Second Amendment to Amended and Restated Receivables Purchase Agreement

EX-4.10 4 c92439exv4w10.txt SECOND AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT EXHIBIT 4.10 AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (the "Amendment"), dated as of September 30, 2004, among ANIXTER RECEIVABLES CORPORATION, a Delaware corporation (the "Seller"), ANIXTER INC., a Delaware corporation ("Anixter"), as the initial Servicer, each financial institution party hereto as a Financial Institution, FALCON ASSET SECURITIZATION CORPORATION ("Falcon") and THREE PILLARS FUNDING LLC (f/k/a Three Pillars Funding Corporation) ("Three Pillars"), as conduits, (collectively, the "Conduits" and each individually, a "Conduit") and SUNTRUST CAPITAL MARKETS and BANK ONE, NA ("Bank One"), as managing agents (collectively, the "Managing Agents" and each individually, a "Managing Agent") and Bank One, as agent for the Purchasers (the "Agent"). W I T N E S S E T H: WHEREAS, the Seller, Anixter, the Financial Institutions, Falcon, Three Pillars, the Managing Agents and the Agent are parties to that certain Amended and Restated Receivables Purchase Agreement, dated as of October 3, 2002 (as amended, restated, supplemented or otherwise modified from time to time, the "Agreement"); and WHEREAS the parties hereto desire to amend the Agreement on the terms and conditions set forth below; NOW THEREFORE, in consideration of the premises herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Agreement. SECTION 2. Amendments to the Agreement. The Agreement is hereby amended as follows: (a) The first sentence of Section 2.7 of the Agreement is hereby restated in its entirety as follows: "In addition to Seller's rights pursuant to Section 1.3, Seller shall have the right (after providing three (3) Business Days' written notice to each Managing Agent), at any time, to repurchase from the Purchasers all, but not less than all, of the then outstanding Purchaser Interests." (b) Clause (ii) of Section 5.1(t) of the Agreement is hereby restated in its entirety as follows: "(ii) Each Receivable included in the Net Receivables Balance as an Eligible Receivable on any Monthly Report, Mid-Month Report and any other report delivered pursuant to Section 8.5 was an Eligible Receivable as of the date of such Monthly Report, Mid-Month Report or other report." (c) Section 7.1(i)(J) of the Agreement is hereby amended to add the following immediately after the clause "except as herein specifically provided": "or in connection with collections in respect of Excluded Receivables, which Collections the Servicer has indicated are readily identifiable" (d) Section 7.1(i)(Q) of the Agreement is hereby restated in its entirety as follows: "(Q) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion issued by Schiff Hardin LLP, as counsel for Seller, in connection with the closing or initial Incremental Purchase under this Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times, it being acknowledged that the assumption set forth in the ninth paragraph of Section 1 of such opinion to the extent it indicated that the Seller would not be consolidated with Anixter Inc. for financial reporting purposes, is no longer true." (e) The last sentence of Section 8.1(a) of the Agreement is hereby restated in its entirety as follows: "The Managing Agents may at any time designate as Servicer any Person to succeed Anixter or any Successor Servicer." (f) Section 8.5 of the Agreement is hereby amended to add the following sentence at the end thereof: "In addition to the foregoing, upon the request of the Agent, the Servicer shall provide to the Agent a list of Receivables (including such information regarding such Receivables as the Agent may request) as to which (as of the date specified by the Agent in such request) any payment of part thereof remains unpaid 90 days or more past the original due date therefor but less than 120 days past the original invoice date with respect to such Receivable." -2- (g) Section 10.1 of the Agreement is hereby amended to delete the words "or the Servicer" from the parenthetical in the sentence immediately following the proviso to Section 10.1. (h) The definition of the term "Affiliate" set forth in Exhibit I to the Agreement is hereby restated in its entirety as follows: "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person or any Subsidiary of such Person; provided that so long as Ariel Capital Management, Inc. ("Ariel") does not own more than 30% of any class of voting stock of Anixter International Inc., "Affiliate" shall exclude (with respect to Anixter) any other Person under direct or indirect control of Ariel, unless such other Person directly or indirectly controls or is controlled by Anixter. A Person shall be deemed to control another Person if the controlling Person owns 20% or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise. (i) The definition of the term "Applicable Margin" set forth in Exhibit I to the Agreement is hereby restated in its entirety as follows: "Applicable Margin" means, as of any date of determination, the percentage set forth in the table below opposite the then applicable Debt Rating: