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ARTICLE I
PURCHASE ARRANGEMENTS........................................................................1
Section 1.1 Purchase Facility............................................................1
Section 1.2 Increases....................................................................2
Section 1.3 Decreases....................................................................3
Section 1.4 Payment Requirements.........................................................3
ARTICLE II
PAYMENTS AND COLLECTIONS.....................................................................3
Section 2.1 Payments.....................................................................3
Section 2.2 Collections Prior to Amortization............................................4
Section 2.3 Collections Following Amortization...........................................5
Section 2.4 Application of Collections...................................................5
Section 2.5 Payment Recission............................................................5
Section 2.6 Maximum Purchaser Interests..................................................6
Section 2.7 Clean Up Call................................................................6
ARTICLE III
COMPANY FUNDING..............................................................................6
Section 3.1 CP Costs.....................................................................6
Section 3.2 CP Costs Payments............................................................6
Section 3.3 Calculation of CP Costs......................................................6
ARTICLE IV
FINANCIAL INSTITUTION FUNDING................................................................7
Section 4.1 Financial Institution Funding................................................7
Section 4.2 Yield Payments...............................................................7
Section 4.3 Selection and Continuation of Tranche Periods................................7
Section 4.4 Financial Institution Discount Rates.........................................7
Section 4.5 Suspension of the LIBO Rate..................................................8
ARTICLE V
REPRESENTATIONS AND WARRANTIES...............................................................8
Section 5.1 Representations and Warranties of The Seller Parties.........................8
Section 5.2 Financial Institution Representations and Warranties........................12
ARTICLE VI
CONDITIONS OF PURCHASES.....................................................................13
Section 6.1 Conditions Precedent to Initial Incremental Purchase........................13
Section 6.2 Conditions Precedent to All Purchases and Reinvestments.....................13
ARTICLE VII
COVENANTS...................................................................................14
Section 7.1 Affirmative Covenants of The Seller Parties.................................14
Section 7.2 Negative Covenants of The Seller Parties....................................21
ARTICLE VIII
ADMINISTRATION AND COLLECTION...............................................................22
Section 8.1 Designation of Servicer.....................................................22
Section 8.2 Duties of Servicer..........................................................23
Section 8.3 Collection Notices..........................................................24
Section 8.4 Responsibilities of Seller..................................................24
Section 8.5 Reports.....................................................................25
Section 8.6 Servicing Fees..............................................................25
ARTICLE IX
AMORTIZATION EVENTS.........................................................................25
Section 9.1 Amortization Events.........................................................25
Section 9.2 Remedies....................................................................26
ARTICLE X
INDEMNIFICATION.............................................................................27
Section 10.1 Indemnities by The Seller Parties...........................................27
Section 10.2 Increased Cost and Reduced Return...........................................29
Section 10.3 Other Costs and Expenses....................................................30
ARTICLE XI
THE AGENT...................................................................................30
Section 11.1 Authorization and Action....................................................30
Section 11.2 Delegation of Duties........................................................31
Section 11.3 Exculpatory Provisions......................................................31
Section 11.4 Reliance by Agent...........................................................31
Section 11.5 Non-Reliance on Agent and Other Purchasers..................................32
Section 11.6 Reimbursement and Indemnification...........................................32
Section 11.7 Agent in its Individual Capacity............................................32
Section 11.8 Successor Agent.............................................................32
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS.................................................................33
Section 12.1 Assignments.................................................................33
Section 12.2 Participations..............................................................34
ARTICLE XIII
LIQUIDITY FACILITY..........................................................................34
Section 13.1 Transfer to Financial Institutions..........................................34
Section 13.2 Transfer Price Reduction Yield..............................................34
Section 13.3 Payments to Company.........................................................35
Section 13.4 Limitation on Commitment to Purchase from Company...........................35
Section 13.5 Defaulting Financial Institutions...........................................35
Section 13.6 Terminating Financial Institutions..........................................36
ARTICLE XIV
MISCELLANEOUS...............................................................................37
Section 14.1 Waivers and Amendments......................................................37
Section 14.2 Notices.....................................................................38
Section 14.3 Ratable Payments............................................................38
Section 14.4 Protection of Ownership Interests of the Purchasers.........................38
Section 14.5 Confidentiality.............................................................39
Section 14.6 Bankruptcy Petition.........................................................39
Section 14.7 Limitation of Liability.....................................................40
Section 14.8 CHOICE OF LAW...............................................................40
Section 14.9 CONSENT TO JURISDICTION.....................................................40
Section 14.10 WAIVER OF JURY TRIAL........................................................40
Section 14.11 Integration; Binding Effect; Survival of Terms..............................41
Section 14.12 Counterparts; Severability; Section References..............................41
Section 14.13 Bank One Roles..............................................................41
Section 14.14 Characterization............................................................41
Exhibits and Schedules
Exhibit I Definitions
Exhibit II Form of Purchase Notice
Exhibit III Places of Business of the Seller Parties; Locations
of Records; Federal Employer Identification Number(s)
Exhibit IV Names of Collection Banks; Collection Accounts
Exhibit V Form of Compliance Certificate
Exhibit VI Form of Collection Account Agreement
Exhibit VII Form of Assignment Agreement
Exhibit VIII Credit and Collection Policy
Exhibit IX Form of Contract(s)
Exhibit X Form of Monthly Report
Schedule A Commitments
Schedule B Closing Documents
Page 4
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
dated as of October 6, 2000
Among
ANIXTER RECEIVABLES CORPORATION, as Seller,
ANIXTER INC., as Servicer,
FALCON ASSET SECURITIZATION CORPORATION,
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Financial Institutions
and
BANK ONE, NA,
as Agent
41
ANIXTER RECEIVABLES CORPORATION
RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement dated as of October 6, 2000 is
among Anixter Receivables Corporation, a Delaware corporation ("Seller"),
Anixter Inc., a Delaware corporation ("Anixter"), as initial Servicer (Anixter,
together with Seller, the "Seller Parties" and each a "Seller Party"), the
entities listed on Schedule A to this Agreement (together with any of their
respective successors and assigns hereunder, the "Financial Institutions"),
Falcon Asset Securitization Corporation ("Company") and Bank One, NA, as agent
for the Purchasers hereunder or any successor agent hereunder (together with its
successors and assigns hereunder, the "Agent"). Unless defined elsewhere herein,
capitalized terms used in this Agreement shall have the meanings assigned to
such terms in Exhibit I.
PRELIMINARY STATEMENTS
Seller desires to transfer and assign Purchaser Interests to the
Purchasers from time to time.
Company may, in its absolute and sole discretion, purchase Purchaser
Interests from Seller from time to time.
In the event that Company declines to make any purchase, the Financial
Institutions shall, at the request of Seller, purchase Purchaser Interests from
time to time. In addition, the Financial Institutions have agreed to provide a
liquidity facility to Company in accordance with the terms hereof.
Bank One, NA has been requested and is willing to act as Agent on
behalf of Company and the Financial Institutions in accordance with the terms
hereof.
ARTICLE I
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility
(a) Upon the terms and subject to the conditions hereof, Seller may, at its
option, sell and assign Purchaser Interests to the Agent for the benefit of one
or more of the Purchasers. In accordance with the terms and conditions set forth
herein, Company may, at its option, instruct the Agent to purchase on behalf of
Company, or if Company shall decline to purchase, the Agent shall purchase, on
behalf of the Financial Institutions, Purchaser Interests from time to time in
an aggregate amount not to exceed at such time the lesser of (i) the Purchase
Limit and (ii) the aggregate amount of the Back-up Commitments, during the
period from the date hereof to but not including the Facility Termination Date;
provided, that at no time shall a Purchaser Interest be purchased for a
Financial Institution pursuant to this Section 1.1(a) if the Capital allocated
to the Financial Institution with respect to such Purchaser Interest would
exceed such Financial Institution's Unused Back-up Commitment at such time.
(b) Seller may, upon at least 30 days' notice to the Agent, terminate in whole
or reduce in part, ratably among the Financial Institutions based on the amount
of their Back-up Commitments, the Unused Purchase Limit; provided that each
partial reduction of the Purchase Limit shall be in an amount equal to
$5,000,000 or an integral multiple thereof. Each Financial Institution's Back-up
Commitment and Liquidity Commitment shall be reduced by its ratable share of
each reduction in the Purchase Limit.
Section 1.2 Increases.
Seller shall provide the Agent with at least three (3)
Business Days' prior notice in a form set forth as Exhibit II hereto of each
Incremental Purchase (a "Purchase Notice"). Each Purchase Notice shall be
subject to Section 6.2 hereof and, except as set forth below, shall be
irrevocable and shall specify the requested Purchase Price (which shall not be
less than $1,000,000) and date of purchase (which, in the case of any
Incremental Purchase (after the initial Incremental Purchase hereunder), shall
only be on a Monthly Settlement Date) and, in the case of an Incremental
Purchase to be funded by the Financial Institutions, the requested Discount Rate
and Tranche Period. Following receipt of a Purchase Notice, the Agent will
determine whether Company agrees to make the purchase. If Company declines to
make a proposed purchase, Seller may cancel the Purchase Notice or, in the
absence of such a cancellation, the Incremental Purchase of the Purchaser
Interest will be made by the Financial Institutions. On the date of each
Incremental Purchase, upon satisfaction of the applicable conditions precedent
set forth in Article VI, Company or the Financial Institutions, as applicable,
shall deposit to the Facility Account, in immediately available funds, no later
than 12:00 noon (Chicago time), an amount equal to (i) in the case of Company,
the aggregate Purchase Price of the Purchaser Interests Company is then
purchasing or (ii) in the case of a Financial Institution, such Financial
Institution's Back-up Pro Rata Share of the aggregate Purchase Price of the
Purchaser Interests the Financial Institutions are purchasing. In the case of an
Incremental Purchase to be made by the Financial Institutions, if one or more of
the Financial Institutions defaults in its obligation to fund its Back-up Pro
Rata Share of the aggregate Purchase Price of the Purchaser Interests to be
purchased (each such Financial Institution shall be called a "Section 1.2
Defaulting Financial Institution" and the aggregate amount of such defaulted
obligations being herein called the "Purchase Price Deficit"), then upon notice
from the Agent, each Financial Institution other than the Section 1.2 Defaulting
Financial Institutions (a "Section 1.2 Non-Defaulting Financial Institution")
shall promptly pay to the Agent, in immediately available funds, an amount equal
to the lesser of (x) such Section 1.2 Non-Defaulting Financial Institution's
proportionate share (based upon the relative Back-up Commitments of the Section
1.2 Non-Defaulting Financial Institutions) of the Purchase Price Deficit and (y)
such Section 1.2 Non-Defaulting Financial Institution's Unused Back-up
Commitment. A Section 1.2 Defaulting Financial Institution shall forthwith upon
demand pay to the Agent for the account of the Section 1.2 Non-Defaulting
Financial Institutions all amounts paid by each Section 1.2 Non-Defaulting
Financial Institution on behalf of such Section 1.2 Defaulting Financial
Institution, together with interest thereon, for each day from the date a
payment was made by a Section 1.2 Non-Defaulting Financial Institution until the
date such Section 1.2 Non-Defaulting Financial Institution has been paid such
amounts in full, at a rate per annum equal to the Federal Funds Effective Rate
plus two percent (2%). In addition, without prejudice to any other rights that
Seller may have under applicable law, each Section 1.2 Defaulting Financial
Institution shall pay to Seller forthwith upon demand, the difference between
such Section 1.2 Defaulting Financial Institution's unpaid Purchase Price and
the amount paid with respect thereto by the Section 1.2 Non-Defaulting Financial
Institutions, together with interest thereon, for each day from the date of the
Agent's request for such Section 1.2 Defaulting Financial Institution's Back-up
Pro Rata Share of the Purchase Price pursuant to this Section 1.2 until the date
the requisite amount is paid to Seller in full, at a rate per annum equal to the
Federal Funds Effective Rate plus two percent (2%).
Section 1.3 Decreases. Seller shall provide the Agent with at least three (3)
Business Days prior written notice (a "Reduction Notice") of any proposed
reduction of Aggregate Capital from Collections. Such Reduction Notice shall
designate (i) the date (the "Proposed Reduction Date") upon which any such
reduction of Aggregate Capital shall occur, which must be a Monthly Settlement
Date unless otherwise consented to by the Agent (which consent shall not be
unreasonably withheld), and (ii) the amount of Aggregate Capital to be reduced
which shall be applied ratably to the Purchaser Interests of Company and the
Financial Institutions in accordance with the amount of Capital (if any) owing
to Company, on the one hand, and the amount of Capital (if any) owing to the
Financial Institutions (ratably, based on the amount of Capital owing to each
Financial Institution), on the other hand (the "Aggregate Reduction"). Only one
(1) Reduction Notice shall be outstanding at any time.
Section 1.4 Payment Requirements. All amounts to be paid or deposited by any
Seller Party pursuant to any provision of this Agreement shall be paid or
deposited in accordance with the terms hereof no later than 11:00 a.m. (Chicago
time) on the day when due in immediately available funds, and if not received
before 11:00 a.m. (Chicago time) shall be deemed to be received on the next
succeeding Business Day. If such amounts are payable to a Purchaser they shall
be paid to the Agent, for the account of such Purchaser, at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ until otherwise notified in writing by the Agent. Upon
notice to Seller, the Agent may debit the Facility Account for all amounts due
and payable hereunder. All computations of Yield, per annum fees calculated as
part of any CP Costs, per annum fees hereunder and per annum fees under the Fee
Letter shall be made on the basis of a year of 360 days for the actual number of
days elapsed. If any amount hereunder shall be payable on a day which is not a
Business Day, such amount shall be payable on the next succeeding Business Day.
ARTICLE II
PAYMENTS AND COLLECTIONS
Section 2.1 Payments. Notwithstanding any limitation on recourse contained in
this Agreement, Seller shall immediately pay to the Agent when due, for the
account of the relevant Purchaser or Purchasers on a full recourse basis, (i)
such fees as set forth in the Fee Letter (which fees shall be sufficient to pay
all fees owing to the Financial Institutions), (ii) all CP Costs, (iii) all
amounts payable as Yield, (iv) all amounts payable as Deemed Collections (which
shall be immediately due and payable by Seller and applied to reduce outstanding
Aggregate Capital hereunder in accordance with Sections 2.2 and 2.3 hereof), (v)
all amounts payable pursuant to Section 2.6, (vi) all amounts payable pursuant
to Article X, if any, (vii) all Servicer costs and expenses, including the
Servicing Fee, in connection with servicing, administering and collecting the
Receivables, (viii) all Broken Funding Costs and (ix) all Default Fees
(collectively, the "Obligations"). If any Person fails to pay any of the
Obligations when due, such Person agrees to pay, on demand, the Default Fee in
respect thereof until paid. Notwithstanding the foregoing, no provision of this
Agreement or the Fee Letter shall require the payment or permit the collection
of any amounts hereunder in excess of the maximum permitted by applicable law.
If at any ▇▇▇▇ ▇▇▇▇▇▇ receives any Collections or is deemed to receive any
Collections, Seller shall immediately pay such Collections or Deemed Collections
to the Servicer for application in accordance with the terms and conditions
hereof and, at all times prior to such payment, such Collections or Deemed
Collections shall be held in trust by Seller for the exclusive benefit of the
Purchasers and the Agent.
Section 2.2 Collections Prior to Amortization. Prior to the Amortization Date,
any Collections and/or Deemed Collections received by the Servicer shall be set
aside and held in trust by the Servicer for the payment of any accrued and
unpaid Aggregate Unpaids or for a Reinvestment as provided in this Section 2.2.
If at any time any Collections are received by the Servicer prior to the
Amortization Date, (i) the Servicer shall set aside the Termination Percentage
(hereinafter defined) of Collections evidenced by the Purchaser Interests of
each Terminating Financial Institution and (ii) Seller hereby requests and the
Purchasers (other than any Terminating Financial Institutions) hereby agree to
make, simultaneously with such receipt, a reinvestment (each a "Reinvestment")
with a portion of the balance of each and every Collection received by the
Servicer or Deemed Collection that is part of any Purchaser Interest (other than
any Purchaser Interests of Terminating Financial Institutions), such that after
giving effect to such Reinvestment, the amount of Capital of such Purchaser
Interest immediately after such receipt and corresponding Reinvestment shall be
equal to the amount of Capital immediately prior to such receipt. On each
Settlement Date prior to the occurrence of the Amortization Date, the Servicer
shall remit to the Agent's account the amounts set aside during the preceding
Settlement Period that have not been subject to a Reinvestment and apply such
amounts (if not previously paid in accordance with Section 2.1) first, to reduce
unpaid Obligations and second, to reduce the Capital of all Purchaser Interests
of Terminating Financial Institutions, applied ratably to each Terminating
Financial Institution according to its respective Termination Percentage. If
such Capital, and other Obligations shall be reduced to zero, any additional
Collections received by the Servicer (i) if applicable, shall be remitted to the
Agent's account no later than 11:00 a.m. (Chicago time) to the extent required
to fund any Aggregate Reduction on such Settlement Date and (ii) any balance
remaining thereafter shall be remitted from the Servicer to Seller on such
Settlement Date. Each Terminating Financial Institution shall be allocated a
ratable portion of Collections from the date of any assignment by Company
pursuant to Section 13.6 (the "Termination Date") until such Terminating
Financing Institution's Capital shall be paid in full. This ratable portion
shall be calculated on the Termination Date of each Terminating Financial
Institution as a percentage equal to (i) Capital of such Terminating Financial
Institution outstanding on its Termination Date, divided by (ii) the Aggregate
Capital outstanding on such Termination Date (the "Termination Percentage").
Each Terminating Financial Institution's Termination Percentage shall remain
constant prior to the Amortization Date. On and after the Amortization Date,
each Termination Percentage shall be disregarded, and each Terminating Financial
Institution's Capital shall be reduced ratably with all Financial Institutions
in accordance with Section 2.3.
Section 2.3 Collections Following Amortization. On the Amortization Date and on
each day thereafter, the Servicer shall set aside and hold in trust, for the
holder of each Purchaser Interest, all Collections received on such day and an
additional amount of funds of the Seller for the payment of any accrued and
unpaid Obligations owed by Seller and not previously paid by Seller in
accordance with Section 2.1. On and after the Amortization Date, the Servicer
shall, at any time upon the request from time to time by (or pursuant to
standing instructions from) the Agent (i) remit to the Agent's account the
amounts set aside pursuant to the preceding sentence, and (ii) apply such
amounts to reduce the Capital associated with each such Purchaser Interest and
any other Aggregate Unpaids.
