EXHIBIT 10.23
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of November 10, 2005 (this "Amendment")
amends the Five-Year Revolving Credit Agreement dated as of June 18, 2004, among
Anixter Inc. ("Anixter"), various subsidiaries of Anixter (the "Borrowing
Subsidiaries"), various financial institutions (the "Lenders") and Bank of
America, N.A., as administrative agent (the "Administrative Agent"). Terms
defined in the Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used herein as defined therein.
WHEREAS, Anixter, the Borrowing Subsidiaries, the Lenders and the
Administrative Agent have entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 4, the Credit Agreement shall be amended as
follows.
(a) Section 1.01 of the Credit Agreement is amended by deleting the
definition of "Foreign Currency Loan Notice" and adding the following
definitions in the appropriate alphabetical positions:
"Applicable Foreign Currency Commitment" means, as to each Available
Foreign Currency and Applicable Foreign Currency Lender, such Foreign
Currency Lender's obligation to make Foreign Currency Loans in such
Available Foreign Currency to the Borrowers (or, in the case of Anixter
Canada Inc., to make a Canadian Banker's Acceptance facility available)
pursuant to Section 2.04, in an aggregate principal Dollar Equivalent
amount at any one time outstanding not to exceed the amount of such Foreign
Currency Lender's Applicable Foreign Currency Commitment in respect of such
Available Foreign Currency set forth opposite such Foreign Lender's name on
Schedule 2.04 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. The aggregate amount
of all Applicable Foreign Currency Commitments for all Available Foreign
Currencies shall not exceed the Aggregate Foreign Currency Commitments.
"Applicable Foreign Currency Lender" means, with respect to any
Available Foreign Currency, a Foreign Currency Lender with an Applicable
Foreign Currency Commitment in respect of such Available Foreign Currency.
"Applicable Foreign Currency Pro Rata Share" means, with respect to
each Available Foreign Currency and Applicable Foreign Currency Lender, at
any time the percentage (carried out to the ninth decimal place) that such
Foreign Currency Lender's Applicable Foreign Currency Commitment in respect
of such Available Foreign
Currency comprises of the aggregate Applicable Foreign Currency Commitments
in respect of such Available Foreign Currency.
"Canadian BA Discount Proceeds" means, in respect of any Canadian
Banker's Acceptance, an amount calculated on the applicable funding date
which is (rounded to the nearest full cent, with one-half of one cent being
rounded up) equal to the face amount of such Canadian Banker's Acceptance
multiplied by the price, where the price is calculated by dividing one by
the sum of one plus the product of (a) the Canadian BA Discount Rate
applicable thereto expressed as a decimal fraction multiplied by (b) a
fraction, the numerator of which is the term of such Canadian Banker's
Acceptance and the denominator of which is 365, rounded to the nearest
multiple of 0.001%.
"Canadian BA Discount Rate" means (a) with respect to any Canadian
Banker's Acceptance accepted by a Canadian Lender named on Schedule I to
the Bank Act (Canada), the rate determined by such Canadian Lender as being
the CDOR Rate on the applicable funding date, and (b) with respect to any
Canadian Banker's Acceptance accepted by any other Canadian Lender, the
lesser of (i) the rate advised by such Canadian Lender to the
Administrative Agent as being the discount rate of such Canadian Lender,
calculated on the basis of a year of 365 days and determined in accordance
with normal market practice, for Canadian Banker's Acceptances of such
Canadian Lender having a comparable face amount and identical maturity date
to the face amount and maturity date of such Canadian Banker's Acceptance,
and (ii) the rate determined by such Canadian Lender in accordance with (a)
above plus 0.10% per annum.
"Canadian BA Equivalent Loan" has the meaning specified in Schedule
2.04BA.
"Canadian Banker's Acceptance" means a depository xxxx as defined in
the Depository Bills and Notes Act (Canada) in Canadian Dollars that is in
the form of an order signed by Anixter Canada Inc. and accepted by a
Canadian Lender pursuant to this Agreement or, for Canadian Lenders not
participating in clearing services contemplated in that Act, a draft or
xxxx of exchange in Canadian Dollars that is drawn by Anixter Canada Inc.
and accepted by a Canadian Lender pursuant to this Agreement. Orders or
drafts that become depository bills, drafts and bills of exchange are
sometimes collectively referred to in this Agreement as "orders".
