at Originator's expense in
obtaining any protective order for such information.
Section 7.5 Bankruptcy Petition. Originator and Buyer each 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
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 7.6 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 7.7 CONSENT TO JURISDICTION. ORIGINATOR 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 ORIGINATOR PURSUANT TO
THIS AGREEMENT AND ORIGINATOR 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
BUYER (OR THE AGENT OR ANY MANAGING AGENT, AS BUYER'S ASSIGNEES) TO BRING
PROCEEDINGS AGAINST ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ORIGINATOR AGAINST BUYER (OR THE AGENT OR ANY MANAGING
AGENT, AS BUYER'S ASSIGNEES) OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ORIGINATOR PURSUANT TO THIS AGREEMENT
SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
24
Section 7.8 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
ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER
OR THEREUNDER.
Section 7.9 Integration; Binding Effect; Survival of Terms.
(a) This Agreement, the Subordinated Note, the Subscription Agreement
and each Collection Account Agreement 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 Originator
pursuant to Article II, (ii) the indemnification and payment provisions of
Article VI, and (iii) Section 7.5 shall be continuing and shall survive any
termination of this Agreement.
Section 7.10 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.
25
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 INC.
By:
-------------------------------------------
Name:
Title:
Address:
-----------------------------
-----------------------------
Attn:
------------------------
Facsimile:
-------------------
ANIXTER RECEIVABLES CORPORATION
By:
-------------------------------------------
Name:
Title:
Address:
-----------------------------
-----------------------------
Attn:
------------------------
Facsimile:
-------------------
Signature Page
to
Amended and Restated
Receivables Sale Agreement
EXHIBIT I
Definitions
This is Exhibit I to the Agreement (as hereinafter defined).
As used in the Agreement and the Exhibits, Schedules and Annexes thereto,
capitalized terms have the meanings set forth in this Exhibit I (such meanings
to be equally applicable to the singular and plural forms thereof). If a
capitalized term is used in the Agreement, or any Exhibit, Schedule or Annex
thereto, and not otherwise defined therein or in this Exhibit I, such term shall
have the meaning assigned thereto in Exhibit I to the Purchase Agreement.
"Agent" has the meaning set forth in the Preliminary
Statements to the Agreement.
"Agreement" means this Amended and Restated
Receivables Sale
Agreement, dated as of October 3, 2002, between Originator and Buyer, as the
same may be amended, restated or otherwise modified.
"Amortization Date" means the earliest to occur of (i) the
Facility Termination Date, (ii) any Business Day so designated by Originator and
Buyer, (iii) the Business Day immediately prior to the occurrence of an
Amortization Event set forth in Section 5.1(d), (iv) the Business Day specified
in a written notice from Buyer to Originator following the occurrence of any
other Amortization Event, and (v) the date which is thirty (30) days after
Buyer's receipt of written notice from Originator that it wishes to terminate
the facility evidenced by this Agreement.
"Amortization Event" has the meaning set forth in Section 5.1
of the Agreement.
"Applied Collections" has the meaning set forth in Section
1.2(d) of the Agreement.
"Authorized Officer" means, with respect to Originator, its
treasurer, corporate controller or chief financial officer.
"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 the corporate base
rate, prime rate or base rate of interest, as applicable, announced by the Bank
One, NA (Main Office Chicago) from time to time, changing when and as such rate
changes.
"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.
"Buyer" has the meaning set forth in the preamble to the
Agreement.
"Calculation Period" means each calendar month or portion
thereof which elapses during the term of the Agreement. The first Calculation
Period shall commence on the date of the Purchase of Receivables hereunder and
the final Calculation Period shall terminate on the Amortization Date.
"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 Originator.
"Credit and Collection Policy" means Originator's credit and
collection policies and practices relating to Contracts and Receivables existing
on the date hereof and summarized in Exhibit V, as modified from time to time in
accordance with the Agreement.
"Default Fee" means a per annum rate of interest equal to the
sum of (i) the Base Rate, plus (ii) 2% per annum.
"Dilutions" means, at any time, the aggregate amount of
reductions or cancellations described in Section 1.3(a) of the Agreement.
