Published CUSIP Number: 000000000
EXHIBIT 4.1
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FIVE-YEAR
REVOLVING CREDIT AGREEMENT
Dated as of June 18, 2004
among
ANIXTER INC.
and
THE BORROWING SUBSIDIARIES
FROM TIME TO TIME
PARTIES HERETO
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
WACHOVIA BANK N.A.,
as Syndication Agent,
BANK ONE, NA,
THE BANK OF NOVA SCOTIA
and
XXXXX FARGO BANK, N.A.,
as Co-Documentation Agents
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
WACHOVIA CAPITAL MARKETS, LLC,
as
Joint Lead Arrangers and Book Managers
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms......................................................... 1
1.02 Other Interpretive Provisions......................................... 27
1.03 Accounting Terms...................................................... 28
1.04 Exchange Rates; Currency Equivalents. ................................ 28
1.05 Additional Available Foreign Currencies. ............................. 29
1.06 Change of Currency.................................................... 30
1.07 Times of Day.......................................................... 30
1.08 Letter of Credit Amounts.............................................. 30
1.09 Rounding.............................................................. 30
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans....................................................... 30
2.02 Borrowings, Conversions and Continuations of Committed Loans.......... 31
2.03 Swing Line Loans...................................................... 32
2.04 Foreign Currency Loan Commitment...................................... 35
2.05 Letters of Credit..................................................... 38
2.06 Prepayments........................................................... 48
2.07 Reduction or Termination of Commitments............................... 49
2.08 Repayment of Loans.................................................... 49
2.09 Interest.............................................................. 49
2.10 Fees.................................................................. 50
2.11 Computation of Interest and Fees...................................... 50
2.12 Evidence of Debt...................................................... 51
2.13 Payments Generally.................................................... 51
2.14 Sharing of Payments by Lenders........................................ 53
2.15 Borrowing Subsidiaries................................................ 54
2.16 Currency Exchange Fluctuations........................................ 55
2.17 Increase in Commitments............................................... 55
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes................................................................. 56
3.02 Illegality............................................................ 58
3.03 Inability to Determine Rates.......................................... 59
3.04 Increased Costs and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans............................................... 59
3.05 Funding Losses........................................................ 61
3.06 Matters Applicable to all Requests for Compensation................... 62
3.07 Survival.............................................................. 62
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension................................ 63
4.02 Conditions to all Credit Extensions................................... 64
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Organization; Corporate Powers........................................ 64
5.02 Authority............................................................. 65
5.03 Subsidiaries.......................................................... 65
5.04 No Conflict........................................................... 65
5.05 Governmental Consents................................................. 66
5.06 Governmental Regulation............................................... 66
5.07 Financial Position.................................................... 66
5.08 Litigation; Adverse Effects........................................... 66
5.09 No Material Adverse Change............................................ 67
5.10 Payment of Taxes...................................................... 67
5.11 Performance........................................................... 67
5.12 Securities Activities................................................. 67
5.13 Disclosure............................................................ 67
5.14 Requirements of Law................................................... 67
5.15 Patents, Trademarks, Permits, Etc..................................... 68
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TABLE OF CONTENTS
(continued)
PAGE
5.16 Environmental Matters................................................. 68
5.17 Employee Benefit Matters.............................................. 68
5.18 Solvency.............................................................. 68
5.19 Assets and Properties................................................. 69
5.20 Joint Venture; Partnership............................................ 69
5.21 No Default............................................................ 69
5.22 Restricted Payments................................................... 69
5.23 Subsequent Funding Representations and Warranties..................... 69
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements.................................................. 69
6.02 Environmental Notices................................................. 72
6.03 Corporate Existence, Etc.............................................. 72
6.04 Corporate Powers, Etc................................................. 72
6.05 Compliance with Laws.................................................. 72
6.06 Payment of Taxes and Claims........................................... 73
6.07 Maintenance of Properties; Insurance.................................. 73
6.08 Inspection of Property; Books and Records; Discussions................ 73
6.09 Maintenance of Permits................................................ 73
6.10 Employee Benefit Matters.............................................. 74
6.11 Additional Guarantors................................................. 74
6.12 Use of Proceeds....................................................... 74
ARTICLE VII
NEGATIVE COVENANTS
7.01 Indebtedness.......................................................... 74
7.02 Sales of Assets; Liens................................................ 75
7.03 Investments........................................................... 76
7.04 Accommodation Obligations............................................. 77
7.05 Restricted Payments................................................... 78
7.06 Conduct of Business................................................... 79
7.07 Transactions with Affiliates.......................................... 79
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(continued)
PAGE
7.08 Restriction on Fundamental Changes.................................... 79
7.09 Employee Benefit Matters.............................................. 80
7.10 Environmental Liabilities............................................. 80
7.11 Margin Regulations.................................................... 81
7.12 Change of Fiscal Year................................................. 81
7.13 Modification of the Subordinated XXXXx Note or the Revolving
Subordinated Note..................................................... 81
7.14 Hedging Contracts..................................................... 81
7.15 Receivables Securitization Transactions............................... 81
7.16 Minimum Consolidated Net Worth........................................ 81
7.17 Maximum Leverage Ratio................................................ 81
7.18 Minimum Consolidated Fixed Charge Coverage Ratio...................... 81
7.19 Calculation of Financial Covenants.................................... 81
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default..................................................... 82
8.02 Remedies Upon Event of Default........................................ 84
8.03 Application of Funds.................................................. 85
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority............................................. 86
9.02 Rights as a Lender.................................................... 86
9.03 Exculpatory Provisions................................................ 86
9.04 Reliance by Administrative Agent...................................... 87
9.05 Delegation of Duties.................................................. 87
9.06 Resignation of Administrative Agent................................... 88
9.07 Non-Reliance on Administrative Agent and Other Lenders................ 88
9.08 No Other Duties, Etc.................................................. 89
9.09 Administrative Agent May File Proofs of Claim......................... 89
9.10 Guaranty Matters...................................................... 90
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc....................................................... 90
10.02 Notices and Other Communications; Facsimile Copies.................... 91
10.03 No Waiver; Cumulative Remedies........................................ 92
10.04 Expenses; Indemnity; Damage Waiver.................................... 93
10.05 Payments Set Aside.................................................... 94
10.06 Successors and Assigns................................................ 95
10.07 Confidentiality....................................................... 99
10.08 Set-off............................................................... 100
10.09 Interest Rate Limitation.............................................. 100
10.10 Counterparts.......................................................... 100
10.11 Integration........................................................... 100
10.12 Survival of Representations and Warranties............................ 100
10.13 Severability.......................................................... 101
10.14 Replacement of Lenders................................................ 101
10.15 Judgment Currency..................................................... 101
10.16 Borrowers' Agent...................................................... 102
10.17 Credit Agreement...................................................... 102
10.18 Governing Law......................................................... 102
10.19 Waiver of Right to Trial by Jury...................................... 103
10.20 USA PATRIOT Act Notice................................................ 103
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TABLE OF CONTENTS
(continued)
SCHEDULES
1.01 Mandatory Cost Formulae
2.01 Commitments and Pro Rata Shares
5.03 Existing Subsidiaries
5.04 Conflicts
5.08 Litigation
5.16 Environmental Matters
5.20 Joint Ventures and Partnerships
6.07 Insurance
7.01(ii) Existing Indebtedness
7.02(b) Existing Liens
7.03 Existing Investments
10.02 Eurocurrency and Domestic Lending Offices, Addresses for Notices
EXHIBITS
A-1 Form of Committed Loan Notice
A-2 Form of Foreign Currency Loan Notice
B Form of Swing Line Loan Notice
C-1 Form of Borrowing Subsidiary Agreement
C-2 Form of Borrowing Subsidiary Termination
D-1 Form of Committed Loan Note
D-2 Form of Swing Line Loan Note
D-3 Form of Foreign Currency Loan Note
E Form of Compliance Certificate
F Form of Assignment and Assumption
G Form of Guaranty
H Form of Opinion of Counsel
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FIVE-YEAR
REVOLVING CREDIT AGREEMENT
This FIVE-YEAR REVOLVING CREDIT AGREEMENT ("Agreement") is entered into as
of June 18, 2004, among ANIXTER INC., a Delaware corporation ("Anixter"), the
BORROWING SUBSIDIARIES (as defined herein), each lender from time to time party
hereto (collectively, the "Lenders" and individually, a "Lender"), and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer,
WACHOVIA BANK N.A., as Syndication Agent and Bank One, NA, The Bank of Nova
Scotia and Xxxxx Fargo Bank, N.A., as Co-Documentation Agents.
The Borrowers have requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein. In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Accommodation Obligation", as applied to any Person, means any
contractual obligation, contingent or otherwise, of that Person with respect to
any Indebtedness or other obligation or liability of another, including, without
limitation, any such Indebtedness, obligation or liability directly or
indirectly guaranteed, supported by letter of credit, endorsed (otherwise than
for collection or deposit in the ordinary course of business), co-made or
discounted or sold with recourse by that Person, or in respect of which that
Person is otherwise directly or indirectly liable, including Contractual
Obligations (contingent or otherwise) arising through any agreement to purchase,
repurchase, or otherwise acquire such Indebtedness, obligation or liability or
any security therefor, or to provide funds for the payment or discharge thereof
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received. For
purposes of interpreting any provision of this Agreement which refers to the
amount of Accommodation Obligations of any Person, such provision shall be
deemed to mean the maximum amount of such Accommodation Obligations or, in the
case of an Accommodation Obligation to maintain solvency, assets, level of
income or other financial condition, the amount of Indebtedness to which such
Accommodation Obligation relates, or if less, the stated maximum, if any, in the
documents evidencing such Accommodation Obligation. Notwithstanding anything to
the contrary contained herein, the term "Accommodation Obligation" shall not be
interpreted to include any letter of credit Obligations or any other Obligations
hereunder guaranteed by Anixter or any other Guarantor.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to Anixter and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 33% or more (or, in the case of an Affiliate of a Lender, 20% or more)
of the securities (on a fully diluted basis) having ordinary voting power for
the election of directors or managing general partners; or (b) to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
"Agent/Arranger Fee Letters" has the meaning specified in Section 2.10(b).
"Aggregate Commitments" means US$275,000,000, as such amount may be
reduced or adjusted from time to time in accordance with this Agreement.
"Aggregate Foreign Currency Commitments" means US$100,000,000, as such
amount may be reduced or adjusted from time to time in accordance with this
Agreement. The Aggregate Foreign Currency Commitments are part of, and not in
addition to, the Aggregate Commitments.
"Agreement" means this Credit Agreement.
"Agreement Accounting Principles" means GAAP as of the date of this
Agreement together with any changes in GAAP after the date hereof which are not
"Material Accounting Changes" (as defined below). If any changes in GAAP are
hereafter required or permitted and are adopted by AXE or Anixter with the
agreement of its independent certified public accountants and such changes
result in a material change in the method of calculation of any of the financial
covenants, restrictions or standards herein or in the related definitions or
terms used therein ("Material Accounting Changes"), the parties hereto agree to
enter into negotiations, in good faith, in order to amend such provisions in a
credit neutral manner so as to reflect equitably such changes with the desired
result that the criteria for evaluating Anixter's consolidated financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, that no Material Accounting Change shall be given
effect in such calculations until such provisions are amended in a manner
reasonably satisfactory to the Required Lenders. If such amendment is entered
into, all references in this Agreement to Agreement Accounting Principles shall
mean GAAP as of the date of such amendment together with any changes in GAAP
after the date of such amendment which are not Material Accounting Changes.
"Anixter" has the meaning assigned to that term in the preamble hereto.
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"Applicable Currency" means, with respect to any Loan, the currency in
which such Loan is denominated.
"Applicable Margin" means the following percentages per annum, based upon
the Debt Rating:
APPLICABLE MARGIN
EUROCURRENCY
DEBT RATINGS RATE +/
PRICING S&P/XXXXX'X/ LETTER OF CREDIT BASE RATE
LEVEL FITCH FACILITY FEE FEE +
------- ------------ ------------ ---------------- ---------
1 (Greater Than)A-/A3 0.10% 0.45% zero
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2 BBB+/Baa1 0.15% 0.60% zero
3 BBB/Baa2 0.175% 0.70% zero
4 BBB-/Baa3 0.225% 0.775% zero
5 BB+/Ba1 0.275% 0.975% zero
6 (Less Than)BB+/Ba1 0.35% 1.15% zero
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P, Xxxxx'x or Fitch (provided that Anixter shall
have at least two such ratings and at least one of such ratings shall be
from S&P or Xxxxx'x) (collectively, the "Debt Ratings") of Anixter's
non-credit-enhanced, senior unsecured long-term debt; provided that if the
existing Debt Ratings are not the same level, then (i) if there are two
Debt Ratings, the higher of such Debt Ratings shall apply (with Pricing
Level 1 being the highest and Pricing Level 6 being the lowest), (ii) if
there are three Debt Ratings and no two Debt Ratings are at the same
level, the intermediate Debt Rating shall apply, or (iii) if there are
three Debt Ratings and two Debt Ratings are at the same level, then the
level with the two Debt Ratings shall apply.
Initially, the Applicable Margin shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(vii).
Thereafter, each change in the Applicable Margin resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by Anixter to the
Administrative Agent of notice thereof pursuant to Section 6.01(k) and ending on
the date immediately preceding the effective date of the next such change and,
in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding the
effective date of the next such change.
"Applicable Time" means, with respect to any borrowings and payments in
any Available Foreign Currency, the local time in the place of settlement for
such Available Foreign Currency as may be determined by the Administrative Agent
or the L/C Issuer, as the case may be, to be necessary for timely settlement on
the relevant date in accordance with normal banking procedures in the place of
payment.
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"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means Banc of America Securities LLC and Wachovia Capital
Markets, LLC, each in its capacity as a joint lead arranger and book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Consolidated Group for the fiscal year ended January 2, 2004, and
the related consolidated statements of income and cash flows for such fiscal
year of the Consolidated Group.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.07, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Available Foreign Currency" means (i) British Pounds Sterling, (ii) Euro
and (iii) any other currency (other than US Dollars) which shall be requested by
Anixter and approved by each Lender in accordance with Section 1.05.
"Available Foreign Currency Equivalent" means, at any time, with respect
to any amount denominated in US Dollars, the equivalent amount thereof in the
applicable Available Foreign Currency as determined by the Administrative Agent
or the L/C Issuer, as the case may be, at such time on the basis of the Spot
Rate (determined in respect of the most recent Revaluation Date) for the
purchase of such Available Foreign Currency with US Dollars.
"AXE" means Anixter International Inc., a Delaware corporation.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and
4
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in US Dollars.
"Benefit Plan" means a defined benefit plan as defined in Section 3(35) of
ERISA (other than a Multiemployer Plan) in respect of which Anixter or any ERISA
Affiliate is, or within the immediately preceding six (6) years was, an
"employer" as defined in Section 3(5) of ERISA.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Anixter and each Borrowing Subsidiary.
"Borrowing" means a Committed Borrowing, a Swing Line Borrowing or a
Foreign Currency Borrowing, as the context may require.
"Borrowing Subsidiary" means any Foreign Subsidiary of Anixter named as
such on the signature pages hereto or designated as a Borrowing Subsidiary by
Anixter pursuant to Section 2.15.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary Agreement
substantially in the form of Exhibit C-1.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit C-2.
"British Pounds Sterling" means the lawful currency of the United Kingdom.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in US Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in US Dollars, any fundings,
disbursements, settlements and payments in US Dollars in respect of any
such Eurocurrency Rate Loan, or any other dealings in US Dollars to be
carried out pursuant to this Agreement in respect of any such Eurocurrency
Rate Loan, means any such day on which dealings in deposits in US Dollars
are conducted by and between banks in the London interbank eurodollar
market;
(b) if such day relates to any interest rate settings as to a Loan
denominated in Euro, any fundings, disbursements, settlements and payments
in Euro in respect of any
5
such Loan, or any other dealings in Euro to be carried out pursuant to
this Agreement in respect of any such Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a Loan
denominated in a currency other than US Dollars or Euro, means any such
day on which dealings in deposits in the relevant currency are conducted
by and between banks in the London or other applicable offshore interbank
market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than US Dollars or Euro in respect of a
Loan denominated in a currency other than US Dollars or Euro, or any other
dealings in any currency other than US Dollars or Euro to be carried out
pursuant to this Agreement in respect of any such Loan (other than any
interest rate settings), means any such day on which banks are open for
foreign exchange business in the principal financial center of the country
of such currency.
"Capital Lease" as applied to any Person, means any lease of any property
(whether real, personal, or mixed) by that Person as lessee which, in conformity
with Agreement Accounting Principles, is or should be accounted for as a capital
lease on the balance sheet of that Person.
"Cash Collateralize" has the meaning specified in Section 2.05(g).
"Cash Equivalents" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within ninety (90) days after the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America maturing within ninety (90) days after the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Xxxxx'x (or, if at any time
neither S&P nor Xxxxx'x shall be rating such obligations, then from such other
nationally recognized rating services acceptable to the Administrative Agent)
and not listed in Credit Watch published by S&P (or a similar publication of S&P
or another nationally recognized rating service); (iii) commercial paper (other
than commercial paper issued by AXE, Anixter or any Subsidiary of Anixter or any
of their Affiliates), domestic and Eurodollar certificates of deposit, time
deposits or bankers' acceptances, in any such case maturing no more than ninety
(90) days after the date of acquisition thereof and, at the time of the
acquisition thereof, the issuer's rating on its commercial paper is at least A-1
or P-1 from either S&P or Xxxxx'x (or, if at any time neither S&P nor Xxxxx'x
shall be rating such obligations, then the highest rating from other nationally
recognized rating services acceptable to the Administrative Agent); (iv)
commercial paper (other than commercial paper issued by AXE, Anixter or any
Subsidiary of Anixter or any of their Affiliates), domestic and Eurodollar
certificates of deposit, time deposits or bankers' acceptances, in any such case
maturing no more than ninety (90) days after the date of acquisition thereof
and, at the time of the acquisition thereof, the issuer is a Lender and has a
rating on its commercial paper of at least A-2 or P-2 from either S&P or Xxxxx'x
(or, if at any time neither S&P nor Xxxxx'x shall be rating such obligations,
then the equivalent rating from other nationally recognized rating services
acceptable to the Administrative Agent), provided the
6
amount of Cash Equivalents under this clause (iv) shall not at any time exceed
US$5,000,000; and (v) the Nations Fund Cash Reserve Money Market Fund and any
successors thereto.
"Change of Control" shall occur if:
(a) any "person," as such term is defined in Section 13(d)(3) of the
Securities Exchange Act, other than the Xxxxxx Xxxx Group, is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act), directly or indirectly, of 33% or more of the combined
voting power of AXE's or Anixter's outstanding securities ordinarily
having the right to vote at elections of directors, and such person at
such time owns more of such combined voting power than the Xxxxxx Xxxx
Group; or
(b) individuals who, at the beginning of any period of 24
consecutive months, constitute AXE's board of directors (together with any
new directors whose election by AXE's board of directors or whose
nomination for election by AXE's shareholders was approved by a vote of at
least a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination
was previously so approved) cease for any reason (other than death or
disability) to constitute a majority of AXE's board of directors then in
office.
"Class" means the character of certain Loans as Committed Loans, Swing
Line Loans or Foreign Currency Loans.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Commission" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to Anixter pursuant to Section 2.01, (b) purchase participations
in L/C Obligations, (c) purchase participations in Swing Line Loans, and (d)
purchase participations in Foreign Currency Loans Obligations, and in an
aggregate principal Dollar Equivalent amount at any one time outstanding not to
exceed the US Dollar amount of such Commitment set forth opposite such Lender's
name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, if applicable, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
7
"Committed Loan Note" means a promissory note made by Anixter in favor of
a Lender evidencing Committed Loans made by such Lender, substantially in the
form of Exhibit D-1.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Committed Loans as the same Type, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A-1.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit E.
"Consolidated EBITDA" means, for any period, for the Consolidated Group
calculated in accordance with Agreement Accounting Principles, (i) Consolidated
Net Income for such period taken as a single accounting period, plus (ii) the
provision for depreciation and amortization expense of the Consolidated Group
for such period, plus (iii) income taxes of the Consolidated Group for such
period, and plus (iv) net interest expense of the Consolidated Group for such
period; provided that there shall be excluded from Consolidated EBITDA any
non-cash, non-operating gains or losses (including, without limitation,
extraordinary or unusual gains or losses, gains or losses arising from the sale
of capital assets or the sale of owned buildings and properties and other
non-recurring gains or losses) during such period.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) the sum of Consolidated EBITDA and Rental Expense for such period
to (b) the amount of Consolidated Fixed Charge Expense of the Consolidated Group
for such period.
"Consolidated Fixed Charge Expense" means, for any period, the net
interest expense of the Consolidated Group (including the interest component of
Capital Leases, the interest component of Synthetic Lease Obligations, facility
fees, and fees for standby letters of credit, but excluding the interest
accretion relating to the Subordinated XXXXx Note and excluding amortization of
deferred financing fees) plus consolidated yield or discount accrued on the
outstanding aggregate investment or principal amount of claims held by
purchasers, assignees or other transferees of (or of interests in) receivables
of Anixter and its Subsidiaries in connection with any Receivables
Securitization Transaction (regardless of the accounting treatment of such
Receivables Securitization Transaction) and Rental Expense of the Consolidated
Group for such period calculated in accordance with Agreement Accounting
Principles.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Consolidated Group on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations and liabilities, whether current
or long-term, for borrowed money (including Obligations hereunder but excluding
the Subordinated XXXXx Note), (b) that portion of obligations with respect to
capital leases that are capitalized in the consolidated balance sheet of the
Consolidated Group, (c) the principal portion of Synthetic Lease Obligations,
(d) the outstanding aggregate investment or principal amount of claims held by
purchasers, assignees or transferees of (or of interests in) receivables under
Receivables Securitization Transactions, and (e) without duplication, all
Accommodation Obligations with respect to Indebtedness of the type specified in
subsections (a), (b), (c) and (d) above of Persons other than any Borrower or
any Subsidiary.
8
"Consolidated Group" means Anixter and each of its Subsidiaries.
"Consolidated Net Income" means, for any period, for the Consolidated
Group on a consolidated basis, the net income of the Consolidated Group for that
period, determined in accordance with Agreement Accounting Principles.
"Consolidated Net Worth" means, at a particular date, all amounts which
would be included under shareholders' equity for the Consolidated Group
determined in accordance with Agreement Accounting Principles, determined
without giving effect to any forgiveness of any indebtedness under the
Subordinated XXXXx Note occurring after January 2, 2004.
"Contaminant" means any pollutant, hazardous substance, hazardous
chemical, toxic substance, hazardous waste or special waste, as those terms are
defined in federal, state or local laws and regulations, radioactive material,
petroleum, including crude oil or any petroleum-derived substance, or breakdown
or decomposition product thereof, or any constituent of any such substance or
waste, including but not limited to polychlorinated biphenyls and asbestos.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: a Committed Borrowing, a
Swing Line Loan, a Foreign Currency Borrowing and an L/C Credit Extension.
"Customary Permitted Liens" means:
(a) Liens (other than Environmental Liens, Liens imposed under ERISA
or Enforceable Judgments) for claims, taxes, assessments or charges of any
Governmental Authority not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(b) statutory Liens of landlords, bankers, carriers, warehousemen,
mechanics, materialmen and other Liens (other than Environmental Liens,
Liens imposed under ERISA or Enforceable Judgments) imposed by law,
arising in the ordinary course of business and for amounts which (A) are
not yet due, (B) are not more than thirty (30) days past due as long as no
notice of default has been given or other action taken to enforce such
Liens, or (C) (1) are not more than thirty (30) days past due and a notice
of default has been given or other action taken to enforce such Liens, or
(2) are more than thirty (30) days past due, and, in the case of clause
(1) or (2), are being contested in good faith by appropriate proceedings
which are sufficient to prevent imminent foreclosure of such Liens and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with GAAP;
(c) Liens (other than Environmental Liens, Liens imposed under ERISA
or Enforceable Judgments) incurred or deposits made in the ordinary course
of business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and other
types of employment
9
benefits or to secure the performance of tenders, bids, leases, contracts
(other than for the repayment of Indebtedness), statutory obligations and
other similar obligations or arising as a result of progress payments
under government contracts;
(d) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights-of-way, covenants, consents,
rights of landlords, reservations, encroachments, variations and other
restrictions, charges or encumbrances (whether or not recorded) affecting
the use of real property, which do not materially interfere with the
ordinary conduct of the business of Anixter or any Subsidiary of Anixter;
(e) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; and
(f) precautionary filings of financing statements in connection with
assets that are not owned by Anixter or its Subsidiaries (including in
connection with Operating Leases entered into in the ordinary course of
business).
"Debt Rating" has the meaning set forth in the definition of "Applicable
Margin."