Section 2.4 Application of Collections. If there shall be insufficient funds on
deposit for the Servicer to distribute funds in payment in full of the
aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable), the
Servicer shall distribute funds:
first, to the payment of the Servicer's reasonable out-of-pocket costs and
expenses in connection with servicing, administering and collecting the
Receivables, including the Servicing Fee, if Seller or one of its Affiliates is
not then acting as the Servicer,
second, to the reimbursement of the Agent's reasonable costs of collection
and enforcement of this Agreement,
third, ratably to the payment of all accrued and unpaid fees under the Fee
Letter, CP Costs payable under Article III and Yield payable under Article IV,
fourth, (to the extent applicable) to the ratable reduction of the
Aggregate Capital (without regard to any Termination Percentage),
fifth, for the ratable payment of all other unpaid Obligations, provided
that to the extent such Obligations relate to the payment of Servicer costs and
expenses, including the Servicing Fee, when Seller or one of its Affiliates is
acting as the Servicer, such costs and expenses will not be paid until after the
payment in full of all other Obligations, and
sixth, after the Aggregate Unpaids have been indefeasibly reduced to zero,
to Seller.
Collections applied to the payment of Aggregate Unpaids shall be distributed in
accordance with the aforementioned provisions, and, giving effect to each of the
priorities set forth in this Section 2.4 above, shall be shared ratably (within
each priority) among the Agent and the Purchasers in accordance with the amount
of such Aggregate Unpaids owing to each of them in respect of each such
priority.
Section 2.5 Payment Recission. No payment of any of the Aggregate Unpaids shall
be considered paid or applied hereunder to the extent that, at any time, all or
any portion of such payment or application is rescinded by application of law or
judicial authority, or must otherwise be returned or refunded for any reason.
Seller shall remain obligated for the amount of any payment or application so
rescinded, returned or refunded, and shall promptly pay to the Agent (for
application to the Person or Persons who suffered such recission, return or
refund) the full amount thereof, plus the Default Fee from the date of any such
recission, return or refunding.
Section 2.6 Maximum Purchaser Interests. Seller shall ensure that the Purchaser
Interests of the Purchasers shall at no time exceed in the aggregate 100%. If
the aggregate of the Purchaser Interests of the Purchasers exceeds 100%, Seller
shall pay to the Agent within three (3) Business Days of Seller's knowledge
thereof, an amount to be applied to reduce the Aggregate Capital (as allocated
by the Agent), such that after giving effect to such payment the aggregate of
the Purchaser Interests equals or is less than 100%.
Section 2.7 Clean Up Call. In addition to Seller's rights pursuant to Section
1.3, Seller shall have the right (after providing three (3) Business Days'
written notice to the Agent), at any time following the reduction of the
Aggregate Capital to a level that is less than ten percent (10.00%) of the
original Purchase Limit, to repurchase from the Purchasers all, but not less
than all, of the then outstanding Purchaser Interests. The purchase price in
respect thereof shall be an amount equal to the Aggregate Unpaids through the
date of such repurchase, payable in immediately available funds. Such repurchase
shall be without representation, warranty or recourse of any kind by, on the
part of, or against any Purchaser or the Agent.
ARTICLE III
COMPANY FUNDING
Section 3.1 CP Costs. Seller shall pay CP Costs with respect to the Capital
associated with each Purchaser Interest of Company for each day that any Capital
in respect of such Purchaser Interest is outstanding. Each Purchaser Interest
funded substantially with Pooled Commercial Paper will accrue CP Costs each day
on a pro rata basis, based upon the percentage share the Capital in respect of
such Purchaser Interest represents in relation to all assets held by Company and
funded substantially with Pooled Commercial Paper.
Section 3.2 CP Costs Payments. On each Monthly Settlement Date, Seller shall pay
to the Agent (for the benefit of Company) an aggregate amount equal to all
accrued and unpaid CP Costs in respect of the Capital associated with all
Purchaser Interests of Company for the immediately preceding Accrual Period in
accordance with Article II.
Section 3.3 Calculation of CP Costs. No later than the third Business Day
immediately preceding each Monthly Settlement Date, Company shall calculate the
aggregate amount of CP Costs for the applicable Accrual Period and shall notify
Seller of such aggregate amount.
ARTICLE IV
FINANCIAL INSTITUTION FUNDING
Section 4.1 Financial Institution Funding. Each Purchaser Interest of the
Financial Institutions shall accrue Yield for each day during its Tranche Period
at either the LIBO Rate or the Base Rate in accordance with the terms and
conditions hereof. Until Seller gives notice to the Agent of another Discount
Rate in accordance with Section 4.4, the initial Discount Rate for any Purchaser
Interest transferred to the Financial Institutions pursuant to the terms and
conditions hereof shall be the Base Rate. If the Financial Institutions acquire
by assignment from Company any Purchaser Interest pursuant to Article XIII, each
Purchaser Interest so assigned shall each be deemed to have a new Tranche Period
commencing on the date of any such assignment.
Section 4.2 Yield Payments. On the Settlement Date for each Purchaser Interest
of the Financial Institutions, Seller shall pay to the Agent (for the benefit of
the Financial Institutions) an aggregate amount equal to the accrued and unpaid
Yield for the entire Tranche Period of each such Purchaser Interest in
accordance with Article II.
Section 4.3 Selection and Continuation of Tranche Periods.
(a) With consultation from (and approval by) the Agent, Seller shall from time
to time request Tranche Periods for the Purchaser Interests of the Financial
Institutions, provided that, if at any time the Financial Institutions shall
have a Purchaser Interest, Seller shall always request Tranche Periods such that
at least one Tranche Period shall end on a Monthly Settlement Date.
(b) Seller or the Agent, upon notice to and consent by the other received at
least three (3) Business Days prior to the end of a Tranche Period (the
"Terminating Tranche") for any Purchaser Interest, may, effective on the last
day of the Terminating Tranche: (i) divide any such Purchaser Interest into
multiple Purchaser Interests, (ii) combine any such Purchaser Interest with one
or more other Purchaser Interests that have a Terminating Tranche ending on the
same day as such Terminating Tranche or (iii) combine any such Purchaser
Interest with a new Purchaser Interests to be purchased on the day such
Terminating Tranche ends, provided, that in no event may a Purchaser Interest of
Company be combined with a Purchaser Interest of the Financial Institutions.
Section 4.4 Financial Institution Discount Rates. Seller may select the LIBO
Rate or the Base Rate for each Purchaser Interest of the Financial Institutions.
Seller shall by 11:00 a.m. (Chicago time): (i) at least three (3) Business Days
prior to the expiration of any Terminating Tranche with respect to which the
LIBO Rate is being requested as a new Discount Rate and (ii) at least one (1)
Business Day prior to the expiration of any Terminating Tranche with respect to
which the Base Rate is being requested as a new Discount Rate, give the Agent
irrevocable notice of the new Discount Rate for the Purchaser Interest
associated with such Terminating Tranche. Agent will, from time to time, at
Seller's request make available non-binding indications of the LIBO Rate for a
new Tranche Period with respect to any Terminating Tranche. Until Seller gives
notice to the Agent of another Discount Rate, the initial Discount Rate for any
Purchaser Interest transferred to the Financial Institutions pursuant to the
terms and conditions hereof shall be the Base Rate.
Section 4.5 Suspension of the LIBO Rate.
(a) If any Financial Institution notifies the Agent that it has determined that
funding its Pro Rata Share of the Purchaser Interests of the Financial
Institutions at a LIBO Rate would violate any applicable law, rule, regulation,
or directive of any governmental or regulatory authority, whether or not having
the force of law, or that (i) deposits of a type and maturity appropriate to
match fund its Purchaser Interests at such LIBO Rate are not available or (ii)
such LIBO Rate does not accurately reflect the cost of acquiring or maintaining
a Purchaser Interest at such LIBO Rate, then the Agent shall suspend the
availability of such LIBO Rate at the end of any then current Tranche Period,
provided that if required by any applicable law, rule, regulation or directive,
any then current Tranche Period for such Purchaser Interest based on the LIBO
Rate shall terminate immediately and a new Tranche Period based on the Base Rate
shall commence.
(b) If less than all of the Financial Institutions give a notice to the Agent
pursuant to Section 4.5(a), each Financial Institution which gave such a notice
shall be obliged, at the request of Seller, Company or the Agent, to assign all
of its rights and obligations hereunder to (i) another Financial Institution or
(ii) another funding entity nominated by Seller or the Agent that is acceptable
to Company and willing to participate in this Agreement through the Liquidity
Termination Date in the place of such notifying Financial Institution; provided
that (i) the notifying Financial Institution receives payment in full, pursuant
to an Assignment Agreement, of an amount equal to such notifying Financial
Institution's Pro Rata Share of the Capital and Yield owing to all of the
Financial Institutions and all accrued but unpaid fees and other costs and
expenses payable in respect of its Pro Rata Share of the Purchaser Interests of
the Financial Institutions, and (ii) the replacement Financial Institution
otherwise satisfies the requirements of Section 12.1(b).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of The Seller Parties. Each Seller
Party hereby represents and warrants to the Agent and the Purchasers, as to
itself, as of the date hereof and as of the date of each Incremental Purchase
and the date of each Reinvestment that:
(a) Corporate Existence and Power. Each Seller Party is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Each Seller Party 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 or so hold could not reasonably be expected to
have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and Delivery. The
execution and delivery by such Seller Party of this Agreement and each other
Transaction Document to which it is a party, and the performance of its
obligations hereunder and thereunder and, in the case of Seller, Seller's use of
the proceeds of purchases 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 such Seller
Party is a party has been duly executed and delivered by such Seller Party.
(c) No Conflict. The execution and delivery by such Seller Party 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 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 such Seller Party or
its Subsidiaries (except as created hereunder), except, in any case, where such
contravention or violation could not be reasonably 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 such Seller Party 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 such Seller Party's knowledge, threatened, against or affecting such
Seller Party, 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.
Anixter 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. The Seller is not in
default with respect to any order of any court, arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other Transaction Document to which
such Seller Party is a party constitute the legal, valid and binding obligations
of such Seller Party enforceable against such Seller Party 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).
(g) Accuracy of Information. All information heretofore furnished by such Seller
Party or any of its Affiliates to the Agent or the Purchasers 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 such Seller Party or any of its Affiliates to the Agent
or the Purchasers 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 any purchase hereunder will be used (i) for
a purpose that violates, or would be inconsistent with, Regulation 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 12, 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) Good Title. Immediately prior to each purchase hereunder, Seller shall be
the legal and beneficial owner of the Receivables and Related Security with
respect thereto, free and clear of any Adverse Claim, except as created by the
Transaction 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 Seller's ownership
interest in each Receivable, its Collections and the Related Security.
(j) Perfection. This Agreement, together with the filing of the financing
statements contemplated hereby, is effective to, and shall, upon each purchase
hereunder, transfer to the Agent for the benefit of the relevant Purchaser or
Purchasers (and the Agent for the benefit of such Purchaser or Purchasers shall
acquire from Seller) a valid and perfected first priority undivided percentage
ownership or security interest in each Receivable existing or hereafter arising
and in 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 the Agent's (on behalf of the Purchasers) ownership or
security interest in the Receivables, the Related Security and the Collections.
(k) Places of Business and Locations of Records. The principal places of
business and chief executive office of such Seller Party and the offices where
it keeps all of its Records are located at the address(es) listed on Exhibit III
or such other locations of which the Agent has been notified in accordance with
Section 7.2(a) in jurisdictions where all action required by Section 14.4(a) has
been taken and completed. Seller's Federal Employer Identification Number is
correctly set forth on Exhibit III.
(l) Collections. The conditions and requirements set forth in Section 7.1(j) and
Section 8.2 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 Seller at each Collection Bank and the post office box
number of each Lock-Box, are listed on Exhibit IV. Seller has not granted any
Person, other than the Agent as contemplated by this Agreement, dominion and
control of any Lock-Box or Collection Account, or the right to take dominion and
control of any such Lock-Box or Collection Account at a future time or upon the
occurrence of a future event.
(m) Material Adverse Effect. (i) The initial Servicer represents and warrants
that since December 31, 1999, no event has occurred that would have a material
adverse effect on the financial condition or operations of the initial Servicer
and its Subsidiaries, taken as a whole, or the ability of the initial Servicer
to perform its obligations under this Agreement, and (ii) Seller represents and
warrants that since the date of this Agreement, no event has occurred that would
have a material adverse effect on (A) the financial condition or operations of
Seller, (B) the ability of Seller to perform its obligations under the
Transaction Documents, or (C) the collectibility of the Receivables generally or
any material portion of the Receivables.
(n) Names. In the past five (5) years, Seller 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 Seller. Originator owns, directly or indirectly, 100% of the
issued and outstanding capital stock of Seller, 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 Seller.
(p) Not a Holding Company or an Investment Company. Such Seller Party 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. Such Seller Party 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. Such Seller Party has complied in all material 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. Such Seller Party 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 7.1(a)(vii).
(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).
(t) Eligible Receivables. Each Receivable included in the Net Receivables
Balance as an Eligible Receivable on the date of its purchase under the
Receivables Sale Agreement was an Eligible Receivable on such purchase date,
and, as of the date of each Monthly Report or any other report delivered
pursuant to Section 8.5, each Receivable included in the Net Receivables Balance
on such Monthly Report or other report was an Eligible Receivable.
(u) Net Receivables Balance. Seller has determined that, immediately after
giving effect to each Incremental Purchase hereunder, the Net Receivables
Balance is at least equal to the sum of (i) the Aggregate Capital, plus (ii) the
Aggregate Reserves.
(v) Accounting. The manner in which each Seller Party accounts for the
transactions contemplated by this Agreement and the Receivables Sale Agreement
does not jeopardize true sale analysis.
Section 5.2 Financial Institution Representations and Warranties.
Each Financial Institution hereby represents and warrants to the Agent and
Company that:
(a) Existence and Power. Such Financial Institution is a corporation or a
banking association duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization, and has all
corporate power to perform its obligations hereunder.
(b) No Conflict. The execution and delivery by such Financial Institution of
this Agreement and the performance of its obligations hereunder are within its
corporate powers, have been duly authorized by all necessary corporate action,
do not contravene or violate (i) its certificate or articles of incorporation or
association 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 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 its assets. This
Agreement has been duly authorized, executed and delivered by such Financial
Institution.
(c) Governmental Authorization. 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 such Financial Institution of
this Agreement and the performance of its obligations hereunder.
(d) Binding Effect. This Agreement constitutes the legal, valid and binding
obligation of such Financial Institution enforceable against such Financial
Institution 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 such enforcement is sought in a
proceeding in equity or at law).
ARTICLE VI
CONDITIONS OF PURCHASES
Section 6.1 Conditions Precedent to Initial Incremental Purchase. The initial
Incremental Purchase of a Purchaser Interest under this Agreement is subject to
the conditions precedent that the Agent shall have received on or before the
date of such purchase those documents listed on Schedule B and the Agent shall
have received all fees and expenses required to be paid on such date pursuant to
the terms of this Agreement and the Fee Letter.
Section 6.2 Conditions Precedent to All Purchases and Reinvestments. Each
purchase of a Purchaser Interest (other than pursuant to Section 13.1) and each
Reinvestment shall be subject to the further conditions precedent that (a) in
the case of each such purchase or Reinvestment: the Servicer shall have
delivered to the Agent on or prior to the date of such purchase, in form and
substance satisfactory to the Agent, all Monthly Reports as and when due under
Section 8.5 and upon the Agent's request, the Servicer shall have delivered to
the Agent at least three (3) Business Days prior to such purchase or
Reinvestment an interim report in the form of a Monthly Report, showing the
amount of Eligible Receivables; (b) the Facility Termination Date shall not have
occurred; (c) the Agent shall have received such other approvals, opinions or
documents as it may reasonably request; and (d) on the date of each such
Incremental Purchase or Reinvestment, the following statements shall be true
(and acceptance of the proceeds of such Incremental Purchase or Reinvestment
shall be deemed a representation and warranty by Seller that such statements are
then true):
(i) the representations and warranties set forth in Section 5.1 are true and
correct on and as of the date of such Incremental Purchase or Reinvestment as
though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from such
Incremental Purchase or Reinvestment, that will constitute an Amortization
Event, and no event has occurred and is continuing, or would result from such
Incremental Purchase or Reinvestment, that would constitute a Potential
Amortization Event; and
(iii) the Aggregate Capital does not exceed the Purchase Limit and the aggregate
Purchaser Interests do not exceed 100%.
It is expressly understood that each Reinvestment shall, unless otherwise
directed by the Agent or any Purchaser, occur automatically on each day that the
Servicer shall receive any Collections without the requirement that any further
action be taken on the part of any Person and notwithstanding the failure of
Seller to satisfy any of the foregoing conditions precedent in respect of such
Reinvestment. The failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of the
Agent, which right may be exercised at any time on demand of the Agent, to
rescind the related purchase and direct Seller to pay to the Agent for the
benefit of the Purchasers an amount equal to the Collections prior to the
Amortization Date that shall have been applied to the affected Reinvestment.
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants of The Seller Parties. Until the date on which
the Aggregate Unpaids have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, each Seller Party hereby covenants, as
to itself, as set forth below:
(a) Financial Reporting. Such Seller Party will maintain, for itself and
each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish or cause to be
furnished to the Agent:
(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 Anixter and its consolidated
Subsidiaries for such fiscal year certified in a manner acceptable to
the Agent by ▇▇▇▇▇ & ▇▇▇▇▇ or other independent public accountants
reasonably acceptable to the Agent.
(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 Anixter and its consolidated Subsidiaries as at the close of
each such period and statements of income and retained earnings and a
statement of cash flows for Anixter and its consolidated Subsidiaries
for the period from the beginning of such fiscal year to the end of
such quarter, all certified by its respective chief financial officer
or treasurer.
(iii) Compliance Certificate. Together with the financial statements required
hereunder, a compliance certificate in substantially the form of
Exhibit V signed by such Seller Party's Authorized Officer on behalf of
such Seller Party 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 such Seller Party 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 the Agent or Company, 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 Agent's consent thereto; provided that if
such change or amendment was required pursuant to any change in any
applicable law, rule or regulation, such Seller Party shall only be
required to give notice of such change or amendment and shall not be
required to request the consent of the Agent.
(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 such Seller Party
as the Agent may from time to time reasonably request in order to
protect the interests of the Agent and the Purchasers under or as
contemplated by this Agreement.
(b) Notices. Such Seller Party will notify the Agent 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 such Seller Party.
(ii) Judgment and Proceedings. (A) (1) The entry of any judgment or decree
against the Servicer or any of its respective Subsidiaries if the
aggregate amount of all judgments and decrees then outstanding against
the Servicer and its Subsidiaries exceeds $25,000,000 and (2) the
institution of any litigation, arbitration proceeding or governmental
proceeding against the Servicer 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; and (B) the entry of any judgment or decree
or the institution of any litigation, arbitration proceeding or
governmental proceeding against Seller.