"Discount Factor" means a percentage calculated to provide
Buyer with a reasonable return on its investment in the Receivables after taking
account of (i) the time value of money based upon the anticipated dates of
collection of the Receivables and the cost to Buyer of financing its investment
in the Receivables during such period and (ii) the risk of nonpayment by the
Obligors. Originator and Buyer may agree from time to time to change the
Discount Factor based on changes in one or more of the items affecting the
calculation thereof, provided that any change to the Discount Factor shall take
effect as of the commencement of a Calculation Period, shall apply only
prospectively and shall not affect the Purchase Price payment in respect of
Purchase which occurred during any Calculation Period ending prior to the
Calculation Period during which Originator and Buyer agree to make such change.
"Intended Characterization" means, for income tax purposes,
the characterization of the acquisition by the Purchasers of Purchaser Interests
under the Purchase Agreement as a loan or loans by the Purchasers to Buyer
secured by the Receivables, the Related Security and the Collections.
"Managing Agents" has the meaning set forth in the Preliminary
Statements to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(i) the financial condition or operations of Originator and its Subsidiaries,
(ii) the ability of Originator to perform its obligations under the Agreement or
any other Transaction Document, (iii) the legality, validity or enforceability
of the Agreement or any other Transaction Document, (iv) Originator's, Buyer's,
the Agent's, any Managing Agent's or any Purchaser's interest in the Receivables
generally or in any significant portion of the Receivables, the Related Security
or Collections with respect thereto, or (v) the collectibility of the
Receivables generally or of any material portion of the Receivables.
"Net Worth" means as of the last Business Day of each
Calculation Period preceding any date of determination, the excess, if any, of
(a) the aggregate Outstanding Balance of the Receivables at such time, over (b)
the sum of (i) the aggregate Capital outstanding at such time, plus (ii) the
aggregate outstanding principal balance of the Subordinated Loans (including any
Subordinated Loan proposed to be made on the date of determination).
"Original Balance" means, with respect to any Receivable, the
Outstanding Balance of such Receivable on the date it was purchased by Buyer.
"Originator" has the meaning set forth in the preamble to the
Agreement.
"Potential Amortization Event" means an event which, with the
passage of time or the giving of notice, or both, would constitute an
Amortization Event.
"Purchase" means the purchase under the Agreement by Buyer
from Originator of the Receivables, the Related Security and the Collections
related thereto, together with all related rights in connection therewith.
"Purchase Agreement" has the meaning set forth in the
Preliminary Statements to the Agreement.
"Purchase Price" means, with respect to any Purchase on any
date, the aggregate price to be paid by Buyer to Originator for such Purchase in
accordance with Section 1.2 of the Agreement for the Receivables, Collections
and Related Security being sold to Buyer on such date, which price shall equal
(i) the product of (x) the Original Balance of such Receivables, multiplied by
(y) one minus the Discount Factor then in effect, minus (ii) any Purchase Price
Credits to be credited against the Purchase Price otherwise payable in
accordance with Section 1.3 of the Agreement.
"Purchase Price Credit" has the meaning set forth in Section
1.3 of the Agreement.
"Purchasers" has the meaning set forth in the Preliminary
Statements to the Agreement.
"Receivable" means the indebtedness and other obligations owed
to Originator (without giving effect to any transfer or conveyance under the
Agreement) or Buyer (after giving effect to the transfers under the Agreement)
whether 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 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.
"Related Security" means, with respect to any Receivable:
(i) all of Originator's interest in the Equipment or
other inventory and goods (including returned or repossessed inventory
or goods), if any, the financing or lease of which by Originator gave
rise to such Receivable, and all insurance contracts with respect
thereto,
(ii) 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,
(iii) all guaranties, 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,
(iv) all service contracts and other contracts and
agreements associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all proceeds of any of the foregoing.
"Required Capital Amount" means, as of any date of
determination, an amount equal to 3.5% of the Outstanding Balance of all
Receivables at such time.
"Settlement Date" means the seventeenth day of each calendar
month, or if such day is not a Business Day, the next succeeding Business Day.