"Canadian Banker's Acceptance Fee" means, with respect to any Canadian
Banker's Acceptance, the amount calculated by multiplying the face amount
of the Canadian Banker's Acceptance by the then Applicable Margin
applicable to Eurocurrency Rate Loans, and then multiplying the result by a
fraction, the numerator of which is the duration of its term on the basis
of the actual number of days to elapse from and including the date of
acceptance of the Canadian Banker's Acceptance by the related Canadian
Lender up to but excluding the maturity date of the Canadian Banker's
Acceptance and the denominator of which is the number of days in the
calendar year in question.
"Canadian Dollars" means lawful currency of Canada.
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"Canadian Lender" means a Foreign Currency Lender with a Foreign
Currency Commitment in Canadian Dollars.
"Canadian Prime Rate" means, on any day, with respect to any Loan in
Canadian Dollars by a Canadian Lender, the greater of:
(a) the annual rate of interest expressed as a percentage per annum
on the basis of a 365 or 366 day year, as the case may be,
announced by such Canadian Lender on that day as its reference
rate for commercial loans made by it in Canada in Canadian
Dollars; and
(b) the CDOR Rate for one month Canadian Dollar banker's acceptances
on that day plus 0.75% per annum.
"CDOR Rate" means, on any date, with respect to any Canadian Banker's
Acceptance and the related Canadian Lender, the simple average of the rates
shown on the display referred to as the "CDOR Page" (or any display
substituted therefor) on Reuters Domestic Money Service (or any successor
source from time to time) with respect to the banks and other financial
institutions named in such display at or about 10:00 a.m. (Toronto time) on
such date for banker's acceptances having an identical maturity date to the
maturity date of such Canadian Banker's Acceptance, as determined by such
Canadian Lender, or if such day is not a Business Day, then on the
immediately preceding Business Day; provided, however, that if such rates
are not available, then the CDOR Rate for any day shall be calculated as
the average of the bid rates (rounded upwards to the nearest 1/16th of 1%)
quoted by such Canadian Lender for its own bankers' acceptances for the
applicable period as of 10:00 a.m. (Toronto time) on such day, as
determined by such Canadian Lender, or if such day is not a Business Day,
then on the immediately preceding Business Day.
"Foreign Currency Borrowing 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.
(b) Section 1.01 of the Credit Agreement is further amended so that each of
the following definitions reads in its entirety as follows:
"Aggregate Foreign Currency Commitments" means US$150,000,000, 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.
"Applicable Currency" means, with respect to any Loan or other
Obligation, the currency in which such Loan or other Obligation is
denominated.
"Available Foreign Currency" means (i) British Pounds Sterling, (ii)
Euro, (iii) Canadian Dollars, and (iv) any other currency (other than US
Dollars) which is readily
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available and freely transferable and convertible into US Dollars and which
is requested by Anixter and approved by the Administrative Agent.
"Cash Collateralize", with respect to L/C Obligations, has the meaning
specified in Section 2.05(g) and, with respect to Canadian Banker's
Acceptances, has the meaning specified in Schedule 2.04BA.
"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, (B) with respect to a Foreign Currency Swing Line Loan
or a Foreign Currency Loan (other than a Foreign Currency Loan in Canadian
Dollars) 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 (C) with respect to a Foreign
Currency Loan in Canadian Dollars, the Default Rate shall be an interest
rate equal to (i) the applicable Canadian Prime 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.
"Foreign Currency Borrowing" means a borrowing consisting of
simultaneous Foreign Currency Loans of the same Available Foreign Currency
from the Applicable Foreign Currency Lenders pursuant to Section 2.04 (or,
in the case of Canadian Banker's Acceptances, a funding thereof by the
Canadian Lenders pursuant to Section 2.04 and Schedule 2.04BA).
"Foreign Currency Commitment" means, as to each Foreign Currency
Lender, its Applicable Foreign Currency Commitment(s).
"Foreign Currency Pro Rata Share" means, with respect to each Foreign
Currency Lender at any time, the percentage (carried out to the ninth
decimal place) that such Foreign Currency Lender's Applicable Foreign
Currency Commitment(s) comprise of the Aggregate Foreign Currency
Commitments at such time.
"Loan Documents" means this Agreement, each Note, the Guaranty, the
Agent/Arranger Fee Letters, each Request for Credit Extension, each Issuer
Document, each Canadian Banker's Acceptance and each Compliance
Certificate.
"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, Canadian Banker's
Acceptance 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
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proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding.
"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, (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, and (c) with respect to
any Canadian Banker's Acceptance, the Dollar Equivalent amount of the
unpaid portion of the face amount thereof.