(iii) Material Adverse Effect. The occurrence of any event or condition that
has had, or could reasonably be expected to have, a Material Adverse
Effect.
(iv) Termination Date. The occurrence of the "Amortization Date" under and
as defined in the Receivables Sale Agreement.
(v) Defaults Under Other Agreements. (A) The occurrence of a default or an
event of default under any other financing arrangement pursuant to
which Seller is a debtor or an obligor and (B) the occurrence of any
default or event of default under any other financing arrangement or
arrangements governing Indebtedness, individually or in the aggregate,
in a principal amount greater than or equal to $25,000,000 pursuant to
which Servicer is a debtor or obligor.
(vi) Downgrade of Originator. Any downgrade in the rating of any
Indebtedness of Originator by S&P or by Moody's, setting forth the
Indebtedness affected and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate Existence. Such Seller
Party will comply 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 be reasonably expected
to have a Material Adverse Effect. Such Seller Party 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 preserve and maintain or qualify could not reasonably be
expected to have a Material Adverse Effect.
(d) Audits. Such Seller Party will furnish to the Agent from time to time such
information with respect to it and the Receivables as the Agent may reasonably
request. Such Seller Party will, from time to time during regular business hours
as requested by the Agent upon reasonable notice and at the sole cost of such
Seller Party (except as provided below), permit the Agent, or its agents or
representatives, (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Person relating to the
Receivables and the Related Security, including, without limitation, the related
Contracts, and (ii) to visit the offices and properties of such Person for the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to such Person's financial condition or the Receivables
and the Related Security or any Person's performance under any of the
Transaction Documents or any Person's performance under the Contracts and, in
each case, with any of the officers or employees of Seller or the Servicer
having knowledge of such matters. So long as no Potential Amortization Event or
Amortization Event exists, the visits under this Section 7.1(d) that are at the
sole cost of the applicable Seller Party shall be limited to once per calendar
year.
(e) Keeping and Marking of Records and Books.
(i) The Servicer 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).
The Servicer will give the Agent notice of any material change in the
administrative and operating procedures referred to in the previous
sentence.
(ii) Such Seller Party will (A) on or prior to the date hereof, cause all
Receivable reports relating to the Purchaser Interests to bear a
legend, acceptable to the Agent, describing the Purchaser Interests and
(B) from and after the occurrence of an Amortization Event (x) mark
each Contract with a legend describing the Purchaser Interests and (y)
deliver to the Agent 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. Such Seller
Party 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.
(g) Performance and Enforcement of Receivables Sale Agreement. Seller will, and
will require Originator to, perform each of their respective obligations and
undertakings under and pursuant to the Receivables Sale Agreement, will purchase
Receivables thereunder in strict compliance with the terms thereof and will
vigorously enforce the rights and remedies accorded to Seller under the
Receivables Sale Agreement. Seller will take all actions to perfect and enforce
its rights and interests (and the rights and interests of the Agent and the
Purchasers as assignees of Seller) under the Receivables Sale Agreement as the
Agent may from time to time reasonably request, including, without limitation,
making claims to which it may be entitled under any indemnity, reimbursement or
similar provision contained in the Receivables Sale Agreement.
(h) Ownership. Seller will (or will cause Originator to) take all necessary
action to (i) vest legal and equitable title to the Receivables, the Related
Security and the Collections purchased under the Receivables Sale Agreement
irrevocably in Seller, free and clear of any Adverse Claims other than Adverse
Claims in favor of the Agent and the Purchasers (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 Seller's interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Seller therein as the Agent may reasonably request), and (ii)
establish and maintain, in favor of the Agent, for the benefit of the
Purchasers, a valid and perfected first priority undivided percentage ownership
interest (and/or a valid and perfected first priority security interest) in all
Receivables, Related Security and Collections to the full extent contemplated
herein, free and clear of any Adverse Claims other than Adverse Claims in favor
of the Agent for the benefit of the Purchasers (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 the Agent's (for the benefit of the Purchasers) interest in such
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interest of the Agent for the benefit of the
Purchasers as the Agent may reasonably request).
(i) Purchasers' Reliance. Seller acknowledges that the Purchasers are entering
into the transactions contemplated by this Agreement in reliance upon ▇▇▇▇▇▇'s
identity as a legal entity that is separate from Originator. Therefore, from and
after the date of execution and delivery of this Agreement, Seller shall take
all reasonable steps, including, without limitation, all steps that the Agent or
any Purchaser may from time to time reasonably request, to maintain Seller's
identity as a separate legal entity and to make it manifest to third parties
that Seller is an entity with assets and liabilities distinct from those of
Originator and any Affiliates thereof and not just a division of Originator or
any such Affiliate. Without limiting the generality of the foregoing and in
addition to the other covenants set forth herein, Seller will:
(A) conduct its own business in its own name and require that all
full-time employees of Seller, if any, identify themselves as
such and not as employees of Originator (including, without
limitation, by means of providing appropriate employees with
business or identification cards identifying such employees as
Seller's employees);
(B) compensate all employees, consultants and agents directly,
from Seller's own funds, for services provided to Seller by
such employees, consultants and agents and, to the extent any
employee, consultant or agent of Seller is also an employee,
consultant or agent of Originator or any Affiliate thereof,
allocate the compensation of such employee, consultant or
agent between Seller and Originator or such Affiliate, as
applicable, on a basis that reflects the services rendered to
Seller and Originator or such Affiliate, as applicable;
(C) clearly identify its offices (by signage or otherwise) as its
offices and, if such office is located in the offices of
Originator, Seller shall lease such office at a fair market
rent;
(D) have a separate telephone number, which will be answered only
in its name and separate stationery, invoices and checks in
its own name;
(E) conduct all transactions with Originator (including, without
limitation, any delegation of its obligations hereunder as
Servicer) strictly on an arm's-length basis, allocate all
overhead expenses (including, without limitation, telephone
and other utility charges) for items shared between Seller and
Originator on the basis of actual use to the extent
practicable and, to the extent such allocation is not
practicable, on a basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of three
members, at least one member of which is an Independent
Director;
(G) observe all corporate formalities as a distinct entity, and
ensure that all corporate actions relating to (A) the
selection, maintenance or replacement of the Independent
Director, (B) the dissolution or liquidation of Seller or (C)
the initiation of, participation in, acquiescence in or
consent to any bankruptcy, insolvency, reorganization or
similar proceeding involving Seller, are duly authorized by
unanimous vote of its Board of Directors (including the
Independent Director);
(H) maintain Seller's books and records separate from those of
Originator and any Affiliate thereof and otherwise readily
identifiable as its own assets rather than assets of
Originator and any Affiliate thereof;
(I) prepare its financial statements separately from those of
Originator and insure that any consolidated financial
statements of Originator or any Affiliate thereof that include
Seller and that are filed with the Securities and Exchange
Commission or any other governmental agency have notes clearly
stating that Seller is a separate corporate entity and that
its assets will be available first and foremost to satisfy the
claims of the creditors of Seller;
(J) except as herein specifically otherwise provided, maintain the
funds or other assets of Seller separate from, and not
commingled with, those of Originator or any Affiliate thereof
and only maintain bank accounts or other depository accounts
to which Seller alone is the account party, into which Seller
alone makes deposits and from which Seller alone (or the Agent
hereunder) has the power to make withdrawals;
(K) pay all of Seller's operating expenses from Seller's own
assets (except for certain payments by Originator or other
Persons pursuant to allocation arrangements that comply with
the requirements of this Section 7.1(i));
(L) operate its business and activities such that: it does not
engage in any business or activity of any kind, or
enter into any transaction or indenture, mortgage,
instrument, agreement, contract, lease or other undertaking,
other than the transactions contemplated and authorized by
this Agreement and the Receivables Sale Agreement; and does
not create, incur, guarantee, assume or suffer to exist any
indebtedness or other liabilities, whether direct or
contingent, other than (1) as a result of the endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, (2) the
incurrence of obligations under this Agreement, (3) the
incurrence of obligations, as expressly contemplated in the
Receivables Sale Agreement, to make payment to Originator
thereunder for the purchase of Receivables from Originator
under the Receivables Sale Agreement, and (4) the incurrence
of operating expenses in the ordinary course of business of
the type otherwise contemplated by this Agreement;
(M) maintain its corporate charter in conformity with this
Agreement, such that it does not amend, restate, supplement or
otherwise modify its Certificate of Incorporation or By-Laws
in any respect that would impair its ability to comply with
the terms or provisions of any of the Transaction Documents,
including, without limitation, Section 7.1(i) of this
Agreement;
(N) maintain the effectiveness of, and continue to perform under
the Receivables Sale Agreement, such that it does not amend,
restate, supplement, cancel, terminate or otherwise modify the
Receivables Sale Agreement, or give any consent, waiver,
directive or approval thereunder or waive any default, action,
omission or breach under the Receivables Sale Agreement or
otherwise grant any indulgence thereunder, without (in each
case) the prior written consent of the Agent;
(O) maintain its corporate separateness such that it does not
merge or consolidate with or into, or convey, transfer, lease
or otherwise dispose of (whether in one transaction or in a
series of transactions, and except as otherwise contemplated
herein) all or substantially all of its assets (whether now
owned or hereafter acquired) to, or acquire all or
substantially all of the assets of, any Person, nor at any
time create, have, acquire, maintain or hold any interest in
any Subsidiary.
(P) maintain at all times the Required Capital Amount (as defined
in the Receivables Sale Agreement) and refrain from making any
dividend, distribution, redemption of capital stock or payment
of any subordinated indebtedness which would cause the
Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are necessary on its part to ensure
that the facts and assumptions set forth in the opinion issued
by ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel for Seller, in connection
with the closing or initial Incremental Purchase under this
Agreement and relating to substantive consolidation issues,
and in the certificates accompanying such opinion, remain true
and correct in all material respects at all times.
(j) Collections. Such Seller Party 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 Seller or any
Affiliate of Seller, Seller will remit (or will cause all such payments to be
remitted) directly to a Collection Bank and deposited into a Collection Account
within two (2) Business Days following receipt thereof, and, at all times prior
to such remittance, Seller will itself hold or, if applicable, will cause such
payments to be held in trust for the exclusive benefit of the Agent and the
Purchasers. Seller will maintain exclusive ownership, dominion and control
(subject to the terms of this Agreement and the applicable Collection Agreement)
of each Lock-Box and Collection Account and shall 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 the Agent as
contemplated by this Agreement.
(k) Taxes. Such Seller Party will file all tax returns and reports required by
law to be filed by it and will promptly pay all taxes and governmental charges
at any time owing; provided, however, that no Seller Party shall be required to
pay 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 GAAP shall have been set aside on its books, unless
the failure to make any such payment (1) in the case of either Seller Party,
shall give rise to an immediate right to foreclosure on an Adverse Claim
securing such amounts, (2) in the case of the Seller, shall result in the
attachment of an Adverse Claim securing such amounts, or (3) could reasonably be
expected to have a Material Adverse Effect. Seller will pay when due any taxes
payable in connection with the Receivables, exclusive of taxes on or measured by
income or gross receipts of Company, the Agent or any Financial Institution.
(l) Insurance. Seller will maintain in effect, or cause to be maintained in
effect, at Seller's own expense, such casualty and liability insurance as Seller
shall deem appropriate in its good faith business judgment. Seller will pay or
cause to be paid, the premiums therefor and deliver to the Agent evidence
satisfactory to the Agent of such insurance coverage. Copies of each policy
shall be furnished to the Agent and any Purchaser in certificated form upon 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, Seller's
obligations hereunder.
(m) Payment to Originator. With respect to any Receivable purchased by Seller
from Originator, such sale shall be effected under, and in strict compliance
with the terms of, the Receivables Sale Agreement, including, without
limitation, the terms relating to the amount and timing of payments to be made
to Originator in respect of the purchase price for such Receivable.
Section 7.2 Negative Covenants of The Seller Parties. Until the date on which
the Aggregate Unpaids have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, each Seller Party hereby covenants, as
to itself, that:
(a) Name Change, Offices and Records. Such Seller Party will not change its
name, identity or corporate structure (within the meaning of Section 9-402(7) of
any applicable enactment of the UCC) or relocate its chief executive office or
any office where Records are kept unless it shall have: (i) given the Agent at
least forty-five (45) days' prior written notice thereof and (ii) delivered to
the Agent all financing statements, instruments and other documents requested by
the Agent 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), such Seller Party 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 the Agent 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 the
Servicer 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. Such Seller
Party 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 a change in any applicable law, rule or regulation. Except as
provided in Section 8.2(d), the Servicer 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. Seller 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 the Agent and the Purchasers
provided for herein), and Seller will defend the right, title and interest of
the Agent and the Purchasers in, to and under any of the foregoing property,
against all claims of third parties claiming through or under Seller or
Originator. Seller will not create or suffer to exist any mortgage, pledge,
security interest, encumbrance, lien, charge or other similar arrangement on any
of its inventory, the sale or lease of which would give rise to a Receivable.
(e) Net Receivables Balance. At no time prior to the Amortization Date shall
Seller permit the Net Receivables Balance to be less than an amount equal to the
sum of (i) the Aggregate Capital plus (ii) the Aggregate Reserves.
(f) Amortization Date Determination. Seller will not designate the "Amortization
Date" (as defined in the Receivables Sale Agreement), or send any written notice
to Originator in respect thereof, without the prior written consent of the
Agent, except with respect to the occurrence of such Amortization Date arising
pursuant to Section 5.1(d) of the Receivables Sale Agreement.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer.
(a) The servicing, administration and collection of the Receivables shall be
conducted by such Person (the "Servicer") so designated from time to time in
accordance with this Section 8.1. Anixter is hereby designated as, and ▇▇▇▇▇▇
agrees to perform the duties and obligations of, the Servicer pursuant to the
terms of this Agreement. Anixter shall not resign as the Servicer without the
prior written consent of the Agent and the Required Financial Institutions.
After the occurrence and during the continuation of an Amortization Event, the
Agent may at any time designate as Servicer any Person to succeed Anixter or any
successor Servicer.
(b) Without the prior written consent of the Agent and the Required Financial
Institutions, Anixter shall not be permitted to delegate any of its duties or
responsibilities as Servicer to any Person other than (i) Seller and (ii) with
respect to certain Charged-Off Receivables, outside collection agencies in
accordance with its customary practices. Seller shall not be permitted to
further delegate to any other Person any of the duties or responsibilities of
the Servicer delegated to it by Anixter. If at any time the Agent shall
designate as Servicer any Person other than Anixter, all duties and
responsibilities theretofore delegated by Anixter to Seller may, at the
discretion of the Agent, be terminated forthwith on notice given by the Agent to
Anixter and to Seller.
(c) Notwithstanding the foregoing subsection (b), (i) Anixter shall be and
remain primarily liable to the Agent and the Purchasers for the full and prompt
performance of all duties and responsibilities of the Servicer (other than any
Servicer appointed by the Agent without Anixter's consent) hereunder and (ii)
the Agent and the Purchasers shall be entitled to deal exclusively with Anixter
in matters relating to the discharge by the Servicer (other than any Servicer
appointed by the Agent without Anixter's consent) of its duties and
responsibilities hereunder. The Agent and the Purchasers shall not be required
to give notice, demand or other communication to any Person other than Anixter
in order for communication to the Servicer (other than any Servicer appointed by
the Agent without Anixter's consent) and its sub-servicer or other delegate with
respect thereto to be accomplished. Anixter, at all times that it is the
Servicer, shall be responsible for providing any sub-servicer or other delegate
of the Servicer with any notice given to the Servicer under this Agreement.
Section 8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions as may be
necessary or advisable to collect each Receivable from time to time, all in
accordance with applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy.
(b) The Servicer will instruct all Obligors to pay all Collections directly to a
Lock-Box or Collection Account. The Servicer shall effect a Collection Account
Agreement substantially in the form of Exhibit VI with each bank maintaining a
Collection Account at any time. In the case of any remittances received in any
Lock-Box or Collection Account that shall have been identified, to the
satisfaction of the Servicer, to not constitute Collections or other proceeds of
the Receivables or the Related Security, the Servicer shall promptly remit such
items to the Person identified to it as being the owner of such remittances.
From and after the date the Agent delivers to any Collection Bank a Collection
Notice pursuant to Section 8.3, the Agent may request that the Servicer, and the
Servicer thereupon promptly shall instruct all Obligors with respect to the
Receivables, to remit all payments thereon to a new depositary account specified
by the Agent and, at all times thereafter, Seller and the Servicer shall not
deposit or otherwise credit, and shall not permit any other Person to deposit or
otherwise credit to such new depositary account any cash or payment item other
than Collections.
(c) The Servicer shall administer the Collections in accordance with the
procedures described herein and in Article II. The Servicer shall set aside and
hold in trust for the account of Seller and the Purchasers their respective
shares of the Collections in accordance with Article II. The Servicer shall,
upon the request of the Agent, segregate, in a manner acceptable to the Agent,
all cash, checks and other instruments received by it from time to time
constituting Collections from the general funds of the Servicer or Seller prior
to the remittance thereof in accordance with Article II. If the Servicer shall
be required to segregate Collections pursuant to the preceding sentence, the
Servicer shall segregate and deposit with a bank designated by the Agent such
allocable share of Collections of Receivables set aside for the Purchasers on
the first Business Day following receipt by the Servicer of such Collections,
duly endorsed or with duly executed instruments of transfer.
(d) The Servicer may, in accordance with the Credit and Collection Policy,
extend the maturity of any Receivable or adjust the Outstanding Balance of any
Receivable as the Servicer determines to be appropriate to maximize Collections
thereof; provided, however, that such extension or adjustment shall not alter
the status of such Receivable as a Delinquent Receivable or Charged-Off
Receivable or limit the rights of the Agent or the Purchasers under this
Agreement. Notwithstanding anything to the contrary contained herein, at any
time that an Amortization Event is continuing, the Agent shall have the absolute
and unlimited right to direct the Servicer to commence or settle any legal
action with respect to any Receivable or to foreclose upon or repossess any
Related Security.
(e) The Servicer shall hold for Seller and the Purchasers all Records that (i)
evidence or relate to the Receivables, the related Contracts and Related
Security or (ii) are otherwise necessary or desirable to collect the Receivables
and shall, as soon as practicable upon demand of the Agent at any time following
an Amortization Event or a Potential Amortization Event, deliver or make
available to the Agent all such Records, at a place selected by the Agent. The
Servicer shall, from time to time at the request of any Purchaser, furnish to
the Purchasers (promptly after any such request) a calculation of the amounts
set aside for the Purchasers pursuant to Article II.