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any Event of Default or any event that, with the giving of
any notice, the passage of time, or both, would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Margin, if any, applicable to Base Rate Loans plus (iii) 2% per
annum; provided, however, that (A) with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Margin) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws, and (B) with respect to
a Foreign Currency Swing Line Loan or a Foreign Currency Loan following the end
of the relevant Interest Period therefor, the Default Rate shall be an interest
rate equal to (i) the applicable Overnight Rate plus (ii) 2% per annum and (b)
when used with respect to Letter of Credit Fees, a rate equal to (i) the
Applicable Margin plus (ii) 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations,
participations in Swing Line Loans or Foreign Currency Loans required to be
funded by it hereunder within one Business Day of the date required to be funded
by it hereunder, (b) has otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.
10
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar Equivalent" means, with respect to a specified amount of any
currency, the amount of US Dollars into which such amount of such currency would
be converted, as determined by the Administrative Agent or the L/C Issuer based
on the applicable Spot Rate.
"Domestic Subsidiaries" means Anixter-Real Estate, Inc., an Illinois
corporation, Anixter Information Systems Corporation, an Illinois corporation,
and Anixter Financial Inc., a Delaware corporation.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing,
Anixter (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include Anixter or any of Anixter's Affiliates or Subsidiaries.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Enforceable Judgment" means a judgment or order as to which (a) Anixter
has not demonstrated to the reasonable satisfaction of the Required Lenders that
the Borrowers are covered by third-party insurance (other than retro-premium
insurance) therefor and (b) the period, if any, during which the enforcement of
such judgment or order is stayed shall have expired, it being understood that a
judgment or order which is under appeal or as to which the time in which to
perfect an appeal has not expired shall not be deemed an "Enforceable Judgment"
so long as enforcement thereof is effectively stayed pending the outcome of such
appeal or the expiration of such period, as the case may be; provided that if
enforcement of a judgment or order has been stayed on condition that a bond or
collateral equal to or greater than US$20,000,000 be posted or provided, such
judgment or order shall immediately be an "Enforceable Judgment."
"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"Environmental Lien" means a Lien in favor of any Governmental Authority
for (i) any liability of Anixter or any Subsidiary of Anixter under federal or
state environmental laws or regulations, or (ii) damages from, or costs incurred
by such Governmental Authority in response to, a Release or threatened Release
of a Contaminant into the environment.
11
"ERISA" means the Employee Retirement Income Security Act of 1974 and any
regulations issued pursuant thereto.
"ERISA Affiliate" means any (i) corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as Anixter or any of its Subsidiaries, (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Code) with Anixter or any of its Subsidiaries, and
(iii) member of the same affiliated service group (within the meaning of Section
414(m) of the Code) as Anixter or any of its Subsidiaries, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder (other than an event for which the
30-day notice period is waived), with respect to a Plan; (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Anixter or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) any Termination Event; or (f) the receipt by Anixter or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from Anixter or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means for any Interest Period with respect to a
Eurocurrency Rate Loan:
(a) the applicable Screen Rate for such Interest Period; or
(b) if the applicable Screen Rate shall not be available, the rate per
annum determined by the Administrative Agent as the rate of interest at
which deposits in the relevant currency for delivery on the first day of
such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch (or other Bank of America
branch or Affiliate) to major banks in the London or other offshore
interbank market for such currency at their request at approximately 4:00
p.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurocurrency Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Eurocurrency Rate Committed Loan or a
Foreign Currency Loan that bears interest at a rate based on the Eurocurrency
Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of
12
any Borrower hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which such Borrower is located
and (c) except as provided in the following sentence, in the case of a Foreign
Lender (other than an assignee pursuant to a request by Anixter under Section
10.14), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the applicable Borrower with
respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding
anything to the contrary contained in this definition, "Excluded Taxes" shall
not include any withholding tax imposed at any time on payments made by or on
behalf of a Foreign Obligor to any Lender hereunder or under any other Loan
Document, provided that such Lender shall have complied with the last paragraph
of Section 3.01(e).
"Existing Credit Facility" means that certain Five-Year Credit Agreement
dated as of October 6, 2000, as amended, among Anixter, certain of its
Subsidiaries, Bank of America, N.A., as administrative agent, and a syndicate of
lenders.
"Existing Indebtedness" means the Indebtedness of Anixter and any of its
Subsidiaries reflected on Schedule 7.01(ii), but in any event excluding the
Indebtedness evidenced by the Revolving Subordinated Notes.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Financial Officer" means, with respect to any Person, any of the chief
financial officer, controller or treasurer of such Person and, with respect to
Anixter shall include its Vice President-Finance and the Assistant Treasurer.
"Fiscal Quarter" means a 13-week accounting period of the Borrowers ending
on or about March 31, June 30, September 30 or December 31 of any Fiscal Year.
"Fiscal Year" means the fiscal year of the Borrowers, which shall be the
annual accounting period of the Borrowers ending on the Friday closest to
December 31 of each year.
13
"Fitch" means Fitch Ratings and any successor thereto.
"Foreign Currency Borrowing" means a borrowing consisting of simultaneous
Foreign Currency Loans of the same Available Foreign Currency from the Foreign
Currency Lenders pursuant to Section 2.04.
"Foreign Currency Commitment" means, as to each Foreign Currency Lender,
its obligation to make Foreign Currency Loans to the Borrowing Subsidiaries
pursuant to Section 2.04, in an aggregate principal Dollar Equivalent amount at
any one time outstanding not to exceed the amount of such Lender's Foreign
Currency Commitment set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto or in the designation by Anixter accepted by such Foreign Currency
Lender, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Foreign Currency Lender" means Bank of America and any other Lender that
may from time to time accept a designation by Anixter as a Foreign Currency
Lender hereunder with the approval of the Administrative Agent (such approval
not to be unreasonably withheld).
"Foreign Currency Loan" means has the meaning specified in Section 2.04.
"Foreign Currency Loan Note" means a promissory note made by a Borrowing
Subsidiary in favor of a Foreign Currency Lender evidencing Foreign Currency
Loans made by such Foreign Currency Lender, substantially in the form of Exhibit
D-3.
"Foreign Currency Loan Notice" means a notice of (a) a Foreign Currency
Borrowing, or (b) a continuation of Foreign Currency Loans for a new Interest
Period, pursuant to Section 2.04, which, if in writing, shall be substantially
in the form of Exhibit A-2.
"Foreign Currency Participation Funding Notice" means a written notice
from a Foreign Currency Lender informing the Administrative Agent that an Event
of Default has occurred and is continuing and directing the Administrative Agent
to notify all Lenders to fund their participations in the Foreign Currency Loans
as provided in Section 2.04.
"Foreign Currency Pro Rata Share" means, with respect to each Foreign
Currency Lender, the percentage (carried out to the ninth decimal place) of the
Aggregate Foreign Currency Commitments set forth opposite such Lender's name on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement, as such share may be adjusted as
contemplated herein.
"Foreign Currency Swing Line Loan" means a Swing Line Loan made in an
Available Foreign Currency.
"Foreign Employee Benefit Plan" means any plan, program, policy, agreement
or contract maintained or contributed to or for the benefit of employees or
Anixter, any of its Subsidiaries or any ERISA Affiliate which is governed by the
laws of a jurisdiction outside the United States of America.
14
"Foreign Lender" means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed,
collectively, to constitute a single jurisdiction.
"Foreign Obligor" means a Loan Party that is a Foreign Subsidiary.
"Foreign Pension Plan" means any pension plan or other deferred
compensation plan, program or arrangement maintained or contributed to or for
the benefit of employees of Anixter, any of its Subsidiaries or any ERISA
Affiliate, which, under the applicable local law, is required to be funded
through a trust or other funding vehicle and which is governed by the laws of a
jurisdiction outside the United States of America.
"Foreign Subsidiaries" means Anixter Puerto Rico, Inc., Anixter Venezuela
Inc., Anixter Thailand Inc., Anixter Philippines Inc. and any of Anixter's
Subsidiaries which are incorporated in any jurisdiction outside of the United
States, and their respective successors and assigns.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means (a) Anixter, AXE and each Domestic Subsidiary, and (b)
each Subsidiary that becomes a Guarantor as provided in Section 6.11.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent on behalf of the Lenders, substantially in the form of
Exhibit G.
"Hedging Contracts" means interest rate, foreign currency or commodity
exchange, swap, collar, cap, option, forward, futures or similar agreements
entered into by Anixter or any of its Subsidiaries pursuant to which Anixter or
such Subsidiary has hedged its interest rate, foreign currency or commodity
exposure.
"Honor Date" has the meaning specified in Section 2.05(c)(i).
15
"Increase Effective Date" has the meaning specified in Section 2.17(c).
"Indebtedness" means, as to any Person at a particular time, all of the
following (without duplication):
(ii) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(iii) any direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), banker's
acceptances, bank guaranties, surety bonds and similar instruments;
(iv) net obligations under any Hedging Contract in an amount equal
to (i) if such Hedging Contract has been closed out, the termination value
thereof, or (ii) if such Hedging Contract has not been closed out, the
xxxx-to-market value thereof determined on the basis of readily available
quotations provided by any recognized dealer in such Hedging Contract;
(v) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(vi) Capital Leases and Synthetic Lease Obligations;
(vii) the outstanding aggregate investment or principal amount of
claims held by purchasers, assignees or transferees of (or of interests
in) receivables of such Person in connection with any Receivables
Securitization Transaction; and
(viii) all Accommodation Obligations of such Person in respect of
any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person except for customary exceptions acceptable to the
Required Lenders. The amount of any Capital Lease or Synthetic Lease Obligation
as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
16
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan, the last Business Day of each March, June, September and
December and the Maturity Date.
"Interest Period" means as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the related Borrower in its Committed
Loan Notice or Foreign Currency Loan Notice, as the case may be; provided that:
(b) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(c) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period; and
(d) no Interest Period shall extend beyond the scheduled Maturity Date.
"Investment" has the meaning assigned to that term in Section 7.03.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application and any other document, agreement and instrument entered
into by the L/C Issuer and Anixter (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
17
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Anixter and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
Letters of Credit may be issued in US Dollars or in an Available Foreign
Currency.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.05(i).
"Letter of Credit Sublimit" means an amount equal to US$20,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Leverage Ratio" means, as of any date of determination, for Anixter and
its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Funded
Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four Fiscal Quarters ending on such date, provided that, for purposes of
calculating the Leverage Ratio, Consolidated EBITDA shall be calculated on a pro
forma basis (in accordance with Article 11 of Regulation S-X of the Securities
and Exchange Commission) to the extent necessary to give effect to (a) any
acquisition made by Anixter or any Subsidiary during such period (without giving
effect to any increase in Consolidated EBITDA reflecting projected synergies
resulting from such acquisition) so long as, and to the extent that, (i) Anixter
delivers to the Administrative Agent (which shall promptly deliver to each
Lender) a summary in reasonable detail of the assumptions underlying, and the
18
calculations made, in computing Consolidated EBITDA on a pro forma basis and
(ii) the Required Lenders do not object to such assumptions and/or calculations
within 10 Business Days after receipt thereof; and (b) any divestiture of a
Subsidiary, division or other operating unit made during such period.
"Liabilities and Costs" means all liabilities, claims, obligations,
responsibilities, losses, damages, punitive damages, consequential damages,
treble damages, charges, costs and expenses (including, without limitation,
attorneys', experts' and consulting fees and costs of investigation and
feasibility studies), fines, penalties and monetary sanctions, interest, direct
or indirect, known or unknown, absolute or contingent, past, present or future.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), Environmental Lien,
Enforceable Judgment, charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable Laws of any
jurisdiction), including the interest of a purchaser of accounts receivable.
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan, Swing Line Loan or Foreign Currency
Loan.
"Loan Documents" means this Agreement, each Note, the Guaranty, the
Agent/Arranger Fee Letters, each Request for Credit Extension, each Issuer
Document and each Compliance Certificate.
"Loan Parties" means, collectively, the Borrowers and the Guarantors.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Margin Stock" has the meaning assigned to such term in Regulation U.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, assets, liabilities (actual or
contingent), business, properties, financial condition or prospects of AXE,
Anixter and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Loan Parties (taken as a whole) to perform the obligations of all
Loan Parties under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party or the rights
and remedies of the Lenders under the Loan Documents.
"Material Transaction" means any sale, assignment, transfer, conveyance or
other disposition of (i) assets of any member of the Consolidated Group or (ii)
capital stock of any member of the Consolidated Group which, when combined with
all such other sales, assignments, transfers, conveyances or other dispositions
in the immediately preceding twelve-
19
month period represents the disposition of an amount which is greater than ten
percent (10.0%) of the Consolidated Group's (x) assets or (y) revenues.
"Maturity Date" means the earlier of (a) June 18, 2009, or (b) such
earlier date upon which the Commitments may be terminated in accordance with the
terms hereof.
"Minimum Tranche" means (a) in the case of US Dollars, US$5,000,000 or a
higher integral multiple of US$1,000,000; and (b) in the case of any Available
Foreign Currency, an amount equal to US$5,000,000 or a higher integral multiple
of 1,000,000 units of such currency.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by Anixter or any ERISA Affiliate.
"Notes" means, collectively, the Committed Loan Notes, the Swing Line Loan
Note and the Foreign Currency Loan Notes.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest that
accrues after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding.
"Officers' Certificate" means, as to any corporation, a certificate
executed on behalf of such corporation by a Financial Officer of such
corporation.
"Operating Lease" means, as applied to any Person, any lease of any
Property by that Person as lessee which is not a Capital Lease.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity, in each case as amended from time to time.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise
20
with respect to, this Agreement or any other Loan Document, but excluding in any
event any Excluded Taxes.
"Outstanding Amount" means (a) with respect to Committed Loans, Swing Line
Loans and Foreign Currency Loans on any date, the aggregate outstanding
principal Dollar Equivalent amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans, Swing Line Loans and Foreign
Currency Loans, as the case may be, occurring on such date and (b) with respect
to any L/C Obligations on any date, the Dollar Equivalent amount of the
aggregate outstanding amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements by Anixter of Unreimbursed Amounts.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in US Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Available Foreign Currency, the rate of interest per annum at which overnight
deposits in the applicable Available Foreign Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of
America in the applicable offshore interbank market for such currency to major
banks in such interbank market.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Anixter or any
ERISA Affiliate or to which Anixter or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"Permits" means any permit, approval, consent, authorization, license,
variance, or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Existing Liens" means the Liens on any property of Anixter or
any Subsidiary of Anixter, in each case reflected on Schedule 7.02(b).
"Person" means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture,
Governmental Authority or other entity.
21
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA in
respect of which either Anixter or any ERISA Affiliate is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) that such Lender's Commitment comprises
of the Aggregate Commitments, as such share may be adjusted as contemplated
herein.
"Property" means with respect to any Person, any real or personal
property, plant, building, facility, structure, equipment or unit, or other
asset (tangible or intangible) owned, leased or operated by such Person.
"Receivables Securitization SPV" means a special purpose entity that is a
Subsidiary established for a Receivables Securitization Transaction.
"Receivables Securitization Transaction" means any sale, assignment or
other transfer by Anixter or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to Anixter or such Subsidiary or
any interest in any of the foregoing, together in each case with any collections
and other proceeds thereof, any collection or deposit accounts related thereto,
and any collateral, guaranties or other property or claims in favor of Anixter
or such Subsidiary supporting or securing payment by the obligor thereon of, or
otherwise related to, any such receivables.
"Register" has the meaning set forth in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Release" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration from any Property
into the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water, groundwater or Property.
"Remedial Action" means any action required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent a Release or threat of Release or minimize the further Release of
Contaminants so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care.
"Rental Expense" means, for any period, the total rental expense for
Operating Leases of the Consolidated Group on a consolidated basis, as
determined in accordance with Agreement Accounting Principles.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
22
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to a Swing Line Loan, a Swing Line Loan Notice, (c) with respect to a
Borrowing or continuation of Foreign Currency Loans, a Foreign Currency Loan
Notice, and (d) with respect to an L/C Credit Extension, a Letter of Credit
Application.
"Required Lenders" means, as of any date of determination, Lenders whose
Voting Percentages aggregate more than 50%.
"Requirements of Law" means, as to any Person, the Organization Documents
or other organizational or governing documents of such Person, and any law, rule
or regulation, Permit, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its property is
subject, including, without limitation, the Securities Act, the Securities
Exchange Act, Regulation T, Regulation U and Regulation X, and any certificate
of occupancy, zoning ordinance, building, environmental or land use, law, rule,
regulation, ordinance or Permit or occupational safety or health law, rule or
regulation.
"Responsible Officer" means the president, chief financial officer,
treasurer or assistant treasurer of a Loan Party or such other person designated
as such by any of the foregoing officers of such Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of capital stock of Anixter
or any of its Subsidiaries, except a distribution of stock as part of a stock
split and except a dividend payable solely in shares of that class of stock or
in any junior class of stock to the holders of that class, provided that the
issuance of such stock or junior class of stock is not an incurrence of
Indebtedness, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of capital stock of Anixter or any of its Subsidiaries now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of capital stock of Anixter or any of its subsidiaries now
or hereafter outstanding, (iv) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase or sale
of any shares of the capital stock of Anixter or any of its Subsidiaries or of a
claim for reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission, (v) any payment of
tax-sharing payments, allocated corporate overhead (other than expenses paid to
third parties by AXE on behalf of Anixter), guaranty fees or management fees to
AXE or any of its Affiliates, (vi) any payment in the nature of a loan from
Anixter or any of its Subsidiaries to AXE or any of AXE's Subsidiaries (other
than intercompany loans between Anixter or any of Anixter's Subsidiaries with
each other as expressly permitted pursuant to this Agreement); (vii) any
payment, redemption or purchase made by Anixter in respect of the Subordinated
XXXXx Note or the zero coupon senior Liquid Yield Option Notes due 2020 and 2033
or any other securities issued by AXE, provided, however, that "Restricted
23
Payment" shall not include any payment of dividends by any Subsidiary of Anixter
to Anixter or any other Subsidiary of Anixter.
"Revaluation Date" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Loan denominated in an Available
Foreign Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan
denominated in an Available Foreign Currency pursuant to Section 2.02, and (iii)
such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require; and (b) with respect to any Letter of Credit,
each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Available Foreign Currency, (ii) each date of an amendment of
any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any payment by
the L/C Issuer under any Letter of Credit denominated in an Available Foreign
Currency, and (iv) such additional dates as the Administrative Agent or the L/C
Issuer shall determine or the Required Lenders shall require.
"Revolving Subordinated Note" means the demand promissory note from
Anixter to AXE dated October 6, 2000, as the same may be amended, modified or
supplemented.
"Same Day Funds" means (i) with respect to disbursements and payments in
US Dollars, immediately available funds, and (ii) with respect to disbursements
and payments in any other currency, same day or other funds as may be determined
by the Administrative Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in such
currency.
"Xxxxxx Xxxx Group" means Xxxxxx Xxxx or any of his affiliates (as such
term is defined in Rule 12b-2 of the Securities Exchange Act) or associates (as
such term is defined in Rule 12b-2 of the Securities Exchange Act), and his
heirs and beneficiaries.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Screen Rate" means, for any Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in the
relevant currency (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period; or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the relevant currency (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period.
24
"Securities Act" means the Securities Act of 1933.
"Securities Exchange Act" means the Securities Exchange Act of 1934.
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(ii) the fair value of its assets (both at fair valuation and at
present fair saleable value) is equal to or in excess of the total amount
of its liabilities, including, without limitation, contingent liabilities;
and
(iii) it is then able and expected to be able to pay its debts as
they mature; and
(iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can reasonably be expected to become an actual or
matured liability.
"Spot Rate" for a currency means the rate determined by the Administrative
Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another
financial institution designated by the Administrative Agent or the L/C Issuer
if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided further
that the L/C Issuer may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Available Foreign Currency.
"Subordinated XXXXx Note" means the zero-coupon subordinated note dated
October 6, 2000 of Anixter payable to AXE in the original principal amount of
US$200,035,440.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person. Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of Anixter.
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.03.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.03.
25
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.03(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.03(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Sublimit" means an amount equal to US$15,000,000. The Swing
Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.
"Tax Allocation Agreement" means that certain Tax Allocation Agreement
between AXE and Anixter dated as of January 1, 1987 as initially supplemented by
that certain Tax Allocation Agreement Supplement dated as of May 6, 1987, which
Supplement has been superseded by that certain Tax Allocation Agreement
Supplement dated as of May 20, 1992, as the same may be amended, restated,
supplemented or otherwise modified from time to time (i) in any respect which
does not (a) require Anixter to make any greater payments thereunder either in
absolute amounts or percentage terms or (b) does not reduce either in absolute
amounts or percentage terms the benefits to Anixter, without consent of all of
the Lenders or (ii) otherwise with the consent of the Required Lenders.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Termination Event" means a (i) Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of Anixter or any ERISA Affiliate from a
Benefit Plan during a plan year in which Anixter or such ERISA Affiliate was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA; (iii) the
imposition of an obligation of Anixter or any ERISA Affiliate under Section 4041
of ERISA to provide affected parties written notice of intent to terminate a
Benefit Plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the institution by the PBGC or any similar foreign governmental authority
of proceedings to terminate a Benefit Plan or a Foreign Pension Plan, (v) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; (vi) a foreign governmental authority shall appoint or institute
proceedings to appoint a trustee to administer any Foreign Pension Plan; or
(vii) the partial or complete
26
withdrawal of Anixter of any ERISA Affiliate from a Multiemployer Plan or a
Foreign Pension Plan.
"Total Outstandings" means at any time the aggregate principal amount (or
Dollar Equivalent principal amount, as applicable) of all Loans and all L/C
Obligations.
"Transaction Costs" means the reasonable fees, costs and expenses payable
by Anixter or any of its Subsidiaries pursuant hereto or in connection herewith
or in respect hereof or of the other Loan Documents.
"Transaction Documents" means the Loan Documents, the Tax Allocation
Agreement, the Revolving Subordinated Note and the Subordinated XXXXx Note.
"Type" means (a) with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan, (b) with respect to a Swing Line Loan,
its character as a Base Rate Loan or a Foreign Currency Swing Line Loan and (c)
with respect to a Foreign Currency Loan, its character as a Loan in a particular
currency bearing interest at a rate based on the Eurocurrency Rate or on the
applicable Overnight Rate.
"Unreimbursed Amount" has the meaning specified in Section 2.05(c)(i).
"US Dollar Eurocurrency Rate Loans" means Committed Loans which are
Eurocurrency Rate Loans and are denominated in US Dollars.
"US Dollars" or "US$" means dollars constituting legal tender for the
payment of public and private debts in the United States of America.
"Voting Percentage" means, as to any Lender, (a) at any time when the
Commitments are in effect, such Lender's Pro Rata Share and (b) at any time
after the termination of the Commitments, the percentage (carried out to the
ninth decimal place) which (i) the sum of (A) the Outstanding Amount of such
Lender's Committed Loans, plus (B) such Lender's Pro Rata Share of the
Outstanding Amount of Swing Line Loans, Foreign Currency Loans and L/C
Obligations, then constitutes of (ii) the Total Outstandings; provided, however,
that if any Lender has failed to fund any portion of the Committed Loans, or
participations in Swing Line Loans, Foreign Currency Loans or L/C Obligations
required to be funded by it hereunder, such Lender's Voting Percentage shall be
deemed to be -0-, and the respective Pro Rata Shares and Voting Percentages of
the other Lenders shall be recomputed for purposes of this definition and the
definition of "Required Lenders" without regard to such Lender's Commitment or
the outstanding amount of its Committed Loans, as the case may be.
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and
27
"including" shall be deemed to be followed by the phrase "without limitation."
The word "will" shall be construed to have the same meaning and effect as the
word "shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and assigns, (iii) the words "herein," "hereof" and "hereunder," and
words of similar import when used in any Loan Document, shall be construed to
refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references appear,
(v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time,
and (vi) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.
(b) The term "documents" includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced.
(c) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including"; the words "to" and
"until" each mean "to but excluding"; and the word "through" means "to and
including."
(d) Section headings herein and the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
including financial ratios and other financial calculations required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
1.04 EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The Administrative Agent or
the L/C Issuer, as applicable, shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Available Foreign Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be
the Spot Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by Loan Parties hereunder or calculating
financial covenants hereunder or except as otherwise provided herein, the
applicable amount of any currency (other
28
than US Dollars) for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent or the L/C
Issuer, as applicable.
(b) Wherever in this Agreement in connection with a Committed Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as a
required minimum or multiple amount, is expressed in US Dollars, but such
Committed Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated
in an Available Foreign Currency, such amount shall be the relevant Available
Foreign Currency Equivalent of such Dollar amount (rounded to the nearest unit
of such Available Foreign Currency, with 0.5 of a unit being rounded upward), as
determined by the Administrative Agent or the L/C Issuer, as the case may be.