"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;
(b) with respect to any Canadian Banker's Acceptance, each of the
following: (i) each date of the funding of such Canadian Banker's
Acceptance and (ii) such additional dates as the Administrative Agent shall
determine or the related Canadian Lender shall require, and (c) 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.
"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 directly or
indirectly 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.
"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 and the Dollar Equivalent amount of the unpaid portion of
the face amount of all Canadian Banker's Acceptances.
(c) Section 1.05 of the Credit Agreement is amended to read in its entirety
as follows: 1.05 [RESERVED].
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(d) Section 2.04 of the Credit Agreement is amended to read in its entirety
as follows:
(a) Foreign Currency Borrowings. Subject to the terms and conditions
of this Agreement, with respect to each Available Foreign Currency, each
Applicable Foreign Currency Lender severally agrees to make loans (each a
"Foreign Currency Loan" and collectively the "Foreign Currency Loans") in
such Available Foreign Currency to the Borrowers (and, in the case of each
Canadian Lender, to make available Canadian Banker's Acceptances for
Anixter Canada Inc. in accordance with the terms of Schedule 2.04BA) 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 Applicable Foreign
Currency Commitment in respect of such Available Foreign Currency; 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 in such
Available Foreign Currency of any Foreign Currency Lender (and, in the case
of Canadian Dollars, Canadian Banker's Acceptances) shall not at any time
exceed the Applicable Foreign Currency Commitment of such Foreign Currency
Lender, (iii) the aggregate Outstanding Amount of all Foreign Currency
Loans in such Available Foreign Currency (and, in the case of a Canadian
Lender, Canadian Banker's Acceptances) shall not at any time exceed the
aggregate Applicable Foreign Currency Commitments in respect of such
Available Foreign Currency, (iv) the aggregate Outstanding Amount of all
Foreign Currency Loans and Canadian Banker's Acceptances shall not at any
time exceed the Aggregate Foreign Currency Commitment, and (v) 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, Foreign Currency Loans and Canadian Banker's
Acceptances shall not exceed such Lender's Commitment. Subject to the terms
and conditions hereof, each Borrower 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
Borrower'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 or any continuation of Foreign
Currency Loans. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Foreign Currency
Borrowing Notice, appropriately completed and signed by a Responsible
Officer of such Borrower. Each Foreign Currency Borrowing or continuation
of Foreign Currency Loans shall be in a principal amount of the applicable
Minimum Tranche. Each Foreign Currency Borrowing Notice (whether telephonic
or written) shall specify (A) whether such Borrower is requesting a Foreign
Currency Borrowing or a continuation of Foreign Currency Loans for a new
Interest Period, (B) the requested date of the Foreign
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Currency 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 or the aggregate face
amount of Canadian Banker's Acceptances to be accepted, as the case may be,
and (D) the duration of the Interest Period with respect thereto or the
maturity of the Canadian Banker's Acceptances, as the case may be. If such
Borrower 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 Borrowing Notice, the
Administrative Agent shall promptly notify each Applicable Foreign Currency
Lender of its Applicable Foreign Currency Pro Rata Share of the applicable
Foreign Currency Loans or Canadian Banker's Acceptance. In the case of a
Foreign Currency Borrowing, upon satisfaction of the applicable conditions
set forth in Section 4.02, each Applicable Foreign Currency Lender shall
make the amount of its Foreign Currency Loan or Canadian BA Discount
Proceeds available (x) to the Administrative Agent in immediately available
funds at the applicable office of the Administrative Agent specified for
such Available 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 or (y) directly to the applicable Borrower,
with notice to the Administrative Agent, in accordance with other funding
procedures that may be agreed to from time to time among the Borrowers, the
Administrative Agent and the Applicable Foreign Currency Lenders or (z) in
the case of Canadian Banker's Acceptances, to Anixter Canada Inc. in
accordance with Schedule 2.04BA. The Administrative Agent shall make all
funds so received by the Administrative Agent available to the applicable
Borrower in like funds as received by the Administrative Agent either by
(A) crediting the account of such Borrower 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 Borrower.
(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 and Canadian Banker's
Acceptances.
(i) Each Lender agrees that it shall at all times have a
participation in, and acknowledges that it is irrevocably and
unconditionally obligated, upon
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receipt of notice that the Administrative Agent has received a Foreign
Currency Participation Funding Notice, to fund (or to cause an
Affiliate to fund) its participation in, each outstanding Foreign
Currency Loan and Canadian Banker's Acceptance in an amount equal to
its Pro Rata Share of the amount of such Foreign Currency Loan or its
Pro Rata Share of the Canadian BA Discount Proceeds in respect of such
Canadian Banker's Acceptance, as the case may be.