Section 8.3 Collection Notices. Upon the occurrence of and during the
continuation of an Amortization Event or Potential Amortization Event, the Agent
is authorized at any time to date and to deliver to the Collection Banks the
Collection Notices. Seller hereby transfers to the Agent for the benefit of the
Purchasers, effective when the Agent delivers such notice, the exclusive
ownership and control of each Lock-Box and the Collection Accounts. In case any
authorized signatory of Seller whose signature appears on a Collection Account
Agreement shall cease to have such authority before the delivery of such notice,
such Collection Notice shall nevertheless be valid as if such authority had
remained in force. Seller hereby authorizes the Agent, and agrees that the Agent
shall be entitled to, following the delivery of the Collection Notice (i)
endorse Seller's name on checks and other instruments representing Collections,
(ii) enforce the Receivables, the related Contracts and the Related Security and
(iii) take such action as shall be necessary or desirable to cause all cash,
checks and other instruments constituting Collections of Receivables to come
into the possession of the Agent rather than Seller.
Section 8.4 Responsibilities of Seller. Anything herein to the contrary
notwithstanding, the exercise by the Agent and the Purchasers of their rights
hereunder shall not release the Servicer, Originator or Seller from any of their
duties or obligations with respect to any Receivables or under the related
Contracts. The Purchasers shall have no obligation or liability with respect to
any Receivables or related Contracts, nor shall any of them be obligated to
perform the obligations of Seller.
Section 8.5 Reports. The Servicer shall prepare and forward to the Agent (i) on
each Determination Date, a Monthly Report, (ii) at such times as the Agent shall
reasonably request, a report in the form of a Monthly Report updating the
information contained in the most recent Monthly Report, and (iii) at such times
as the Agent shall request, a listing by Obligor of all Receivables together
with an aging of such Receivables.
Section 8.6 Servicing Fees. In consideration of Anixter's agreement to act as
Servicer hereunder, the Purchasers hereby agree that, so long as Anixter shall
continue to perform as Servicer hereunder, Seller shall pay over to Anixter a
fee (the "Servicing Fee") on the first calendar day of each month, in arrears
for the immediately preceding month, equal to 0.36% times the Outstanding
Balance of all Receivables generated during such immediately preceding calendar
month, as compensation for its servicing activities.
ARTICLE IX
AMORTIZATION EVENTS
Section 9.1 Amortization Events. The occurrence of any one or more of the
following events shall constitute an Amortization
Event:
(a) Any Seller Party 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) and Section 9.1(e)) and such failure shall continue for three (3)
consecutive Business Days.
(b) Any representation, warranty, certification or statement made by any Seller
Party 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 5.1(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 Seller to pay any Indebtedness when due or the failure of any
other Seller Party to pay when due any Indebtedness having an outstanding
principal balance in excess of $25,000,000; or the default by any Seller Party
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 any Seller Party 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) Any Seller Party 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
any Seller Party or any of its Significant Subsidiaries seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, 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 such Seller Party or 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) any Seller Party or any of its Significant Subsidiaries
shall take any corporate action to authorize any of the actions set forth in
clauses (i) or (ii) above in this subsection (d).
(e) Seller shall fail to comply with the terms of Section 2.6.
(f) As at the end of any Collection Period: (i) the average of the Delinquency
Ratios as of the end of such Collection Period and the two preceding Collection
Periods shall exceed 11.875%; (ii) the average of the Dilution Trigger Ratios as
of the end of such Collection Period and the two preceding Collection Periods
shall exceed 4.0%; or (iii) the average of the Loss-to-Liquidation Ratios as of
the end of such Collection Period and the two preceding Collection Periods shall
exceed 4.875%.
(g) A Change of Control shall occur.
(h) (i) One or more final judgments for the payment of money shall be entered
against Seller or (ii) 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 the Servicer, and such judgment shall continue unsatisfied and
in effect for ten (10) consecutive days without a stay of execution.
(i) The "Amortization Date" under and as defined in the Receivables Sale
Agreement shall occur under the Receivables Sale Agreement or Originator shall
for any reason cease to transfer, or cease to have the legal capacity to
transfer, or otherwise be incapable of transferring Receivables to Seller under
the Receivables Sale Agreement.
(j) Anixter shall fail to comply with any of the financial covenants set forth
in Sections 17.16, 17.17 or 17.18 of the Credit Agreement, as amended from time
to time pursuant to any amendment which (i) becomes effective while Bank One is
a party to the Credit Agreement, and (ii) is consented to in writing by Bank One
as a party to the Credit Agreement.
(k) This Agreement shall terminate in whole or in part (except in accordance
with its terms), or shall cease to be effective or to be the legally valid,
binding and enforceable obligation of Seller, or the Agent for the benefit of
the Purchasers shall cease to have a valid and perfected first priority security
interest in the Receivables, the Related Security and the Collections with
respect thereto, and the Collection Accounts.
Section 9.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Agent may, or upon the direction of the Required
Financial Institutions shall, take any of the following actions: (i) replace the
Person then acting as Servicer, (ii) 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 each Seller Party; provided, however, that upon the occurrence of an
Amortization Event described in Section 9.1(d)(ii), or of an actual or deemed
entry of an order for relief with respect to any Seller Party under the
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 each Seller Party, (iii) to the fullest extent permitted by applicable
law, declare that the Default Fee shall accrue with respect to any of the
Aggregate Unpaids outstanding at such time, (iv) deliver the Collection Notices
to the Collection Banks, and (v) notify Obligors of the Purchasers' interest in
the Receivables. The aforementioned rights and remedies shall be without
limitation, and shall be in addition to all other rights and remedies of the
Agent and the Purchasers otherwise available under any other provision of 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 X
INDEMNIFICATION
Section 10.1 Indemnities by The Seller Parties. Without limiting any other
rights that the Agent or any Purchaser may have hereunder or under applicable
law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent
and each Purchaser and their respective 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 them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by a Purchaser of
an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify
(and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded
against or incurred by any of them arising out of the Servicer's activities as
Servicer hereunder excluding, however, in all of the foregoing instances under
the preceding clauses (A) and (B):
(a) 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;
(b) 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
(c) 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 characterization for income tax purposes of the acquisition
by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to
Seller secured by the Receivables, the Related Security, the Collection Accounts
and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Seller Party or limit the recourse of the Purchasers to any
Seller Party for amounts otherwise specifically provided to be paid by such
Seller Party under the terms of this Agreement. Without limiting the generality
of the foregoing indemnification, Seller shall indemnify the Agent and the
Purchasers for Indemnified Amounts (including, without limitation, losses in
respect of uncollectible receivables, regardless of whether reimbursement
therefor would constitute recourse to Seller or the Servicer) relating to or
resulting from:
(i) any representation or warranty made by any Seller Party or Originator
(or any officers of any such Person) under or in connection with this
Agreement, any other Transaction Document or any other information or
report delivered by any such Person pursuant hereto or thereto, which
shall have been false or incorrect when made or deemed made;
(ii) the failure by Seller, the Servicer or 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;
(iii) any failure of Seller, the Servicer or Originator to perform its
duties, covenants or other obligations in accordance with the
provisions of this Agreement or any other Transaction Document;
(iv) any products liability, personal injury or damage suit, or other
similar claim arising out of or in connection with merchandise,
insurance or services that are the subject of any Contract or any
Receivable;
(v) 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;
(vi) the commingling of Collections of Receivables at any time with other
funds;
(vii) any investigation, litigation or proceeding related to or arising from
this Agreement or any other Transaction Document, the transactions
contemplated hereby, the use of the proceeds of an Incremental Purchase
or a Reinvestment, the ownership of the Purchaser Interests or any
other investigation, litigation or proceeding relating to Seller, the
Servicer or Originator in which any Indemnified Party becomes involved
as a result of any of the transactions contemplated hereby;
(viii) 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;
(ix) any Amortization Event described in Section 9.1(d);
(x) any failure of Seller to acquire and maintain legal and equitable title
to, and ownership of any Receivable and the Related Security and
Collections with respect thereto from Originator, free and clear of any
Adverse Claim (other than as created hereunder); or any failure of
Seller to give reasonably equivalent value to Originator under the
Receivables Sale Agreement in consideration of the transfer by
Originator of any Receivable, or any attempt by any Person to void such
transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Agent for the benefit of
the Purchasers, or to transfer to the Agent for the benefit of the
Purchasers, legal and equitable title to, and ownership of, a first
priority perfected undivided percentage ownership interest (to the
extent of the Purchaser Interests contemplated hereunder) or security
interest in the Receivables, the Related Security and the Collections,
free and clear of any Adverse Claim (except as created by the
Transaction Documents);
(xii) 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 any Incremental
Purchase or Reinvestment or at any subsequent time;
(xiii) any action or omission by any Seller Party which reduces or impairs the
rights of the Agent or the Purchasers with respect to any Receivable or
the value of any such Receivable;
(xiv) any attempt by any Person, other than a Purchaser, to void any
Incremental Purchase or Reinvestment hereunder under statutory
provisions or common law or equitable action; and
(xv) the failure of any Receivable included in the calculation of the Net
Receivables Balance as an Eligible Receivable to be an Eligible
Receivable at the time so included.
Section 10.2 Increased Cost and Reduced Return. If after the date hereof, any
Funding Source shall be charged any fee, expense or increased cost on account of
the adoption of any applicable law, rule or regulation (including any applicable
law, rule or regulation regarding capital adequacy) or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency: (i) that subjects any Funding Source to any charge or withholding on or
with respect to any Funding Agreement or a Funding Source's obligations under a
Funding Agreement, or on or with respect to the Receivables, or changes the
basis of taxation of payments to any Funding Source of any amounts payable under
any Funding Agreement (except for changes in the rate of tax on the overall net
income of a Funding Source or taxes excluded by Section 10.1) or (ii) that
imposes, modifies or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of a Funding Source, or credit extended by a Funding Source pursuant
to a Funding Agreement or (iii) that imposes any other condition the result of
which is to increase the cost to a Funding Source of performing its obligations
under a Funding Agreement, or to reduce the rate of return on a Funding Source's
capital as a consequence of its obligations under a Funding Agreement, or to
reduce the amount of any sum received or receivable by a Funding Source under a
Funding Agreement or to require any payment calculated by reference to the
amount of interests or loans held or interest received by it, then, upon demand
by the Agent, Seller shall pay to the Agent, for the benefit of the relevant
Funding Source, such amounts charged to such Funding Source or such amounts to
otherwise compensate such Funding Source for such increased cost or such
reduction.
Section 10.3 Other Costs and Expenses. Seller shall pay to the Agent and Company
on demand all reasonable out-of-pocket costs and 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, including without limitation, the cost of Company's auditors auditing
the books, records and procedures of Seller, reasonable fees and out-of-pocket
expenses of legal counsel for Company and the Agent with respect thereto and
with respect to advising Company and the Agent as to their respective rights and
remedies under this Agreement. Seller shall pay to the Agent on demand any and
all costs and expenses of the Agent and the Purchasers, 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 XI
THE AGENT
Section 11.1 Authorization and Action. Each Purchaser hereby designates and
appoints Bank One to act as its agent hereunder and under each other Transaction
Document, and authorizes the Agent to take such actions as agent on its behalf
and to exercise such powers as are delegated to the Agent by the terms of this
Agreement and the other Transaction Documents together with such powers as are
reasonably incidental thereto. The Agent shall not have any duties for
responsibilities, except those expressly set forth herein or in any other
Transaction Document, or any fiduciary relationship with any Purchaser, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Agent shall be read into this Agreement or any
other Transaction Document or otherwise exist for the Agent. In performing its
functions and duties hereunder and under the other Transaction Documents, the
Agent shall act solely as agent for the Purchasers and does not assume nor shall
be deemed to have assumed any obligation or relationship of trust or agency with
or for any Seller Party or any of such Seller Party's successors or assigns. The
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement, any other Transaction
Document or applicable law. The appointment and authority of the Agent hereunder
shall terminate upon the indefeasible payment in full of all Aggregate Unpaids.
Each Purchaser hereby authorizes the Agent to execute each of the Uniform
Commercial Code financing statements, this Agreement and such other Transaction
Documents as may require the Agent's signature on behalf of such Purchaser (the
terms of which shall be binding on such Purchaser).
Section 11.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement and each other Transaction Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
Section 11.3 Exculpatory Provisions. Neither the Agent nor any of its directors,
officers, agents or employees shall be (i) liable for any action lawfully taken
or omitted to be taken by it or them under or in connection with this Agreement
or any other Transaction Document (except for its, their or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Purchasers for any recitals, statements, representations or
warranties made by any Seller Party contained in this Agreement, any other
Transaction Document or any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement, or any other Transaction Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, or
any other Transaction Document or any other document furnished in connection
herewith or therewith, or for any failure of any Seller Party to perform its
obligations hereunder or thereunder, or for the satisfaction of any condition
specified in Article VI, or for the perfection, priority, condition, value or
sufficiency of any collateral pledged in connection herewith. The Agent shall
not be under any obligation to any Purchaser to ascertain or to inquire as to
the observance or performance of any of the agreements or covenants contained
in, or conditions of, this Agreement or any other Transaction Document, or to
inspect the properties, books or records of the Seller Parties. The Agent shall
not be deemed to have knowledge of any Amortization Event or Potential
Amortization Event unless the Agent has received notice from Seller or a
Purchaser.
Section 11.4 Reliance by Agent. The Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to Seller), independent accountants and
other experts selected by the Agent. The Agent shall in all cases be fully
justified in failing or refusing to take any action under this Agreement or any
other Transaction Document unless it shall first receive such advice or
concurrence of Company or the Required Financial Institutions or all of the
Purchasers, as applicable, as it deems appropriate and it shall first be
indemnified to its satisfaction by the Purchasers, provided that unless and
until the Agent shall have received such advice, the Agent may take or refrain
from taking any action, as the Agent shall deem advisable and in the best
interests of the Purchasers. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with a request of Company or
the Required Financial Institutions or all of the Purchasers, as applicable, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Purchasers.
Section 11.5 Non-Reliance on Agent and Other Purchasers. Each Purchaser
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including, without limitation, any review of the affairs of any Seller
Party, shall be deemed to constitute any representation or warranty by the
Agent. Each Purchaser represents and warrants to the Agent that it has and will,
independently and without reliance upon the Agent or any other Purchaser and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of Seller and
made its own decision to enter into this Agreement, the other Transaction
Documents and all other documents related hereto or thereto.
Section 11.6 Reimbursement and Indemnification. The Financial Institutions agree
to reimburse and indemnify the Agent and its officers, directors, employees,
representatives and agents ratably according to their Pro Rata Shares, to the
extent not paid or reimbursed by the Seller Parties (i) for any amounts for
which the Agent, acting in its capacity as Agent, is entitled to reimbursement
by the Seller Parties hereunder and (ii) for any other expenses incurred by the
Agent, in its capacity as Agent and acting on behalf of the Purchasers, in
connection with the administration and enforcement of this Agreement and the
other Transaction Documents.
Section 11.7 Agent in its Individual Capacity. The Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with Seller or any Affiliate of Seller as though the Agent were not the Agent
hereunder. With respect to the acquisition of Purchaser Interests pursuant to
this Agreement, the Agent shall have the same rights and powers under this
Agreement in its individual capacity as any Purchaser and may exercise the same
as though it were not the Agent, and the terms "Financial Institution,"
"Purchaser," "Financial Institutions" and "Purchasers" shall include the Agent
in its individual capacity.
Section 11.8 Successor Agent. The Agent may, upon fifteen (15) days' notice to
Seller and the Purchasers, and the Agent will, upon the direction of all of the
Purchasers (other than the Agent, in its individual capacity) resign as Agent.
If the Agent shall resign, then the Required Financial Institutions during such
fifteen-day period shall appoint from among the Purchasers a successor agent. If
for any reason no successor Agent is appointed by the Required Financial
Institutions during such fifteen-day period, then effective upon the termination
of such fifteen day period, the Purchasers shall perform all of the duties of
the Agent hereunder and under the other Transaction Documents and Seller and the
Servicer (as applicable) shall make all payments in respect of the Aggregate
Unpaids directly to the applicable Purchasers and for all purposes shall deal
directly with the Purchasers. After the effectiveness of any retiring Agent's
resignation hereunder as Agent, the retiring Agent shall be discharged from its
duties and obligations hereunder and under the other Transaction Documents and
the provisions of this Article XI and Article X shall continue in effect for its
benefit with respect to any actions taken or omitted to be taken by it while it
was Agent under this Agreement and under the other Transaction Documents.
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Assignments.
(a) Seller and each Financial Institution hereby agree and consent to the
complete or partial assignment by Company of all or any portion of its rights
under, interest in, title to and obligations under this Agreement to the
Financial Institutions pursuant to Section 13.1, or, with the consent of Seller
(which consent shall not be unreasonably withheld), to any other Person, and
upon such assignment, Company shall be released from its obligations so
assigned. Further, Seller and each Financial Institution hereby agree that any
assignee of Company of this Agreement or all or any of the Purchaser Interests
of Company shall have all of the rights and benefits under this Agreement as if
the term "Company" explicitly referred to such party, and no such assignment
shall in any way impair the rights and benefits of Company hereunder. Neither
Seller nor the Servicer shall have the right to assign its rights or obligations
under this Agreement.
(b) Any Financial Institution may at any time and from time to time assign to
one or more Persons ("Purchasing Financial Institutions") all or any part of its
rights and obligations under this Agreement pursuant to an assignment agreement,
substantially in the form set forth in Exhibit VII hereto (the "Assignment
Agreement") executed by such Purchasing Financial Institution and such selling
Financial Institution. The consent of Company shall be required prior to the
effectiveness of any such assignment. Each assignee of a Financial Institution
must (i) have a short-term debt rating of A-1 or better by S&P and P-1 by
▇▇▇▇▇'▇ and (ii) agree to deliver to the Agent, promptly following any request
therefor by the Agent or Company, an enforceability opinion in form and
substance satisfactory to the Agent and Company. Upon delivery of the executed
Assignment Agreement to the Agent, such selling Financial Institution shall be
released from its obligations hereunder to the extent of such assignment.
Thereafter the Purchasing Financial Institution shall for all purposes be a
Financial Institution party to this Agreement and shall have all the rights and
obligations of a Financial Institution under this Agreement to the same extent
as if it were an original party hereto and no further consent or action by
Seller, the Purchasers or the Agent shall be required.
(c) Each of the Financial Institutions agrees that in the event that it shall
cease to have a short-term debt rating of A-1 or better by S&P and P-1 by
▇▇▇▇▇'▇ (an "Affected Financial Institution"), such Affected Financial
Institution shall be obliged, at the request of Company or the Agent, to assign
all of its rights and obligations hereunder to (x) another Financial Institution
or (y) another funding entity nominated by the Agent and acceptable to Company,
and willing to participate in this Agreement through the Liquidity Termination
Date in the place of such Affected Financial Institution; provided that the
Affected Financial Institution receives payment in full, pursuant to an
Assignment Agreement, of an amount equal to such Financial Institution's Pro
Rata Share of the Aggregate Capital and Yield owing to the Financial
Institutions and all accrued but unpaid fees and other costs and expenses
payable in respect of its Pro Rata Share of the Purchaser Interests of the
Financial Institutions.