1.05 ADDITIONAL AVAILABLE FOREIGN CURRENCIES. (a) Anixter may from time to
time request that Swing Line Loans or Foreign Currency Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed
in the definition of "Available Foreign Currency;" provided that such requested
currency is a lawful currency (other than US Dollars) that is readily available
and freely transferable and convertible into US Dollars. In the case of any such
request with respect to the making of Swing Line Loans or Foreign Currency
Loans, such request shall be subject to the approval of the Administrative Agent
and the Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the approval of
the Administrative Agent and the L/C Issuer.
(b) Any such request made under this Section 1.05 shall be made to the
Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior
to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request
pertaining to Letters of Credit, the L/C Issuer, in its or their sole
discretion). In the case of any such request pertaining to Swing Line Loans or
Foreign Currency Loans, the Administrative Agent shall promptly notify each
Lender thereof; and in the case of any such request pertaining to Letters of
Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof.
Each Lender (in the case of any such request pertaining to Loans) or the L/C
Issuer (in the case of a request pertaining to Letters of Credit) shall notify
the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days
after receipt of such request whether it consents, in its sole discretion, to
the making of Loans or the issuance of Letters of Credit, as the case may be, in
such requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may be, to
respond to a request made under this Section 1.05 within the time period
specified in the preceding subsection (b) shall be deemed to be a refusal by
such Lender or the L/C Issuer, as the case may be, to permit Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative
Agent and all the Lenders consent to making Loans in such requested currency,
the Administrative Agent shall so notify Anixter and such currency shall
thereupon be deemed for all purposes to be an Available Foreign Currency
hereunder for purposes of any Foreign Currency Borrowings and Swing Line
Borrowings; and if the Administrative Agent and the L/C Issuer consent to the
issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify Anixter and such currency shall thereupon be deemed for
all purposes to be an Available Foreign Currency hereunder for purposes of any
Letter of Credit issuances. If the
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Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.05, the Administrative Agent shall
promptly so notify Anixter.
1.06 CHANGE OF CURRENCY. (a) Each obligation of the Borrowers to make a
payment denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the date hereof
shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Eurocurrency Rate Loan in the currency of such
member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Eurocurrency Rate Loan, at the end of
the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
1.07 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the Dollar Equivalent of the maximum face amount of such Letter of Credit after
giving effect to all increases thereof contemplated by such Letter of Credit or
the Issuer Documents related thereto, whether or not such maximum face amount is
in effect at such time.
1.09 ROUNDING. Any financial ratios required to be maintained by the
Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Committed Loan") to Anixter
from time to time on any Business Day
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during the period from the Closing Date to the Maturity Date, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Commitment; provided, however, that after giving effect to any Committed
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments
and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans, Foreign Currency Loans and L/C Obligations, shall not exceed such
Lender's Commitment. Within the limits of each Lender's Commitment, and subject
to the other terms and conditions hereof, Anixter may borrow under this Section
2.01, prepay under Section 2.06, and reborrow under this Section 2.01. Committed
Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Committed Loans as the same Type
shall be made upon Anixter's irrevocable notice to the Administrative Agent,
which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m., (i) three Business Days prior to
the requested date of any Committed Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans to
Base Rate Loans, and (ii) on the requested date of any Committed Borrowing of
Base Rate Loans. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of Anixter. Each
Committed Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
shall be in a principal amount of US$5,000,000 or a whole multiple of
US$1,000,000 in excess thereof. Each Committed Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of US$500,000 or a whole multiple
of US$100,000 in excess thereof. Each Committed Loan Notice (whether telephonic
or written) shall specify (i) whether Anixter is requesting a Committed
Borrowing, a conversion of Committed Loans from one Type to the other, or a
continuation of Committed Loans as the same Type, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed,
converted or continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If Anixter fails to
specify a Type of Committed Loan in a Committed Loan Notice or if Anixter fails
to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made or continued as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If Anixter requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of its Pro Rata Share of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is
provided by Anixter the Administrative Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Committed Borrowing, each Lender shall
make the
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amount of its Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set forth in Section 4.02 (and,
if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to Anixter in
like funds as received by the Administrative Agent either by (i) crediting the
account of Anixter on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to the Administrative Agent by Anixter.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default or Event of Default,
no Committed Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans be converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify Anixter and the Lenders
of the interest rate applicable to any Eurocurrency Rate Committed Loan upon
determination of such interest rate. The determination of the Eurocurrency Rate
by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify Anixter and the Lenders of any
change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.03, to make loans in US Dollars or, in the
case of any borrowing at the request of a Borrower if the Swing Line Lender, in
its sole discretion, approves, in Available Foreign Currencies (each such loan,
a "Swing Line Loan") to the Borrowers from time to time on any Business Day
during the Availability Period in an aggregate Dollar Equivalent amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of Committed Loans, Foreign Currency
Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender's Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all Foreign Currency Loans, L/C Obligations and Swing Line
Loans shall not exceed such Lender's Commitment. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section 2.03, prepay under Section 2.06, and reborrow under this
Section 2.03. Each Swing Line Loan in US Dollars shall be a Base Rate Loan.
Immediately upon the
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making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
applicable Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of US$500,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the applicable Borrower.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to
2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the
Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section 2.03(a),
or (B) that one or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the applicable Borrower at its office by crediting the account of the applicable
Borrower on the books of the Swing Line Lender in Same Day Funds (or in such
other manner as the Swing Line Lender may direct, in the case of a Foreign
Currency Swing Line Loan).
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the applicable Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each Lender make a Base Rate Committed Loan in an amount equal to
such Lender's Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the applicable Borrower with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Committed Loan Notice available
to the Administrative Agent in Same Day Funds for the account of the Swing
Line Lender at the Administrative Agent's Office for US Dollar-denominated
payments not later than 1:00 p.m. on the day specified in such Committed
Loan Notice, whereupon, subject to Section
33
2.03(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the applicable Borrower in such
amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.03(c)(i), the
request for Base Rate Committed Loans submitted by the Swing Line Lender
as set forth herein shall be deemed to be a request by the Swing Line
Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender's payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to Section
2.03(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.03(c) by the time specified in Section 2.03(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the applicable Overnight Rate from time to time in
effect. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.03(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the applicable Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Committed Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the
applicable Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's risk participation was funded)
in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any
34
settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned, at a rate per annum equal
to the applicable Overnight Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the applicable Borrower for interest on the Swing
Line Loans. Until each Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.03 to refinance such Lender's Pro Rata
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The applicable Borrower shall
make all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.04 FOREIGN CURRENCY LOAN COMMITMENT.
(a) Foreign Currency Loans. Subject to the terms and conditions of this
Agreement, each Foreign Currency Lender severally agrees to make loans (each a
"Foreign Currency Loan" and collectively the "Foreign Currency Loans") in
Available Foreign Currencies to the Borrowing Subsidiaries from time to time on
any Business Day during the period from the Closing Date to the Maturity Date in
an aggregate Dollar Equivalent amount at any time outstanding not to exceed such
Foreign Currency Lender's Foreign Currency Commitment; provided that after
giving effect to any Foreign Currency Borrowing, (i) the Total Outstandings
shall not at any time exceed the Aggregate Commitments, (ii) the aggregate
Outstanding Amount of all Foreign Currency Loans of any Foreign Currency Lender
shall not at any time exceed the Foreign Currency Commitment of such Foreign
Currency Lender, (iii) the aggregate Outstanding Amount of all Foreign Currency
Loans shall not at any time exceed the Aggregate Foreign Currency Commitments,
and (iv) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, Swing Line Loans and Foreign Currency Loans shall not exceed such
Lender's Commitment. Subject to the terms and conditions hereof, each Borrowing
Subsidiary may borrow under this Section 2.04, prepay under Section 2.06 and
reborrow under this Section 2.04 from time to time.
(b) Procedure for Foreign Currency Borrowings.
(i) Each Foreign Currency Borrowing and each continuation of Foreign
Currency Loans for a new Interest Period shall be made upon the applicable
Borrowing Subsidiary's irrevocable notice to the Administrative Agent,
which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m., four Business Days prior
to the requested date of any Foreign Currency Borrowing of, or
continuation of Foreign Currency Loans. Each such telephonic notice must
be confirmed promptly by delivery to the Administrative Agent of a written
Foreign Currency Loan Notice, appropriately completed and signed by a
Responsible Officer of such Borrowing Subsidiary. Each Foreign Currency
Borrowing of, or continuation of Foreign
35
Currency Loans shall be in a principal amount of the applicable Minimum
Tranche. Each Foreign Currency Loan Notice (whether telephonic or written)
shall specify (A) whether such Borrowing Subsidiary is requesting a
Foreign Currency Borrowing or a continuation of Foreign Currency Loans for
a new Interest Period, (B) the requested date of the Borrowing or
continuation, as the case may be (which shall be a Business Day), (C) the
principal amount and Available Foreign Currency of Foreign Currency Loans
to be borrowed or continued, and (iv) the duration of the Interest Period
with respect thereto. If such Borrowing Subsidiary fails to specify a new
Interest Period in a Foreign Currency Loan Notice, then the applicable
Foreign Currency Loans shall be continued for a new Interest Period of one
month's duration.
(ii) Following receipt of a Foreign Currency Loan Notice, the
Administrative Agent shall promptly notify each Foreign Currency Lender of
its Foreign Currency Pro Rata Share of the applicable Foreign Currency
Loans. In the case of a Foreign Currency Borrowing, each Foreign Currency
Lender shall make the amount of its Foreign Currency Loan available to the
Administrative Agent in immediately available funds at the applicable
office of the Administrative Agent specified for such Foreign Currency on
Schedule 10.02 not later than 1:00 p.m., local time of such office, on the
Business Day specified in the applicable Foreign Currency Loan Notice.
Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
applicable Borrowing Subsidiary in like funds as received by the
Administrative Agent either by (A) crediting the account of such Borrowing
Subsidiary on the books of Bank of America with the amount of such funds
or (B) wire transfer of such funds, in each case in accordance with
instructions provided to the Administrative Agent by such Borrowing
Subsidiary.
(iii) During the existence of a Default, the Required Lenders may
demand that any or all of the then outstanding Foreign Currency Loans be
converted immediately to Loans bearing interest at the applicable
Overnight Rate.
(iv) The Administrative Agent shall promptly notify Anixter and the
Lenders of the interest rate applicable to any Foreign Currency Loan upon
determination of such interest rate. The determination of the Eurocurrency
Rate and Overnight Rate by the Administrative Agent shall be conclusive in
the absence of manifest error.
(v) After giving effect to all Foreign Currency Borrowings, and all
continuations of Foreign Currency Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Foreign
Currency Loans.
(c) Participations in Foreign Currency Loans.
(i) Each Lender agrees that it shall at all times have a
participation in, and acknowledges that it is irrevocably and
unconditionally obligated, upon receipt of notice that the Administrative
Agent has received a Foreign Currency Participation Funding
36
Notice, to fund (or to cause an Affiliate to fund) its participation in,
each outstanding Foreign Currency Loan in an amount equal to its Pro Rata
Share of the amount of such Foreign Currency Loan.
(ii) The Administrative Agent shall promptly notify each Lender of
its receipt of a Foreign Currency Participation Funding Notice. Promptly
(and in any event within three Business Days) upon receipt of such Notice,
each Lender shall (or shall cause an Affiliate to) make available to the
Administrative Agent for the account of the Foreign Currency Lenders an
amount in the applicable currencies and in Same Day Funds equal to its Pro
Rata Share of all outstanding Foreign Currency Loans. If any Lender so
notified fails to make available to the Administrative Agent for the
account of the Foreign Currency Lenders the full amount of such Lender's
participations in all Foreign Currency Loans by the date which is three
Business Days after its receipt of such notice from the Administrative
Agent, then interest shall accrue on such Lender's obligations to fund
such participations, from such date to the date such Lender pays such
obligations in full, at a rate per annum equal to the applicable Overnight
Rate in effect from time to time during such period.
(iii) From and after the date on which a Foreign Currency Lender has
delivered to the Administrative Agent a Foreign Currency Participation
Funding Notice, all funds received by the Foreign Currency Lenders in
payment of the Foreign Currency Loans, interest accrued thereon and other
amounts payable in respect thereof shall be delivered by each Foreign
Currency Lender to the Administrative Agent, in the same funds as those
received by such Foreign Currency Lender, to be distributed to all Lenders
in accordance with their Pro Rata Shares (i.e., giving effect to the
funding of participations pursuant to this Section 2.04), except that (A)
the Pro Rata Share of such funds of any Lender that has not funded its
participations as provided herein shall be retained by such Foreign
Currency Lender, and (B) interest accrued on any portion of any Foreign
Currency Loan prior to the Lenders' funding of their respective
participations therein shall be retained by such Foreign Currency Lender.
(iv) If the Administrative Agent or any Foreign Currency Lender is
required at any time to return to a Borrower, or to a trustee, receiver,
liquidator or custodian, or any official in any bankruptcy or insolvency
proceeding, any portion of any payment made by such Borrower to the
Administrative Agent or such Foreign Currency Lender in respect of any
Foreign Currency Loan or any interest or fee thereon, each Lender shall,
on demand of the Administrative Agent, forthwith return to the
Administrative Agent for the account of such Foreign Currency Lender the
amount of its Pro Rata Share of the amount so returned by the
Administrative Agent or such Foreign Currency Lender plus interest thereon
from the date such demand is made to the date such amount is returned by
such Lender to the Administrative Agent, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect.
(v) The Required Lenders, the Foreign Currency Lenders and the
Administrative Agent may agree on any other reasonable method (such as
making assignments of Foreign Currency Loans) for sharing the risks of
Foreign Currency Loans ratably among
37
all Lenders according to their Pro Rata Shares so long as such method does
not materially disadvantage any Lender.
(d) Each Lender's obligation to purchase participation interests in
Foreign Currency Loans pursuant to this Section 2.04 shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against any other Lender, any Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of an Event
of Default, a Default or a Material Adverse Effect; (iii) any breach of this
Agreement by any Borrower or any other Lender; (iv) any inability of any
Borrower to satisfy the conditions precedent to borrowing set forth in this
Agreement on the date upon which any Foreign Currency Loan is to be refunded or
any participation interest in any Loan is to be purchased; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(e) Notwithstanding the provisions of subsection (d) above, no Lender
shall be required to purchase a participation interest in a Foreign Currency
Loan pursuant to this Section 2.04 if, at least two Business Days prior to the
making of such Foreign Currency Loan, the Administrative Agent and the Foreign
Currency Lenders received written notice from such Lender specifying that such
Lender believed in good faith that one or more of the conditions precedent to
the making of such Loan were not satisfied (and detailing its basis for such
good faith belief) and, in fact, such conditions precedent to the making of such
Loan were not satisfied at the time of the making of such Loan; provided that
the obligation of such Lender to make such Loan and/or to purchase such
participation interest shall be reinstated upon the earlier of (i) the date on
which such Lender notifies the Administrative Agent that its prior notice has
been withdrawn or (ii) the date on which all conditions precedent to the making
of such Foreign Currency Loan have been satisfied (or waived by the Required
Lenders or all Lenders, as applicable).
(f) If at any time that the Outstanding Amount of all Foreign Currency
Loans denominated at such time exceeds an amount equal to 105% of the Aggregate
Foreign Currency Commitments then in effect, the Administrative Agent may (or,
at the request of a Foreign Currency Lender, shall) notify Anixter of such
excess and, then, within two Business Days after receipt of such notice, the
Borrowers shall prepay Loans in an aggregate amount sufficient to reduce such
Outstanding Amount as of such date of payment to an amount not to exceed 100% of
the Aggregate Foreign Currency Commitments then in effect.
2.05 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.05, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or in
one or more Available Foreign Currencies for the account of Anixter or its
Subsidiaries, and to amend or extend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of Anixter or its
38
Subsidiaries and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, Swing Line Loans and Foreign Currency Loans shall not exceed
such Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request
by Anixter for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by Anixter that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, Anixter's ability to obtain Letters of Credit shall
be fully revolving, and accordingly Anixter may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.05(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial face amount
less than $100,000;
39
(D) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is to be denominated in a
currency other than US Dollars or an Available Foreign Currency;
(E) the L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency; or
(F) a default of any Lender's obligations to fund under
Section 2.05(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with Anixter or such Lender to eliminate
the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer Documents pertaining to such Letters of Credit as fully as
if the term "Administrative Agent" as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of Anixter delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer
of Anixter. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent (A) not later than 11:00 a.m. at least
two Business Days prior to the proposed issuance date or date of
amendment, as the case may be, of any Letter of Credit denominated in US
Dollars, and (B) not later than 11:00 a.m. at least ten Business Days
prior to the proposed issuance date or date of amendment, as the case may
be, of any Letter of Credit denominated in an Available Foreign Currency;
or in each case such later date and time as the Administrative Agent and
the L/C Issuer may agree in a particular instance in their sole
discretion. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B) the
amount and currency
40
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to the
L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer may
require. Additionally, Anixter shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from Anixter and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of Anixter (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer's usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Pro Rata Share times the amount of such
Letter of Credit.
(iii) If Anixter so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
Anixter shall not be required to make a specific request to the L/C Issuer
for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.05(a) or
otherwise), or (B) it has received notice (which may be
41
by telephone or in writing) on or before the day that is five Business
Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension
or (2) from the Administrative Agent, any Lender or Anixter that one or
more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit
such extension.
(iv) If Anixter so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that permits the automatic reinstatement
of all or a portion of the stated amount thereof after any drawing
thereunder (each, an "Auto-Reinstatement Letter of Credit"). Unless
otherwise directed by the L/C Issuer, Anixter shall not be required to
make a specific request to the L/C Issuer to permit such reinstatement.
Once an Auto-Reinstatement Letter of Credit has been issued, except as
provided in the following sentence, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to reinstate all or a
portion of the stated amount thereof in accordance with the provisions of
such Letter of Credit. Notwithstanding the foregoing, if such
Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing
thereunder by giving notice of such non-reinstatement within a specified
number of days after such drawing (the "Non-Reinstatement Deadline"), the
L/C Issuer shall not permit such reinstatement if it has received a notice
(which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Required Lenders have elected not to permit
such reinstatement or (B) from the Administrative Agent, any Lender or
Anixter that one or more of the applicable conditions specified in Section
4.02 is not then satisfied (treating such reinstatement as an L/C Credit
Extension for purposes of this clause) and, in each case, directing the
L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to Anixter
and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify Anixter and the Administrative Agent thereof. In the case of a
Letter of Credit denominated in an Available Foreign Currency, Anixter
shall reimburse the L/C Issuer in such Available Foreign Currency, unless
(A) the L/C Issuer (at its option) shall have specified in such notice
that it will require reimbursement in US Dollars, or (B) in the absence of
any such requirement for reimbursement in US Dollars, Anixter shall have
notified the L/C Issuer promptly following receipt of the notice of
drawing that Anixter will reimburse the L/C Issuer in US Dollars. In the
case of any such reimbursement in US Dollars of a drawing under a Letter
of Credit denominated in an Available Foreign Currency, the L/C Issuer
shall notify Anixter of the Dollar Equivalent of the amount of the drawing
promptly
42
following the determination thereof. Not later than 11:00 a.m. on the date
of any payment by the L/C Issuer under a Letter of Credit to be reimbursed
in US Dollars, or the Applicable Time on the date of any payment by the
L/C Issuer under a Letter of Credit to be reimbursed in an Available
Foreign Currency (each such date, an "Honor Date"), Anixter shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency. If
Anixter fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (expressed in US Dollars in the
amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Available Foreign Currency) (the "Unreimbursed Amount"),
and the amount of such Lender's Pro Rata Share thereof. In such event,
Anixter shall be deemed to have requested a Committed Borrowing of Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified
in Section 2.02 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Commitments and
the conditions set forth in Section 4.02 (other than the delivery of a
Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.05(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.05(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer, in US Dollars, at the Administrative Agent's
Office for Dollar-denominated payments in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.05(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Committed
Loan to Anixter in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer in US Dollars, or if requested by the
L/C Issuer, the equivalent amount thereof in an Available Foreign Currency
as determined by the Administrative Agent at such time on the basis of the
Spot Rate (determined as of such funding date) for the purchase of such
Available Foreign Currency with Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, Anixter shall be deemed to have incurred from the L/C Issuer an
L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.05(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.05.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.05(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of
43
Credit, interest in respect of such Lender's Pro Rata Share of such amount
shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.05(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, Anixter, any Subsidiary or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Lender's obligation to
make Committed Loans pursuant to this Section 2.05(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by Anixter of a
Committed Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of Anixter to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.05(c)
by the time specified in Section 2.05(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.05(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from Anixter or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in Dollars and in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.05(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such
44
amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of Anixter to reimburse the L/C
Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that Anixter or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Available Foreign Currency to Anixter or any
Subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of,
Anixter or any Subsidiary.
Anixter shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with Anixter's instructions or other irregularity, Anixter will
immediately notify the L/C Issuer. Anixter shall be conclusively deemed to have
waived any such claim against the L/C Issuer and its correspondents unless such
notice is given as aforesaid.
45
(f) Role of L/C Issuer. Each Lender and Anixter agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. Anixter hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude Anixter's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.05(e); provided, however, that anything in such clauses to the
contrary notwithstanding, Anixter may have a claim against the L/C Issuer, and
the L/C Issuer may be liable to Anixter, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by
Anixter which Anixter proves were caused by the L/C Issuer's willful misconduct
or gross negligence or the L/C Issuer's willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral.
(i) Upon the request of the Administrative Agent, (A) if the L/C
Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, Anixter shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.
(ii) In addition, if the Administrative Agent notifies Anixter at
any time that the Outstanding Amount of all L/C Obligations at such time
exceeds 105% of the Letter of Credit Sublimit then in effect, then, within
two Business Days after receipt of such notice, Anixter shall Cash
Collateralize the L/C Obligations in an amount equal to the amount by
which the Outstanding Amount of all L/C Obligations exceeds the Letter of
Credit Sublimit.
46
(iii) The Administrative Agent may, at any time and from time to
time after the initial deposit of Cash Collateral, request that additional
Cash Collateral be provided in order to protect against the results of
exchange rate fluctuations.
(iv) Section 8.02(c) sets forth certain additional requirements to
deliver Cash Collateral hereunder. For purposes of this Section 2.05 and
Section 8.02(c), "Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. Anixter hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and Anixter when a Letter of Credit is issued, the rules of the ISP shall
apply to each Letter of Credit.
(i) Letter of Credit Fees. Anixter shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, in US
Dollars, a Letter of Credit fee (the "Letter of Credit Fee") for each Letter of
Credit equal to the Applicable Margin times the Dollar Equivalent of the actual
daily maximum amount available to be drawn under such Letter of Credit (whether
or not such maximum amount is then in effect under such Letter of Credit).
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. If there is any change in the Applicable Margin during
any quarter, the daily maximum amount of each Letter of Credit shall be computed
and multiplied by the Applicable Margin separately for each period during such
quarter that such Applicable Margin was in effect. Notwithstanding anything to
the contrary contained herein, upon the request of the Required Lenders, while
any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. Anixter shall pay directly to the L/C Issuer for its own account, in US
Dollars, a fronting fee with respect to each Letter of Credit, at the rate per
annum specified in a written agreement between Anixter and the L/C Issuer,
computed on the Dollar Equivalent of the actual daily maximum amount available
to be drawn under such Letter of Credit (whether or not such maximum amount is
then in effect under such Letter of Credit) and on a quarterly basis in arrears,
and due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. In addition, Anixter shall pay directly to the L/C Issuer
for its own account, in Dollars, the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.
47
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, Anixter shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. Anixter hereby acknowledges that the issuance of Letters
of Credit for the account of Subsidiaries inures to the benefit of Anixter, and
that Anixter's business derives substantial benefits from the businesses of such
Subsidiaries.
2.06 PREPAYMENTS.
(a) Anixter may, upon notice to the Administrative Agent, at any time or
from time to time voluntarily prepay Committed Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m., (A) three Business Days prior to
any date of prepayment of Eurocurrency Rate Committed Loans, and (B) on the date
of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency
Rate Committed Loans shall be in a principal amount of US$5,000,000 or a whole
multiple of US$1,000,000 in excess thereof; and (iii) any prepayment of Base
Rate Committed Loans shall be in a principal amount of US$1,000,000 or a whole
multiple of US$500,000 in excess thereof. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Committed Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by Anixter, Anixter shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurocurrency Rate
Committed Loan shall be accompanied by all accrued interest thereon, together
with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Pro Rata Shares.
(b) The Borrowers may, upon notice to the Administrative Agent and the
Swing Line Lender, at any time or from time to time voluntarily prepay Swing
Line Loans in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Administrative Agent and the Swing Line
Lender not later than 11:00 a.m., on the date of prepayment of Swing Line Loans;
and (ii) any prepayment of Swing Line Loans shall be in a Dollar Equivalent
principal amount of at least US$500,000.