"Subordinated Loan" has the meaning set forth in Section
1.2(a) of the Agreement.
"Subordinated Note" means a promissory note in substantially
the form of Exhibit VII hereto as more fully described in Section 1.2 of the
Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Subscription Agreement" means that certain Stockholder and
Subscription Agreement, dated as of October 6, 2000, between Originator and
Buyer, a copy of which is attached hereto as Exhibit VI.
"Subsidiary" of a Person means (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.
"Transaction Documents" means, collectively, this Agreement,
each Collection Account Agreement, the Subordinated Note, the Subscription
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 State of
Illinois.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles. 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.
EXHIBIT II
Places of Business; Locations of Records;
Federal Employer Identification Number(s); Other Names; State of Incorporation;
Organizational Identification Number
Places of Business:
Locations of Records:
Federal Employer Identification Number:
Corporate, Partnership Trade and Assumed Names:
State of Incorporation:
Organizational Identification Number (if any):
EXHIBIT III
Lock-boxes; Collection Accounts; Collection Banks
EXHIBIT IV
Form of Compliance Certificate
This Compliance Certificate is furnished pursuant to that
certain Amended and Restated Receivables Sale Agreement dated as of October 3,
2002, between ANIXTER INC. ("Originator") and ANIXTER RECEIVABLES CORPORATION
("Buyer")(the "Agreement"). Capitalized terms used and not otherwise defined
herein are used with the meanings attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of Originator.
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 Originator 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 a 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 below.
4. 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 Originator 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 _______,
20__.
ANIXTER INC.
By:
------------------------------
Name:
Title:
EXHIBIT V
Credit and Collection Policy
(See attached)
EXHIBIT VI
Copy of Stockholder Subscription Agreement
(See Attached)
Copy of Stockholder Subscription Agreement
STOCKHOLDER AND SUBSCRIPTION AGREEMENT
THIS STOCKHOLDER AND SUBSCRIPTION AGREEMENT (this
"Agreement"), dated as of October 6, 2000, is entered into by and between
ANIXTER RECEIVABLES CORPORATION a Delaware corporation ("SPV"), and ANIXTER
INC., a Delaware corporation ("Parent"). Except as otherwise specifically
provided herein, capitalized terms used in this Agreement have the meanings
ascribed thereto in the Receivables Sale Agreement, dated as of even date
herewith, between SPV and Parent (as amended, restated, supplemented or
otherwise modified from time to time, the "Sale Agreement").
RECITALS
A. SPV has been organized under the laws of the State of
Delaware for the purpose of, among other things, purchasing, holding, financing,
receiving and transferring accounts receivable and related assets originated or
otherwise held by Parent.
B. Contemporaneously with the execution and delivery of this
Agreement: (i) Parent and SPV have entered into the Sale Agreement pursuant to
which Parent has, from and after the initial purchase date thereunder and prior
to the termination date specified therein, sold all of its Receivables,
Collections and Related Security to SPV; and (ii) SPV, Parent, as Servicer,
certain financial institutions party thereto as "Purchasers," and Bank One, NA,
as the "Agent," have entered into a Receivables Purchase Agreement (as amended,
restated, supplemented or otherwise modified from time to time, the "Purchase
Agreement") pursuant to which SPV will sell "Purchaser Interests" to the Agent
for the benefit of the Purchasers.
C. SPV desires to sell shares of its capital stock to Parent,
and Parent desires to purchase such shares, on the terms set forth in this
Agreement.
NOW, THEREFORE, SPV and Parent agree as follows:
Section 1. Purchase and Sale of Capital Stock. Parent hereby
purchases from SPV, and SPV hereby sells to Parent, 1,000 shares of common
stock, par value $0.01 per share, of SPV (the "Common Stock") for the Stock
Purchase Price set forth in Section 2(a). The shares of Common Stock being
purchased under this Agreement are referred to herein as the "Shares." Within
three (3) Business Days from the date hereof, SPV shall deliver to Parent a
certificate registered in Parent's name representing the Shares.
Section 2. Consideration for Shares and Capital Contributions.