Section 12.2 Participations. Any Financial Institution may, in the ordinary
course of its business at any time sell to one or more Persons (each a
"Participant") participating interests in its Pro Rata Share of the Purchaser
Interests of the Financial Institutions, its obligation to pay Company its
Acquisition Amounts or any other interest of such Financial Institution
hereunder. Notwithstanding any such sale by a Financial Institution of a
participating interest to a Participant, such Financial Institution's rights and
obligations under this Agreement shall remain unchanged, such Financial
Institution shall remain solely responsible for the performance of its
obligations hereunder, and Seller, Company and the Agent shall continue to deal
solely and directly with such Financial Institution in connection with such
Financial Institution's rights and obligations under this Agreement. Each
Financial Institution agrees that any agreement between such Financial
Institution and any such Participant in respect of such participating interest
shall not restrict such Financial Institution's right to agree to any amendment,
supplement, waiver or modification to this Agreement, except for any amendment,
supplement, waiver or modification described in Section 14.1(b)(i).
ARTICLE XIII
LIQUIDITY FACILITY
Section 13.1 Transfer to Financial Institutions. Each Financial Institution
hereby agrees, subject to Section 13.4, that immediately upon written notice
from Company delivered on or prior to the Liquidity Termination Date, it shall
acquire by assignment from Company, without recourse or warranty, its Pro Rata
Share of one or more of the Purchaser Interests of Company as specified by
Company. Each such assignment by Company shall be made pro rata among all of the
Financial Institutions, except for pro rata assignments to one or more Affected
Financial Institutions pursuant to Section 13.6. Each such Financial Institution
shall, no later than 1:00 p.m. (Chicago time) on the date of such assignment,
pay in immediately available funds (unless another form of payment is otherwise
agreed between Company and any Financial Institution) to the Agent at an account
designated by the Agent, for the benefit of Company, its Acquisition Amount.
Unless a Financial Institution has notified the Agent that it does not intend to
pay its Acquisition Amount, the Agent may assume that such payment has been made
and may, but shall not be obligated to, make the amount of such payment
available to Company in reliance upon such assumption. Company hereby sells and
assigns to the Agent for the ratable benefit of the Financial Institutions, and
the Agent hereby purchases and assumes from Company, effective upon the receipt
by Company of the Company Transfer Price, the Purchaser Interests of Company
which are the subject of any transfer pursuant to this Article XIII.
Section 13.2 Transfer Price Reduction Yield. If the Adjusted Liquidity Price is
included in the calculation of the Company Transfer Price for any Purchaser
Interest, each Financial Institution agrees that the Agent shall pay to Company
the Reduction Percentage of any Yield received by the Agent with respect to such
Purchaser Interest.
Section 13.3 Payments to Company. In consideration for the reduction of the
Company Transfer Prices by the Company Transfer Price Reductions, effective only
at such time as the aggregate amount of the Capital of the Purchaser Interests
of the Financial Institutions equals the Company Residual, each Financial
Institution hereby agrees that the Agent shall not distribute to the Financial
Institutions and shall immediately remit to Company any Yield, Collections or
other payments received by it to be applied pursuant to the terms hereof or
otherwise to reduce the Capital of the Purchaser Interests of the Financial
Institutions.
Section 13.4 Limitation on Commitment to Purchase from Company. Notwithstanding
anything to the contrary in this Agreement, no Financial Institution shall have
any obligation to purchase any Purchaser Interest from Company, pursuant to
Section 13.1 or otherwise:
(i) if Company shall have voluntarily commenced any proceeding or filed any
petition under any bankruptcy, insolvency or similar law seeking the
dissolution, liquidation or reorganization of Company or taken any
corporate action for the purpose of effectuating any of the foregoing;
(ii) if involuntary proceedings or an involuntary petition shall have been
commenced or filed against Company by any Person under any bankruptcy,
insolvency or similar law seeking the dissolution, liquidation or
reorganization of Company and such proceeding or petition shall have
not been dismissed; or
(iii) to the extent that such purchase would cause the Capital of the
Purchaser Interests of such Financial Institution to exceed such
Financial Institution's Liquidity Commitment.
Section 13.5 Defaulting Financial Institutions. If one or more Financial
Institutions defaults in its obligation to pay its Acquisition Amount pursuant
to Section 13.1 (each such Financial Institution shall be called a "Defaulting
Financial Institution" and the aggregate amount of such defaulted obligations
being herein called the "Company Transfer Price Deficit"), then upon notice from
the Agent, each Financial Institution other than the Defaulting Financial
Institutions (a "Non-Defaulting Financial Institution") shall promptly pay to
the Agent, in immediately available funds, an amount equal to the lesser of (x)
such Non-Defaulting Financial Institution's proportionate share (based upon the
relative Liquidity Commitments of the Non-Defaulting Financial Institutions) of
the Company Transfer Price Deficit and (y) such Non-Defaulting Financial
Institution's Unused Liquidity Commitment. A Defaulting Financial Institution
shall forthwith upon demand pay to the Agent for the account of the
Non-Defaulting Financial Institutions all amounts paid by each Non-Defaulting
Financial Institution on behalf of such Defaulting Financial Institution,
together with interest thereon, for each day from the date a payment was made by
a Non-Defaulting Financial Institution until the date such Non-Defaulting
Financial Institution has been paid such amounts in full, at a rate per annum
equal to the Federal Funds Effective Rate plus two percent (2%). In addition,
without prejudice to any other rights that Company may have under applicable
law, each Defaulting Financial Institution shall pay to Company forthwith upon
demand, the difference between such Defaulting Financial Institution's unpaid
Acquisition Amount and the amount paid with respect thereto by the
Non-Defaulting Financial Institutions, together with interest thereon, for each
day from the date of the Agent's request for such Defaulting Financial
Institution's Acquisition Amount pursuant to Section 13.1 until the date the
requisite amount is paid to Company in full, at a rate per annum equal to the
Federal Funds Effective Rate plus two percent (2%).
Section 13.6 Terminating Financial Institutions
(a) Each Financial Institution hereby agrees to deliver written notice to the
Agent not more than 30 Business Days and not less than 5 Business Days prior to
the Liquidity Termination Date indicating whether such Financial Institution
intends to renew its Back-up Commitment and Liquidity Commitment hereunder. If
any Financial Institution fails to deliver such notice on or prior to the date
that is 5 Business Days prior to the Liquidity Termination Date, such Financial
Institution will be deemed to have declined to renew its Back-up Commitment and
Liquidity Commitment (each Financial Institution which has declined or has been
deemed to have declined to renew its Back-up Commitment and Liquidity Commitment
hereunder, a "Non-Renewing Financial Institution"). The Agent shall promptly
notify Company of each Non-Renewing Financial Institution and Company, in its
sole discretion, may (A) to the extent of Commitment Availability, declare that
such Non-Renewing Financial Institution's Back-up Commitment and Liquidity
Commitment shall, to such extent, automatically terminate on a date specified by
Company on or before the Liquidity Termination Date or (B) upon one (1) Business
Days' notice to the Financial Institutions, assign to each Financial Institution
on a date specified by Company such Financial Institution's Pro Rata Share of
the aggregate Purchaser Interests then held by Company, subject to, and in
accordance with, Section 13.1 and Section 13.4. In addition, Company may, in its
sole discretion, at any time (x) to the extent of Commitment Availability,
declare that any Affected Financial Institution's Back-up Commitment and
Liquidity Commitment shall automatically terminate on a date specified by
Company or (y) assign to any Affected Financial Institution on a date specified
by Company its Pro Rata Share of the aggregate Purchaser Interests then held by
Company, subject to, and in accordance with, Section 13.1 and Section 13.4 (each
Affected Financial Institution or each Non-Renewing Financial Institution is
hereinafter referred to as a "Terminating Financial Institution"). The parties
hereto expressly acknowledge that any declaration of the termination of any
Back-up Commitment and Liquidity Commitment, any assignment pursuant to this
Section 13.6 and the order of priority of any such termination or assignment
among Terminating Financial Institutions shall be made by Company in its sole
and absolute discretion.
(b) Upon any assignment to an Affected Financial Institution as provided in this
Section 13.6, any remaining Back-up Commitment and Liquidity Commitment of such
Affected Financial Institution shall automatically terminate. Upon reduction to
zero of the Capital of all of the Purchaser Interests of a Terminating Financial
Institution (after application of Collections thereto pursuant to Sections 2.2
and 2.3) all rights and obligations of such Terminating Financial Institution
hereunder shall be terminated and such Terminating Financial Institution shall
no longer be a "Financial Institution" hereunder; provided, however, that the
provisions of Article X shall continue in effect for its benefit with respect to
Purchaser Interests held by such Terminating Financial Institution prior to its
termination as a Financial Institution.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Waivers and Amendments. No failure or delay on the part of the
Agent or any Purchaser 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.
(a) No provision of this Agreement may be amended, supplemented, modified or
waived except in writing in accordance with the provisions of this Section
14.1(b). Company, Seller and the Agent, at the direction of the Required
Financial Institutions, may enter into written modifications or waivers of any
provisions of this Agreement, provided, however, that no such modification or
waiver shall:
(i) without the consent of each affected Purchaser, (A) extend the
Liquidity Termination Date or the date of any payment or deposit of Collections
by Seller or the Servicer, (B) reduce the rate or extend the time of payment of
Yield or any CP Costs (or any component of Yield or CP Costs), (C) reduce any
fee payable to the Agent for the benefit of the Purchasers, (D) except pursuant
to Article XII hereof, change the amount of the Capital of any Purchaser, any
Financial Institution's
Back-up Pro Rata Share or Pro Rata Share (except pursuant to Sections 13.1
or 13.5) or any Financial Institution's Back-up Commitment or Liquidity
Commitment, or require any Financial Institution to make purchases from Seller
in excess of its Back-up Commitment or to make purchases from Company in excess
of its Liquidity Commitment, (E) amend, modify or waive any provision of the
definition of Required Financial Institutions, Section 13.4 or this Section
14.1(b), (F) consent to or permit the assignment or transfer by Seller of any of
its rights and obligations under this Agreement, (G) change the definition of
"Facility Termination Date", "Eligible Receivable", "Loss Reserve", "Default
Proxy Ratio", "Delinquency Ratio", "Delinquent Receivable", "Dilution Reserve",
"Dilution Reserve Ratio", "Dilution Trigger Ratio", "Loss Reserve", "Loss
Reserve Ratio", "Loss-to-Liquidation Ratio", or "Yield Reserve", or (H) amend or
modify any defined term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through (G) above in a manner that would
circumvent the intention of the restrictions set forth in such clauses; or
(ii) without the written consent of the then Agent, amend, modify or waive
any provision of this Agreement if the effect thereof is to affect the
rights or duties of such Agent.
Notwithstanding the foregoing, (i) without the consent of the Financial
Institutions, but with the consent of Seller, the Agent may amend this Agreement
solely to add additional Persons as Financial Institutions hereunder and (ii)
the Agent, the Required Financial Institutions and Company may enter into
amendments to modify any of the terms or provisions of Article XI, Article XII,
Section 14.13 or any other provision of this Agreement without the consent of
Seller, provided that such amendment has no negative impact upon Seller. Any
modification or waiver made in accordance with this Section 14.1 shall apply to
each of the Purchasers equally and shall be binding upon Seller, the Purchasers
and the Agent.
Section 14.2 Notices. Except as provided in this Section 14.2, 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 14.2. Seller hereby authorizes the Agent to effect purchases and Tranche
Period and Discount Rate selections based on telephonic notices made by any
Person whom the Agent in good faith believes to be acting on behalf of Seller.
▇▇▇▇▇▇ agrees to deliver promptly to the Agent a written confirmation of each
telephonic notice signed by an authorized officer of Seller; provided, however,
the absence of such confirmation shall not affect the validity of such notice.
If the written confirmation differs from the action taken by the Agent, the
records of the Agent shall govern absent manifest error.
Section 14.3 Ratable Payments. If any Purchaser, whether by setoff or otherwise,
has payment made to it with respect to any portion of the Aggregate Unpaids
owing to such Purchaser (other than payments received pursuant to Section 10.2
or 10.3) in a greater proportion than that received by any other Purchaser
entitled to receive a ratable share of such Aggregate Unpaids, such Purchaser
agrees, promptly upon demand, to purchase for cash without recourse or warranty
a portion of such Aggregate Unpaids held by the other Purchasers so that after
such purchase each Purchaser will hold its ratable proportion of such Aggregate
Unpaids; provided that if all or any portion of such excess amount is thereafter
recovered from such Purchaser, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
Section 14.4 Protection of Ownership Interests of the Purchasers.
(a) ▇▇▇▇▇▇ 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 the Agent may request, to perfect,
protect or more fully evidence the Purchaser Interests, or to enable the Agent
or the Purchasers to exercise and enforce their rights and remedies hereunder.
At any time after the occurrence of an Amortization Event, the Agent may, or the
Agent may direct Seller or the Servicer to, notify the Obligors of Receivables,
at Seller's expense, of the ownership or security interests of the Purchasers
under this Agreement and may also direct that payments of all amounts due or
that become due under any or all Receivables be made directly to the Agent or
its designee. Seller or the Servicer (as applicable) shall, at any Purchaser's
request, withhold the identity of such Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its obligations hereunder, the
Agent or any Purchaser may (but shall not be required to) perform, or cause
performance of, such obligations, and the Agent's or such Purchaser's costs and
expenses incurred in connection therewith shall be payable by Seller as provided
in Section 10.3. Each Seller Party irrevocably authorizes the Agent at any time
and from time to time in the sole discretion of the Agent, and appoints the
Agent as its attorney-in-fact, to act on behalf of such Seller Party (i) to
execute on behalf of Seller as debtor and to file financing statements necessary
or desirable in the Agent's sole discretion to perfect and to maintain the
perfection and priority of the interest of the Purchasers 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 the Agent in its sole discretion deems necessary or desirable
to perfect and to maintain the perfection and priority of the interests of the
Purchasers in the Receivables. This appointment is coupled with an interest and
is irrevocable.
Section 14.5 Confidentiality.
(a) Each Seller Party and each Purchaser shall maintain and shall cause each of
its employees and officers to maintain the confidentiality of this Agreement and
the other confidential or proprietary information with respect to the Agent and
Company and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions contemplated
herein, except that such Seller Party and such Purchaser and its officers and
employees may disclose such information to such Seller Party's and such
Purchaser'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, each Seller Party hereby
consents to the disclosure of any nonpublic information with respect to it (i)
to the Agent, the Financial Institutions or Company by each other, (ii) by the
Agent or the Purchasers to any prospective or actual assignee or participant of
any of them and (iii) by the Agent to any rating agency, Commercial Paper dealer
or provider of a surety, guaranty or credit or liquidity enhancement to Company
or any entity organized for the purpose of purchasing, or making loans secured
by, financial assets for which Bank One acts as the administrative agent and to
any officers, directors, employees, outside accountants and attorneys of any of
the foregoing, provided that any Person receiving information shall be advised
by the Agent of the obligation to keep such information confidential. In
addition, the Purchasers 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 Purchasers and Agent
shall, if practicable, notify Seller in advance prior to disclosure and will use
reasonable efforts to cooperate with Seller at Seller's expense in obtaining any
protective order for such information.
Section 14.6 Bankruptcy Petition. Seller, the Servicer, the Agent and each
Financial Institution 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 Company, it will not institute against, or join any other Person
in instituting against, Company or any such entity 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 14.7 Limitation of Liability. Except with respect to any claim arising
out of the willful misconduct or gross negligence of Company, the Agent or any
Financial Institution, no claim may be made by any Seller Party or any other
Person against Company, the Agent or any Financial Institution or their
respective Affiliates, directors, officers, employees, attorneys or agents for
any special, indirect, consequential or punitive damages in respect of any claim
for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Seller Party hereby waives,
releases, and agrees not to sue upon any claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
Section 14.8 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 14.9 CONSENT TO JURISDICTION. EACH SELLER PARTY 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 SUCH
PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY 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 THE AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY
SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY SELLER PARTY AGAINST THE AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE
AGENT OR ANY PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY
IN A COURT IN CHICAGO, ILLINOIS.
Section 14.10 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 ANY
SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER.
Section 14.11 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document 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 any Seller Party pursuant to
Article V, (ii) the indemnification and payment provisions of Article X, and
Sections 14.5 and 14.6 shall be continuing and shall survive any termination of
this Agreement.
Section 14.12 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.
Section 14.13 Bank One Roles. Each of the Financial Institutions acknowledges
that Bank One acts, or may in the future act, (i) as administrative agent for
Company or any Financial Institution, (ii) as issuing and paying agent for the
Commercial Paper, (iii) to provide credit or liquidity enhancement for the
timely payment for the Commercial Paper and (iv) to provide other services from
time to time for Company or any Financial Institution (collectively, the "Bank
One Roles"). Without limiting the generality of this Section 14.13, each
Financial Institution hereby acknowledges and consents to any and all Bank One
Roles and agrees that in connection with any Bank One Role, Bank One may take,
or refrain from taking, any action that it, in its discretion, deems
appropriate, including, without limitation, in its role as administrative agent
for Company, and the giving of notice to the Agent of a mandatory purchase
pursuant to Section 13.1.
Section 14.14 Characterization. (a) It is the intention of the parties hereto
that each purchase hereunder shall constitute and be treated as an absolute and
irrevocable sale, which purchase shall provide the applicable Purchaser with the
full benefits of ownership of the applicable Purchaser Interest. Except as
specifically provided in this Agreement, each sale of a Purchaser Interest
hereunder is made without recourse to Seller; provided, however, that (i) Seller
shall be liable to each Purchaser and the Agent for all representations,
warranties, covenants and indemnities made by Seller pursuant to the terms of
this Agreement, and (ii) such sale does not constitute and is not intended to
result in an assumption by any Purchaser or the Agent or any assignee thereof of
any obligation of Seller or Originator or any other person arising in connection
with the Receivables, the Related Security, or the related Contracts, or any
other obligations of Seller or Originator.
(b) In addition to any ownership interest which the Agent may from time to time
acquire pursuant hereto, Seller hereby grants to the Agent for the ratable
benefit of the Purchasers a valid and perfected security interest in all of
Seller's right, title and interest in, to and under all Receivables now existing
or hereafter arising, the Collections, each Lock-Box, each Collection Account,
all Related Security, all other rights and payments relating to such
Receivables, and all proceeds of any thereof prior to all other liens on and
security interests therein to secure the prompt and complete payment of the
Aggregate Unpaids. The Agent and the Purchasers shall have, in addition to the
rights and remedies that they may have under this Agreement, all other rights
and remedies provided to a secured creditor under the UCC and other applicable
law, which rights and remedies shall be cumulative.
[SIGNATURE PAGES FOLLOW]
Signature Page 5
Signature Page 1
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 Receivables Corporation
By:
Name:
Title:
Address:
Anixter Inc.
By:
Name:
Title:
Address:
Falcon Asset Securitization Corporation
By:
Authorized Signatory
Address: c/o Bank One, NA, as Agent
Asset Backed Finance
Suite IL1-0079, 1-19
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0079
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Bank One, NA, as a Financial Institution and as Agent
By:
Name:
Title:
Address: Bank One, NA
Asset Backed Finance
Suite IL1-0596, 1-21
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Lloyds TSB Bank plc
By:
Name:
Title:
Address:
Fax:
Danske Bank A/S
By:
Name:
Title:
Address:
Fax:
Exh. I-19
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Accrual Period" means each calendar month, provided that the initial
Accrual Period hereunder means the period from (and including) the date of the
initial purchase hereunder to (and including) the last day of the calendar month
thereafter.
"Acquisition Amount" means, on the date of any purchase from Company of
one or more Purchaser Interests pursuant to Section 13.1, with respect to each
Financial Institution, the lesser of (a) such Financial Institution's Pro Rata
Share of the sum of (i) the lesser of (A) the Adjusted Liquidity Price of each
such Purchaser Interest and (B) the Capital of each such Purchaser Interest and
(ii) all accrued and unpaid CP Costs for each such Purchaser Interest and (b)
such Financial Institution's Unused Liquidity Commitment.
"Adjusted Liquidity Price" means an amount equal to:
[OBJECT OMITTED][OBJECT OMITTED]
where:
RI = the undivided percentage interest evidenced by such Purchaser
Interest.
DC.=........the Deemed Collections.
NDR = the Outstanding Balance of each Receivable as to which any payment,
or part thereof, has not remained unpaid for 150 days or more from the original
invoice date for such Receivable.
Each of the foregoing shall be determined from the most recent Monthly Report
received from the Servicer.
"Adverse Claim" means a lien, security interest, charge or encumbrance,
or other right or claim in, of or on any Person's assets or properties in favor
of any other Person.
"Affected Financial Institution" has the meaning specified in Section
12.1(c).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person owns 20% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Aggregate Capital" means, on any date of determination, the aggregate
amount of Capital of all Purchaser Interests outstanding on such date.
"Aggregate Reduction" has the meaning set forth in Section 1.3.
"Aggregate Reserves" means, on any date of determination, the sum of
the Loss Reserve, the Servicer Reserve, the Yield Reserve, and the Dilution
Reserve.
"Aggregate Unpaids" means, at any time, an amount equal to the sum of
all accrued and unpaid fees under the Fee Letter, CP Costs, Yield, Aggregate
Capital and all other unpaid Obligations (whether due or accrued) at such time.
"Agreement" means this Receivables Purchase Agreement, as it may be
amended or modified and in effect from time to time.
"Amortization Date" means the earliest to occur of (i) the day on which
any of the conditions precedent set forth in Section 6.2 (except for Section
6.2(d)(iii)) are not satisfied, (ii) the Business Day immediately prior to the
occurrence of an Amortization Event set forth in Section 9.1(d)(ii), (iii) the
Business Day specified in a written notice from the Agent following the
occurrence of any other Amortization Event, and (iv) the date which is thirty
(30) days after the Agent's receipt of written notice from Seller that it wishes
to terminate the facility evidenced by this Agreement.
"Amortization Event" has the meaning set forth in Article IX.
"Assignment Agreement" has the meaning set forth in Section 12.1(b).
"Authorized Officer" means, with respect to any Person, its president,
corporate controller, treasurer or chief financial officer.
"Back-up Commitment" means, for each Financial Institution, the
commitment of such Financial Institution to purchase Purchaser Interests from
Seller, in an amount not to exceed (a) in the aggregate, the amount set forth
opposite such Financial Institution's name under the Back-up Commitment column
on Schedule A to this Agreement, as such amount may be modified in accordance
with the terms hereof (including, without limitation, any termination of Back-up
and Liquidity Commitments pursuant to Section 13.6) and (b) with respect to any
individual purchase from the Seller hereunder, the lesser of (i) its Back-up Pro
Rata Share of the Purchase Price therefor and (ii) its Unused Back-up
Commitment.
"Back-up Pro Rata Share" means, for each Financial Institution, a
percentage equal to (i) the Back-up Commitment of such Financial Institution,
divided by (ii) the aggregate amount of all Back-up Commitments of all Financial
Institutions hereunder, adjusted as necessary to give effect to the application
of the terms of Sections 13.5 or 13.6.
"Bank One" means Bank One, NA in its individual capacity and its
successors.
"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 or
Bank One Corporation from time to time, changing when and as such rate changes.
"Broken Funding Costs" means (a) for any Purchaser Interest which: (i)
has its Capital reduced without compliance by Seller with the notice
requirements hereunder or (ii) does not become subject to an Aggregate Reduction
following the delivery of any Reduction Notice or (iii) is assigned under
Article XIII or terminated prior to the date on which it was originally
scheduled to end; an amount equal to the excess, if any, of (A) the CP Costs or
Yield (as applicable) that would have accrued during the remainder of the
Tranche Periods or the tranche periods for Commercial Paper determined by the
Agent to relate to such Purchaser Interest (as applicable) subsequent to the
date of such reduction, assignment or termination (or in respect of clause (ii)
above, the date such Aggregate Reduction was designated to occur pursuant to the
Reduction Notice) of the Capital of such Purchaser Interest if such reduction,
assignment or termination had not occurred or such Reduction Notice had not been
delivered, over (B) the sum of (x) to the extent all or a portion of such
Capital is allocated to another Purchaser Interest, the amount of CP Costs or
Yield actually accrued during the remainder of such period on such Capital for
the new Purchaser Interest, and (y) to the extent such Capital is not allocated
to another Purchaser Interest, the income, if any, actually received during the
remainder of such period by the holder of such Purchaser Interest from investing
the portion of such Capital not so allocated, and (b) any loss or expense
incurred by any Purchaser (including any loss or expense incurred by the reason
of the liquidation or reemployment of funds acquired by such Purchaser in order
to make any such requested Incremental Purchase) as a result of any Incremental
Purchase not being made in accordance with a request therefor under Section 1.2
(whether because of the failure of the conditions precedent with respect to such
Incremental Purchase to be satisfied or for any other reason, other than default
by the relevant Purchaser). All Broken Funding Costs shall be due and payable
hereunder upon demand.
"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, and, if the applicable Business
Day relates to any computation or payment to be made with respect to the LIBO
Rate, any day on which dealings in dollar deposits are carried on in the London
interbank market.
"Capital" means with respect to any Purchaser Interest, at any time,
(A) the Purchase Price of such Purchaser Interest, minus (B) the sum of the
aggregate amount of Collections and other payments received by the Agent which
in each case are applied to reduce such Capital in accordance with the terms and
conditions of this Agreement; provided that such Capital shall be restored (in
accordance with Section 2.5) in the amount of any Collections or other payments
so received and applied if at any time the distribution of such Collections or
payments are rescinded, returned or refunded for any reason.
"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 any
Seller Party.
"Charged-Off Receivable" means a Receivable: (i) as to which the
Obligor thereof has taken any action, or suffered any event to occur, of the
type described in Section 9.1(d) (as if references to Seller Party therein refer
to such Obligor); (ii) as to which the Obligor thereof, if a natural person, is
deceased, (iii) which, consistent with the Credit and Collection Policy, would
be written off Seller's books as uncollectible, (iv) which has been identified
by Seller as uncollectible or (v) as to which any payment, or part thereof,
remains unpaid for 120 days or more from the original invoice date for such
Receivable.
"Collection Account" means each concentration account, depositary
account, lock-box account or similar account in which any Collections are
collected or deposited and which is listed on Exhibit IV.
"Collection Account Agreement" means an agreement substantially in the
form of Exhibit VI among Originator, Seller, the Agent and a Collection Bank.
"Collection Bank" means, at any time, any of the banks holding one or
more Collection Accounts.
"Collection Notice" means a notice, in substantially the form of Annex
A to Exhibit VI, from the Agent to a Collection Bank.
"Collection Period" means each fiscal month of the Seller Parties.
"Collections" means, with respect to any Receivable, all cash
collections and other cash proceeds in respect of such Receivable, including,
without limitation, all yield, Finance Charges or other related amounts accruing
in respect thereof and all cash proceeds of Related Security with respect to
such Receivable.
"Commercial Paper" means promissory notes of Company issued by Company
in the commercial paper market.
"Commitment Availability" means at any time the positive difference (if
any) between (a) an amount equal to the aggregate amount of the Back-up
Commitments at such time minus (b) the Aggregate Capital at such time.
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Residual" means the sum of the Company Transfer Price
Reductions.
"Company Transfer Price" means, with respect to the assignment by
Company of one or more Purchaser Interests to the Agent for the benefit of one
or more of the Financial Institutions pursuant to Section 13.1, the sum of (i)
the lesser of (a) the Capital of each such Purchaser Interest and (b) the
Adjusted Liquidity Price of each such Purchaser Interest and (ii) all accrued
and unpaid CP Costs for each such Purchaser Interest.
"Company Transfer Price Deficit" has the meaning set forth in Section
13.5.
"Company Transfer Price Reduction" means in connection with the
assignment of a Purchaser Interest by Company to the Agent for the benefit of
the Financial Institutions, the positive difference (if any) between (i) the
Capital of such Purchaser Interest and (ii) the Adjusted Liquidity Price for
such Purchaser Interest.
"Contingent Obligation" means, with respect to any Person, any
agreement, undertaking or arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes or is contingently liable upon, the obligation or liability
of any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or application for a letter of
credit.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Receivable arises or which evidences such Receivable.
"CP Costs" means, for each day, the sum of (i) discount or yield
accrued on Pooled Commercial Paper on such day, plus (ii) any and all accrued
commissions in respect of placement agents and Commercial Paper dealers, and
issuing and paying agent fees incurred, in respect of such Pooled Commercial
Paper for such day, plus (iii) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase facilities which are
funded by Pooled Commercial Paper for such day, minus (iv) any accrual of income
net of expenses received on such day from investment of collections received
under all receivable purchase facilities funded substantially with Pooled
Commercial Paper, minus (v) any payment received on such day net of expenses in
respect of Broken Funding Costs related to the prepayment of any Purchaser
Interest of Company pursuant to the terms of any receivable purchase facilities
funded substantially with Pooled Commercial Paper. In addition to the foregoing
costs, if Seller shall request any Incremental Purchase during any period of
time determined by the Agent in its sole discretion to result in incrementally
higher CP Costs applicable to such Incremental Purchase, the Capital associated
with any such Incremental Purchase shall, during such period, be deemed to be
funded by Company in a special pool (which may include capital associated with
other receivable purchase facilities) for purposes of determining such
additional CP Costs applicable only to such special pool and charged each day
during such period against such Capital.
"Credit Agreement" means that certain Credit Agreement dated as of
October 6, 2000 by and among Anixter, the Subsidiaries of Anixter identified as
Borrowing Subsidiaries thereunder, Bank One, as Syndication Agent, The Bank of
Nova Scotia, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent, and the lenders party thereto from time to time, as
amended, supplemented or otherwise modified from time to time.
"Credit and Collection Policy" means Seller's credit and collection
policies and practices relating to Contracts and Receivables existing on the
date hereof and summarized in Exhibit VIII, as modified from time to time in
accordance with this Agreement.
"Deemed Collections" means the aggregate of all amounts Seller shall
have been deemed to have received as a Collection of a Receivable. Seller shall
be deemed to have received a Collection in full of a Receivable if at any time
(i) the Outstanding Balance of any such Receivable is either (x) reduced as a
result of any defective or rejected goods or services, any discount or any
adjustment or otherwise by Seller (other than cash Collections on account of the
Receivables) or (y) 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 (ii) any of the representations or
warranties in Article V are no longer true with respect to any Receivable.
"Default Fee" means with respect to any amount due and payable by
Seller in respect of any Aggregate Unpaids, an amount equal to interest on any
such unpaid Aggregate Unpaids at a rate per annum equal to 2% above the Base
Rate.
"Default Proxy Ratio" means, for any Collection Period, a fraction
(calculated as a percentage) equal to (i) the aggregate Outstanding Balance of
all Receivables (without duplication) which, as of the last day of such
Collection Period, remain unpaid for at least one hundred twenty (120) but less
than one hundred fifty (150) days from the original invoice date plus the
aggregate Outstanding Balance of all Receivables (without duplication) which,
consistent with the Credit and Collection Policy, were or should have been
written off the Seller's books as uncollectible and are less than one hundred
twenty (120) days past invoice date during such period, divided by (ii) the
aggregate Outstanding Balance of all Receivables generated during the Collection
Period which ended on the date four (4) months prior to the last day of the
current Collection Period.
"Defaulting Financial Institution" has the meaning set forth in Section
13.5.
"Delinquency Ratio" means, at any time, a percentage equal to (i) the
aggregate Outstanding Balance of all Receivables that were Delinquent
Receivables at such time divided by (ii) the aggregate Outstanding Balance of
all Receivables at such time.
"Delinquent Receivable" means a Receivable as to which any payment, or
part thereof, remains unpaid for 91 days or more from the original invoice date
for such Receivable.
"Determination Date" means the third Business Day prior to each Monthly
Settlement Date.
"Dilution Horizon Ratio" means, as of any date as set forth in the most
recent Monthly Report, a ratio computed by dividing (i) the aggregate of all
Receivables generated during the two (2) most recently ended Collection Periods
by (ii) the aggregate Outstanding Balance of non-Delinquent Receivables as at
the last day of the most recently ended Collection Period.
"Dilution Ratio" means, for any Collection Period, the ratio (expressed
as a percentage) computed as of the last day of such Collection Period by
dividing (i) the aggregate amount of Dilutions during such Collection Period by
(ii) the aggregate Outstanding Balance of all Receivables generated during the
preceding Collection Period.
"Dilution Reserve" means, on any date, an amount equal to (x) the
Dilution Reserve Ratio then in effect times (y) the Net Receivables Balance as
of the close of business on the immediately preceding Business Day.
"Dilution Reserve Ratio" means, as of any date, an amount calculated as
follows:
DRR = [(2.0 x ADR) + [(HDR-ADR) x (HDR/ADR)]] x DHR
where:...
DRR = the Dilution Reserve Ratio;
ADR = the average of the Dilution Ratios for the past twelve Collection
Periods;
HDR = the highest average Dilution Ratio for any two (2) consecutive
Collection Periods during the most recent twelve months; and
DHR = the Dilution Horizon Ratio.
The Dilution Reserve Ratio shall be calculated monthly in each Monthly
Report and such Dilution Reserve Ratio shall, absent manifest error, be
effective from the corresponding Monthly Settlement Date until the next
succeeding Monthly Settlement Date.
"Dilutions" means, at any time, the aggregate amount of reductions or
cancellations described in clause (i) of the definition of "Deemed Collections".
"Dilution Trigger Ratio" means, as of the end of any Collection Period,
the ratio (expressed as a percentage), computed as of the last day of such
Collection Period by dividing (i) the aggregate amount of Dilutions during such
Collection Period by (ii) the aggregate Outstanding Balance of all Receivables
at the end of such Collection Period minus the aggregate outstanding amount of
all credit memos from Originators outstanding at the end of such Collection
Period.
"Discount Rate" means, the LIBO Rate or the Base Rate, as applicable,
with respect to each Purchaser Interest of the Financial Institutions.
"Eligible Receivable" means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is a resident of the
United States or, if a corporation or other business organization, is
organized under the laws of the United States or any political
subdivision thereof and has its chief executive office in the United
States; (b) is not an Affiliate of any of the parties hereto; and (c)
is not a government or a governmental subdivision or agency;
(ii) due from an Obligor that is the Obligor on another Receivable or
Receivables, and the Outstanding Balance of all Receivables from such
Obligor which are Charged-Off Receivables is less than 20% of the
Outstanding Balance of all Receivables from such Obligor;
(iii) which is not a Charged-Off Receivable or a Delinquent Receivable;
(iv) which by its terms is due and payable within 90 days of the original
billing date therefor and has not had its payment terms extended;
(v) which is "an "account" within the meaning of Section 9-106 of the UCC
of all applicable jurisdictions, and which represents all or part of
the sales price of merchandise, insurance and services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940, as
amended;
(vi) which is denominated and payable only in United States dollars in the
United States;
(vii) which arises under a Contract in substantially the form of one of the
form contracts set forth on Exhibit IX hereto or otherwise approved by
the Agent in writing, which, together with such Receivable, is in full
force and effect and constitutes the legal, valid and binding
obligation of the related Obligor enforceable against such Obligor in
accordance with its terms;
(viii) which arises under a Contract which (A) does not require the Obligor
under such Contract to consent to the transfer, sale or assignment of
the rights and duties of Originator or any of its assignees under such
Contract (unless such consent has been obtained) and (B) does not
contain a confidentiality provision that purports to restrict the
ability of any Purchaser to exercise its rights under this Agreement,
including, without limitation, its right to review the Contract;
(ix) which arises under a Contract that contains an obligation to pay a
specified sum of money, contingent only upon the sale of goods or the
provision of services by Originator;
(x) which, together with the Contract related thereto, does not contravene
any law, rule or regulation applicable thereto (including, without
limitation, any law, rule and regulation relating to truth in lending,
fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy) and with respect to which
no part of the Contract related thereto is in violation of any such
law, rule or regulation;
(xi) which satisfies all applicable requirements of the Credit and
Collection Policy;
(xii) which was generated in the ordinary course of Originator's business;
(xiii) which arises solely from the sale of goods or the provision of services
to the related Obligor by Originator, and not by any other Person (in
whole or in part);
(xiv) as to which the Agent has not notified Seller that the Agent has
determined that such Receivable or class of Receivables is not
acceptable as an Eligible Receivable, including, without limitation,
because such Receivable arises under a Contract that is not acceptable
to the Agent; provided, that Agent shall not determine a Receivable to
be ineligible pursuant to this clause (xiv) because the Obligor is in a
particular industry if on the date hereof the Originator has
outstanding Receivables from Obligors in such industry; and provided
further, that Agent shall not determine a Receivable to be ineligible
pursuant to this clause (xiv) because it is generated by a particular
type of business of the Originator if the Originator is engaged in such
type of business on the date hereof.