(c) The Borrowing Subsidiaries may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Foreign Currency
Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
four Business Days prior to any date of prepayment of Foreign Currency Loans;
and (ii) any prepayment of Foreign Currency Loans shall be in a principal amount
of the applicable Minimum Tranche. Each such notice shall specify the date and
amount of such prepayment and the Foreign Currency Loans to be prepaid. The
Administrative Agent will promptly notify each Foreign Currency Lender of its
receipt of each such notice, and of such Foreign Currency Lender's Foreign
Currency Pro Rata Share of such prepayment. If such notice is given by a
Borrowing Subsidiary, such Borrowing Subsidiary shall make such prepayment and
48
the payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Foreign Currency Loan shall be
accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied
to the Foreign Currency Loans of the Foreign Currency Lenders in accordance with
their respective Foreign Currency Pro Rata Shares.
(d) If for any reason the Total Outstandings at any time exceeds the
Aggregate Commitments then in effect, the Borrowers shall immediately prepay
Loans in an aggregate amount equal to such excess.
2.07 REDUCTION OR TERMINATION OF COMMITMENTS. Anixter may, upon notice to
the Administrative Agent, terminate the Aggregate Commitments, or permanently
reduce the Aggregate Commitments to an amount not less than the then Total
Outstandings; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m., five Business Days prior to the
date of termination or reduction, and (ii) any such partial reduction shall be
in an aggregate amount of US$1,000,000 or any whole multiple of US$500,000 in
excess thereof. The Administrative Agent shall promptly notify the Lenders of
any such notice of reduction or termination of the Aggregate Commitments. Once
reduced in accordance with this Section, the Commitments may not be increased.
Any reduction of the Aggregate Commitments shall be applied to the Commitment of
each Lender according to its Pro Rata Share. All facility fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.
2.08 REPAYMENT OF LOANS.
(a) Anixter shall repay to the Lenders on the Maturity Date the aggregate
principal amount of Committed Loans outstanding on such date.
(b) The applicable Borrower shall repay each Base Rate Swing Line Loan
within 10 days after such Swing Line Loan is made. The applicable Borrower shall
repay each Foreign Currency Swing Line Loan within 30 days after such Swing Line
Loan is made (or at such later date, not later than the Maturity Date as the
Swing Line Lender may in its discretion otherwise agree).
(c) Each Borrowing Subsidiary shall repay to the Foreign Currency Lenders
on the Maturity Date the aggregate principal amount of Foreign Currency Loans of
such Borrower outstanding on such date.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Margin; (ii)
each Base Rate Committed Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Margin; (iii) each Foreign Currency Swing Line
Loan shall bear interest on the outstanding principal amount thereof at a rate
per annum specified by the Swing Line Lender at the time of borrowing for such
Foreign Currency Swing Line Loan; (iv) each
49
Base Rate Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Margin; and (v) each Foreign Currency Loan
shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of (A) the Eurocurrency
Rate for such Interest Period plus (B) the Applicable Margin.
(b) While any Event of Default exists or after acceleration, the Borrowers
shall pay interest on the principal amount of all outstanding Obligations at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Law. Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 FEES.
(a) Facility Fee. Anixter shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a facility fee
equal to the Applicable Margin times the actual daily amount of the Aggregate
Commitments, regardless of usage. The facility fee shall accrue at all times
from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Margin during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable
Margin separately for each period during such quarter that such Applicable
Margin was in effect. The facility fee shall accrue at all times, including at
any time during which one or more of the conditions in Article IV is not met.
(b) Arrangement and Agency Fees. Anixter shall pay arrangement fees to
each Arranger for their respective own accounts, and shall pay an agency fee to
the Administrative Agent for the Administrative Agent's own account, in the
amounts and at the times specified in written agreements (the "Agent/Arranger
Fee Letters"), among Anixter and the respective fee recipients. Such fees shall
be fully earned when paid and shall be nonrefundable for any reason whatsoever.
(c) Upfront Fee. Anixter shall pay to the Administrative Agent for the
account of each Lender on the Closing Date an upfront fee as provided in the
Agent/Arranger Fee Letters. Such fee shall be fully earned when paid and shall
be nonrefundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans computed based on Bank of America's "prime rate" shall be calculated
on the basis of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed. Computation of interest on Loans in British Pounds
Sterling shall be calculated on the basis of a year of 365 days, and the actual
number of days elapsed. Computation of all other types of interest and all fees
shall be calculated on the basis of a year of 360 days and the actual number of
days elapsed,
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which results in a higher yield to the payee thereof than a method based on a
year of 365 or 366 days. Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid, provided that any Loan that
is repaid on the same day on which it is made shall bear interest for one day.
2.12 EVIDENCE OF DEBT. (a) The Credit Extensions made by each Lender shall
be evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments thereon. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Loans. In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of
such Lender shall control. Upon the request of any Lender made through the
Administrative Agent, such Lender's Loans may be evidenced by a Committed Loan
Note in addition to such accounts or records. Each Lender may attach schedules
to its Note(s) and endorse thereon the date, Type (if applicable), amount and
maturity of the applicable Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit, Swing Line Loans and Foreign
Currency Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon,
on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its Pro Rata Share (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender's
Lending Office. All payments received by the Administrative Agent after 12:00
noon shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period," if any payment to be
made by a Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
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(c) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, toward costs and
expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent and each Lender, (ii) second, toward
repayment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (iii) third, toward repayment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(d) Unless any Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that such Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
such Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if such Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from the date such amount was made available by the Administrative Agent
to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds, at the Overnight Rate from time to
time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to the applicable Borrower to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per annum equal
to the Overnight Rate from time to time in effect. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute
such Lender's Committed Loan or Foreign Currency Loan, as the case may be,
included in the applicable Borrowing. If such Lender does not pay such
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon such Borrower, and
such Borrower shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or any Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
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Upon any Lender failing to make such payment required to be made by such
Lender under this Agreement, Anixter may remove or replace such Lender in
accordance with Section 10.14.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Credit Extension set forth
in Article IV are not satisfied or waived in accordance with the terms hereof,
the Administrative Agent shall promptly return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and
to fund participations in Swing Line Loans, Letters of Credit and Foreign
Currency Loans are several and not joint. The failure of any Lender to make any
Committed Loan or to fund any such participation on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on
such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations in Foreign Currency Loans or in Swing Line
Loans held by it resulting in such Lender's receiving payment of a proportion of
the aggregate amount of such Committed Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Committed Loans and subparticipations in L/C Obligations,
Foreign Currency Loans and Swing Line Loans of the other Lenders, or make such
other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Committed Loans
and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Committed Loans or subparticipations in L/C Obligations,
Foreign Currency Loans or Swing Line Loans to any assignee or participant,
other than to Anixter or any Subsidiary thereof (as to which the
provisions of this Section shall apply).
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Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Borrower in the amount of
such participation.
2.15 BORROWING SUBSIDIARIES. (a) Anixter may designate any Foreign
Subsidiary as a Borrowing Subsidiary with the consent of the Administrative
Agent. Upon the receipt and execution by the Administrative Agent of a Borrowing
Subsidiary Agreement in the form of Exhibit C-1 executed by such Subsidiary and
Anixter, such Subsidiary shall be a Borrowing Subsidiary and a party to this
Agreement.
(b) The obligation of each Foreign Currency Lender to make a Foreign
Currency Loan on the occasion of the first Borrowing by each Borrowing
Subsidiary is subject to the satisfaction of the condition that the
Administrative Agent shall have received the following:
(i) a Foreign Currency Loan Note payable to each Foreign Currency
Lender signed by such Borrowing Subsidiary;
(ii) all documents as shall reasonably demonstrate the existence of
such Borrowing Subsidiary, the corporate power and authority of such
Borrowing Subsidiary to enter into and the validity with respect to such
Borrowing Subsidiary of this Agreement and the other Loan Documents and
any other matters relevant hereto (including an opinion of counsel), all
in form and substance satisfactory to the Administrative Agent; and
(iii) any governmental and third party approvals necessary or
advisable in connection with the execution, delivery and performance of
this Agreement by such Borrowing Subsidiary.
(c) The obligation of the Swing Line Lender to make a Swing Line Loan on
the occasion of the first Swing Line Borrowing by each Borrowing Subsidiary is
subject to the satisfaction of the condition that the Administrative Agent shall
have received the following:
(i) a Swing Line Loan Note payable to the Swing Line Lender signed
by such Borrowing Subsidiary;
(ii) all documents as shall reasonably demonstrate the existence of
such Borrowing Subsidiary, the corporate power and authority of such
Borrowing Subsidiary to enter into and the validity with respect to such
Borrowing Subsidiary of this Agreement and the other Loan Documents and
any other matters relevant hereto (including an opinion of counsel), all
in form and substance satisfactory to the Administrative Agent; and
(iii) any governmental and third party approvals necessary or
advisable in connection with the execution, delivery and performance of
this Agreement by such Borrowing Subsidiary.
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(d) Any Subsidiary shall cease to be a Borrowing Subsidiary hereunder at
such time as no Credit Extensions shall be outstanding to such Subsidiary and
such Subsidiary and Anixter shall have executed and delivered to the
Administrative Agent a Borrowing Subsidiary Termination in the form of Exhibit
C-2. Upon a Borrowing Subsidiary's liquidation, dissolution or disposal of to a
person other than Anixter or any Subsidiary, all Credit Extensions outstanding
to any Borrowing Subsidiary shall be due and payable and such Subsidiary shall
no longer be entitled to obtain any Credit Extensions hereunder.
2.16 CURRENCY EXCHANGE FLUCTUATIONS. If on any Revaluation Date the
Administrative Agent shall have determined that the then outstanding Dollar
Equivalent principal amount of the Total Outstandings exceeds the Aggregate
Commitments due to a change in applicable rates of exchange between US Dollars,
on the one hand, and any Applicable Currency, on the other hand by an amount
equal to or in excess of US$1,000,000, then the Administrative Agent may (or, at
the request of the Required Lenders, shall) give notice to Anixter that a
prepayment is required under this Section, and the Borrowers agree thereupon to
make prepayments of Loans such that, after giving effect to such prepayment, the
Total Outstandings will not exceed the Aggregate Commitments.
2.17 INCREASE IN COMMITMENTS.
(a) Request for Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), Anixter may
from time to time, request an increase in the Aggregate Commitments by an amount
(for all such requests) not exceeding $75,000,000; provided that (i) any such
request for an increase shall be in a minimum amount of $15,000,000, and (ii)
Anixter may make a maximum of two such requests in any calendar year.
(b) Lenders. To achieve the full amount of a requested increase and
subject to the approval of the Administrative Agent and the L/C Issuer (which
approvals shall not be unreasonably withheld), Anixter may invite existing
Lenders to increase their respective Commitments and/or additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel. Any
Commitment of an Eligible Assignee becoming a new Lender under this Section 2.17
shall be in an amount of at least US$15,000,000.
(c) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and Anixter
shall determine the effective date (the "Increase Effective Date") and the final
allocation of such increase. The Administrative Agent shall promptly notify
Anixter and the Lenders of the final allocation of such increase and the
Increase Effective Date.
(d) Conditions to Effectiveness of Increase. As a condition precedent to
such increase, Anixter shall deliver to the Administrative Agent a certificate
of each Loan Party dated as of the Increase Effective Date (in sufficient copies
for each Lender) signed by a Responsible Officer of such Loan Party (i)
certifying and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of Anixter, certifying that,
before and after giving effect to such increase, (A) the representations and
warranties contained in
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Article V and the other Loan Documents are true and correct on and as of the
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Section 2.17, the representations and warranties contained in subsections (a)
and (b) of Section 5.07 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and
(B) no Default exists. The Borrowers shall prepay any Committed Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Pro Rata Shares arising
from any nonratable increase in the Commitments under this Section.
(e) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.14 or 10.01 to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the respective Borrowers hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if the applicable
Borrower shall be required by applicable law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, each Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 30 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to a Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
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(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
a Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to Anixter (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by Anixter or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate of withholding. In addition,
any Lender, if requested by Anixter or the Administrative Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested by
Anixter or the Administrative Agent as will enable Anixter or the Administrative
Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.
Without limiting the generality of the foregoing, in the event that a
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to Anixter and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of Anixter or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit Anixter to
determine the withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes,
57
each Lender agrees promptly to deliver to the Administrative Agent or Anixter,
as the Administrative Agent or Anixter shall reasonably request, on or prior to
the Closing Date, and in a timely fashion thereafter, such other documents and
forms required by any relevant taxing authorities under the Laws of any other
jurisdiction, duly executed and completed by such Lender, as are required under
such Laws to confirm such Lender's entitlement to any available exemption from,
or reduction of, applicable withholding taxes in respect of all payments to be
made to such Lender outside of the U.S. by the Borrowers pursuant to this
Agreement or otherwise to establish such Lender's status for withholding tax
purposes in such other jurisdiction. Each Lender shall promptly (i) notify the
Administrative Agent of any change in circumstances which would modify or render
invalid any such claimed exemption or reduction, and (ii) take such steps as
shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that any Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. Additionally, each of the Borrowers shall
promptly deliver to the Administrative Agent or any Lender, as the
Administrative Agent or such Lender shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such documents and forms
required by any relevant taxing authorities under the Laws of any jurisdiction,
duly executed and completed by such Borrower, as are required to be furnished by
such Lender or the Administrative Agent under such Laws in connection with any
payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or
otherwise in connection with the Loan Documents, with respect to such
jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by any
Borrower or with respect to which any Borrower has paid additional amounts
pursuant to this Section, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by such Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to any Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in US Dollars or an Available
Foreign Currency), or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, US Dollars or any Available Foreign
Currency in the applicable interbank market, or to determine or charge interest
rates based upon the Eurocurrency Rate, then, on notice thereof by such Lender
to Anixter through the Administrative
58
Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans
or to convert Base Rate Committed Loans to Eurocurrency Rate Committed Loans
shall be suspended until such Lender notifies the Administrative Agent and
Anixter that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrowers shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable and
such Loans are denominated in US Dollars, convert all Eurocurrency Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period
thereof, if such Lender may lawfully continue to maintain such Eurocurrency Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion,
the Borrowers shall also pay interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation
will avoid the need for such notice and will not, in the good faith judgment of
such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent determines
(or in the case of clause (c) below, the Required Lenders determine) in
connection with any request for a Eurocurrency Rate Loan or a conversion to or
continuation thereof that (a) deposits in the applicable currency are not being
offered to banks in the applicable interbank market for the applicable amount
and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for such Eurocurrency
Rate Loan, or (c) the Eurocurrency Rate for such Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to the Required Lenders of funding such
Eurocurrency Rate Loan, the Administrative Agent will promptly notify Anixter
and all Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurocurrency Rate Loans in the affected currency or currencies shall be
suspended until the Administrative Agent revokes such notice. Upon receipt of
such notice, any Borrower may revoke any pending request for a Committed
Borrowing, conversion or continuation of Eurocurrency Rate Loans or, failing
that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EUROCURRENCY RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank
reflected in the Mandatory Cost, other than as set forth below) or the L/C
Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender or the L/C Issuer
in respect thereof (except for Indemnified Taxes or Other
59
Taxes covered by Section 3.01 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or the L/C Issuer);
(iii) result in the Mandatory Cost, as calculated hereunder, not
representing the cost to any Lender of complying with the requirements of
the Bank of England and/or the Financial Services Authority or the
European Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or
(iv) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, Anixter will pay
(or cause the applicable Borrower to pay) to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer, as the case may be, for such additional costs incurred
or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time
Anixter will pay (or cause the applicable Borrower to pay) to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender's or the L/C Issuer's
holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to Anixter shall be
conclusive absent manifest error. Anixter shall pay (or cause the applicable
Borrower to pay) such Lender or the L/C Issuer, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a
60
waiver of such Lender's or the L/C Issuer's right to demand such compensation,
provided that no Borrower shall be required to compensate a Lender or the L/C
Issuer pursuant to the foregoing provisions of this Section for any increased
costs incurred or reductions suffered more than nine months prior to the date
that such Lender or the L/C Issuer, as the case may be, notifies Anixter of the
Change in Law giving rise to such increased costs or reductions and of such
Lender's or the L/C Issuer's intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) Reserves on Eurocurrency Rate Loans. Anixter shall pay (or cause the
applicable Borrower to pay) to each Lender, as long as such Lender shall be
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, provided Anixter shall have received
at least 10 days' prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.
3.05 FUNDING LOSSES. Upon written demand of any Lender (with a copy to the
Administrative Agent) from time to time, each Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan of
such Borrower other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by such Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by such
Borrower;
(c) any failure by any Borrower to make payment of any Loan or drawing
under any Letter of Credit (or interest due thereon) denominated in an Available
Foreign Currency on its scheduled due date or any payment thereof in a different
currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by such
Borrower pursuant to Section 10.16;
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan, from fees payable to terminate the deposits from
which such funds were obtained or from the performance of any foreign exchange
contract. Anixter shall also pay (or cause the applicable Borrower to pay) any
customary administrative fees charged by such Lender in connection with the
foregoing.
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The Borrowers shall pay each Lender the amount shown as due on any certificate
delivered by such Lender claiming such compensation within ten (10) Business
Days after the Borrowers' receipt of the same. Such Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing. The Borrowers shall pay each Lender the amount shown as due on any
certificate delivered by such Lender claiming such compensation within ten (10)
Business Days after the Borrowers' receipt of the same. Such Borrower shall also
pay any customary administrative fees charged by such Lender in connection with
the foregoing.
For purposes of calculating amounts payable by any Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency
Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching
deposit or other borrowing in the applicable interbank market for such currency
for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. Such certificate shall provide in reasonable detail the amount
payable and the calculations used to determine such amount. In determining such
amount, the Administrative Agent or such Lender may use any reasonable averaging
and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or Section 3.04, Anixter may remove or replace such Lender in accordance with
Section 10.14.
(c) Any Lender claiming any additional amounts payable pursuant to Section
3.01 or Section 3.04, or exercising its rights under Section 3.02, shall use
reasonable efforts (consistent with legal and regulatory restrictions) to file
any certificate or document reasonably requested by Anixter or to change the
jurisdiction of its Lending Office if the making of such a filing or change
would avoid the need for or reduce the amount of any such additional amounts
which may thereafter accrue or avoid the circumstances giving rise to such
exercise and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.
(d) If any Lender fails to notify Anixter and the Administrative Agent
within 120 days of its actual knowledge of any such additional amount payable by
a Borrower pursuant to Section 3.01 or 3.04(a) or (b) (the "Notice Date"), the
Borrowers shall not be obligated to pay such additional amounts accruing during
the period from the Notice Date until the date of delivery of such notice,
provided, further, that the failure to give such notice shall not affect any
Borrower's obligation to pay such additional amounts accrued prior to the Notice
Date or after delivery of such notice.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article III
shall survive termination of the Commitments and payment in full of all the
other Obligations.
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ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) Unless waived by all the Lenders, the Administrative Agent's receipt
of the following, each of which shall be originals or facsimiles (followed
promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the Administrative
Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Borrowers;
(ii) Committed Loan Notes executed by the Borrowers in favor of each
Lender requesting such a Note, each in a principal amount equal to such
Lender's Commitment;
(iii) Swing Line Loan Notes executed by the Borrowers in favor of
the Swing Line Lender in the principal amount of the Swing Line Loan
Commitment;
(iv) Foreign Currency Loan Notes executed by the Borrowing
Subsidiaries in favor of each Foreign Currency Lender requesting such a
Note, each in the principal amount of such Foreign Currency Lender's
Foreign Currency Commitment;
(v) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require to establish the
identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection
with the Loan Documents to which such Loan Party is a party and
authorizing the execution, delivery and performance by such Loan Party of
the Loan Documents to which such Loan Party is a party;
(vi) such evidence as the Administrative Agent may reasonably
require to verify that each Loan Party is duly organized or formed,
validly existing and in good standing under the laws of its jurisdiction
of formation (to the extent applicable in such jurisdiction), including
certified copies of each Loan Party's Organization Documents and
certificate of good standing (if applicable) and tax clearance
certificates;
(vii) a certificate signed by a Responsible Officer of each Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, (B) that there has been no event or circumstance
since the date of the Audited Financial Statements which has or could be
reasonably expected to have a Material Adverse Effect; and (C) the current
Debt Ratings;
63
(viii) an opinion of counsel to each Loan Party substantially in the
form of Exhibit H;
(ix) evidence that the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated and all outstanding
obligations thereunder have been paid or are being paid in full; and
(x) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Required Lenders reasonably
may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Committed Loans as the same Type) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrowers contained in
Article V, or which are contained in any document furnished at any time under or
in connection herewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.
(b) No Default shall exist, or would result (including in respect of
Section 7.16, 7.17 or 7.18 as of the next succeeding end of a Fiscal Quarter)
from, such proposed Credit Extension.
(c) The Administrative Agent shall have received a Request for Credit
Extension in accordance with the requirements hereof.
(d) The Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as the Administrative Agent or the Required Lenders
reasonably may require.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Committed Loans as the same Type) submitted by a Borrower shall
be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 ORGANIZATION; CORPORATE POWERS. AXE, Anixter and each Subsidiary of
Anixter (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which it owns or leases real
64
property or in which the nature of its business requires it to be so qualified,
except those jurisdictions where the failure to be in good standing or to so
qualify has not had or could not reasonably be expected to have a Material
Adverse Effect, and (iii) has all requisite corporate power and authority to
own, operate and encumber its property and assets and to conduct its business as
presently conducted and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated by the Transaction
Documents.
5.02 AUTHORITY.
(a) AXE, Anixter and each Subsidiary of Anixter party to any of the
Transaction Documents has the requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents executed by it, or to be executed by it.
(b) The execution, delivery and performance (or filing or recording, as
the case may be) of each of the Transaction Documents to which its party and the
consummation of the transactions contemplated thereby, have been duly authorized
by all necessary corporate action on the part of AXE, Anixter and each
Subsidiary of Anixter party thereto and no other corporate proceedings on the
part of any such Person are necessary to consummate such transactions.
(c) Each of the Transaction Documents to which it is a party has been duly
executed and delivered (or filed or recorded, as the case may be) by AXE,
Anixter and each Subsidiary of Anixter party thereto, constitutes its legal,
valid and binding obligations, enforceable against it in accordance with its
terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles), and is in
full force and effect (unless terminated in accordance with the terms thereof).
5.03 SUBSIDIARIES. Anixter has no Subsidiaries other than those described
in Schedule 5.03 and those, if any, which are permitted by Section 7.03 to be
created after the Closing Date.
5.04 NO CONFLICT. The execution, delivery and performance of each
Transaction Document to which it is party by AXE, Anixter and each Subsidiary of
Anixter and each of the transactions contemplated thereby, do not and will not
(i) conflict with any Contractual Obligation of any such Person, any liability
resulting from which would have or could be reasonably expected to have a
Material Adverse Effect, or (ii) conflict with or violate such Person's
certificate or articles of incorporation or by-laws or similar charter and
constituting documents, or (iii) except as set forth on Schedule 5.04, conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law or Contractual Obligation
of any such Person, or require termination of any Contractual Obligation of any
such Person, or (iv) result in or require the creation or imposition of any Lien
whatsoever upon any of the properties or assets of any such Person (other than
Liens permitted pursuant to Section 7.02(b)), or (v) require any approval of
stockholders of any such Person, unless such approval has been obtained.
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5.05 GOVERNMENTAL CONSENTS. The execution, delivery and performance of
each Transaction Document to which it is a party by AXE, Anixter and each
Subsidiary of Anixter, and the transactions contemplated thereby do not and will
not require any registration with, consent or approval of, or notice to, or
other action with or by, any Governmental Authority, except filings, consents or
notices which have been made, obtained or given and are in full force and
effect.
5.06 GOVERNMENTAL REGULATION. Neither AXE nor Anixter nor any of Anixter's
Subsidiaries is subject to regulation under the Public Utility Holdings Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act, the Investment
Company Act of 1940 or any other statute or regulation of any Governmental
Authority such that its ability to incur indebtedness is limited or its ability
to consummate the transactions contemplated hereby or by the other Transaction
Documents is materially impaired.
5.07 FINANCIAL POSITION.
(a) As of the Closing Date, all quarterly and annual financial statements
of Anixter or of Anixter and any of its Subsidiaries delivered to the
Administrative Agent and the Lenders (including the Audited Financial
Statements) were prepared in conformity with GAAP (except as otherwise noted
therein) and fairly present the financial position of Anixter or the
consolidated financial position of Anixter and such Subsidiaries, as the case
may be, as at the respective dates thereof and the results of operations and
changes in cash flows for each of the periods covered thereby, subject, in the
case of any unaudited interim financial statements to changes resulting from
audit and normal year-end adjustments.
(b) All quarterly and annual financial statements of Anixter or of Anixter
and any of its Subsidiaries delivered to the Administrative Agent on or prior to
the date this representation is made or deemed made were prepared in conformity
with GAAP (except as otherwise noted there) and fairly present the financial
position of Anixter or the consolidated financial position of Anixter and such
Subsidiaries, as the case may be as at the respective dates thereof and the
results of operations and changes in cash flows for each of the periods covered
thereby, subject, in the case of any unaudited interim financial statements, to
changes resulting from audit and normal year-end adjustments.
