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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."
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(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."
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(g) Section 10.1 of the Agreement is hereby amended to delete
the
words "or
the Servicer" from the parenthetical in the sentence
immediately
following
the proviso to Section 10.1.
(h) The definition of the term "Affiliate" set forth in Exhibit I
to
the
Agreement is hereby restated in its entirety as follows:
"Affiliate" means, with respect to any Person, any other Person
directly
or
indirectly controlling, controlled by, or under direct or
indirect
common
control with, such Person or any Subsidiary of such Person;
provided
that so long as Ariel Capital Management, Inc. ("Ariel") does
not
own more
than 30% of any class of voting stock of Anixter International
Inc.,
"Affiliate" shall exclude (with respect to Anixter) any other
Person
under
direct or indirect control of Ariel, unless such other Person
directly
or indirectly controls or