(xv) except to the extent (but then only to the extent) that it is subject
to any right of rescission, set-off, counterclaim, any other defense
(including defenses arising out of violations of usury laws) of the
applicable Obligor against Originator or any other Adverse Claim;
(xvi) due from an Obligor that holds no right as against Originator to cause
Originator to repurchase the goods or merchandise the sale of which
shall have given rise to such Receivable (except with respect to sale
discounts effected pursuant to the Contract, or defective goods
returned in accordance with the terms of the Contract);
(xvii) as to which Originator has satisfied and fully performed all
obligations on its part with respect to such Receivable required to be
fulfilled by it, and no further action is required to be performed by
any Person with respect thereto other than payment thereon by the
applicable Obligor;
(xviii) all right, title and interest to and in which has been validly
transferred by Originator directly to Seller under and in accordance
with the Receivables Sale Agreement, and Seller has good and marketable
title thereto free and clear of any Adverse Claim;
(xix) for which Seller has given reasonably equivalent value to Originator in
consideration therefor pursuant to the Receivables Sale Agreement,
which was not made for or on account of an antecedent debt and which is
not voidable under any section of the Bankruptcy Code; and
(xx) in which the Agent, for the benefit of the Purchasers, has a valid and
perfected first priority undivided percentage ownership or security
interest, free and clear of any Adverse Claim.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Facility Account" means Seller's Account No. ▇▇▇▇▇▇▇ at Bank One.
"Facility Termination Date" means the earliest of (i) the Liquidity
Termination Date, (ii) the Amortization Date and (iii) September 30, 2003.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum for each day during such period equal to (a) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing
Quotations for U.S. Government Securities; or (b) if such rate is not so
published for any day which is a Business Day, the average of the quotations at
approximately 10:30 a.m. (Chicago time) for such day on such transactions
received by the Agent from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" means that certain letter agreement dated as of the date
hereof among Seller, Originator and the Agent, as it may be amended or modified
and in effect from time to time.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
"Financial Institutions" has the meaning set forth in the preamble in
this Agreement.
"Funding Agreement" means this Agreement and any agreement or
instrument executed by any Funding Source with or for the benefit of Company.
"Funding Source" means (i) any Financial Institution or (ii) any
insurance company, bank or other funding entity providing liquidity, credit
enhancement or back-up purchase support or facilities to Company.
"GAAP" means generally accepted accounting principles in effect in the
United States of America as of the date of this Agreement.
"Incremental Purchase" means a purchase of one or more Purchaser
Interests which increases the total outstanding Aggregate Capital hereunder.
"Indebtedness" means, with respect to any Person, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by liens or payable
out of the proceeds or production from property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) capitalized lease obligations, (vi) net
liabilities under interest rate swap, exchange or cap agreements, (vii)
Contingent Obligations and (viii) liabilities in respect of unfunded vested
benefits under plans covered by Title IV of ERISA.
"Independent Director" means a member of the Board of Directors of
Seller who is not, (A) and has not been at any time during the five (5) years
preceding his or her election to such Board of Directors, a director, officer,
employee or affiliate of Seller, Originator, or any of their respective
Subsidiaries or Affiliates, or (B) the beneficial owner (at the time of such
individual's appointment as an Independent Director or at any time thereafter
while serving as an Independent Director) of any of the outstanding common
shares of Seller, Originator, or any of their respective Subsidiaries or
Affiliates, having general voting rights;
"LIBO Rate" means the rate per annum equal to the sum of:
(i) (a) the applicable British Bankers' Association Interest Settlement
Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00
a.m. (London time) two Business Days prior to the first day of the relevant
Tranche Period, and having a maturity equal to such Tranche Period, provided
that, (1) if Reuters Screen FRBD is not available to the Agent for any reason,
the applicable LIBO Rate for the relevant Tranche Period shall instead be the
applicable British Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first day
of such Tranche Period, and having a maturity equal to such Tranche Period, and
(2) if no such British Bankers' Association Interest Settlement Rate is
available to the Agent, the applicable LIBO Rate for the relevant Tranche Period
shall instead be the rate determined by the Agent to be the rate at which Bank
One offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Tranche Period, in the approximate amount to
be funded at the LIBO Rate and having a maturity equal to such Tranche Period,
divided by (b) one minus the maximum aggregate reserve requirement (including
all basic, supplemental, marginal or other reserves) which is imposed against
the Agent in respect of Eurocurrency liabilities, as defined in Regulation D of
the Board of Governors of the Federal Reserve System as in effect from time to
time (expressed as a decimal), applicable to such Tranche Period; plus
(ii) 0.75% per annum.
The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of
1%.
"Liquidity Commitment" means, for each Financial Institution, the
commitment of such Financial Institution to purchase Purchaser Interests from
the Company in an amount not to exceed (a) in the aggregate, the amount set
forth opposite such Financial Institution's name under the Liquidity Commitment
Column on Schedule A to this Agreement, as such amount may be modified in
accordance with the terms hereof, and (b) with respect to any individual
purchase from the Company, the lesser of (i) its Pro Rata Share of the Purchase
Price therefor and (ii) its Unused Liquidity Commitment.
"Liquidity Termination Date" means October 4, 2001.
"Lock-Box" means each locked postal box with respect to which a bank
who has executed a Collection Account Agreement has been granted exclusive
access for the purpose of retrieving and processing payments made on the
Receivables and which is listed on Exhibit IV.
"Loss Horizon Ratio" means, for any Collection Period, a fraction
(calculated as a percentage) computed by dividing (i) the aggregate Outstanding
Balance of all Receivables generated during the three (3) most recently ended
Collection Periods by (ii) the aggregate Outstanding Balance of all
non-Delinquent Receivables as at the last day of the most recently ended
Collection Period.
"Loss Reserve" means, on any date, an amount equal to (x) the greater
of (i) 12% and (ii) the Loss Reserve Ratio then in effect times (y) the
aggregate Net Receivables Balance as of the close of business on the immediately
preceding Business Day.
"Loss Reserve Ratio" means, as of any date, an amount calculated as
follows:
LRR = 2.0 x DPR x LHR, where
LRR = the Loss Reserve Ratio;
DPR = the highest average of the Default Proxy Ratios for any three
consecutive Collection Periods during the most recent twelve months;
and
LHR = the Loss Horizon Ratio.
The Loss Reserve Ratio shall be calculated monthly in each Monthly Report and
such Loss Reserve Ratio shall, absent manifest error, be effective from the
corresponding Monthly Settlement Date until the next succeeding Monthly
Settlement Date.
"Loss-to Liquidation Ratio" means, for any Collection Period, a
fraction (calculated as a percentage) equal to (i) the aggregate Outstanding
Balance of all Receivables (without duplication) which, as of the last day of
such Collection Period, remain unpaid for at least one hundred twenty (120) but
less than one hundred fifty (150) days from the original invoice date plus the
aggregate Outstanding Balance of all Receivables (without duplication) which,
consistent with the Credit and Collection Policy, were or should have been
written off the Seller's books as uncollectible and are less than one hundred
twenty (120) days past invoice date during such period, divided by (ii) the
aggregate amount of Collections during such Collection Period.
"Mandate Letter" means that certain mandate letter dated as of July 24,
2000 addressed to Anixter from Banc One Capital Markets, Inc.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of any Seller Party and its Subsidiaries, (ii)
the ability of any Seller Party to perform its obligations under this Agreement,
(iii) the legality, validity or enforceability of this Agreement or any other
Transaction Document, (iv) any Purchaser's interest in the Receivables generally
or in any significant portion of the Receivables, the Related Security or the
Collections with respect thereto, or (v) the collectibility of the Receivables
generally or of any material portion of the Receivables.
"Monthly Report" means a report, in substantially the form of Exhibit X
hereto (appropriately completed), furnished by the Servicer to the Agent
pursuant to Section 8.5.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successor thereto.
"Monthly Settlement Date" means the 17th day of each month, or if such
day is not a Business Day, the next succeeding Business Day.
"Net Receivables Balance" means, at any time, the aggregate Outstanding
Balance of Eligible Receivables at such time reduced by the aggregate amount by
which the Outstanding Balance of Eligible Receivables from each Obligor and its
Affiliates exceeds the Standard Concentration Limit or Special Concentration
Limit for such Obligor, as the case may be.
"Non-Defaulting Financial Institution" has the meaning set forth in
Section 13.5.
"Non-Renewing Financial Institution" has the meaning set forth in
Section 13.6(a).
"Obligations" has the meaning set forth in Section 2.1.
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Originator" means Anixter, in its capacity as seller under the
Receivables Sale Agreement.
"Outstanding Balance" means, with respect to any Receivable at any
time, the then outstanding principal balance thereof.
"Outstanding Balance of Eligible Receivables" means, for purposes of
the definitions of "Net Receivables Balance", "Special Concentration Limit" and
"Standard Concentration Limit", the Outstanding Balance of all Eligible
Receivables (the Outstanding Balance of an Eligible Receivable subject to any
right of rescission, set-off, counterclaim or other defense as described in
clause (xv) of the definition of "Eligible Receivable" being the outstanding
principal balance of such Receivable less the amount of such right of
rescission, set-off, counterclaim or other defense), plus the lesser of (a) the
aggregate amount of all rights of rescission, set-off, counterclaim or other
defenses to which all Eligible Receivables are subject and (b) $15,000,000.
"Participant" has the meaning set forth in Section 12.2.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Pooled Commercial Paper" means Commercial Paper notes of Company
subject to any particular pooling arrangement by Company, but excluding
Commercial Paper issued by Company for a tenor and in an amount specifically
requested by any Person in connection with any agreement effected by Company.
"Potential Amortization Event" means an event which, with the passage
of time or the giving of notice, or both, would constitute an Amortization
Event.
"Proposed Reduction Date" has the meaning set forth in Section 1.3.
"Pro Rata Share" means, for each Financial Institution, a percentage
equal to (i) the Liquidity Commitment of such Financial Institution, divided by
(ii) the aggregate amount of all Liquidity Commitments of all Financial
Institutions hereunder, adjusted as necessary to give effect to the application
of the terms of Sections 13.5 or 13.6.
"Purchase Limit" means $275,000,000.
"Purchase Notice" has the meaning set forth in Section 1.2.
"Purchase Price" means, with respect to any Incremental Purchase of a
Purchaser Interest, the amount paid to Seller for such Purchaser Interest which
shall not exceed the least of the amount requested by Seller in the applicable
Purchase Notice, the Unused Purchase Limit on the applicable purchase date and
the excess, if any, of the Net Receivables Balance (less the Aggregate Reserves)
on the applicable purchase date over the aggregate outstanding amount of
Aggregate Capital determined as of the date of the most recent Monthly Report.
"Purchase Price Deficit" has the meaning set forth in Section 1.2.
"Purchasers" means Company and each Financial Institution.
"Purchaser Interest" means, at any time, an undivided percentage
ownership interest (computed as set forth below) associated with a designated
amount of Capital, selected pursuant to the terms and conditions hereof in (i)
each Receivable arising prior to the time of the most recent computation or
recomputation of such undivided interest, (ii) all Related Security with respect
to each such Receivable, and (iii) all Collections with respect to, and other
proceeds of, each such Receivable. Each such undivided percentage interest shall
equal:
[OBJECT OMITTED]
where:
C = the Capital of such Purchaser Interest.
AR = the Aggregate Reserves.
NRB = the Net Receivables Balance.
Such undivided percentage ownership interest shall be initially computed on its
date of purchase. Thereafter, until the Amortization Date, each Purchaser
Interest shall be automatically recomputed (or deemed to be recomputed) on each
day prior to the Amortization Date. The variable percentage represented by any
Purchaser Interest as computed (or deemed recomputed) as of the close of the
business day immediately preceding the Amortization Date shall remain constant
at all times thereafter.
"Purchasing Financial Institution" has the meaning set forth in Section 12.1(b).
"Receivable" means all indebtedness and other obligations owed to
Seller or Originator (at the time it arises, and before giving effect to any
transfer or conveyance under the Receivables Sale Agreement or hereunder) or in
which Seller has a security interest or other interest, including, without
limitation, any indebtedness, obligation or interest 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 further 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; provided further, that any
indebtedness, rights or obligations referred to in the immediately preceding
sentence shall be a Receivable regardless of whether the account debtor or
Seller treats such indebtedness, rights or obligations as a separate payment
obligation.
Receivables Sale Agreement" means that certain Receivables Sale
Agreement, dated as of October 6, 2000 , between Originator and Seller, as the
same may be amended, restated or otherwise modified from time to time.
"Records" means, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"Reduction Notice" has the meaning set forth in Section 1.3.
"Reduction Percentage" means, for any Purchaser Interest acquired by
the Financial Institutions from Company for less than the Capital of such
Purchaser Interest, a percentage equal to a fraction the numerator of which is
the Company Transfer Price Reduction for such Purchaser Interest and the
denominator of which is the Capital of such Purchaser Interest.
"Regulatory Change" has the meaning set forth in Section 10.2(a).
"Reinvestment" has the meaning set forth in Section 2.2.
"Related Security" means, with respect to any Receivable:
(i) all of Seller's interest in the inventory and goods (including returned
or repossessed inventory or goods), if any, the sale, 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, letters of credit, 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 of Seller's right, title and interest in, to and under the
Receivables Sale Agreement in respect of such Receivable, and
(vii) all proceeds of any of the foregoing.
"Required Financial Institutions" means, at any time, (i) if the Company
holds any Purchaser Interests, the Agent and Financial Institutions with
Liquidity Commitments in excess of 50% of the aggregate Liquidity Commitments
and (ii) if the Company holds no Purchaser Interests, Financial Institutions
with Liquidity Commitments in excess of 50% of the aggregate Liquidity
Commitments.
"S&P" means Standard & Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and any successor thereto.
"Section 1.2 Defaulting Financial Institution" and "Section 1.2
Non-Defaulting Financial Institution" have the meanings set forth in Section
1.2.
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Parties" has the meaning set forth in the preamble to this
Agreement.
"Servicer" means at any time the Person (which may be the Agent) then
authorized pursuant to Article VIII to service, administer and collect
Receivables.
"Servicer Reserve" means, on any date, an amount equal to (a) if Anixter or
any Affiliate of Anixter is the Servicer on such date, the product of (x) 0.36%
and (y) the Outstanding Balance of all Receivables generated during the most
recently ended Collection Period immediately preceding such date, or (b) if a
Person other than Anixter or any Affiliate of Anixter is the Servicer on such
date, the product of (i) 0.33% and (ii) the Outstanding Balance of all
Receivables as at the end of the most recently ended Collection Period
immediately preceding such date, or such other amount as Agent shall determine
in its reasonable judgment.
"Servicing Fee" has the meaning set forth in Section 8.6.
"Settlement Date" means (A) the Monthly Settlement Date, and (B) the last
day of the relevant Tranche Period in respect of each Purchaser Interest of the
Financial Institutions.
"Settlement Period" means (A) in respect of each Purchaser Interest of
Company, the immediately preceding Accrual Period, and (B) in respect of each
Purchaser Interest of the Financial Institutions, the entire Tranche Period of
such Purchaser Interest.
"Significant Subsidiary" has the meaning set forth in Regulation S-X of the
Securities and Exchange Commission, 17 C.F.R. Part 210, as in effect on the date
hereof.
"Special Concentration Limit" means, at any time, with respect to any
Special Obligor, a dollar amount equal to a percentage of the aggregate
Outstanding Balance of Eligible Receivables or such other limit as the Agent may
designate for such Special Obligor; provided, that the Agent may, upon notice to
Seller, cancel or reduce any Special Concentration Limit. The initial Special
Concentration Limit for each of AT&T, MCI, Lucent Technologies and Nortel
Networks shall be, as of any date of determination thereof, 12% of the
Outstanding Balance of Eligible Receivables at such time.
"Special Obligor" means each of AT&T, MCI, Lucent Technologies, Nortel
Networks, and such other Special Obligors as may be designated by the Agent from
time to time.
"Standard Concentration Limit" means, at any time, with respect to any
Obligor other than a Special Obligor, 4% of the aggregate Outstanding Balance of
Eligible Receivables at such time.
"Subsidiary" means, with respect to any Person, (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. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a Subsidiary of Anixter.
"Termination Date" has the meaning set forth in Section 2.2.
"Termination Percentage" has the meaning set forth in Section 2.2.
"Terminating Financial Institution" has the meaning set forth in Section
13.6(a).
"Terminating Tranche" has the meaning set forth in Section 4.3(b).
"Tranche Period" means, with respect to any Purchaser Interest held by
a Financial Institution:
(a) if Yield for such Purchaser Interest is calculated on the basis of the LIBO
Rate, a period of one, two, three or six months, or such other period as may be
mutually agreeable to the Agent and Seller, commencing on a Business Day
selected by Seller or the Agent pursuant to this Agreement. Such Tranche Period
shall end on the day in the applicable succeeding calendar month which
corresponds numerically to the beginning day of such Tranche Period, provided,
however, that if there is no such numerically corresponding day in such
succeeding month, such Tranche Period shall end on the last Business Day of such
succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the basis of the Base
Rate, a period commencing on a Business Day selected by Seller and agreed to by
the Agent, provided no such period shall exceed one month.
If any Tranche Period would end on a day which is not a Business Day, such
Tranche Period shall end on the next succeeding Business Day, provided, however,
that in the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day. In the case of any Tranche Period for
any Purchaser Interest which commences before the Amortization Date and would
otherwise end on a date occurring after the Amortization Date, such Tranche
Period shall end on the Amortization Date. The duration of each Tranche Period
which commences after the Amortization Date shall be of such duration as
selected by the Agent.
"Transaction Documents" means, collectively, this Agreement, each Purchase
Notice, the Receivables Sale Agreement, each Collection Account Agreement, the
Fee Letter, the Subordinated Note (as defined in the Receivables Sale 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 specified jurisdiction.
"Unused Back-up Commitment" means, with respect to any Financial
Institution at any time, such Financial Institution's Back-up Commitment at such
time minus such Financial Institution's Back-up Pro Rata Share of the Aggregate
Capital outstanding at such time.
"Unused Liquidity Commitment" means, with respect to any Financial
Institution at any time, such Financial Institution's Liquidity Commitment at
such time minus the aggregate Capital of such Financial Institution's Purchaser
Interests at such time.
"Unused Purchase Limit" means, at any time, the Purchase Limit at such
time minus the Aggregate Capital outstanding at such time.
"Yield" means for each respective Tranche Period relating to Purchaser
Interests of the Financial Institutions, an amount equal to the product of the
applicable Discount Rate for each Purchaser Interest multiplied by the Capital
of such Purchaser Interest for each day elapsed during such Tranche Period,
annualized on a 360 day basis.
"Yield Reserve" means, on any date, an amount equal to the product of (a)
the Purchase Limit and (b) 1.875%.
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP. 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.