5.08 LITIGATION; ADVERSE EFFECTS.
(a) Except as set forth in Schedule 5.08 there is no action, suit,
proceeding, investigation of any Governmental Authority or arbitration at law or
in equity, or before or by any Governmental Authority, pending, or, to the best
knowledge of such Borrower, threatened against AXE, Anixter or any Subsidiary of
Anixter or any Property of any of them, which could be reasonably expected to
result in any Material Adverse Effect.
(b) Neither AXE nor Anixter nor any Subsidiary of Anixter is (A) in
violation of any applicable law which violation has or could reasonably be
expected to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, decree, order, rule or
regulation of any court or Governmental Authority which has or could reasonably
be expected to have a Material Adverse Effect. There is no action, suit,
proceeding or
66
investigation pending or, to the knowledge of such Borrower, threatened against
or affecting AXE, Anixter or any Subsidiary of Anixter which challenges the
validity or the enforceability of any of the Transaction Documents.
5.09 NO MATERIAL ADVERSE CHANGE. With respect to each of AXE, Anixter and
Anixter and its Subsidiaries taken as a whole, there has occurred no event since
January 2, 2004 which has or could reasonably be expected to have a Material
Adverse Effect.
5.10 PAYMENT OF TAXES. All United States Federal income and other material
tax returns and reports of each Borrower and each Borrower's Subsidiaries
required to be filed (including extensions) have been timely filed and all
taxes, assessments, fees and other charges of Governmental Authorities thereupon
and upon their respective properties, assets, income and franchises which are
shown on such returns as being due and payable, have been paid when due and
payable, except (i) taxes being contested in good faith by appropriate
proceedings and that are reserved against in accordance with GAAP, (ii) taxes
which are not yet delinquent, (iii) taxes which are payable in installments so
long as paid before any penalty accrues with respect thereto and (iv) other
taxes, assessments, fees and other charges or Governmental Authorities which do
not exceed US$250,000 in the aggregate. Except as set forth in clauses (i)
through (iv) above, such Borrower has no knowledge of any proposed tax
assessment against Anixter or any of Anixter's Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.11 PERFORMANCE. Neither AXE nor Anixter nor any Subsidiary of Anixter is
in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it the effect of which could reasonably be expected to have a
Material Adverse Effect, and no condition exists which, with the giving of
notice or the lapse of time or both, would constitute a default under such
Contractual Obligation, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have and could not reasonably be
expected to have a Material Adverse Effect.
5.12 SECURITIES ACTIVITIES. Neither AXE nor Anixter nor any of Anixter's
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock and none will use, directly or
indirectly, the proceeds of any Loan to purchase or carry Margin Stock.
5.13 DISCLOSURE. Subject to changes in facts or conditions which are
required or permitted under this Agreement, the representations and warranties
of AXE, each Borrower and each Subsidiary of each Borrower contained in the
Transaction Documents, and all certificates and other documents delivered to the
Administrative Agent in connection therewith, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading.
5.14 REQUIREMENTS OF LAW. Each of AXE, Anixter and each Subsidiary of
Anixter is in compliance with all Requirements of Law (including, without
limitation, the Securities Act and the Securities Exchange Act, the applicable
rules and regulations thereunder, and state
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securities laws) applicable to it and its business, where the failure to so
comply would have or could be reasonably expected to have a Material Adverse
Effect.
5.15 PATENTS, TRADEMARKS, PERMITS, ETC. Anixter and each Subsidiary of
Anixter owns, is licensed or otherwise has the lawful right to use, or has all
permits and other approvals of Governmental Authorities, patents, trademarks,
service marks, trade names, copyrights, technology, know-how and processes used
in or necessary for the conduct of its business as currently conducted which are
material to its financial condition, business, operations, assets and prospects,
individually or taken as a whole. The use of such permits and other approvals of
Governmental Authorities, patents, trademarks, service marks, trade names,
copyrights, technology, know-how and processes by each Borrower or any such
Subsidiary does not infringe on the rights of any Person, subject to such claims
and infringements the existence of which do not have or could not reasonably be
expected to have a Material Adverse Effect. The consummation of the transactions
contemplated by the Transaction Documents will not impair the ownership of or
rights under (or the license or other right to use, as the case may be) any
permits and governmental approvals, patents, trademarks, service marks, trade
names, copyrights, technology, know-how or processes by Anixter or any such
Subsidiary in any manner which has or could reasonably be expected to have a
Material Adverse Effect.
5.16 ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 5.16 and
except to the extent that a failure of any of the following representations to
be true could not be reasonably expected to have a Material Adverse Effect, (i)
each of the operations of AXE, Anixter and its Subsidiaries comply in all
respects with all applicable environmental, health and safety Requirements of
Law; (ii) each of AXE, Anixter and its Subsidiaries has obtained all
environmental, health and safety Permits necessary for its operations, all such
Permits are in good standing and AXE, Anixter and its Subsidiaries are in
compliance with all terms and conditions of such Permits; and (iii) (A) neither
AXE, Anixter nor any Subsidiary of Anixter, nor any of their present Property or
operations and (B) none of AXE's, Anixter's or its Subsidiaries'
previously-owned Property or past operations is subject to any Remedial Action
or other Liabilities and Costs arising from the Release or threatened Release of
a Contaminant into the environment.
5.17 EMPLOYEE BENEFIT MATTERS. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. As of each date that this
representation is made or deemed made, the present value of all accumulated
benefit obligations of all underfunded Pension Plans (based on the assumptions
used by the Plans to determine benefit obligations on an ongoing basis) did not,
as of the date of the most recent financial statements reflecting such amounts,
exceed by more than US$25,000,000 the fair market value of all of the assets of
all such underfunded Plans.
5.18 SOLVENCY. Each Loan Party is Solvent after giving effect to the
transactions contemplated by this Agreement and the other Transaction Documents
and the payment and accrual of all Transaction Costs with respect to any of the
foregoing.
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5.19 ASSETS AND PROPERTIES. AXE, Anixter and each Subsidiary of Anixter
has good title to all of the assets (tangible and intangible) owned by it,
except for imperfections of title (including Liens to the extent permitted under
Section 7.02(b)) which in the aggregate could not reasonably be expected to have
a Material Adverse Effect, and all such assets are free and clear of all Liens,
except as otherwise specifically permitted by the terms and provisions of this
Agreement and the other Loan Documents. Substantially all of the assets and
properties owned by, leased to or used by each Borrower or any Domestic
Subsidiary of Anixter are in good repair, working order and condition, excepting
ordinary wear and tear and are free and clear of any known defects except such
defects as do not substantially interfere with the continued use thereof in the
conduct of normal operations.
5.20 JOINT VENTURE; PARTNERSHIP. Except as set forth in Schedule 5.20 or
as otherwise permitted in this Agreement, neither AXE nor Anixter nor any
Subsidiary of Anixter is engaged in any material partnership or material joint
venture with any other Person.
5.21 NO DEFAULT. No Default exists.
5.22 RESTRICTED PAYMENTS. On or after the Closing Date, neither Anixter
nor any Subsidiary of Anixter has directly or indirectly declared, ordered, paid
or made or set apart any sum or property for any Restricted Payment or agreed to
do so, except to the extent permitted pursuant to Section 7.05.
5.23 SUBSEQUENT FUNDING REPRESENTATIONS AND WARRANTIES. To induce each
Lender and the Administrative Agent to enter into this Agreement and to make the
Loans, each Borrower represents and warrants to each Lender and the
Administrative Agent that the statements set forth in the preceding Sections of
this Article V (except to the extent that such statements expressly are made
only as of the Closing Date), are true, correct and complete in all material
respects on and as of the date of each Borrowing after the Closing Date, except
that the representations and warranties need not be true and correct to the
extent that changes in the facts and conditions on which such representations
and warranties are based are expressly required or permitted under this
Agreement.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or
other Obligation shall remain unpaid or unsatisfied,
6.01 FINANCIAL STATEMENTS. Each Borrower shall, and shall cause each of
its material Subsidiaries to, maintain or cause to be maintained a system of
accounting established and administered in accordance with sound business
practices and consistent with past practice to permit preparation of financial
statements in conformity with GAAP and, if required by the terms of this
Agreement, in conformity with Agreement Accounting Principles, and each of the
financial statements described below shall be prepared from such system and
records. Anixter shall deliver or cause to be delivered to the Administrative
Agent and each Lender:
(a) Quarterly Reports. As soon as practicable, and in any event within
five (5) days after the date normally required to be filed with the Commission,
after the end of each of
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Anixter's Fiscal Quarters, on a consolidated basis for the Consolidated Group,
each of the following:
(i) a balance sheet as of the end of such Fiscal Quarter and as of
the end of the previous Fiscal Year; and
(ii) an income statement and a cash flow statement of such Fiscal
Quarter and for the period from the beginning of the current Fiscal Year
to the end of such Fiscal Quarter, setting forth in each case in
comparative form and in reasonable detail the figures for the
corresponding periods of the previous Fiscal Year;
all prepared by Anixter, together with a certification by one of Anixter's
Financial Officers that they fairly represent the financial condition of the
Persons covered thereby as at the dates indicated in accordance with GAAP,
subject to changes resulting from audit and normal year-end adjustments and the
absence of footnotes.
(b) Annual Reports. As soon as practicable, and in any event within ninety
(90) days after the end of each Fiscal Year on a consolidated basis for the
Consolidated Group, annual financial statements consisting of a balance sheet,
income statement and cash flow statement, setting forth in comparative form in
each case the consolidated figures for the previous Fiscal Year all in
reasonable detail, and accompanied by an opinion (unqualified as to scope or
going concern and which is not adverse) thereon of Ernst & Young LLP or other
firm of independent certified public accountants of recognized national standing
regularly retained by Anixter and acceptable to the Administrative Agent, which
report shall state that such financial statements present fairly the financial
position of the Persons covered thereby as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (or, in the
event of a change in accounting principles, such accountants' concurrence with
such change) and that such firm's audit has been conducted in accordance with
generally accepted auditing standards.
(c) Budget and Business Plan. Promptly upon completion, but in any event
not later than seventy-five (75) days after the end of each Fiscal Year, on a
consolidated basis for the Consolidated Group, a copy of the operating budget
and projections by Anixter of the income statement, balance sheet and cash flow
of the Consolidated Group, taken as a whole, for the next succeeding Fiscal Year
of Anixter, all in form customarily prepared by Anixter's management, such
operating budget and projected financial statements to be accompanied by a
certificate of one of Anixter's Financial Officers to the effect that such
operating budget and projected financial statements have been prepared on the
basis believed by Anixter to be reasonable.
(d) Compliance Certificate; MD&A. Together with each delivery of the
financial statements pursuant to subsections (a) and (b) above, (i) an Officers'
Certificate of Anixter stating that the signers have reviewed the terms of this
Agreement and the Loan Documents, and have made, or caused to be made under
their supervision, a review in reasonable detail of the transactions and
condition of Anixter and its Subsidiaries, during the accounting period covered
by such financial statements, and that such review has not disclosed the
existence during or at the end of such accounting period, and that the signers
do not have knowledge of the existence, as at the date of the Officers'
Certificate, of any condition or event which constitutes a Default, or, if
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any such condition or event existed or exists, specifying the nature and period
of existence thereof and what action Anixter has taken, is taking and proposes
to take with respect thereto; (ii) a Compliance Certificate (A) demonstrating in
reasonable detail compliance during and at the end of such accounting periods
with the provisions set forth in Sections 7.05, and 7.16 through 7.18 and (B)
reporting the Debt Ratings and based upon its calculations the Applicable
Margin; and (iii) a written discussion and analysis by the management of Anixter
of such financial statements.
(e) Accountant's Compliance Certificate. Simultaneously with the delivery
of the financial statements referred to in subsection (b) above, a statement of
the firm of independent certified public accountants which reported on such
financial statements whether anything has come to their attention to cause them
to believe that there existed on the date of such statements any Default.
(f) Report of Material Events. Promptly upon Anixter obtaining knowledge
(A) of any condition or event which constitutes a Default, (B) of any condition
or event which constitutes an event of default or which, with the giving of
notice or lapse of time or both, would constitute an event of default under the
Subordinated XXXXx Note or (C) of any condition or event which has or could
reasonably be expected to have a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of any such condition
or event and what action Anixter has taken, is taking and proposes to take with
respect thereto.
(g) Notice of Claims and Proceedings. (i) Promptly after learning thereof,
notice of the institution of, or threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting Anixter or any
Subsidiary of Anixter involving claims in excess of US$10,000,000 except where
the same is fully covered (other than any applicable co-insurance or deductible)
by insurance (other than insurance in the nature of retro-premium insurance or
other self insurance programs); and (ii) promptly upon learning thereof, notice
of any investigation or proceeding before or by any Governmental Authority, the
effect of which might limit, prohibit or restrict materially the manner in which
Anixter or any Subsidiary of Anixter currently conducts its business or to
declare any substance contained in the products manufactured or distributed by
it to be dangerous, if such investigation or proceeding has or could reasonably
be expected to have a Material Adverse Effect.
(h) ERISA Matters. Prompt written notice of the occurrence of any ERISA
Event that, alone or together with any other ERISA Events that have occurred,
could reasonably be expected to have a Material Adverse Effect, such written
notice to describe such ERISA Event or Events and the action, if any, which
Anixter or such ERISA Affiliate has taken, is taking and proposes to take with
respect thereto.
(i) Publicly Distributed Information. On a timely basis, copies of all
financial statements, reports and notices, if any, sent or made available
generally by AXE or Anixter to the holders of its publicly-held securities, if
any, or filed with the Commission, concerning developments in the business of
AXE, Anixter or any of Anixter's Subsidiaries that individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
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(j) Debt Ratings. Promptly after learning thereof, (i) notice of the
initial establishment of any of the Debt Ratings for Anixter and thereafter any
change therein and (ii) a copy of each notice or other written communication
received by Anixter from S&P, Xxxxx'x, Fitch or any other nationally recognized
rating agency relating to any of the Debt Ratings.
(k) Other Information. Such other information respecting the financial
condition of Anixter or any Subsidiary of Anixter, or their respective business,
operations, assets, performance or prospects, as the Administrative Agent or any
Lender through the Administrative Agent may from time to time reasonably
request, including, without limitation, financial projections, business plans
and any information such Person's accountants may have prepared with respect to
such Person's financial condition, its business, operations, assets, performance
and prospects. The Administrative Agent and the Lenders shall treat any
non-public information so obtained as confidential in accordance with Section
10.08 hereof.
6.02 ENVIRONMENTAL NOTICES. Anixter shall notify the Administrative Agent
and each Lender in writing, promptly upon Anixter's learning thereof, of any of
the following which, in each case or together, could reasonably be expected to
result in a Material Adverse Effect:
(a) notice that any Property of Anixter or any Subsidiary of Anixter is
subject to an Environmental Lien; or
(b) notice to Anixter or any Subsidiary of Anixter or awareness by Anixter
or any Subsidiary of Anixter of a condition which could reasonably be expected
to result in (1) a notice of violation of any environmental health or safety
Requirement of Law or (2) any Liabilities and Costs with respect to any Release
or threatened Release of any Contaminant into the environment.
6.03 CORPORATE EXISTENCE, ETC. Each Borrower shall, and Anixter shall
cause each of its Subsidiaries to, at all times, maintain its corporate
existence and preserve and keep in full force and effect its rights and
franchises, except as otherwise expressly permitted in Section 7.08 and except
with respect to any Subsidiary which has no material assets or liabilities.
Anixter shall promptly provide the Administrative Agent and each of the Lenders
with a complete list of its Subsidiaries upon the occurrence of any change in
the list set forth on Schedule 5.03 hereto with respect to Subsidiaries having
assets in excess of US$1,000,000 individually or US$5,000,000 in the aggregate.
6.04 CORPORATE POWERS, ETC. Each Borrower shall, and Anixter shall cause
each of its Subsidiaries to, qualify and remain qualified to do business in each
jurisdiction in which the nature of its business requires it to be so qualified,
except in those jurisdictions where the failure to so qualify does not have or
could not reasonably be expected to have a Material Adverse Effect.
6.05 COMPLIANCE WITH LAWS. Each Borrower shall, and Anixter shall cause
each of its Subsidiaries to, comply with all Requirements of Law, and all
material contractual obligations affecting it or its business, properties,
assets or operations, except where the failure so to comply does not have or
could not reasonably be expected to have a Material Adverse Effect.
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6.06 PAYMENT OF TAXES AND CLAIMS. Each Borrower shall, and Anixter shall
cause each of its Subsidiaries to, pay (a) all material taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (b) all material claims (including,
without limitation, claims for labor, services, materials and supplies) for sums
which have become due and payable and which by law have or may become a Lien
(other than a Customary Permitted Lien) upon any of its properties or assets,
prior to the time when any penalty or fine shall be incurred with respect
thereto; provided that no such taxes, assessments and governmental charges
referred to in clause (a) above or claims referred to in clause (b) above need
to be paid if being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor.
6.07 MAINTENANCE OF PROPERTIES; INSURANCE. Each Borrower shall, and
Anixter shall cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition, excepting ordinary wear
and tear and damage, due to casualty or condemnation, all Property material to
its operations and will make or cause to be made all appropriate repairs,
renewals and replacements thereof. Each Borrower shall, and Anixter shall cause
each of its Subsidiaries to, maintain with financially sound insurance
companies, the insurance policies and programs, including, self-insurance
retention levels, listed on Schedule 6.07 hereto (or substantially similar
programs or policies and amounts or other programs, policies and amounts
acceptable to the Required Lenders) insuring all Property and other assets
material to the operations of Anixter and its Subsidiaries against loss or
damage by fire, theft, burglary, pilferage and loss in transit and business
interruption, together with such other hazards as are reasonably consistent with
prudent industry practice, and maintain product and other liability insurance
consistent with prudent industry practice with financially sound insurance
companies licensed to do business in the states where such Property is located.
Not later than sixty (60) days after the renewal, replacement or material
modification of any policy or program, Anixter shall deliver or cause to be
delivered to the Administrative Agent (in sufficient quantity for each of the
Lenders, which the Administrative Agent shall promptly distribute to each
Lender) a detailed schedule setting forth for each such policy or program: (a)
the amount of such policy, (b) the risks insured against by such policy, (c) the
name of the insurer and each insured party under such policy, and (d) the policy
number of such policy.
6.08 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Each Borrower
shall permit, and Anixter shall cause each of its Subsidiaries to permit, any
authorized representative(s) designated by any Lender or the Administrative
Agent to visit and inspect any of its properties, including financial and
accounting records, and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with its officers, employees,
representatives, agents or independent certified public accountants, all upon
reasonable notice and at such reasonable time and as often as may be reasonably
requested. Each such visitation and inspection made by or on behalf of the
Administrative Agent shall be at the Borrowers' expense. Any visitation and
inspection made by or on behalf any Lender shall be at such Lender's expense.
6.09 MAINTENANCE OF PERMITS. Each Borrower shall obtain and maintain, and
Anixter shall cause each of its Subsidiaries to obtain and maintain, in full
force and effect all licenses,
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franchises, Permits or other rights necessary for the operation of its business,
except where the failure to obtain or maintain such licenses, franchises,
Permits or rights does not have and could not reasonably be expected to have a
Material Adverse Effect.
6.10 EMPLOYEE BENEFIT MATTERS. Each Borrower shall establish, maintain and
operate, and Anixter shall cause each of its Subsidiaries to establish, maintain
and operate, all Plans in all material respects in compliance with the
applicable provisions of ERISA, the Code and all other applicable laws, and the
regulations and interpretations thereunder, and the respective requirements of
the governing documents for such Plans. Each Borrower shall, and Anixter shall
cause each of its Subsidiaries and other ERISA Affiliates to, establish,
maintain and operate all Foreign Employee Benefit Plans to comply in all
material respects with all laws, regulations and rules applicable thereto and
the respective requirements of the governing documents for such Foreign Employee
Benefit Plans.
6.11 ADDITIONAL GUARANTORS. Upon the request of the Administrative Agent
and/or the Required Lenders, Anixter will promptly cause each material
Subsidiary that shall not then be a Guarantor under the Guaranty (other than (a)
any Foreign Subsidiary (except as provided below), (b) any Receivables
Securitization SPV or (c) any Subsidiary with no significant assets or
operations) to execute and deliver to the Administrative Agent: an instrument
satisfactory in form and substance to the Administrative Agent under which it
shall undertake the obligations of a Guarantor, together with such evidence as
the Administrative Agent may reasonably request as to the corporate power and
authority of such Subsidiary to execute the foregoing instrument and perform its
obligations thereunder. Notwithstanding the foregoing, if at any time the
Administrative Agent, in its reasonable judgment, determines that the assets or
operations of Anixter Puerto Rico, Inc., Anixter Philippines Inc., Anixter
Thailand Inc. or Anixter Venezuela Inc. have become material, such Subsidiary
shall execute and deliver the aforementioned documents to the Administrative
Agent.
6.12 USE OF PROCEEDS. The proceeds of the Loans may be used for working
capital, capital expenditures, acquisitions and other corporate purposes and to
refinance Indebtedness under the Existing Credit Facility.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied:
7.01 INDEBTEDNESS. No Borrower shall, and Anixter shall not permit any
member of the Consolidated Group to, directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness, except:
(i) the Obligations;
(ii) the Existing Indebtedness;
(iii) Indebtedness in respect of Accommodation Obligations permitted
by Section 7.04;
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(iv) Indebtedness of any Subsidiary to Anixter or any other
Subsidiary;
(v) Indebtedness of Anixter to any Subsidiary;
(vi) other unsecured Indebtedness of Anixter and its Subsidiaries,
including without limitation subordinated indebtedness, the principal
amount of which does not exceed in the aggregate US$400,000,000 at any one
time outstanding.
(vii) the Subordinated XXXXx Note;
(viii) Indebtedness arising under Receivables Securitization
Transactions in an aggregate principal amount not exceeding
US$350,000,000; and
(ix) Indebtedness under Hedging Contracts permitted under Section
7.14;
provided that the aggregate principal amount of Indebtedness of all
Subsidiaries owing to Persons other than to Anixter or another Subsidiary
at any time (other than Indebtedness (i) in respect of the Obligations,
or(ii) arising under Receivables Securitization Transactions) shall not
exceed US$100,000,000.
7.02 SALES OF ASSETS; LIENS.
(a) Limitation on Sales. No Borrower shall, and Anixter shall not
permit any Subsidiary of Anixter to, directly or indirectly sell, assign,
transfer, lease, convey or otherwise dispose of any properties or assets,
including, without limitation, any capital stock of any Subsidiary,
whether now owned or hereafter acquired, or any income or profits
therefrom, except for:
(i) sales of inventory in the ordinary course of business;
(ii) the disposition of obsolete equipment in the ordinary course of
business;
(iii) sales by Anixter of stock of a Subsidiary held by it, in any
transaction or series of related transactions not constituting a Material
Transaction, individually or taken together;
(iv) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets, other than the stock of any Subsidiary, for
cash consideration and for not less than fair market value which do not
constitute a Material Transaction individually or in the aggregate
(together with all sales of stock of any Subsidiary under clause (iii)
above);
(v) sales, assignments, transfers, leases, conveyances or other
dispositions of assets to Anixter or a Subsidiary;
(vi) transfers of assets to any Affiliate for less than fair market
value to the extent such transfer constitutes a permitted Investment
pursuant to Section 7.03; and
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(vii) Receivables Securitization Transactions as to which the
outstanding aggregate investment or principal amount of claims held at any
time by all purchasers, assignees or other transferees of (or of interests
in) receivables and other rights to payment in all Receivables
Securitization Transactions shall not at any time exceed in the aggregate
US$350,000,000.
(b) Liens. No Borrower shall, and Anixter shall not permit any Subsidiary
of Anixter to, directly or indirectly create, incur, assume or permit to exist
any Lien on or with respect to any of its Property (including all capital stock
of any Subsidiary of Anixter) except:
(i) Customary Permitted Liens;
(ii) Permitted Existing Liens;
(iii) Liens on assets of any joint venture described in Section
7.03(vi);
(iv) (A) Liens on Property existing at the time of acquisition
thereof by Anixter or any of its Subsidiaries and not created in
contemplation of such acquisition; and (B) Liens securing purchase money
Indebtedness for Property to the extent the aggregate outstanding
principal amount of such Indebtedness does not exceed US$20,000,000, is
permitted under Section 7.01 and the value of the Property securing such
Indebtedness approximates the amount of such Indebtedness;
(v) Liens with respect to judgments or attachments which do not
result in an Event of Default or Default hereunder;
(vi) Liens on the assets of Foreign Subsidiaries which are not
Borrowers; provided, the aggregate amount of Indebtedness secured by such
Liens shall not exceed the Dollar Equivalent of US$50,000,000; and
(vii) Liens arising in connection with Receivables Securitization
Transactions; provided that the outstanding aggregate investment or
principal amount of claims held at any time by all purchasers, assignees
or other transferees of (or of interests in) receivables and other rights
to payment in all Receivables Securitization Transactions shall not at any
time exceed in the aggregate US$350,000,000.