(a) Consideration for Shares. To induce SPV to enter into the Sale
Agreement and to enable SPV to fund its obligations thereunder by consummating
the transactions contemplated by
the Purchase Agreement, and in reliance upon the representations and warranties
set forth herein, Parent hereby pays to SPV on the date hereof the sum of
$14,600,000 (the "Stock Purchase Price") in consideration of the purchase of the
Shares. The Stock Purchase Price shall take the form of a transfer of cash,
except that Parent may, in lieu of cash payment of the Stock Purchase Price,
offset the amount of the Stock Purchase Price against the purchase price
otherwise payable by SPV to Parent on the purchase date pursuant to the Sale
Agreement.
(b) Contributions After Initial Closing Date. From time to time Parent
may make additional capital contributions to SPV. All such contributions shall
take the form of a cash transfer, except that SPV agrees, in lieu of cash
payment thereof, to offset the amount of such contributions against the purchase
price for Receivables otherwise payable by SPV to Parent on the date of such
capital contributions. All of the Receivables so paid for through such offset
shall constitute purchased Receivables within the meaning of the Sale Agreement
and shall be subject to all of the representations, warranties and indemnities
otherwise made thereunder. It is expressly understood and agreed that Parent has
no obligations under this Agreement or otherwise to make any capital
contributions from and after payment of the Stock Purchase Price.
Section 3. Representations and Warranties of SPV. SPV
represents and warrants to Parent as follows:
(a) SPV is a corporation duly incorporated validly existing and in good
standing under the laws of the State of Delaware, and has all requisite
corporate power and authority to carry on its business as proposed to be
conducted on the date hereof.
(b) SPV has all requisite legal and corporate power otherwise, to enter
into this Agreement, to issue the Shares and to perform its other obligations
under this Agreement.
(c) Upon receipt by SPV of the Stock Purchase Price and the issuance of
the Shares to Parent, the Shares will be duly authorized, validly issued, fully
paid and nonassessable.
(d) SPV has taken all corporate action necessary for its authorization,
execution and delivery of, and, its performance under, this Agreement.
(e) This Agreement constitutes a legally valid and binding obligation
of SPV, enforceable against SPV in accordance with its terms, except that
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(f) SPV has filed its Certificate of Incorporation in the form attached
hereto as Annex A with the Secretary of State of Delaware and (ii) adopted
By-laws in the form attached hereto as Annex B.
(g) The issuance of the Shares by SPV hereunder is legally permitted by
all laws and regulations to which SPV is subject.
Section 4. Representations and Warranties of Parent. Parent
represents and warrants to SPV as follows:
(a) Parent is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
corporate power and authority to carry on its business as conducted on the date
hereof.
(b) Parent has all requisite legal and corporate power otherwise, to
enter into this Agreement, to purchase the Shares and to perform its other
obligations under this Agreement.
(c) Parent has taken all corporate action necessary for its
authorization, execution and delivery of, and its performance under, this
Agreement.
(d) This Agreement constitutes a legally valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms, except that
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) Parent is purchasing the Shares for investment for its own account,
not as a nominee or agent, and not with a view to any distribution of any part
thereof. Parent has no current intention of selling, granting a participation
in, or otherwise distributing, the shares.
(e) Parent understands that the Shares have not been registered under
the Securities Act of 1933, as amended, or under any other Federal or state law,
and that SPV does not contemplate such a registration.
(f) Parent has such knowledge, sophistication and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the transactions contemplated by this Agreement, and has made such
investigations in connection herewith as have been deemed necessary or desirable
to make such evaluation.
(g) The purchase of the Shares by Parent is legally permitted by all
laws and regulations to which Parent is subject.
Section 5. Restrictions on Transfer Imposed by the Act;
Legend.
(a) Legend. Each certificate representing any Shares shall be endorsed
with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT
REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES ACT. SUCH SECURITIES SHALL NOT BE SOLD, PLEDGED,
HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED OR DISPOSED OF ABSENT
SUCH REGISTRATION, UNLESS, IN THE OPINION OF THE CORPORATION'S COUNSEL,
SUCH REGISTRATION IS NOT REQUIRED. IN ADDITION, THESE SECURITIES HAVE
BEEN ISSUED OR SOLD IN RELIANCE ON SECTION 4(2) OF THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A
TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER SUCH ACT.