Exh. II-2
EXHIBIT II
FORM OF PURCHASE NOTICE
[Date]
Bank One, NA, as Agent
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, 21st Floor
Asset-Backed Finance
Chicago, Illinois 60670-0596
Attention:
Re: PURCHASE NOTICE
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated
as of October 6, 2000, by and among Anixter Receivables Corporation, a Delaware
corporation (the "Seller"), Anixter Inc., as Servicer, the Financial
Institutions, Falcon Asset Securitization Corporation ("Company"), and Bank One,
NA, as Agent (the "Receivables Purchase Agreement"). Capitalized terms used
herein shall have the meanings assigned to such terms in the Receivables
Purchase Agreement.
The Agent is hereby notified of the following Incremental Purchase:
Purchase Price: $
------------------------------------- ------------------------------------------
Date of Purchase:
------------------------------------- ------------------------------------------
Requested Discount Rate: [LIBO Rate] [Base Rate] [Pooled Commercial
Paper rate]
------------------------------------- ------------------------------------------
Please credit the Purchase Price in immediately available funds to our
Facility Account [and then wire-transfer the Purchase Price in immediately
available funds on the above-specified date of purchase to:
[Account Name]
[Account No.]
[Bank Name & Address]
[ABA #]
Reference:
Telephone advice to: [Name] @ tel. No. ( )
Please advise [Name] at telephone no ( ) _________________ if Company
will not be making this purchase.
In connection with the Incremental Purchase to be made on the above listed
"Date of Purchase" (the "Purchase Date"), the Seller hereby certifies that the
following statements are true on the date hereof, and will be true on the
Purchase Date (before and after giving effect to the proposed Incremental
Purchase):
(i) the representations and warranties of the Seller set forth in Section
5.1 of the Receivables Purchase Agreement are true and correct on and as of the
Purchase Date as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from the
proposed Incremental Purchase, that will constitute an Amortization Event or a
Potential Amortization Event;
(iii) the Facility Termination Date has not occurred, the Aggregate Capital
does not exceed the Purchase Limit and the aggregate Purchaser Interests do not
exceed 100%; and
(iv) the amount of Aggregate Capital is $_________ after giving effect to
the Incremental Purchase to be made on the Purchase Date.
Very truly yours,
Anixter Receivables Corporation
By:
Name:
Title:
Exh. III-1
EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
Exh. IV-1
EXHIBIT IV
NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS
------------------------------------------------ -------------------------------
Lock-Box Related Collection Account
------------------------------------------------ -------------------------------
------------------------------------------------ -------------------------------
------------------------------------------------ -------------------------------
Exh. V-2
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA, as Agent
This Compliance Certificate is furnished pursuant to that certain
Receivables Purchase Agreement dated as of October 6, 2000 among Anixter
Receivables Corporation (the "Seller"), Anixter Inc. (the "Servicer"), the
Purchasers party thereto and Bank One, NA, as agent for such Purchasers (the
"Agreement").
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________ of Seller.
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 Seller 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 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 in paragraph 5 below.
4. Schedule I attached hereto sets forth financial data and computations
evidencing the compliance with certain covenants of the Agreement, all of
which data and computations are true, complete and correct.
5. 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 Seller 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 , .
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of __________, ____ with Section ___ of the
Agreement. Unless otherwise defined herein, the terms used in this Compliance
Certificate have the meanings ascribed thereto in the Agreement.
This schedule relates to the month ended:
Exh. VI-3
EXHIBIT VI1
FORM OF COLLECTION ACCOUNT AGREEMENT
[On letterhead of Anixter Inc.]
__________, 2000
[Lock-Box Bank/Concentration Bank/Depositary Bank]
Re: Anixter Inc.
Ladies and Gentlemen:
Reference is ▇▇▇▇▇▇ made to P.O. Box # in [city, state, zip code] (the
"Lock-Box") of which you have exclusive control for the purpose of receiving
mail and processing payments therefrom pursuant to that certain [name of
lock-box agreement) between you and Anixter Inc. (the "Company") dated
_________, _____ (the "Agreement"). You hereby confirm your agreement to perform
the services described therein. Among the services you have agreed to perform
therein, is to endorse all checks and other evidences of payment, and credit
such payments to the Company's checking account no. maintained with you in the
name of the Company (the "Lock-Box Account").
The Company hereby informs you that pursuant to that certain Receivables
Sale Agreement, dated as of ________, 2000 between the Company and Anixter
Receivables Corporation (the "Seller"), the Company has transferred all of its
right, title and interest in and to, and exclusive ownership and control of, the
Lock-Box and the Lock-Box Account to Seller. The Company and Seller hereby
request that the name of the Lock-Box Account be changed to "[Anixter Inc.], as
Servicer."
The Company and Seller hereby irrevocably instruct you, and you hereby
agree, that upon receiving notice from Bank One, NA ("Bank One") in the form
attached hereto as Annex A: (i) the name of the Lock-Box Account will be changed
to Bank One for itself and as agent (or any designee of Bank One) and Bank One
will have exclusive ownership of and access to the Lock-Box and the Lock-Box
Account, and neither the Company, Seller, nor any of their respective affiliates
will have any control of the Lock-Box or the Lock-Box Account or any access
thereto, (ii) you will either continue to send the funds from the Lock-Box to
the Lock-Box Account, or will redirect the funds as Bank One may otherwise
request, (iii) you will transfer monies on deposit in the Lock-Box Account, at
any time, as directed by Bank One, (iv) all services to be performed by you
under the Agreement will be performed on behalf of Bank One, and (v) all
correspondence or other mail which you have agreed to send to the Company or
Seller will be sent to Bank One at the following address:
Bank One, NA
Suite , 21st Floor
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
Attention: Credit Manager, Asset Backed
Securities Division
Moreover, upon such notice, Bank One for itself and as agent will have all
rights and remedies given to the Company (and Seller, as the Company's assignee)
under the Agreement. ▇▇▇▇▇▇ agrees, however, to continue to pay all fees and
other assessments due thereunder at any time.
You hereby acknowledge that monies deposited in the Lock-Box Account or any
other account established with you by Bank One for the purpose of receiving
funds from the Lock-Box are subject to the liens of Bank One for itself and as
agent, and will not be subject to deduction, set-off, banker's lien or any other
right you or any other party may have against the Company or Seller [except that
you may debit the Lock-Box Account for any items deposited therein that are
returned or otherwise not collected and for all charges, fees, commissions and
expenses incurred by you in providing services hereunder, all in accordance with
your customary practices for the charge back of returned items and expenses.]
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS. This letter agreement may be executed in any
number of counterparts and all of such counterparts taken together will be
deemed to constitute one and the same instrument.
This letter agreement contains the entire agreement between the parties,
and may not be altered, modified, terminated or amended in any respect, nor may
any right, power or privilege of any party hereunder be waived or released or
discharged, except upon execution by all parties hereto of a written instrument
so providing. In the event that any provision in this letter agreement is in
conflict with, or inconsistent with, any provision of the Agreement, this letter
agreement will exclusively govern and control. Each party agrees to take all
actions reasonably requested by any other party to carry out the purposes of
this letter agreement or to preserve and protect the rights of each party
hereunder.
Please indicate your agreement to the terms of this letter agreement by
signing in the space provided below. This letter agreement will become effective
immediately upon execution of a counterpart of this letter agreement by all
parties hereto.
Very truly yours,
Anixter Inc.
By:
Name:
Title:
Anixter Receivables Corporation
By:
Name:
Title:
Acknowledged and agreed to
this day of
----
[Collection Bank]
By:
Name:
Title:
Bank One, NA, as Agent
By:
Name:
Title:
Annex A-1
ANNEX A
FORM OF NOTICE
[On letterhead of Bank One]
[Collection Bank/Depositary Bank/Concentration Bank]
Re: Anixter Inc./Anixter Receivables Corporation
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights pursuant to that
certain letter agreement among Anixter Inc., Anixter Receivables Corporation,
you and us, to have the name of, and to have exclusive ownership and control of,
account number (the "Lock-Box Account") maintained with you, transferred to us.
[The Lock-Box Account will henceforth be a zero-balance account, and funds
deposited in the Lock-Box Account should be sent at the end of each day to .]
You have further agreed to perform all other services you are performing under
that certain agreement dated between you and [Anixter Inc.] on our behalf.
We appreciate your cooperation in this matter.
Very truly yours,
BANK ONE, NA, as Agent
By:
Title:
Exh. VII-7
EXHIBIT VII
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment Agreement") is entered into as
of the ___ day of ____________, -------------------- ____, by and between
_____________________ ("Assignor") and __________________ ("Assignee"). --------
--------
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered in accordance with
Section 12.1(b) of that certain Receivables Purchase Agreement dated as of
October 6, 2000 by and among Anixter Receivables Corporation, Anixter Inc., as
Servicer, Falcon Asset Securitization Corporation, Bank One, NA, as Agent, and
the Financial Institutions party thereto (as amended, modified or restated from
time to time, the "Purchase Agreement"). Capitalized terms used and not
otherwise defined herein are used with the meanings set forth or incorporated by
reference in the Purchase Agreement.
B. Assignor is a Financial Institution party to the Purchase Agreement, and
Assignee wishes to become a
Financial Institution thereunder; and
C. Assignor is selling and assigning to Assignee an undivided ____________%
(the "Transferred Percentage") interest in all of Assignor's rights and
obligations under the Purchase Agreement and the Transaction Documents,
including, without limitation, Assignor's Back-up Commitment and Liquidity
Commitment and (if applicable) the Capital of Assignor's Purchaser Interests as
set forth herein.
AGREEMENT
The parties hereto hereby agree as follows:
1. The sale, transfer and assignment effected by this Assignment Agreement shall
become effective (the "Effective Date") two (2) Business Days (or such other
date selected by the Agent in its sole discretion) following the date on which a
notice substantially in the form of Schedule II to this Assignment Agreement
("Effective Notice") is delivered by the Agent to Company, Assignor and
Assignee. From and after the Effective Date, Assignee shall be a Financial
Institution party to the Purchase Agreement for all purposes thereof as if
Assignee were an original party thereto and Assignee agrees to be bound by all
of the terms and provisions contained therein.
2. If Assignor has no outstanding Capital under the Purchase Agreement, on the
Effective Date, Assignor shall be deemed to have hereby transferred and assigned
to Assignee, without recourse, representation or warranty (except as provided in
paragraph 6 below), and the Assignee shall be deemed to have hereby irrevocably
taken, received and assumed from Assignor, the Transferred Percentage of
Assignor's Back-up Commitment and Liquidity Commitment and all rights and
obligations associated therewith under the terms of the Purchase Agreement,
including, without limitation, the Transferred Percentage of Assignor's future
funding obligations under Section 4.1 of the Purchase Agreement.
3. If Assignor has any outstanding Capital under the Purchase Agreement, at or
before 12:00 noon, local time of Assignor, on the Effective Date Assignee shall
pay to Assignor, in immediately available funds, an amount equal to the sum of
(i) the Transferred Percentage of the outstanding Capital of Assignor's
Purchaser Interests (such amount, being hereinafter referred to as the
"Assignee's Capital"); (ii) all accrued but unpaid (whether or not then due)
Yield attributable to Assignee's Capital; and (iii) accruing but unpaid fees and
other costs and expenses payable in respect of Assignee's Capital for the period
commencing upon each date such unpaid amounts commence accruing, to and
including the Effective Date (the "Assignee's Acquisition Cost"); whereupon,
Assignor shall be deemed to have sold, transferred and assigned to Assignee,
without recourse, representation or warranty (except as provided in paragraph 6
below), and Assignee shall be deemed to have hereby irrevocably taken, received
and assumed from Assignor, the Transferred Percentage of Assignor's Back-up
Commitment and Liquidity Commitment and the Capital of Assignor's Purchaser
Interests (if applicable) and all related rights and obligations under the
Purchase Agreement and the Transaction Documents, including, without limitation,
the Transferred Percentage of Assignor's future funding obligations under
Section 4.1 of the Purchase Agreement.
4. Concurrently with the execution and delivery hereof, Assignor will provide to
Assignee copies of all documents requested by Assignee which were delivered to
Assignor pursuant to the Purchase Agreement.
5. Each of the parties to this Assignment Agreement agrees that at any time and
from time to time upon the written request of any other party, it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Assignment Agreement.
6. By executing and delivering this Assignment Agreement, Assignor and Assignee
confirm to and agree with each other, the Agent and the Financial Institutions
as follows: (a) other than the representation and warranty that it has not
created any Adverse Claim upon any interest being transferred hereunder,
Assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made by any other
Person in or in connection with the Purchase Agreement or the Transaction
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of Assignee, the Purchase Agreement or any other instrument
or document furnished pursuant thereto or the perfection, priority, condition,
value or sufficiency of any collateral; (b) Assignor makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Seller, any Obligor, any Affiliate of Seller or the performance or
observance by the Seller, any Obligor, any Affiliate of Seller of any of their
respective obligations under the Transaction Documents or any other instrument
or document furnished pursuant thereto or in connection therewith; (c) Assignee
confirms that it has received a copy of the Purchase Agreement and copies of
such other Transaction Documents, and other documents and information as it has
requested and deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement; (d) Assignee will, independently and
without reliance upon the Agent, Company, the Seller or any other Financial
Institution or Purchaser and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Purchase Agreement and the Transaction
Documents; (e) Assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Transaction Documents
as are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; and (f) Assignee agrees that it will perform
in accordance with their terms all of the obligations which, by the terms of the
Purchase Agreement and the other Transaction Documents, are required to be
performed by it as a Financial Institution or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees with the Agent that
it is aware of and will comply with the provisions of the Purchase Agreement,
including, without limitation, Sections 4.1, 13.1 and 14.6 thereof.
8. Schedule I hereto sets forth the revised Back-up Commitment and Liquidity
Commitment of Assignor and the Back-up Commitment and Liquidity Commitment of
Assignee, as well as administrative information with respect to Assignee.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
10. Assignee hereby covenants and agrees that, prior to the date which is one
year and one day after the payment in full of all senior indebtedness for
borrowed money of Company, it will not institute against, or join any other
Person in instituting against, Company 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.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers of the
date hereof.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: _______________, ____
Transferred Percentage: ________%
A-1 A-2 A-3 A-4 B-1 B-2
-------------- ------------------ ------------------- --------------------- --------------------- --------------- ----------------
Assignor Back-up Back-up Liquidity Liquidity Outstanding Ratable Share
Commitment Commitment (after Commitment (prior Commitment (after Capital of Outstanding
(prior to giving giving effect to to giving effect to giving effect to (if any) Capital
effect to the the Assignment the Assignment the Assignment
Assignment Agreement) Agreement) Agreement)
Agreement)
-------------- ------------------ ------------------- --------------------- --------------------- --------------- ----------------
A-2 A-4 B-1 B-2
-------------- ------------------ ------------------- --------------------- --------------------- --------------- ----------------
Assignee Back-up Liquidity Outstanding Ratable Share
Commitment (after Commitment (after Capital of Outstanding
giving effect to giving effect to (if any) Capital
the Assignment the Assignment
Agreement) Agreement)
-------------- ------------------ ------------------- --------------------- --------------------- --------------- ----------------
Address for Notices
Attention:
Phone:
Fax:
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
TO:________________________, Assignor
TO:________________________, Assignee
The undersigned, as Agent under the Receivables Purchase Agreement dated as
of October 6, 2000 by and among Anixter Receivables Corporation, a Delaware
corporation, Anixter Inc., as Servicer, Falcon Asset Securitization Corporation,
Bank One, NA, as Agent, and the Financial Institutions party thereto, hereby
acknowledges receipt of executed counterparts of a completed Assignment
Agreement dated as of ____________, ____ between __________________, as
Assignor, and __________________, as Assignee. Terms defined in such Assignment
Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Effective Date will be ______________, ____.
2. Company hereby consents to the Assignment Agreement as required by
Section 12.1(b) of the Receivables
Purchase Agreement.
[3. Pursuant to such Assignment Agreement, the Assignee is required to pay
$____________ to Assignor at or before 12:00 noon (local time of Assignor) on
the Effective Date in immediately available funds.]
Very truly yours,
BANK ONE, NA, individually and as Agent
By:
Title:
FALCON ASSET SECURITIZATION
CORPORATION
By: ____________________________
Authorized Signatory
Exh. VIII-1
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
See Exhibit V to Receivables Sale Agreement
Exh. IX-1
EXHIBIT IX
FORM OF CONTRACT(S)
See Attached
Exh. X-1
EXHIBIT X
FORM OF MONTHLY REPORT
[In addition to such other information as may be included on this exhibit,
each Monthly Report should set forth the following with respect to the related
Calculation Period (as defined in the Receivables Sale Agreement): (i) the
aggregate Outstanding Balance of Receivables created and conveyed by Originator
to Seller in purchases pursuant to the Receivables Sale Agreement during such
Calculation Period, as well as the Net Receivables Balance included therein,
(ii) the aggregate purchase price payable to Originator in respect of such
purchases, specifying the Discount Factor (as defined in the Receivables Sale
Agreement) in effect for such Calculation Period and the aggregate Purchase
Price Credits (as defined in the Receivables Sale Agreement) deducted in
calculating such aggregate purchase price, (iii) the aggregate amount of funds
received by the Servicer during such Calculation Period which are to be applied
as Reinvestments, (iv) the increase or decrease in the amount outstanding under
the Subordinated Note (as defined in the Receivables Sale Agreement) as of the
end of such Calculation Period after giving effect to the application of funds
toward the aggregate purchase price and the restrictions on Subordinated Loans
(as defined in the Receivables Sale Agreement) set forth in Section 1.2(a)(ii)
of the Receivables Sale Agreement, and (v) the amount of any capital
contribution made by Originator to Seller as of the end of such Calculation
Period pursuant to Section 1.2(b) of the Receivables Sale Agreement.]
The above is a true and accurate accounting pursuant to the terms of the
Receivables Purchase Agreement dated October 6, 2000 (the "Agreement"), by and
among Anixter Receivables Corporation, Anixter Inc., the Financial Institutions
named therein, Falcon Asset Securitization Corporation and Bank One, NA, as
Agent, and I have no knowledge of the existence of any conditions or events
which constitute an Amortization Event or Potential Amortization Event, as each
such term is defined under the Agreement, during or at the end of the accounting
period covered by this monthly report or as of the date of this certificate,
except as set forth below.
By:______________________
Name:___________________
Title:____________________
Company Name:___________
Date:____________________
Sch. A-1
SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
Financial Institution Back-up Commitment Liquidity Commitment
Bank One, NA $150,000,000 $155,500,000
Lloyds TSB Bank plc $ 75,000,000 $ 75,000,000
Danske Bank A/S $ 50,000,000 $ 50,000,000
Sch. B-1
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE AGENT
ON OR PRIOR TO THE INITIAL PURCHASE
(Attached.)
iii
TABLE OF CONTENTS
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1 We will replace this with the form agreed upon with Bank of America when
it is complete.