7.03 INVESTMENTS. No Borrower shall, and Anixter shall not permit any of
its Subsidiaries to, directly or indirectly make or commit to make any advance,
loan, extension of credit or capital contribution, or purchase of any stock,
bonds, notes, debentures or other securities or evidences of indebtedness of, or
make any other investment in, any Person, including, without limitation, any
Affiliate of Anixter (all such transactions being referred to as "Investments")
except:
(i) Investments by Anixter or any of its Subsidiaries in Cash
Equivalents;
(ii) Investments made prior to the date hereof and set forth on
Schedule 7.03;
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(iii) Investments arising from sales in the ordinary course of
business on customary trade terms;
(iv) Investments constituting loans by Anixter or any Subsidiary of
Anixter to its employees not in excess of an aggregate amount of
US$10,000,000 outstanding at any one time;
(v) Investments in connection with the acquisition by Anixter or any
Subsidiary of substantially all of the assets or all of the capital stock
of any Person located in the United States so long as no Default exists or
would result therefrom;
(vi) Investments in connection with the acquisition by Anixter or
any Subsidiary of substantially all of the assets or all of the capital
stock of any Person located outside the United States not in excess of
US$100,000,000 for any such individual acquisition and not in excess of
US$200,000,000 for all such acquisitions over the term of this Agreement;
(vii) Investments in any joint ventures and Investments in
connection with the purchase of any other Person's interest in any such
joint ventures, which do not exceed US$25,000,000 in the aggregate
outstanding at any one time;
(viii) Investments (other than those set forth on Schedule 7.03) in
notes receivable received in connection with transactions permitted
pursuant to Section 7.02(a)(vii); provided, the aggregate amount of such
Investments at any one time outstanding shall not exceed US$275,000,000;
(ix) Investments by Anixter in any Subsidiary of Anixter;
(x) Investments by any Subsidiary of Anixter in Anixter or in any
other Subsidiary of Anixter;
(xi) Investments constituting loans permitted by Section 7.01(vi) or
Accommodation Obligations permitted under Section 7.04; and
(xii) other Investments not to exceed US$25,000,000 in the aggregate
outstanding at any time.
Notwithstanding anything to the contrary contained in this Section 7.03,
neither Anixter nor any Subsidiary of Anixter shall acquire more than twenty
percent (20%) of the capital stock of any Person in a transaction that has not
been approved by such Person's board of directors.
7.04 ACCOMMODATION OBLIGATIONS. No Borrower shall, and Anixter shall not
permit any Subsidiary of Anixter to, directly or indirectly, create or become or
be liable with respect to any Accommodation Obligation involving Indebtedness of
AXE or any Affiliate of AXE which is not a Subsidiary of Anixter. In addition,
no Borrower shall, and Anixter shall not permit any Subsidiary to, directly or
indirectly, create or become or be liable with respect to any Accommodation
Obligation except:
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(i) guaranties resulting from endorsement of negotiable instruments
for collection in the ordinary course of business;
(ii) Accommodation Obligations arising in connection with the
Transaction Documents;
(iii) Accommodation Obligations by Anixter with respect to lessees'
obligations to third-party lessors under leases of Property purchased from
Anixter and its Subsidiaries, in an aggregate amount not to exceed
US$5,000,000;
(iv) Accommodation Obligations of Anixter and its Subsidiaries
arising in connection with Hedging Contracts entered into with any of the
Lenders; and
(v) other Accommodation Obligations by Anixter and its Subsidiaries
in an aggregate amount outstanding at any time not to exceed the Dollar
Equivalent of Seventy Five Million Dollars (US$75,000,000); provided,
however, that no such Accommodation Obligations shall be entered into or
incurred after the occurrence and during the continuance of an Event of
Default or Default.
7.05 RESTRICTED PAYMENTS. No Borrower shall, and Anixter shall not permit
any Subsidiary of Anixter to, directly or indirectly declare or make any
Restricted Payment, except:
(i) payments of dividends by Anixter to AXE or redemption,
retirement, purchase or other acquisition for value, direct or indirect,
of any shares of capital stock of Anixter issued to AXE or prepayments,
redemption or defeasance of subordinated debt, provided: (a) at the time
thereof and after taking into account the payment thereof, no Event of
Default or Default exists or is pending, whether or not such Event of
Default or Default has been reported to the Administrative Agent; and (b)
the aggregate amount of such dividends, redemptions, retirements,
purchases or other acquisitions, prepayments, redemptions and defeasance
does not exceed US$100,000,000 plus fifty percent (50%) of the cumulative
Consolidated Net Income for the quarterly period(s) ending on or after
July 2, 2004 to the date of such calculation;
(ii) payments by Anixter to AXE of up to US$70,000,000, the proceeds
of which are used by AXE to redeem the zero coupon senior Liquid Yield
Option Notes of AXE due 2020 prior to December 31, 2005, provided that (a)
after giving effect to any such payment and redemption at least
US$50,000,000 of the Aggregate Commitments remain unutilized and (b) after
giving effect to such payment and redemption and assuming at least
US$50,000,000 of the remaining unutilized Aggregate Commitments are
borrowed, the Borrowers would be in compliance with Sections 7.16 and 7.17
on a pro forma basis; and
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(iii) payments by Anixter to AXE under the Tax Allocation Agreement
provided: (a) no such payments shall be made at any time with respect to
the income (whether trade or business income or passive income) of
Anixter's Foreign Subsidiaries unless Anixter has received a like amount
from such Foreign Subsidiaries, (b) no such payments shall be made at any
time to the extent such payments are not in an amount substantially the
same as the amount of federal and state taxes which would be due and
payable by Anixter and the corporations (with Anixter, collectively the
"Borrower Group") which would be members of the "affiliated group" (as
defined in Section 1504 of the Code) of which Anixter would be the common
parent if Anixter were not a member of the AXE affiliated group (as so
defined) (the "AXE Group") if the Borrower Group filed a separate
consolidated federal income tax return and separate consolidated or
combined state income tax returns, (c) no such payments shall be made at
any time an Event of Default or Default exists or is pending, whether or
not such Event of Default or Default has been reported to the
Administrative Agent, to the extent such payments exceed the lesser of (1)
the amount of federal and state taxes which would be due and payable by
the Borrower Group, if the Borrower Group filed a separate consolidated
federal income tax return and separate consolidated or combined state
income tax returns and (2) the amount of the tax liability actually
incurred and paid by the AXE Group; and (d) no such payment shall be made
after the occurrence of an Event of Default under Section 8.01(f) or
8.01(g).
7.06 CONDUCT OF BUSINESS. No Borrower shall, and Anixter shall not permit
any of its Subsidiaries to, directly or indirectly engage in any business other
than the business engaged in by Anixter and all of its Subsidiaries on the date
hereof and any business activities substantially similar or related thereto. No
Borrower shall, and Anixter shall not permit any of its Subsidiaries to, enter
into any interest rate, commodity, or foreign currency exchange, swap, collar,
cap, option, forward, futures or similar agreements other than Hedging
Contracts.
7.07 TRANSACTIONS WITH AFFILIATES. No Borrower shall, and Anixter shall
not permit any other Subsidiary to, directly or indirectly enter into or permit
to exist any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any of
its Affiliates that are not Subsidiaries of Anixter on terms that are less
favorable to it than those fair and reasonable terms that might be obtained in a
comparable arms-length transaction at the time (other than payments to AXE in
respect of directors' fees and reasonable allocated expenses not to exceed
US$3,000,000 per year in the aggregate).
7.08 RESTRICTION ON FUNDAMENTAL CHANGES.
(a) No Borrower shall, and Anixter shall not permit any of its
Subsidiaries to, directly or indirectly enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or otherwise dispose
of, in one transaction or series of transactions, all or any substantial part of
its business or Property, whether now or hereafter acquired, except:
(i) as otherwise permitted under Section 7.02(a); and
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(ii) any Subsidiary may merge into or convey, sell, lease or
transfer all or substantially all of its assets to Anixter or any other
Subsidiary of Anixter.
(b) No Borrower shall, and Anixter shall not permit its Subsidiaries to,
acquire by purchase or otherwise any property or assets of, or stock or other
evidence of beneficial ownership of, any Person, except in the ordinary course
of its business or to the extent permitted pursuant to Section 7.03.
7.09 EMPLOYEE BENEFIT MATTERS. No Borrower shall, and Anixter shall not
permit any of its ERISA Affiliates to do any of the following which,
individually, or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect:
(i) Engage in any prohibited transaction described in Section 406 of
ERISA or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the
DOL;
(ii) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Code), whether or not waived;
(iii) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(iv) terminate any Benefit Plan in a distress termination under
Section 4041(c) of ERISA which would result in any liability to Anixter or
any ERISA Affiliate;
(v) fail to make any contribution or payment to any Multiemployer
Plan which Anixter or any ERISA Affiliate may be required to make under
any agreement relating to such Multiemployer Plan, or any law pertaining
thereto;
(vi) fail to pay any required installment or any other payment
required under Section 412 of the Code on or before the due date for such
installment or other payment;
(vii) amend a Plan resulting in an increase in current liability for
the plan year such that Anixter or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the Code;
(viii) permit any unfunded liabilities with respect to any Foreign
Pension Plan to exist; or
(ix) fail to pay any required contribution or payment to a Foreign
Pension Plan on or before the date for such required installment or
payment.
7.10 ENVIRONMENTAL LIABILITIES. No Borrower shall, and Anixter shall not
permit any of its Subsidiaries to, become subject to any Liabilities and Costs
which could reasonably be expected to have a Material Adverse Effect and which
arise out of or are related to (a) the Release or threatened Release at any
location of any Contaminant into the environment, or any Remedial Action in
response thereto, or (b) any violation of any environmental, health and safety
Requirements of Law.
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7.11 MARGIN REGULATIONS. No portion of the proceeds of any credit extended
under this Agreement shall be used in any manner which might cause the extension
of credit or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X or any other regulation of the Federal Reserve
Board or to violate the Securities Exchange Act or the Securities Act, in each
case as in effect on the date or dates of such Borrowing and the use of such
proceeds.
7.12 CHANGE OF FISCAL YEAR. No member of the Consolidated Group shall
change its fiscal year, except that any Subsidiary of Anixter may conform its
fiscal year to Anixter's Fiscal Year.
7.13 MODIFICATION OF THE SUBORDINATED XXXXX NOTE OR THE REVOLVING
SUBORDINATED NOTE. Anixter shall not amend, modify or supplement the
Subordinated XXXXx Note or the Revolving Subordinated Note without five Business
Days' prior written notice to the Administrative Agent or in any manner
materially adverse to the Lenders.
7.14 HEDGING CONTRACTS. No Borrower shall, and Anixter shall not permit
any of its Subsidiaries to, enter into any Hedging Contract other than in the
ordinary course of its business to hedge actual interest rate, foreign currency
or commodity exposure.
7.15 RECEIVABLES SECURITIZATION TRANSACTIONS. No Borrower shall, and
Anixter shall not permit any Subsidiary to, permit the outstanding aggregate
investment or principal amount of claims held by purchasers, assignees or
transferees of (or of interests in) receivables of Anixter and its Subsidiaries
in connection with Receivables Securitization Transactions to exceed a Dollar
Equivalent amount of US$350,000,000.
7.16 MINIMUM CONSOLIDATED NET WORTH. No Borrower shall permit Consolidated
Net Worth at any time to be less than (i) US$550,000,000 plus (ii) fifty percent
(50%) of Consolidated Net Income for the Fiscal Quarters ending on or after July
2, 2004 (with no deduction for a net loss in any such Fiscal Quarter).
7.17 MAXIMUM LEVERAGE RATIO. No Borrower shall permit the Leverage Ratio
as of the end of any Fiscal Quarter set forth below to be greater than 3.25 to
1.
7.18 MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO. No Borrower shall
permit the Consolidated Fixed Charge Coverage Ratio calculated at the end of
each Fiscal Quarter for the period of the immediately preceding four Fiscal
Quarters to be less than (a) 2.75 to 1 for any period ending prior to December
31, 2005, (b) 3.00 to 1 for any period ending on or after December 31, 2005 but
prior to December 31, 2007, and (c) 3.25 to 1 for any period ending on or after
December 31, 2007.
7.19 CALCULATION OF FINANCIAL COVENANTS. All financial covenants in this
Article VII shall be calculated after the elimination of the minority interest
in any Subsidiaries which are not wholly-owned Subsidiaries.
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Failure to Make Payments When Due. Any Borrower shall fail (i) to pay
when due any principal of any Obligation, or (ii) to pay when due any interest
on any Obligation, or any fee or other amount payable under this Agreement or
any of the other Loan Documents and such failure under this clause (ii) shall
continue for three (3) calendar days.
(b) Breach of Certain Covenants. Any Borrower or any Subsidiary of any
Borrower shall fail duly and punctually to perform or observe any agreement,
covenant or obligation under Sections 6.01 (other than clauses (c), (e), (h),
and (i) thereof), 6.03, 6.07, 6.12 or under Article VII (other than Section 7.09
thereof).
(c) Breach of Representation or Warranty. Any representation or warranty
made or deemed made by any Borrower or any Guarantor to the Administrative Agent
or any Lender herein or by Anixter or any Subsidiary of Anixter in any of the
other Loan Documents or in any written statement or certificate at any time
given by Anixter or any Subsidiary of Anixter pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made or deemed made.
(d) Other Defaults. Anixter or any Subsidiary of Anixter shall fail duly
and punctually to perform or observe any agreement, covenant or obligation
arising under this Agreement (except those described in Sections 8.01(a), (b)
and (c)) or under any of the other Loan Documents, and such failure shall
continue for fifteen (15) days (or, in the case of Loan Documents other than
this Agreement, any longer period of grace expressly set forth therein).
(e) Default as to Other Indebtedness. AXE, Anixter or any Subsidiary of
Anixter shall fail to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) on any Indebtedness of
such Person, other than any of the Obligations, if the aggregate outstanding
amount of all such Indebtedness owed by all such parties (without duplication)
is US$25,000,000 or more, or any breach, default or event of default shall
occur, or any other event shall occur or condition shall exist, under any
instrument, agreement or indenture pertaining thereto, if the effect thereof is
to accelerate, or permit the holder(s) of such Indebtedness to accelerate, the
maturity of any such Indebtedness, or any such Indebtedness shall be declared to
be due and payable or required to be prepaid or mandatorily redeemed (other than
by a regularly scheduled required prepayment prior to the stated maturity
thereof); or the holder of any Lien, in any amount, shall commence foreclosure
of such Lien upon property of AXE, Anixter or any Subsidiary of Anixter having a
book or fair market value in excess of US$25,000,000 in the aggregate.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) An
involuntary case shall be commenced against AXE, Anixter or any Borrowing
Subsidiary, or against any Subsidiary of Anixter with assets in excess of
US$25,000,000, and the petition shall not be dismissed within sixty (60) days
after commencement of the case, or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of AXE, Anixter, any
Borrowing
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Subsidiary or any Subsidiary of Anixter with assets in excess of US$25,000,000
in an involuntary case, under any applicable bankruptcy, insolvency or other
similar law now or hereinafter in effect, or any other similar relief shall be
granted under any applicable federal, state or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any of AXE,
Anixter, any Borrowing Subsidiary or any Subsidiary of Anixter with assets
in excess of US$25,000,000, or over all or a substantial part of the
property of any such Person, shall be entered, or an interim receiver,
trustee or other custodian of AXE, Anixter, any Borrowing Subsidiary or
any Subsidiary of Anixter with assets in excess of US$25,000,000, or of
all or a substantial part of any such Person's Property, shall be
appointed or a warrant of attachment, execution or similar process against
any substantial part of the Property of AXE, Anixter, any Borrowing
Subsidiary or any Subsidiary of Anixter with assets in excess of
US$25,000,000, shall be issued and any such event shall not be stayed,
vacated, dismissed, bonded or discharged within sixty (60) days of entry,
appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. AXE, Anixter, any
Borrowing Subsidiary or any Subsidiary of Anixter with assets in excess of
US$25,000,000 shall have an order for relief entered with respect to it or
commence a voluntary case under any applicable bankruptcy, insolvency, or other
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking of possession by a receiver, trustee or other custodian
for all or a substantial part of its property. AXE, Anixter, any Borrowing
Subsidiary or any Subsidiary of Anixter with assets in excess of US$25,000,000
shall make any assignment for the benefit of creditors or shall be unable or
generally fail, or admit in writing its inability, to pay its debts as such
debts become due, or the Board of Directors (or any committee thereof) of AXE,
Anixter, any Borrowing Subsidiary or any Subsidiary of Anixter with assets in
excess of US$25,000,000 shall adopt any resolution to authorize or approve any
of the foregoing.
(h) Judgments. (i) An Enforceable Judgment (other than an Enforceable
Judgment described in the proviso contained in the definition of Enforceable
Judgment) for the payment of money in excess of US$25,000,000 shall be rendered
against Anixter or any Subsidiary of Anixter and such Enforceable Judgment shall
continue unsatisfied or unstayed for a period of thirty (30) days or action
shall have been commenced to foreclose on such Enforceable Judgment, or (ii) an
Enforceable Judgment described in the proviso contained in the definition of
Enforceable Judgment shall be rendered against any Borrower.
(i) Dissolution. Any order, judgment or decree shall be entered against
AXE, Anixter or any Subsidiary of Anixter with assets in excess if US$25,000,000
decreeing its involuntary dissolution or split-up and such order shall remain
undischarged and unstayed for a period in excess of thirty (30) days, or AXE,
Anixter or any Subsidiary of Anixter with assets in excess of US$25,000,000
shall otherwise dissolve or cease to exist, in each case except as expressly
permitted pursuant to Section 7.08.
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(j) Change of Control. (i) Any Change of Control occurs; (ii) Anixter
shall cease to own directly or indirectly all of the capital stock of the
Borrowing Subsidiaries, (other than director's qualifying shares); (iii) except
as permitted in Section 7.02(a), Anixter shall cease to own at least 51% of each
class of the capital stock of each Subsidiary of Anixter; or (iv) AXE shall
cease to own at least 51% of each class of the capital stock of Anixter.
(k) Employee Benefit Related Liabilities. (i) Any one or more Termination
Events occur which could reasonably be expected to subject Anixter or an ERISA
Affiliate to a liability to pay more than US$25,000,000 in the aggregate, or
(ii) the plan administrator of any Plan applies under Section 412(d) of the Code
for a waiver of the minimum funding standards of Section 412(a) of the Code and
the substantial business hardship upon which the application for the waiver is
based could reasonably be expected to subject either Anixter or any ERISA
Affiliate to a liability of more than US$25,000,000 in the aggregate.
(l) Subordination Default. Any breach or other violation by any holder of
the Subordinated XXXXx Note or Revolving Subordinated Note of the subordination
or enforcement restrictions shall occur.
(m) Guaranty Default. Any party to the Guaranty, or any Person on behalf
of such party, shall terminate or revoke any of its obligations thereunder or
breach any of the terms thereof, or the Guaranty shall otherwise become
unenforceable for any reason.
(n) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party contests in any manner the validity or
enforceabilty of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document.
For purposes of this Agreement and each of the other Loan Documents, an
Event of Default shall be deemed "continuing" until cured or waived in writing
in accordance with Section 10.01.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders,
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Borrower;
(c) require that Anixter Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
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(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 8.01, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of Anixter to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender or notice of any kind, all of which are
hereby expressly waived.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders and the L/C Issuer (including reasonable fees, charges and disbursements
of counsel to the respective Lenders and the L/C Issuer (including fees and time
charges for attorneys who may be employees of any Lender or the L/C Issuer) and
amounts payable under Article III), ratably among them in proportion to the
amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Anixter or as otherwise required by Law.
Subject to Section 2.07(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such
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Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and no Borrower shall have any rights as a third party beneficiary of
any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to any of the Borrowers or any of their
respective Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.
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The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by Anixter, a
Lender or the L/C Issuer.
The Administrative Agent shall not responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for Anixter), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
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9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and
Anixter. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent
for the Lenders which successor administrative agent shall be consented to by
Anixter at all times other than during the existence of an Event of Default
(which consent of Anixter shall not be unreasonably withheld or delayed). If no
such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that
if the Administrative Agent shall notify Anixter and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by Anixter to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between Anixter and such successor. After the retiring
Administrative Agent's resignation hereunder and under the other Loan Documents,
the provisions of this Article and Section 10.04 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section may also, at Bank of America's option, constitute its resignation
as L/C Issuer and Swing Line Lender. In that case, upon the acceptance of a
successor's appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and such duties of the retiring L/C Issuer and Swing Line Lender, (b) the
retiring L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangement satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters
of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or
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any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, the Syndication Agent, none of the Arrangers or
Co-Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or L/C Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) To file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.05(i) and (j), 2.10 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.10
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
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9.10 GUARANTY MATTERS. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Subsidiary that is a Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder. Upon request by the Administrative Agent at any time, the
Required Lenders will confirm in writing the Administrative Agent's authority to
release any Subsidiary Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by any
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the applicable Borrowers or the applicable
Loan Party, as the case may be, and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(i) extend or increase the commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(ii) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(iii) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (ii) of the proviso below)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary to
amend the definition of "Default Rate" or to waive any obligation of a Borrower
to pay interest or Letter of Credit Fees at the Default Rate;
(iv) change Section 2.14 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(v) amend Section 1.06 or the definition of "Available Foreign Currency"
without the written consent of each Lender;
(vi) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; or
(vii) release any material Guarantor from the Guaranty without the consent
of each Lender;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Required Lenders or all the Lenders, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (iv) Section 10.06(h) may not be amended, waived or
otherwise modified without the consent of each Granting Lender all or any part
of whose Loans are being funded by an SPC at the time of such amendment, waiver
or other modification; and (v) the Agent/Arranger Fee Letters may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Commitment of such Lender may not be
increased without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02 or, in the case of a Lender, its
Administrative Questionnaire; or, in the case of the Borrowers or the
Administrative Agent, to such other address as shall be designated by such party
in a notice to the other parties, and in the case of any other party, to such
other address as shall be designated by such party in a notice to Anixter and
the Administrative Agent. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the intended recipient and (ii) (A) if delivered by hand or by courier, when
signed for by the intended recipient; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), as provided in subsection (c) below; provided, however,
that notices and other communications to the Administrative Agent pursuant to
Article II shall not be effective until actually received by such Person. Any
notice or other communication permitted to be given, made or confirmed by
telephone hereunder shall be given, made or confirmed by means of a telephone
call to the intended recipient at the number specified on Schedule 10.02, it
being understood and agreed that a voicemail message shall in no event be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
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(c) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or Anixter may, in
its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. Each Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of such Borrower. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
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10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. Anixter shall pay (i) all reasonable out of pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of
this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out of
pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out of pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys
who may be employees of the Administrative Agent, any Lender or the L/C Issuer,
in connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out of pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit. The Administrative Agent, any Lender or the L/C Issuer shall promptly
notify Anixter when it intends to incur fees and time charges for attorneys who
are employees of the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, that Anixter will reimburse under this Agreement.
(b) Indemnification by the Borrower. The Borrowers jointly and severally
shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Borrower or any other Loan
Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder or the consummation of
the transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
any Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or any Borrower or any other Loan Party, and regardless
of whether any Indemnitee is a party thereto, in all cases, whether or not
caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided that such indemnity shall not, as to any
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Indemnitee, be available (x) to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee or (y) for any loss asserted against such
Indemnitee by another Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrowers for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Pro Rata Share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, no Borrower shall assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Taxes. The indemnity and reimbursement obligations of the Borrowers
under this Section 10.04 to the Indemnitees, shall not include Taxes, in that
the Borrowers are obligated to the Indemnitees in respect of Taxes under Article
III to the extent provided therein.
(g) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that a Borrower makes a payment to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any
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proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f)
of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations, in Foreign Currency Loans and in Swing Line Loans) at the time
owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Anixter otherwise consents (each
such consent not to be unreasonably withheld or delayed);
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(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless the
Person that is the proposed assignee is itself a Lender, an Affiliate of a
Lender or an Approved Fund (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, each Borrower shall execute and deliver a Note to the
assignee Lender at such assignee Lender's expense. Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrowers and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or Anixter or any of Anixter's Affiliates or
Subsidiaries) (each, a "Participant") in all or a
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portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender's participations in L/C Obligations, Foreign Currency Loans and/or Swing
Line Loans) owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.14 as though it were a
Lender.