(b) Registration of Transfers. SPV need not register a transfer of any
Shares unless the conditions specified in the legend set forth in Section 5(a)
hereof are satisfied. SPV may also instruct its transfer agent (which may be
SPV) not to register the transfer of any Shares unless the conditions specified
in the legend set forth in Section 5(a) hereof are satisfied.
Section 6. Agreement to Vote. Parent hereby agrees and
covenants to vote all of the shares of Common Stock now or hereafter owned by
it, whether beneficially or otherwise, as is necessary at a meeting of
stockholders of SPV, or by written consent in lieu of any such meeting, to cause
to be elected to, and maintained on, SPV's board of directors at least one (1)
person meeting the qualifications of an Independent Director and selected in
accordance with the provisions of the Certificate of Incorporation and By-Laws
of SPV.
Section 7. Successors and Assigns. Each party agrees that it
will not assign, sell, transfer, delegate, or otherwise dispose of, whether
voluntarily or involuntarily, or by operation of law, any right or obligation
under this Agreement except in connection with a transfer of Shares in
compliance with the terms and conditions hereof, as contemplated by Section 5(b)
above, or otherwise in accordance with the terms hereof. Any purported
assignment, transfer or delegation in violation of this Section 7 shall be null
and void ab initio. Subject to the foregoing limits on assignment and delegation
and except as otherwise provided herein, this Agreement shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
legatees, executors, administrators, assignees and legal successors.
Section 8. Amendments and Waivers. Any term hereof may be
amended and the observance of any term hereof may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of SPV and Parent. Any amendment or waiver so effected shall
be binding upon SPV and Parent.
Section 9. Further Acts. Each party agrees to perform any
further acts and execute and deliver any document which may be reasonably
necessary to carry out the provisions of this Agreement.
Section 10. Counterparts. This Agreement may be executed in
any number of counterparts, and all of such counterparts together will be deemed
one instrument.
Section 11. Notices. Any and all notices, acceptances,
statements and other communications to Parent in connection herewith shall be in
writing, delivered personally, by facsimile or certified mail, return receipt
requested, and shall be addressed to the address of Parent indicated on the
stock transfer register of SPV or, if no address is so indicated, to the address
provided to SPV pursuant to the Sale Agreement unless changed by written notice
to SPV or its successor.
Section 12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS, EXCEPT
AND TO THE EXTENT THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE IS
APPLICABLE.
Section 13. Entire Agreement. This Agreement, together with
the Sale Agreement and the documents expressly to be delivered in connection
therewith, constitute the entire understanding and agreement between the parties
hereto with subject matter hereof and thereof.
Section 14. Severability of this Agreement. In case any
provision of this Agreement shall be invalid or unenforceable, the validity,
legality and enforceability of the remaining shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first above written.
ANIXTER RECEIVABLES CORPORATION
By:
--------------------------------
Name:
Title:
ANIXTER INC.
By:
--------------------------------
Name:
Title:
ANNEX A
to Subscription Agreement
Certificate of Incorporation
(see attached)
ANNEX B
to Subscription Agreement
By-Laws
(see attached)
EXHIBIT VII
Form of Amended and Restated Subordinated Note
AMENDED AND RESTATED SUBORDINATED NOTE
October 3, 2002
1. Note. FOR VALUE RECEIVED, the undersigned, ANIXTER
RECEIVABLES CORPORATION, a Delaware corporation ("SPV"), hereby unconditionally
promises to pay to the order of ANIXTER INC., a Delaware corporation
("Originator"), in lawful money of the United States of America and in
immediately available funds, on the date following the Amortization Date which
is one year and one day after the date on which (i) the Outstanding Balance of
all Receivables sold under the "Sale Agreement" referred to below has been
reduced to zero and (ii) Originator has paid to the Buyer all indemnities,
adjustments and other amounts which may be owed thereunder in connection with
the Purchases (the "Collection Date"), the aggregate unpaid principal sum
outstanding of all "Subordinated Loans" made from time to time by Originator to
SPV pursuant to and in accordance with the terms of that certain Amended and
Restated Receivables Sale Agreement dated as of October 3, 2002 between
Originator and SPV (as amended, restated, supplemented or otherwise modified
from time to time, the "Sale Agreement"). Reference to Section 1.2 of the Sale
Agreement is hereby made for a statement of the terms and conditions under which
the loans evidenced hereby have been and will be made. All terms which are
capitalized and used herein and which are not otherwise specifically defined
herein shall have the meanings ascribed to such terms in the Sale Agreement.