(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 (and, with respect to participations in Canadian
Banker's Acceptances, its Pro Rata Share of the Canadian BA Discount
Proceeds of all outstanding Canadian Banker's Acceptances). 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 and
Canadian Banker's Acceptances 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 and Canadian
Banker's Acceptances, 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, any Canadian Banker's
Acceptance or any interest or fee thereon, each Lender shall, on
demand of the Administrative Agent, forthwith return to the
Administrative
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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 or Canadian Banker's
Acceptances) for sharing the risks of Foreign Currency Loans and
Canadian Banker's Acceptances ratably among all Lenders according to
their Pro Rata Shares so long as such method does not materially
disadvantage any Lender.
(vi) References to participations in Foreign Currency Loans in
this Agreement (including in the definitions of "Commitment",
"Defaulting Lender", "Foreign Currency Participation Funding Notice"
and "Voting Percentage", subsection 2.12(b), subsection 2.13(f),
Section 2.14 and Section 10.06) shall be deemed to include
participations in Canadian Banker's Acceptances.
(d) Each Lender's obligation to purchase participation interests in
Foreign Currency Loans and Canadian Banker's Acceptances 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 or Canadian Banker's Acceptance 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 or Canadian Banker's Acceptance pursuant to this Section 2.04
if, at least two Business Days prior to the making of such Foreign Currency
Loan or Canadian Banker's Acceptance, 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 or Canadian Banker's
Acceptance were not satisfied (and detailing its basis for such good faith
belief) and, in fact, such conditions precedent to the making of such Loan
or Canadian Banker's Acceptance were not satisfied at the time of the
making of such Loan or Canadian Banker's Acceptance; provided that the
obligation of such Lender to make such Loan or Canadian Banker's Acceptance
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
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making of such Foreign Currency Loan or Canadian Banker's Acceptance 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 and Canadian Banker's Acceptances 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 and/or Cash Collateralize Canadian Banker's Acceptances 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.
(g) Interest Act (Canada). For the purposes of the Interest Act
(Canada), (i) whenever a rate of interest or fee rate hereunder is
calculated on the basis of a year (the "deemed year") that contains fewer
days than the actual number of days in the calendar year of calculation,
such rate of interest or fee rate shall be expressed as a yearly rate by
multiplying such rate of interest or fee rate by the actual number of days
in the calendar year of calculation and dividing it by the number of days
in the deemed year, (ii) the principle of deemed reinvestment of interest
shall not apply to any interest calculation hereunder and (iii) the rates
of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.
(e) Section 2.06(c) of the Credit Agreement is amended to read in its
entirety as follows:
(c) The Borrowers may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Foreign Currency Loans in any
Available Foreign Currency 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 Applicable Foreign Currency Lender of its
receipt of each such notice, and of such Applicable Foreign Currency
Lender's Applicable Foreign Currency Pro Rata Share of such prepayment or,
in the case of a prepayment in connection with a reduction or termination
in an Applicable Foreign Currency Commitment pursuant to Section 2.18, such
Applicable Foreign Currency Lender's share of such prepayment. If such
notice is given by a Borrower, such Borrower shall make such prepayment to
the Administrative Agent (or to the related Applicable Foreign Currency
Lenders pursuant to procedures that may be agreed upon from time to time
among the Borrowers, the Administrative Agent and such Applicable Foreign
Currency Lenders) and 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
Applicable Foreign Currency Lenders in accordance with their respective
Applicable Foreign
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Currency Pro Rata Shares, except in the case of a prepayment in connection
with a reduction or termination in an Applicable Foreign Currency
Commitment pursuant to Section 2.18, in which case such prepayment shall be
applied to the applicable Foreign Currency Lender's Foreign Currency Loans.
(f) Section 2.09(a) of the Credit Agreement is hereby amended so that
clause (v) thereof reads in entirety as follows and the following clause (vi) is
added thereto:
(v) each Foreign Currency Loan (other than Loans in Canadian Dollars) 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, and (vi) each
Foreign Currency Loan in Canadian Dollars shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the Canadian Prime Rate.
(g) Article II of the Credit Agreement is further amended by adding thereto
the following Section 2.18:
2.18 DESIGNATION OF FOREIGN CURRENCY LENDERS; INCREASES, REDUCTIONS OR
TERMINATIONS OF APPLICABLE FOREIGN CURRENCY COMMITMENTS.
(a) Anixter may, from time to time, with the acceptance of the related
Lender and the approval of the Administrative Agent (such approval by the
Administrative Agent not to be unreasonably withheld), designate a Lender
as a Foreign Currency Lender with an Applicable Foreign Currency Commitment
in respect of an Available Foreign Currency, provided that (i) the
aggregate Applicable Foreign Currency Commitments in respect of all
Available Foreign Currencies shall not exceed the Aggregate Foreign
Currency Commitments, and (ii) any such new Applicable Foreign Currency
Commitment shall be in an aggregate amount of US$1,000,000 or any whole
multiple of US$500,000 in excess thereof.
(b) Anixter may, from time to time, with the acceptance of the related
Foreign Currency Lender and the approval of the Administrative Agent (such
approval by the Administrative Agent not to be unreasonably withheld),
increase the Applicable Foreign Currency Commitment of such Foreign
Currency Lender, provided that (i) the aggregate Applicable Foreign
Currency Commitments in respect of all Available Foreign Currencies shall
not exceed the Aggregate Foreign Currency Commitments, and (ii) any such
increase in an Applicable Foreign Currency Commitment shall be in an
aggregate amount of US$1,000,000 or any whole multiple of US$500,000 in
excess thereof.
(c) Upon the effectiveness of any new Applicable Foreign Currency
Commitment or any increase in an Applicable Foreign Currency Commitment,
the Borrowers shall make such borrowings and prepayments of Foreign
Currency Loans in the related Available Foreign Currency (and pay any
additional amounts pursuant to Section 3.05)(and in the case of Canadian
Lenders, the Canadian Lenders shall sell and purchase participations in
outstanding Canadian Banker's Acceptances) to the extent necessary to keep
the outstanding Foreign Currency Loans in such Available Foreign
-11-
Currency (and, in the case of Canadian Lenders, Canadian Banker's
Acceptances) ratable with any revised Applicable Foreign Currency Pro Rata
Shares arising from any nonratable increase in Applicable Foreign Currency
Commitments under this Section.
(d) Anixter may, upon notice to the Administrative Agent, terminate
the Applicable Foreign Currency Commitment of any Foreign Currency Lender,
or reduce any Applicable Foreign Currency Commitment to an amount not less
than the then Outstanding Amount of all Foreign Currency Loans in the
related Available Foreign Currency of such Foreign Currency Lender (and, if
applicable, its Canadian Banker's Acceptances); 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.
(e) The Administrative Agent shall promptly notify the Lenders of any
designation of a Foreign Currency Lender, of any increase in any Applicable
Foreign Currency Commitment and of any notice of reduction or termination
of Applicable Foreign Currency Commitments.
(f) Without the consent of the Administrative Agent, Anixter may not
effect more than three adjustments of Applicable Foreign Currency
Commitments in any twelve month period pursuant to this Section (it being
understood that a single adjustment may involve the concurrent addition,
termination, increase or decrease of more than one Applicable Foreign
Currency Commitment and the concurrent addition or termination of Available
Foreign Currencies).
(h) Section 7.01 of the Credit Agreement is amended by replacing the amount
"US$100,000,000" in the proviso thereto with the amount "One Hundred Fifty
Million Dollars (US$150,000,000)".
(i) Section 7.04(v) of the Credit Agreement is amended by replacing the
amount "Seventy Five Million Dollars (US$75,000,000)" therein with the amount
"One Hundred Twenty Five Million Dollars (US$125,000,000)".
(j) Section 8.02(c) of the Credit Agreement is amended to read in its
entirety as follows:
(c) require that Anixter Cash Collateralize the L/C Obligations and
Canadian Banker's Acceptances (in an amount equal to the then Outstanding
Amount thereof); and
(k) The Credit Agreement is amended (i) so that each reference to a Foreign
Currency Loan Notice is replaced with a reference to a Foreign Currency
Borrowing Notice, (ii) so that Schedule 2.01 reads in its entirety in the form
of Schedule 2.01 attached hereto, (iii) by adding thereto as Schedule 2.04
thereto Schedule 2.04 attached hereto, (iv) by adding thereto as Schedule 2.04BA
thereto Schedule 2.04BA attached hereto, (v) so that Schedule 10.02 reads in its
entirety in the form of Schedule 10.02 attached hereto, and (vi) so that Exhibit
A-2 reads in its entirety in the form of Exhibit A-2 attached hereto.