(e) Limitation upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with Anixter's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless Anixter is notified of (and agrees to) the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note(s), if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
97
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and Anixter (an "SPC") the
option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.13(d)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrowers under this Agreement (including its obligations
under Sections 3.01 and 3.04), (ii) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender would be
liable (all such liabilities being the obligation of the Granting Lender), and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of Anixter and the Administrative Agent and with the payment of a
processing fee of $3,500 assign all or any portion of its right to receive
payment with respect to any Committed Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper dealer or
provider of any surety or guarantee or credit or liquidity enhancement to such
SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to Anixter and the Lenders,
resign as L/C Issuer and/or (ii) upon 30 days' notice to Anixter, resign as
Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing
Line Lender, Anixter shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by Anixter to appoint any such successor shall affect the resignation of
Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank
of America resigns as L/C Issuer, it shall retain all the rights and obligations
of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as
of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.05(c)) and Anixter shall provide cash collateral
satisfactory to Bank of America to secure its obligations with respect to such
Letters of Credit and L/C Obligations. Upon the acceptance of a successor's
appointment as L/C
98
Issuer hereunder, (x) such successor shall succeed to and become vested with all
of the rights, powers, privileges and such duties of the retiring L/C Issuer,
(y) Bank of America shall be discharged from all of its duties and obligations
as L/C Issuer hereunder or under the other Loan Documents, and (z) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession (in which case Bank
of America shall release any cash collateral provided by Anixter pursuant to the
preceding sentence) or make other arrangement satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit. If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.03(c).
10.07 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective directors, partners, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners) ; (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible Assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any direct or indirect contractual counterparty or prospective counterparty
(or such contractual counterparty's or prospective counterparty's professional
advisor) to any swap or derivative transaction relating to obligations of any
Borrower; (g) with the consent of any Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than any Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" means all information received
from a Borrower relating to a Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by such Borrower; provided that, in
the case of information received from a Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
99
10.08 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to any Borrower or any other Loan Party, any such notice being
waived by each Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document. Each Lender agrees promptly to notify Anixter and
the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the applicable Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.11 INTEGRATION. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the
100
Administrative Agent or any Lender may have had notice or knowledge of any
Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied.
10.13 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which any Borrower is a party that is 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 thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.14 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then Anixter may, at its
sole expense and effort, upon notice (a "Replacement Notice") to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) Anixter shall have paid (or caused to be paid) to the Administrative
Agent the assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or
Anixter or applicable Borrowing Subsidiary (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior to receipt by such Lender of the applicable Replacement Notice, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
Anixter to require such assignment and delegation cease to apply.
10.15 JUDGMENT CURRENCY. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from a Borrower hereunder in the
currency expressed to be payable herein (the "specified currency") into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the
101
specified currency with such other currency at the Administrative Agent's
applicable office on the Business Day preceding that on which final judgment is
given. The obligation of any Borrower in respect of any sum due to any Lender or
the Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the Administrative
Agent, as the case may be, of any sum adjudged to be so due in such other
currency, such Lender or the Administrative Agent, as the case may be, may in
accordance with normal banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Lender or the Administrative Agent, as
the case may be, in the specified currency, the applicable Borrower shall, to
the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, indemnify such Lender or the Administrative
Agent, as the case may be, against such loss, and if the amount of the specified
currency so purchased exceeds the total of (a) the sum originally due to such
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amount shared with other Lenders as a result of allocations
of such excess as a disproportionate payment to such Lender under Section 2.14,
such Lender or the Administrative Agent, as the case may be, agrees to remit
such excess to the applicable Borrower.
10.16 BORROWERS' AGENT.
Each Borrower hereby irrevocably appoints and authorizes Anixter to take
such action and deliver and receive notices hereunder as agent on its behalf and
to exercise such powers under this Agreement as delegated to it by the terms
hereof, together with all such powers as are reasonably incidental thereto. In
furtherance of and not in limitation of the foregoing, for administrative
convenience of the parties hereto, the Administrative Agent and the Lenders
shall send all notices and communications to be sent to any Borrower solely to
Anixter and may rely solely upon Anixter to receive all such notices and other
communications for and on behalf of each Borrower. Neither Anixter nor any of
its respective directors, officers, agents or employees shall be liable to any
other Borrower for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of such Borrower or (ii) in the absence
of its own gross negligence or willful misconduct. No Person other than Anixter
(and its authorized officers and employees) may act as agent for the Borrowers
hereunder without the written consent of the Administrative Agent.
10.17 CREDIT AGREEMENT. Anixter hereby designates this Agreement to AXE as
a "Credit Agreement" as referred to in and for purposes of the Subordinated
XXXXx Note and the Revolving Subordinated Note.
10.18 GOVERNING LAW.
(i) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
102
(ii) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
SITTING IN XXXX COUNTY, ILLINOIS, OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.20 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrowers that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of
each Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Borrower in accordance
with the Act.
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ANIXTER INC., AS BORROWER
By: ___________________________________
Name: _________________________________
Title:__________________________________
ANIXTER INTERNATIONAL BVBA, AS A
BORROWING SUBSIDIARY
By: ___________________________________
Name: _________________________________
Title:__________________________________
ANIXTER INTERNATIONAL LTD., AS A
BORROWING SUBSIDIARY
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-1 CREDIT AGREEMENT
BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT, SWING LINE LENDER,
L/C ISSUER, A FOREIGN CURRENCY LENDER
AND A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-2 CREDIT AGREEMENT
WACHOVIA BANK N.A., AS SYNDICATION AGENT
AND A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-3 CREDIT AGREEMENT
BANK ONE, NA, AS A CO-DOCUMENTATION
AGENT AND A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-4 CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA, AS A
CO-DOCUMENTATION AGENT AND A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-5 CREDIT AGREEMENT
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, AS A CO-DOCUMENTATION AGENT
AND A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-6 CREDIT AGREEMENT
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS,
AS A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-7 CREDIT AGREEMENT
SUNTRUST BANK, AS A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-8 CREDIT AGREEMENT
U.S. BANK, NATIONAL ASSOCIATION, AS A
LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-9 CREDIT AGREEMENT
BANCA NAZIONALE DEL LAVORO SPA-NEW YORK
BRANCH, AS A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-10 CREDIT AGREEMENT
THE BANK OF NEW YORK, AS A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-11 CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION, AS A
LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-12 CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY, AS A LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-13 CREDIT AGREEMENT
THE ROYAL BANK OF SCOTLAND PLC, AS A
LENDER
By: ___________________________________
Name: _________________________________
Title:__________________________________
S-14 CREDIT AGREEMENT
SCHEDULE 1.01
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable) is an addition to the
interest rate to compensate Lenders for the cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which
replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as practicable
thereafter) the Administrative Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate") for each Lender, in accordance
with the paragraphs set out below. The Mandatory Cost will be calculated
by the Administrative Agent as weighted average of the Lenders' Additional
Cost Rates (weighted in proportion to the percentage participation of each
Lender in the relevant Loan) and will be expressed as a percentage rate
per annum. The Administrative Agent will, at the request of Anixter or any
Lender, deliver to Anixter or such Lender as the case may be, a statement
setting for the calculation of any Mandatory Cost.
3. The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to the Administrative Agent. This percentage will be certified by such
Lender in its notice to the Administrative Agent as the cost (expressed as
a percentage of such Lender's participation in all Loans made from such
Lending Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of Loans made from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office in
the United Kingdom will be calculated by the Administrative Agent as
follows:
(a) in relation to any Loan in Sterling:
AB + C(B-D) + E x 0.01 per cent. per annum
----------------------
100 - (A + C)
(b) in relation to Loans in any currency other than Sterling:
E x 0.01 per cent. per annum
--------
300
Where:
"A" is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as
an interest free cash ratio deposit with the Bank of England to
comply with cash ratio requirements.
"B" is the percentage rate of interest (excluding the Applicable Margin,
the Mandatory Cost and any interest charged on overdue amounts
pursuant to the first sentence of Section 2.09(b) and, in the case
of interest (other than on overdue amounts) charged at the Default
Rate, without counting any increase in interest rate effected by the
charging of the Default Rate) payable for the relevant Interest
Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of England to
the Administrative Agent on interest bearing Special Deposits.
"E" is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by the Administrative Agent as being
the average of the most recent rates of charge supplied by the
Lenders to the Administrative Agent pursuant to paragraph 7 below
and expressed in pounds per (pound)1,000,000.
5. For the purpose of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Regulations" means the FSA Supervision Manual or such other
law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Regulations under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the Fees
Regulations but taking into account any applicable discount rate);
and
(d) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e..5% will be included in the formula as 5
and not as 0.5). A negative result obtained by subtracting D from B shall
be taken as zero. The resulting figures shall be rounded to four decimal
places.
7. If requested by the Administrative Agent or Anixter, each Lender with a
Lending Office in the United Kingdom or a Participating Member State
shall, as soon as practicable after publication by the Financial Services
Authority, supply to the Administrative Agent and
Schedule 1.01-2
Anixter, the rate of charge payable by such Lender to the Financial
Services Authority pursuant to the Fees Regulations in respect of the
relevant financial year of the Financial Services Authority (calculated
for this purpose by such Lender as being the average of the Fee Tariffs
applicable to such Lender for that financial year) and expressed in pounds
per (pound)1,000,000 of the Tariff Base of such Lender.
8. Each Lender shall supply any information required by the Administrative
Agent for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the following
information in writing on or prior to the date on which it becomes a
Lender:
(a) its jurisdiction of incorporation and the jurisdiction of the
Lending Office out of which it is making available its participation
in the relevant Loan; and
(b) any other information that the Administrative Agent may reasonably
require for such purpose.
Each Lender shall promptly notify the Administrative Agent in writing of any
change to the information provided by it pursuant to this paragraph.
9. The percentages or rates of charge of each Lender for the purpose of A, C
and E above shall be determined by the Administrative Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the
contrary, each Lender's obligations in relation to cash ratio deposits,
Special Deposits and the Fees Regulations are the same as those of a
typical bank from its jurisdiction of incorporation with a Lending Office
in the same jurisdiction as such Lender's Lending Office.
10. The Administrative Agent shall have no liability to any Person if such
determination results in an Additional Cost Rate which over- or
under-compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3, 7 and 8 above
is true and correct in all respects.
11. The Administrative Agent shall distribute the additional amounts received
as a result of the Mandatory Cost to the Lenders on the basis of the
Additional Cost Rate for each Lender based on the information provided by
each Lender pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Administrative Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
13. The Administrative Agent may from time to time, after consultation with
Anixter and the Lenders, determine and notify to all parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time to
time imposed by the Bank of England, the Financial Services Authority or
the European Central Bank (or, in any case, any other authority which
Schedule 1.01-3
replaces all or any of its functions) and any such determination shall, in
the absence of manifest error, be conclusive and binding on all the
parties hereto.
Schedule 1.01-4
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
PRO RATA FOREIGN FOREIGN CURRENCY PRO
LENDER COMMITMENT SHARE CURRENCY COMMITMENT RATA SHARE
------ ---------- -------- ------------------- --------------------
Bank of America, N.A. US$31,000,000.00 11.272727273% US$100,000,000.00 100.000000000%
Wachovia Bank N.A. US$31,000,000.00 11.272727273% None
Bank One, NA US$26,000,000.00 9.454545455% None
The Bank of Nova Scotia US$26,000,000.00 9.000000000% None
Xxxxx Fargo Bank, National US$26,000,000.00 9.454545455% None
Association
National City Bank of US$20,000,000.00 7.272727273% None
Michigan/Illinois
SunTrust Bank US$20,000,000.00 7.272727273% None
U.S. Bank, National Association US$20,000,000.00 7.272727273% None
Banca Nazionale del Lavoro US$15,000,000.00 5.454545455% None
SPA-New York Branch
The Bank of New York US$15,000,000.00 5.454545455% None
KeyBank National Association US$15,000,000.00 5.454545455% None
The Northern Trust Company US$15,000,000.00 5.454545455% None
The Royal Bank of Scotland plc US$15,000,000.00 5.454545455% None
Total US$275,000,000.00 100.000000000% US$100,000,000.00 100.000000000%
SCHEDULE 5.03
EXISTING SUBSIDIARIES
SCHEDULE 5.04
CONFLICTS
SCHEDULE 5.08
LITIGATION
SCHEDULE 5.16
ENVIRONMENTAL MATTERS
SCHEDULE 5.20
JOINT VENTURES AND PARTNERSHIPS
SCHEDULE 6.07
INSURANCE
SCHEDULE 7.01(ii)
EXISTING INDEBTEDNESS
SCHEDULE 7.02(b)
EXISTING LIENS
SCHEDULE 7.03
EXISTING INVESTMENTS
SCHEDULE 10.02
EUROCURRENCY AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
ANIXTER INC. AND BORROWING SUBSIDIARIES
c/o Anixter Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxx.xxxxxxxxx@xxxxxxx.xxx
BANK OF AMERICA, N.A.
Administrative Agent's Office and Bank of America's Lending Office (for payments
and Requests for Credit Extensions):
Bank of America, N.A.
0000 Xxxxxxx Xxxx., 0xx Xxxxx
XX0-000-00-00
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxxx.xxxx@xxxxxxxxxxxxx.xxx
Account No.: 3750836479
Ref: Anixter Inc.
ABA# 000000000
Other Notices as Administrative Agent:
Bank of America, N.A., Agency Management
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Bank of America, N.A.
000 Xxxxx XxXxxxx St.
9th Floor
IL1-231-09-38
Xxxxxxx, XX 00000
Attn: __________________________
__________________________
Telephone: _______________
Facsimile: _______________
Electronic Mail: _________@xxxxxxxxxxxxx.xxx
Schedule 10.02-2
EXHIBIT A-1
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of ______________, 2004 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The undersigned hereby requests (select one):
o A Borrowing of Committed Loans o A conversion or continuation of Loans
1. On ___(a Business Day).
2. In the amount of US$ .
3. Comprised of ______.[Type of Committed Loan requested]
4. For Eurocurrency Rate Loans: with an Interest Period of ____ months.
[The Committed Borrowing requested herein complies with the proviso to the
first sentence of Section 2.01 of the Agreement.]
ANIXTER INC.
By: __________________________
Name: _______________________
Title: _______________________
X-0
XXXXXXX X-0
FORM OF FOREIGN CURRENCY LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of ______________, 2004 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The undersigned hereby requests (select one):
o A Borrowing of Foreign Currency Loans o A continuation of Loans
1. On ____ (a Business Day).
2. In the amount of _______________ in [Available Foreign Currency].
3. With an Interest Period of ______ months.
[The Foreign Currency Borrowing requested herein complies with the proviso
to the first sentence of Section 2.03 of the Agreement.]
ANIXTER INC.
By: _____________________________
Name: __________________________
Title: __________________________
A-2-1
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
To: Bank of America, N.A., as Administrative Agent and Swing Line Lender
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of _________, 2004 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.
("Anixter"), certain of its Subsidiaries, the Lenders from time to time party
thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing
Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On ________ (a Business Day).
2. In the amount of [US$___________].
The Swing Line Loan requested herein complies with the requirements of the
proviso to the first sentence of Section 2.03(a) of the Agreement.
ANIXTER INC.
By: _________________________
Name: ______________________
Title: ______________________
B-1
EXHIBIT C-1
[FORM OF]
BORROWING SUBSIDIARY AGREEMENT
Bank of America, N.A., as Administrative Agent
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, Anixter Inc. ("Anixter"), refers to the Five-Year
Revolving Credit Agreement dated as of ___________, 2004 (as it may hereafter be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among Anixter, the Borrowing Subsidiaries named therein, the
financial institutions from time to time party thereto as Lenders and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
Anixter and ________ (the "Designated Borrowing Subsidiary") (i) confirm
that the Designated Borrowing Subsidiary is a Foreign Subsidiary and (ii) make,
on and as of the date hereof, the representations and warranties as to the
Designated Borrowing Subsidiary contained in Article V of the Credit Agreement.
The Designated Borrowing Subsidiary agrees to be bound in all respects by the
terms of the Credit Agreement, including without limitation, Article IV thereof,
and to perform all of the obligations of a Borrowing Subsidiary thereunder. Each
reference to a Borrowing Subsidiary in the Agreement shall be deemed to include
the Designated Borrowing Subsidiary.
Each Guarantor ratifies and confirms the provisions of the Guaranty with
respect to all Loans made by any Lender to the Designated Borrowing Subsidiary.
The address to which communications to the Designated Borrowing Subsidiary
under the Credit Agreement should be directed is
__________________________________________
__________________________________________
__________________________________________
This instrument shall be construed in accordance with and governed by the
laws of the State of Illinois. Loan proceeds should be deposited as provided in
the Credit Agreement.
Upon the execution of this Borrowing Subsidiary Agreement by Anixter, the
Designated Borrowing Subsidiary and each Guarantor, and acceptance hereof by the
Administrative Agent, the Designated Borrowing Subsidiary shall become a
Borrowing Subsidiary under the Credit
C-1-1
Agreement as though it were an original party thereto and shall be entitled to
borrow under the Credit Agreement upon the satisfaction of the conditions
precedent set forth in Section 4.02 of the Credit Agreement.
Very truly yours,
ANIXTER INC.
By:________________________________
Name:
Title:
C-1-2
[DESIGNATED BORROWING SUBSIDIARY]
By:________________________________
Name:
Title:
ANIXTER INTERNATIONAL INC.
By:________________________________
Name:
Title:
[OTHER GUARANTORS]
By:________________________________
Name:
Title:
Accepted as of the date first above written.
BANK OF AMERICA, N.A., as Administrative Agent
By:_________________________________________
Name:
Title:
C-1-3
EXHIBIT C-2
[FORM OF]
BORROWING SUBSIDIARY TERMINATION
Bank of America, N.A., as Administrative Agent
[Date]
Attention:
Ladies and Gentlemen:
Anixter Inc. ("Anixter"), refers to the Five-Year Revolving Credit
Agreement dated as of ____________, 2004 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
Anixter, the Borrowing Subsidiaries named therein, the financial institutions
from time to time party thereto as Lenders and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender. Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.
Anixter elects to terminate the status of _________ (the "Terminated
Borrowing Subsidiary") as a Borrowing Subsidiary for purposes of the Credit
Agreement. Anixter represents and warrants that no Loans made to the Terminated
Borrowing Subsidiary are outstanding as of the date hereof and that all
principal and interest on all Loans payable by the Terminated Borrowing
Subsidiary pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof.
This instrument shall be construed in accordance with and governed by the
laws of the State of Illinois.
Very truly yours,
ANIXTER INC.
By:___________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF COMMITTED LOAN NOTE
_______________________
FOR VALUE RECEIVED, Anixter Inc. (the "Borrower"), hereby promises to pay
to the order of _____________________________ (the "Lender"), on the Maturity
Date (as defined in the Credit Agreement referred to below) the principal amount
of all Committed Loans (as defined in such Credit Agreement) made by the Lender
to the Borrower under that certain Five-Year Revolving Credit Agreement, dated
as of ___________, 2004 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement"; the terms
defined therein being used herein as therein defined), among the Borrower,
certain of its Subsidiaries, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Committed Loan from the date of such Committed Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Lender in US Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is one of the Committed Loan Notes referred to in the Agreement,
is entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. This Note is also entitled
to the benefits of the Guaranty. Upon the occurrence of one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Committed Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Committed Loans
and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
D-1-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS.
ANIXTER INC.
By: _____________________________
Name: ___________________________
Title: ___________________________
D-1-2
COMMITTED LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
END OF PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN INTEREST INTEREST PAID BALANCE THIS NOTATION MADE
DATE MADE MADE PERIOD THIS DATE DATE BY
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X-0-0
XXXXXXX X-0
FORM OF SWING LINE LOAN NOTE
FOR VALUE RECEIVED, __________ (the "Borrower"), hereby promises to pay to
the order of Bank of America, N.A. (the "Lender") on the dates provided in the
Agreement (as defined below) the principal amount of each Swing Line Loan from
time to time made by the Lender to the Borrower under that certain Five-Year
Revolving Credit Agreement, dated as of ____________, 2004 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined), among Anixter Inc., certain of its Subsidiaries, the Lenders from time
to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in the Applicable Currency of
such Swing Line Loan in Same Day Funds at the Administrative Agent's Office. If
any amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum
rate set forth in the Agreement.
This Note is one of the Swing Line Loan Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in
part subject to the terms and conditions provided therein. This Note is also
entitled to the benefits of the Guaranty. Upon the occurrence of one or more of
the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Swing Line Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount and maturity of its Swing Line
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
D-2-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS.
[BORROWER]
By: _____________________________
Name: __________________________
Title: __________________________
D-2-2
FOREIGN CURRENCY LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
End of Principal or Principal
Type of Loan Amount of Loan Interest Interest Paid Balance This Notation
Date Made Made Period This Date Date Made By
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X-0-0
XXXXXXX X-0
FORM OF FOREIGN CURRENCY LOAN NOTE
_______________________
FOR VALUE RECEIVED, ____________________ (the "Borrower"), hereby promises
to pay to the order of ____________________ (the "Lender"), on the Maturity Date
(as defined in the Credit Agreement referred to below) the principal amount of
all Foreign Currency Loans (as defined in such Credit Agreement) made by the
Lender to the Borrower under that certain Five-Year Revolving Credit Agreement,
dated as of ______________, 2004 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the "Agreement"; the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Foreign Currency Loan from the date of such Foreign Currency Loan until
such principal amount is paid in full, at such interest rates, and at such times
as are specified in the Agreement. All payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in the
Applicable Currency of such Foreign Currency Loan in Same Day Funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Foreign Currency Loan Notes referred to in the
Agreement, is entitled to the benefits thereof and is subject to optional and
mandatory prepayment in whole or in part as provided therein. This Note is also
entitled to the benefits of the Guaranty. Upon the occurrence of one or more of
the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Foreign Currency Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Foreign Currency Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
D-3-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS.
[BORROWER]
By: _________________________
Name: ______________________
Title: ______________________
D-3-2
FOREIGN CURRENCY LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
End of Principal or Principal
Type of Loan Amount of Loan Interest Interest Paid Balance This Notation
Date Made Made Period This Date Date Made By
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D-3-3
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of _______________, 2004 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.
("Anixter"), certain of its Subsidiaries, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the of Anixter, and that, as such, he/she is authorized to
execute and deliver this Certificate to the Administrative Agent on the behalf
of Anixter, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(b) of the Agreement for the Fiscal Year of
Anixter ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(a) of the Agreement for the Fiscal Quarter of Anixter
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of Anixter and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
Anixter during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Loan Parties during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Loan Parties performed and
observed all their Obligations under the Loan Documents, and
[SELECT ONE:]
E-1
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE
BORROWERS PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO THEM.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED
AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT OR EVENT OF DEFAULT AND ITS
NATURE AND STATUS:]
4. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
________________, ______.
ANIXTER INC.
By: _________________________
Name: ______________________
Title: ______________________
E-2
For the Fiscal Quarter/Fiscal Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
(US$ in 000's)
I. SECTION 7.15 - RECEIVABLES SECURITIZATION TRANSACTIONS.
A. Aggregate outstanding investment or principal amount of claims held
by purchasers, assignees or transferees of (or of interests in)
receivables of Anixter and its Subsidiaries in connection with
Receivables Securitization Transactions US$_________
Maximum permitted:
II. SECTION 7.16 - CONSOLIDATED NET WORTH.
A. Actual Consolidated Net Worth at Statement Date:
1. Shareholders' Equity (determined without giving
effect to any forgiveness of any indebtedness
under the Subordination XXXXx Note after January
2, 2004): US$_______
B. 50% of Consolidated Net Income for each Fiscal Quarter
ending on or after July 2, 2004 (No reduction for
losses): US$_______
C. Minimum required Consolidated Net Worth (US$550,000,000
+ Line II.B): US$_______
D. Excess (deficiency) for covenant compliance (Line II.A -
II.C): US$_______
III. SECTION 7.18 - CONSOLIDATED FIXED CHARGE COVERAGE RATIO.
A. Consolidated EBITDA for four consecutive Fiscal Quarters ending on
above date ("Subject Period"):
1. Consolidated Net Income for Subject Period (by Fiscal
Quarter):
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$______
2. Net interest expense for Subject Period (by Fiscal Quarter):
E-3
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$______
3. Provision for income taxes for Subject Period (by Fiscal
Quarter):
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$______
4. Depreciation and amortization expenses for Subject Period (by
Fiscal Quarter):
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$______
5. Permitted Exclusions for Subject Period (by Fiscal Quarter):
a. Fiscal Quarter ended _______, 200__ US$______
Description:___________________________________
b. Fiscal Quarter ended _______, 200__ US$______
Description:___________________________________
c. Fiscal Quarter ended _______, 200__ US$______
Description:___________________________________
d. Fiscal Quarter ended _______, 200__ US$______
Description:___________________________________ US$______
E-4
6. Consolidated EBITDA (Lines III.A.1 + 2 + 3 + 4-5)(by Fiscal
Quarter):
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$_____
B. Rental Expense for Subject Period:
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$_____
C. Consolidated Fixed Charge Expense for Subject Period:
a. Fiscal Quarter ended _______, 200__ US$______
b. Fiscal Quarter ended _______, 200__ US$______
c. Fiscal Quarter ended _______, 200__ US$______
d. Fiscal Quarter ended _______, 200__ US$______ US$_____
D. Interest Coverage Ratio ((Line III.A.6 +Line
III.B)/(Line III.C): _____to 1
Minimum required:
MINIMUM FIXED CHARGE
FISCAL QUARTERS ENDING COVERAGE RATIO
------------------------------------------------------------ --------------------
After Closing Date and prior to December 31, 2005 2.75:1
On or after December 31, 2005 and prior to December 31, 2007 3.00:1
December 31, 2007 and each Fiscal Quarter thereafter 3.25:1
IV. SECTION 7.17 - LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: US$_____
B. Consolidated EBITDA for Subject Period (Line III.A.6
above): US$_____
C. Consolidated EBITDA for Subject Period calculated on
a pro forma basis with respect to acquisitions and
divestitures US$_____
E-5
D. Leverage Ratio (Line IV.A/Line IV.C): _____to 1
Maximum permitted: 3.25:1
E-6
EXHIBIT F
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, the Letters of Credit, the Swing Line Loans and
the Foreign Currency Loans included in such facilities) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of the Assignor (in its capacity as a Lender) against
any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in
equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/Approved
Fund of [identify Lender](1)]
3. Borrower(s): Anixter Inc., _________, __________
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of ___________, 2004, among
Anixter Inc., the Borrowing Subsidiaries from time to time party thereto,
the Lenders from time
----------
(1) Select as applicable.