2. Interest. SPV further promises to pay interest on the
outstanding unpaid principal amount hereof from the date hereof until payment in
full hereof at a rate equal to the Base Rate less 1.50% per annum; provided,
however, that if SPV shall default in the payment of any principal hereof, SPV
promises to pay, on demand, interest at the rate of the Base Rate plus 0.50% per
annum on any such unpaid amounts, from the date such payment is due to the date
of actual payment. Interest shall be payable on the first Business Day of each
month in arrears; provided, however, that SPV may elect on the date any interest
payment is due hereunder to defer such payment and upon such election the amount
of interest due but unpaid on such date shall constitute principal under this
Amended and Restated Subordinated Note. The outstanding principal of any loan
made under this Amended and Restated Subordinated Note shall be due and payable
on the Collection Date and may be repaid or prepaid at any time without premium
or penalty.
3. Principal Payments. Originator is authorized and directed
by SPV to enter on the grid attached hereto, or, at its option, in its books and
records, the date and amount of each
loan made by it which is evidenced by this Amended and Restated Subordinated
Note and the amount of each payment of principal made by SPV, and absent
manifest error, such entries shall constitute prima facie evidence of the
accuracy of the information so entered; provided that neither the failure of
Originator to make any such entry or any error therein shall expand, limit or
affect the obligations of SPV hereunder.
4. Subordination. The indebtedness evidenced by this Amended
and Restated Subordinated Note is subordinated to the prior payment in full of
all of SPV's recourse obligations under that certain Amended and Restated
Receivables Purchase Agreement dated as of October 3, 2002 by and among SPV,
Originator, as Servicer, various "Purchasers", "Financial Institutions" and
"Managing Agents" from time to time party thereto, and Bank One, NA, as the
"Agent" (as amended, restated, supplemented or otherwise modified from time to
time, the "Purchase Agreement"). The subordination provisions contained herein
are for the direct benefit of, and may be enforced by, the Agent and the
Purchasers and/or any of their respective assignees (collectively, the "Senior
Claimants") under the Purchase Agreement. Until the date on which all "Capital"
outstanding under the Purchase Agreement has been repaid in full and all other
obligations of SPV and/or the Servicer thereunder and under the "Fee Letter"
referenced therein (all such obligations, collectively, the "Senior Claim") have
been indefeasibly paid and satisfied in full, Originator shall not demand,
accelerate, ▇▇▇ for, take, receive or accept from SPV, directly or indirectly,
in cash or other property or by set-off or any other manner (including, without
limitation, from or by way of collateral) any payment or security of all or any
of the indebtedness under this Subordinated Note or exercise any remedies or
take any action or proceeding to enforce the same; provided, however, that (i)
Originator hereby agrees that it will not institute against SPV any proceeding
of the type described in Section 5.1(d) of the Sale Agreement unless and until
the Collection Date has occurred and (ii) nothing in this paragraph shall
restrict SPV from paying, or Originator from requesting, any payments under this
Subordinated Note so long as SPV is not required under the Purchase Agreement to
set aside for the benefit of, or otherwise pay over to, the funds used for such
payments to any of the Senior Claimants and further provided that the making of
such payment would not otherwise violate the terms and provisions of the
Purchase Agreement. Should any payment, distribution or security or proceeds
thereof be received by Originator in violation of the immediately preceding
sentence, Originator agrees that such payment shall be segregated, received and
held in trust for the benefit of, and deemed to be the property of, and shall be
immediately paid over and delivered to the Agent for the benefit of the Senior
Claimants.