F-1
to time party thereto, Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and Wachovia Bank N.A. as Syndication Agent.
6. Assigned Interest:
Aggregate Amount Amount of
of Commitment for Commitment Percentage Assigned
Facility Assigned all Lenders* Assigned* of Commitment(2) CUSIP Number
----------------- ------------ --------- ---------------- ------------
Committed Loans $ $ %
--------------- --------------- -----------
Foreign Currency Loans $ $ %
--------------- --------------- -----------
$ $ %
--------------- --------------- -----------
[7. Trade Date: __________________](3)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
----------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment of
all Lenders thereunder.
(3) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
F-2
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and](4) Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: ________________________
Title:
[Consented to:](5)
BANK OF AMERICA, N.A.,
as L/C Issuer and Swing
Line Lender
By: _________________________
Title:
ANIXTER INC.
By: ________________________
Title:
----------
(4) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(5) To be added only if the consent of Anixter and/or other parties (e.g.
Swing Line Lender, L/C Issuer) is required by the terms of the Credit
Agreement.
F-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
FIVE-YEAR REVOLVING CREDIT AGREEMENT dated as of ______, 2004 among ANIXTER
INC., the Borrowing Subsidiaries from time to time party thereto, the Lenders
party thereto, BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer, and WACHOVIA BANK N.A., as Syndication Agent
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of
Anixter, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by Anixter,
any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, 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 Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
F-4
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Illinois.
F-5
EXHIBIT G
GUARANTY
This GUARANTY, dated as of ____________, 2004, is by ANIXTER INTERNATIONAL
INC., a Delaware corporation, ANIXTER INC., a Delaware corporation ("Anixter"),
ANIXTER-REAL ESTATE, INC., an Illinois corporation, ANIXTER INFORMATION SYSTEMS
CORPORATION, an Illinois corporation, and ANIXTER FINANCIAL INC., a Delaware
corporation (each a "Guarantor" and collectively, the "Guarantors"), in favor of
BANK OF AMERICA, N.A., as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders (as hereafter defined).
Recitals
X. Xxxxxxx, Anixter International. Ltd., an English limited liability
company and Anixter International B.V.B.A., a Belgian company (together with
Anixter and Anixter International Ltd., and any other Subsidiary that may become
a Borrowing Subsidiary in accordance with the terms thereof, collectively, the
"Borrowers" and individually a "Borrower"), the financial institutions from time
to time party thereto (the "Lenders") and the Administrative Agent have entered
into a Five-Year Revolving Credit Agreement, dated as of ____________, 2004. The
Credit Agreement as now in effect or hereafter extended, renewed, modified,
supplemented, amended, or restated is hereinafter called the "Credit Agreement".
C. The Lenders are willing to make the Credit Extensions to the Borrowers
on the condition (among others) that the Guarantors enter into this Guaranty.
D. Each Guarantor will derive substantial and direct benefits (which
benefits are hereby acknowledged by the Guarantors) from the Credit Extensions
and other benefits to be provided to the Borrowers under the Credit Agreement.
E. In order to induce the Lenders to make the Credit Extensions to the
Borrowers as provided in the Credit Agreement, and for other valuable
consideration, the Guarantors hereby issue this Guaranty.
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms used in
this Guaranty have the meanings given to them from time to time in the Credit
Agreement.
2. GUARANTY.
2.1 Guaranty. The Guarantors, jointly and severally, hereby
irrevocably, absolutely and unconditionally guarantee the full and punctual
payment or performance when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand, or otherwise, of all of the
Guaranteed Obligations, including Guaranteed Obligations in respect of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Section 101 et
seq.) (the "Bankruptcy Code") or the operation of Sections 502(b) and 506(b) of
the Bankruptcy Code. This GuarantY constitutes a guaranty of payment and
performance when due and not of collection, and the Guarantors specifically
agree that it shall not be necessary or required that the Administrative
G-1
Agent or any Lender exercise any right, assert any claim or demand, or enforce
any remedy whatsoever against the Borrowers (or any other Person) before or as a
condition to the obligations of the Guarantors hereunder. The Administrative
Agent or any Lender may permit the indebtedness of the Borrowers to the
Administrative Agent or any Lender to include indebtedness other than the
Guaranteed Obligations, and may apply any amounts received from any source,
other than from the Guarantors, to that portion of the Borrowers' indebtedness
to the Administrative Agent or any Lender which is not a part of the Guaranteed
Obligations. The obligations and liabilities of the Guarantors hereunder are
joint and several. "Guaranteed Obligations" shall mean all Obligations plus all
obligations of the Borrowers to the Administrative Agent and the Lenders
pursuant to any agreement (including any master agreement and any agreement,
whether or not in writing, relating to any single transaction) that is an
interest rate swap agreement, basis swap, forward rate agreement, commodity
swap, commodity option, equity or equity index swap or option, bond option,
interest rate option, forward foreign exchange agreement, rate cap, collar or
floor agreement, currency swap agreement, cross-currency rate swap agreement,
station, currency option or any other, similar agreement (including any option
to enter into any of the foregoing).
2.2 Obligations Independent. The obligations hereunder are
independent of the obligations of the Borrowers, and a separate action or
actions may be brought and prosecuted against any or all of the Guarantors
whether action is brought against a Borrower or whether any Borrower be joined
in any such action or actions.
2.3 Authorization of Renewals, Etc. Each Guarantor authorizes the
Administrative Agent and each Lender, without notice or demand and without
affecting its liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate, or otherwise change
the time for payment, or otherwise change the terms, of the Guaranteed
Obligations, including increase or decrease of the rate of interest thereon, or
otherwise change the terms of the Credit Agreement or any other Loan Document;
(b) to receive and hold security for the payment of this Guaranty or
the obligations and exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any such security;
(c) to apply such security and direct the order or manner of sale
thereof as the Administrative Agent, or any Lender, as the case may be, in its
or their discretion may determine; and
(d) to release or substitute any one or more of any endorsers or
guarantors of the Guaranteed Obligations.
Each Guarantor further agrees that the performance or occurrence of any of the
acts or events described in clauses (a), (b), (c), and (d) above with respect to
indebtedness or other obligations of the Borrowers other than the Guaranteed
Obligations, to the Administrative Agent or any Lender, shall not affect the
liability of the Guarantors hereunder.
G-2
2.4 Waiver of Certain Rights. Each Guarantor waives any right to
require the Administrative Agent or any Lender:
(a) to proceed against the Borrowers, a Borrower or any other
Person;
(b) to proceed against or exhaust any security for the Guaranteed
Obligations or any other indebtedness of the Borrowers to the Administrative
Agent or any Lender; or
(c) to pursue any other remedy in the Administrative Agent's or any
such Lender's power whatsoever.
2.5 Waiver of Certain Defenses and Rights. Each Guarantor waives any
defense arising by reason of any disability or other defense of the Borrowers,
or the cessation from any cause whatsoever of the liability of the Borrowers,
whether consensual or arising by operation of law or any bankruptcy, insolvency
or debtor relief proceeding, or from any other cause, or any claim that such
Guarantor's obligations exceed or are more burdensome than those of the
Borrowers. Each Guarantor waives any defense arising by reason of any statute of
limitations affecting the liability of the Borrowers. Each Guarantor waives all
rights and defenses arising out of an election of remedies by the Administrative
Agent or any Lender, even though that election of remedies, has destroyed such
Guarantor's rights of subrogation and reimbursement against the Borrowers by
operation of applicable law, and all rights or defenses such Guarantor may have
by reason of protection afforded to the Borrowers with respect to the Guaranteed
Obligations pursuant to the antideficiency laws or other laws of the applicable
jurisdiction limiting or discharging the Guaranteed Obligations.
2.6 Waiver of Presentments, Etc. Each Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Guaranteed Obligations or any other indebtedness of Borrowers to the
Administrative Agent or any Lender.
2.7 Information Relating to Borrowers. Each Guarantor acknowledges
and agrees that it shall have the sole responsibility for obtaining from the
Borrowers such information concerning the Borrowers, financial condition or
business operations as such Guarantor may require, and that neither the
Administrative Agent nor any Lender has any duty at any time to disclose to the
Guarantors any information relating to the business operations or financial
condition of the Borrowers.
2.8 Right of Setoff. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default has occurred and is continuing,
each Lender is authorized at any time and from time to time, without prior
notice to the Guarantors, any such notice being waived by each Guarantor to the
fullest extent permitted by law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of one or more Guarantors against any and all obligations of the
Guarantors now or hereafter existing under this Guaranty or any other Loan
Document, irrespective of whether or not the Administrative Agent or such Lender
shall have made demand under this Guaranty or any other Loan Document. Each
G-3
Lender agrees promptly to notify the Guarantors and the Administrative Agent
after any such set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 2.8 are in addition to
the other rights and remedies (including, without limitation, other rights of
set-off) which such Lender may have.
2.9 Subordination. Any obligations of any Borrower to one or more of
the Guarantors, now or hereafter existing, including, but not limited to,
obligations to one or more of the Guarantors as subrogee of the Administrative
Agent or any Lender or resulting from one or more of the Guarantors' performance
under this Guaranty, are hereby fully subordinated in time and priority of
payment to the Guaranteed Obligations and all other indebtedness of the
Borrowers to the Administrative Agent or any Lender. The obligations of such
Borrower to the Guarantors if the Lenders so request shall be enforced and
performance received by the Guarantors as trustee for the Administrative Agent
and the Lenders and the proceeds thereof shall be paid over to the
Administrative Agent and the Lenders on account of the Guaranteed Obligations,
but without reducing or affecting in any manner the liability of the Guarantors
under the other provisions of this Guaranty.
2.10 Reinstatement of Guaranty. If any payment or transfer of any
interest in property by any Borrower to the Administrative Agent or any Lender
in fulfillment of any obligation is rescinded or must at any time (including
after the return or cancellation of this Guaranty) be returned, in whole or in
part, by the Administrative Agent or any Lender to a Borrower or any other
Person, upon the insolvency, bankruptcy, or reorganization of such Borrower or
otherwise, this Guaranty shall be reinstated with respect to any such payment or
transfer, regardless of any such prior return or cancellation.
2.11 Powers. It is not necessary for the Administrative Agent or any
Lender to inquire into the powers of any Borrower or any other Person obligated
in respect of the Guaranteed Obligations or of the officers, directors,
partners, or agents acting or purporting to act on its or their behalf, and any
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
2.12 Taxes. (a) Any and all payments by any Guarantor to each Lender
or the Administrative Agent under this Guaranty shall be made free and clear of,
and without deduction for, any Taxes. In addition, the Guarantors shall pay all
Other Taxes.
(b) If any Guarantor shall be required by law to deduct any Taxes,
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions (including deductions applicable to
additional sums payable under this Section), such Lender or the
Administrative Agent, as the case may be, receives and retains an amount
equal to the sum it would have received and retained had no such
deductions been made;
(ii) the Guarantors shall make such deductions;
G-4
(iii) the Guarantors shall pay the full amount deducted to the
relevant taxing authority or other authority in accordance with applicable
law; and
(iv) the Guarantors shall also pay to each Lender or the
Administrative Agent for the account of such Lender, at the time interest
is paid, such additional amount that the respective Lender specifies as
necessary to preserve the after-tax yield the Lender would have received
if such Taxes or Other Taxes had not been imposed.
(c) Each Guarantor agrees to indemnify and hold harmless each Lender
and the Administrative Agent for the full amount of (i) Taxes and (ii) Other
Taxes, and (iii) amounts payable under Section 2.12(b)(iv), and (iv) any
liability (including penalties, interest, additions to tax, and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 30 days after the date the Lender or the Administrative
Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by any Guarantor of
Taxes or Other Taxes, such Guarantor shall furnish to the Administrative Agent
the original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Administrative Agent.
2.13 Addition of Guarantors. Each Guarantor at any time a party
hereto consents and agrees that, at any time that any Person executes and
delivers to Administrative Agent a letter, substantially in the form of Exhibit
A attached hereto, with such changes, if any, as Administrative Agent shall
approve, such Person shall, without further action on the part of any Person,
automatically become a party hereto and a "Guarantor" hereunder.
2.14 Limit of Liability. Notwithstanding anything to the contrary
contained herein, each Guarantor shall be liable hereunder only for the largest
amount that would not render such Guarantor's obligations hereunder subject to
avoidance under Section 548 of the Bankruptcy Code or comparable provisions of
any applicable state law; provided that such amount shall be presumed to be the
entire amount of the Guaranteed Obligations. If any Guarantor claims that such
Guarantor's liability hereunder is less than the entire amount of the
Obligations, such Guarantor shall have the burden of proving, by clear and
convincing evidence, that such Guarantor's liability hereunder should be so
limited since the information concerning, and the circumstances of, the
financial condition of such Guarantor are more readily available to and are
under the control of such Guarantor.
2.15 Waiver of Subrogation. Until such time as the Guaranteed
Obligations shall have been indefeasibly paid in full in cash, each Guarantor
waives any right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or right of
subrogation under the Bankruptcy Code or any successor statute, against the
Borrowers arising from the existence or performance of this Guaranty, and each
Guarantor waives any right to enforce any remedy which the Administrative Agent
or any Lender now has or may hereafter have against the Borrowers, and waives
any benefit of, and any right to participate in, any security now or hereafter
held by the Administrative Agent or any Lender securing the Guaranteed
Obligations.
G-5
3. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and warrants
to the Administrative Agent and each Lender as follows:
3.1 Organization; Corporate Powers. Such Guarantor (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
in which it owns or leases real property or in which the nature of its business
requires it to be so qualified, except those jurisdictions where the failure to
be in good standing or to so qualify has not had or could not reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite
corporate power and authority to own, operate and encumber its property and
assets and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the transactions
contemplated by the Transaction Documents.
3.2 Authority.
(1) Such Guarantor has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Guaranty.
(2) The execution, delivery and performance (or filing or recording, as
the case may be) of this Guaranty and the consummation of the transactions
contemplated thereby, have been duly authorized by all necessary corporate
action on the part of this Guaranty and no other proceedings on the part of any
such Person are necessary to consummate such transactions.
(3) This Guaranty has been duly executed and delivered (or filed or
recorded, as the case may be) by such Guarantor, constitutes its legal, valid
and binding obligations, enforceable against it in accordance with its terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles), and is in full
force and effect (unless terminated in accordance with the terms thereof).
3.3 No Conflict. The execution, delivery and performance of this
Guaranty and each of the transactions contemplated hereby, do not and will not
(i) conflict with any Contractual Obligation of such Guarantor, any liability
resulting from which would have or could be reasonably expected to have a
Material Adverse Effect, or (ii) conflict with or violate such Guarantor's
certificate or articles of incorporation or by-laws or similar charter and
constituting documents, or (iii) conflict with, result in a breach of or
constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of such Guarantor, or require
termination of any Contractual Obligation of such Guarantor, or (iv) result in
or require the creation or imposition of any Lien whatsoever upon any of the
properties or assets of any such Person (other than Liens permitted pursuant to
Section 7.02(b) of the Credit Agreement), or (v) require any approval of
stockholders of such Guarantor, unless such approval has been obtained.
3.4 Governmental Consents. The execution, delivery and performance
of this Guaranty by such Guarantor, and the transactions contemplated hereby do
not and will not require any registration with, consent or approval of, or
notice to, or other action with or by, any
G-6
Governmental Authority, except filings, consents or notices which have been
made, obtained or given and are in full force and effect.
3.5 Governmental Regulation. Such Guarantor is not subject to
regulation under the Public Utility Holdings Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, the Investment Company Act of 1940 or
any other statute or regulation of any Governmental Authority such that its
ability to incur indebtedness is limited or its ability to consummate the
transactions contemplated hereby is materially impaired.
4. MISCELLANEOUS.
4.1 Application of Payments on Guaranty. All payments required to be
made by the Guarantors hereunder shall, unless otherwise expressly provided
herein, be made to the Administrative Agent for the account of the Lenders at
the Administrative Agent's Office. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Payments
received from the Guarantors shall, unless otherwise expressly provided herein,
be applied to costs, fees, or other expenses due under the Loan Documents, any
interest (including interest due under subsection 2.09(b) of the Credit
Agreement), any principal due under the Loan Documents and any other Guaranteed
Obligations, in such order as the Administrative Agent, with the consent of or
at the request of the Lenders, shall determine.
4.2 Assignments, Participations, Confidentiality. Subject to the
provisions of Section 10.06 of the Credit Agreement, any Lender may from time to
time, without notice to the Guarantors and without affecting the Guarantors'
obligations hereunder, transfer its interest in the Guaranteed Obligations. Each
Guarantor agrees that each such transfer will give rise to a direct obligation
of the Guarantors to each such transferee and that each such transferee shall
have the same rights and benefits under this Guaranty as it would have if it
were a Lender party to the Credit Agreement and this Guaranty.
4.3 Loan Document. This Guaranty is a Loan Document executed and
delivered pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered, and applied in accordance with the
terms and provisions thereof. Without limiting the generality of the foregoing,
the provisions of Sections 1.02 through 1.09 of the Credit Agreement shall apply
to the interpretation and administration of this Guaranty as if such provisions
were incorporated herein, with all references to the "Agreement" in such
Sections being deemed to be references to this Guaranty.
4.4 Waivers; Writing Required. No delay or omission by the
Administrative Agent or any Lender to exercise any right under this Guaranty
shall impair any such right, nor shall it be construed to be a waiver thereof.
No waiver of any single breach or default under this Guaranty shall be deemed a
waiver of any other breach or default. Any amendment or waiver of any provision
of this Guaranty must be in writing and signed by the Guarantors and the
Administrative Agent, with the written consent of the Required Lenders or all of
the Lenders, in accordance with the terms of Section 10.01 of the Credit
Agreement.
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4.5 Revocation. Each Guarantor absolutely, unconditionally,
knowingly, and expressly waives any right to revoke such Guarantor's guaranty
obligation hereunder as to future Guaranteed Obligations. Each Guarantor fully
realizes and understands that, upon execution of this Guaranty, such Guarantor
will not have any right to revoke this Guaranty as to any future indebtedness
and, thus, may have no control over such Guarantor's ultimate responsibility for
the Guaranteed Obligations. If, contrary to the express intent of this Guaranty,
any such revocation is effective notwithstanding the foregoing waiver, each
Guarantor acknowledges and agrees that: (a) no such revocation shall be
effective until written notice thereof has been received by the Administrative
Agent and the Lenders; (b) no such revocation shall apply to any Guaranteed
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof); (c) no such revocation shall apply to any
Guaranteed Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of the Lenders which is, or is
believed in good faith by the Lenders to be, in existence on the date of such
revocation; (d) no payment by any other source, prior to the date of such
revocation shall reduce the obligations of any Guarantor hereunder; and (e) any
payment by any Borrower or from any source other than a Guarantor, subsequent to
the date of such revocation, shall first be applied to that portion of the
Guaranteed Obligations, if any, as to which the revocation by a Guarantor is
effective (and which are not, therefore, guarantied by the Guarantors
hereunder), and, to the extent so applied, shall not reduce the Guaranteed
Obligations of the Guarantors hereunder.
4.6 Remedies. All rights and remedies provided in this Guaranty and
any instrument or agreement referred to herein are cumulative and are not
exclusive of any rights or remedies otherwise provided by law. Any single or
partial exercise of any right or remedy shall not preclude the further exercise
thereof or the exercise of any other right or remedy.
4.7 Costs and Expenses. Each Guarantor agrees to pay or reimburse
the Administrative Agent and each Lender within five Business Days after demand
for all reasonable costs and expenses (including Attorney Costs) incurred by
them in connection with the enforcement, attempted enforcement, or preservation
of any rights or remedies under this Guaranty (including in connection with any
"workout" or restructuring regarding amounts due under this Guaranty, and
including in any Insolvency Proceeding or appellate proceeding).
4.8 Severability. The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement referred to herein
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Guaranty or any instrument or agreement referred to
herein.
4.9 Notices. All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 10.02 to the
Credit Agreement, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on the signature pages hereof in the case of
Guarantors and as provided in the Credit Agreement in the case of Administrative
Agent and Lenders; or to such other address as shall be designated by any such
party in a written notice to the other parties. All such notices, requests
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and communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the fourth
Business Day after the date deposited into the U.S. mail, or if delivered, upon
delivery. Any agreement of the Administrative Agent and the Lenders to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Guarantors. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by a Guarantor to give such notice and the Administrative Agent and
the Lenders shall not have any liability to any Guarantor or other Person on
account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Guarantors hereunder shall not be affected in any way or to any extent by
any failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice.
4.10 Governing Law and Jurisdiction. THIS GUARANTY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED
THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
4.11 Waiver of Jury Trial. EACH GUARANTOR, THE LENDERS, AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING, OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE GUARANTORS, THE LENDERS, AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR
MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
4.12 Entire Agreement. This Guaranty (a) integrates all the terms
and conditions mentioned herein or incidental hereto, (b) supersedes all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) is intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties.
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4.13 Execution in Counterparts. This Guaranty may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument. Delivery of an executed counterpart of the signature page to this
Guaranty by telecopier shall be effective as delivery of a manually executed
counterpart of this Guaranty. Any party delivering an executed counterpart of
the signature page to this Guaranty by telecopier shall thereafter also promptly
deliver a manually executed counterpart of this Guaranty, but the failure to
deliver such manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Guaranty.
THIS WRITTEN GUARANTY, TOGETHER WITH THE OTHER WRITTEN LOAN DOCUMENTS
EXECUTED IN CONNECTION HEREWITH, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its duly
authorized officers as of the day and year first above written.
ANIXTER INTERNATIONAL INC.
By:________________________________
Title:_____________________________
Notice Information:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
ANIXTER INC.
By:________________________________
Title:_____________________________
Notice Information:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
ANIXTER-REAL ESTATE, INC.
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By:________________________________
Title:_____________________________
Notice Information:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
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ANIXTER INFORMATION SYSTEMS
CORPORATION
By:________________________________
Title:_____________________________
Notice Information:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
ANIXTER FINANCIAL INC.
By:________________________________
Title:_____________________________
Notice Information:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
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EXHIBIT A
TO GUARANTY AGREEMENT
_______________, 200___
To the Lenders and Administrative Agent
Referenced below:
Ladies and Gentlemen:
Reference is made to the following documents: (a) that certain Five-Year
Revolving Credit Agreement, dated as __________, 2004 (as amended or modified
from time to time, the "Credit Agreement"), among Anixter Inc., a Delaware
corporation ("Anixter"), Anixter U.K. Ltd., an English limited liability company
and Anixter International B.V.B.A., a Belgian company (together with Anixter and
Anixter International Ltd., collectively, the "Borrowers" and individually a
"Borrower"), the financial institutions from time to time party thereto (the
"Lenders"), and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender; and (b) that certain Guaranty dated as of ___________, 2004
(as amended or modified from time to time, the "Guaranty"), by certain
Affiliates of the Borrowers party thereto in favor of Administrative Agent.
Unless specifically defined herein, capitalized terms used herein have the
meaning set forth in the Credit Agreement.
The undersigned hereby confirms and agrees that it has been furnished with
and has read each of the Loan Documents in effect as of the date hereof and
that, effective as of the date hereof, the undersigned is a party to and
obligated as a Guarantor under the Guaranty. The undersigned hereby warrants and
represents to you that the representations and warranties of the undersigned as
a Guarantor under Section 3 of the Guaranty are true, correct, and complete in
all material respects on the date hereof.
Very truly yours,
[NAME OF NEW GUARANTOR],
a _______________
By:________________________
Title:_____________________
Notice Information:
EXHIBIT H
FORM OF OPINION OF COUNSEL
H-1