5. Bankruptcy; Insolvency. Upon the occurrence of any
proceeding of the type described in Section 5.1(d) of the Sale Agreement
involving SPV as debtor, then and in any such event the Senior Claimants shall
receive payment in full of all amounts due or to become due on or in respect of
Capital and the Senior Claim (including "Yield" as defined and as accruing under
the Purchase Agreement after the commencement of any such proceeding, whether or
not any or all of such Yield is an allowable claim in any such proceeding)
before Originator is entitled to
receive payment on account of this Subordinated Note, and to that end, any
payment or distribution of assets of SPV of any kind or character, whether in
cash, securities or other property, in any applicable insolvency proceeding,
which would otherwise be payable to or deliverable upon or with respect to any
or all indebtedness under this Amended and Restated Subordinated Note, is hereby
assigned to and shall be paid or delivered by the Person making such payment or
delivery (whether a trustee in bankruptcy, a receiver, custodian or liquidating
trustee or otherwise) directly to the Agent for application to, or as collateral
for the payment of, the Senior Claim until such Senior Claim shall have been
paid in full and satisfied.
6. Amendments. This Amended and Restated Subordinated Note
shall not be amended or modified except in accordance with Section 7.1 of the
Sale Agreement. The terms of this Amended and Restated Subordinated Note may not
be amended or otherwise modified without the prior written consent of each
Managing Agent for the benefit of the Purchasers.
7. GOVERNING LAW. THIS AMENDED AND RESTATED SUBORDINATED NOTE
HAS BEEN MADE AND DELIVERED AT CHICAGO,
ILLINOIS, AND SHALL BE INTERPRETED AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH
THE LAWS AND DECISIONS OF THE STATE OF
ILLINOIS. WHEREVER POSSIBLE EACH
PROVISION OF THIS AMENDED AND RESTATED SUBORDINATED NOTE SHALL BE INTERPRETED IN
SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS SUBORDINATED NOTE SHALL BE PROHIBITED BY OR INVALID UNDER
APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION
OR THE REMAINING PROVISIONS OF THIS SUBORDINATED NOTE.
8. Waivers. All parties hereto, whether as makers, endorsers,
or otherwise, severally waive presentment for payment, demand, protest and
notice of dishonor. Originator additionally expressly waives all notice of the
acceptance by any Senior Claimant of the subordination and other provisions of
this Amended and Restated Subordinated Note and expressly waives reliance by any
Senior Claimant upon the subordination and other provisions herein provided.
9. Assignment. This Amended and Restated Subordinated Note may
not be assigned, pledged or otherwise transferred to any party other than
Originator without the prior written consent of each Managing Agent, and any
such attempted transfer shall be void.
10. No Novation. It is expressly understood and agreed by the
SPV that (i) the principal balance of this Amended and Restated Subordinated
Note includes a portion of the SPV's indebtedness hitherto evidenced by that
certain Amended and Restated Subordinated Note
dated as of October 3, 2000 (the "Existing Note"), and (ii) to the extent such
indebtedness is included in the principal balance of this Amended and Restated
Subordinated Note, this Amended and Restated Subordinated Note (a) merely
re-evidences such indebtedness, (b) is given in partial substitution for, and
not in payment of, the Existing Note and (c) is in no way intended to constitute
a novation of the Existing Note. The unpaid principal balance of the
indebtedness hitherto evidenced by the Existing Note and now evidenced by this
Amended and Restated Subordinated Note shall continue to be secured pursuant to
the terms of the Sale Agreement.
ANIXTER RECEIVABLES CORPORATION
By:
--------------------------------
Name:
Title:
Schedule
to
SUBORDINATED NOTE
SUBORDINATED LOANS AND PAYMENTS OF PRINCIPAL
Amount of Amount of Unpaid
Subordinated Principal Principal Notation
Date Loan Paid Balance made by
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SCHEDULE A
DOCUMENTS TO BE DELIVERED TO BUYER
ON OR PRIOR TO THE PURCHASE
(See Attached.)