-12-
SECTION 2 Addition of Anixter Canada Inc. as Borrowing Subsidiary. Pursuant
to Section 2.15 of the Credit Agreement, Anixter hereby designates its
Subsidiary, Anixter Canada Inc., organized under the laws of Canada (the
"Designated Borrowing Subsidiary"), as a Borrowing Subsidiary.
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 Credit Agreement shall be deemed to
include the Designated Borrowing Subsidiary.
By its signature hereto 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
Anixter Canada Inc.
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
Upon the effectiveness of this Amendment pursuant to Section 4 below, the
Designated Borrowing Subsidiary shall become a Borrowing Subsidiary under the
Credit 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.
SECTION 3 Warranties. Each Borrower represents and warrants to the
Administrative Agent and the Lenders that, after giving effect to the
effectiveness hereof, (a) each warranty set forth in Article V of the Credit
Agreement is true and correct in all material respects, except to the extent
that such warranty specifically refers to an earlier date, and (b) no Default or
Event of Default exists.
SECTION 4 Effectiveness of Amendment. The amendments set forth in Section 1
above and the addition of the Designated Borrowing Subsidiary as a Borrowing
Subsidiary pursuant to Section 2 above shall become effective when the
Administrative Agent shall have received all of the following (provided that the
following are received on or before December 15, 2005): (i) counterparts of this
Amendment executed by Anixter, the Borrowing Subsidiaries
-13-
(including the Designated Borrowing Subsidiary), the Guarantors, the Lenders,
the Swing Line Lender, the L/C Issuer and the Administrative Agent; (ii) Foreign
Currency Notes executed by the Designated Borrowing Subsidiary payable to the
order of each Foreign Currency Lender requesting such a Note, each in the
principal amount of such Foreign Currency Lender's Foreign Currency Commitment,
and a Swing Line Note executed by the Designated Borrowing Subsidiary payable to
the order of the Swing Line Lender in the principal amount of the Swing Line
Loan Commitment; (iii) all documents as shall reasonably demonstrate the
existence of the Designated Borrowing Subsidiary, the corporate power and
authority of the Loan Parties (including the Designated Borrowing Subsidiary) to
enter into and the validity with respect to the Loan Parties (including the
Designated Borrowing Subsidiary) of this Amendment and the other Loan Documents
and any other matters relevant hereto (including opinions of counsel), all in
form and substance satisfactory to the Administrative Agent; and (iv) any
governmental and third party approvals necessary or advisable in connection with
the execution, delivery and performance of this Amendment by the Loan Parties.
SECTION 5 Miscellaneous.
5.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the effectiveness of this Amendment, all references in the
Credit Agreement and the other Loan Documents to "Credit Agreement" or similar
terms shall refer to the Credit Agreement as amended hereby.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois.
5.4 Successors and Assigns. This Amendment shall be binding upon Anixter,
the Borrowing Subsidiaries (including the Designated Borrowing Subsidiary), the
Guarantors, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of Anixter, the Borrowing
Subsidiaries (including the Designated Borrowing Subsidiary), the Lenders and
the Administrative Agent and the respective successors and assigns of the
Lenders and the Administrative Agent.
-14-
Delivered as of the day and year 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:
---------------------------------
ANIXTER CANADA INC., as a Borrowing
Subsidiary
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
GUARANTORS:
ANIXTER INTERNATIONAL INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANIXTER-REAL ESTATE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANIXTER INFORMATION SYSTEMS CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANIXTER FINANCIAL INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
BANK OF AMERICA, N.A., as
Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANK OF AMERICA, N.A., as a Lender,
Swing Line Lender and L/C Issuer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-3
JPMORGAN CHASE BANK, N.A., as Co-
Documentation Agent and Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-4
THE BANK OF NOVA SCOTIA, as Co-
Documentation Agent and Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-5
WACHOVIA BANK, N.A., as Syndication
Agent and a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-6
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Co-Documentation Agent and a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-7
NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS, as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-8
SUNTRUST BANK, as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-9
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-00
XXXXX XXXXXXXXX XXX XXXXXX XXX-XXX XXXX
BRANCH, as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-00
XXX XXXX XX XXX XXXX, as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-12
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-13
THE NORTHERN TRUST COMPANY, as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-00
XXX XXXXX XXXX XX XXXXXXXX PLC,
as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-15
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
PRO RATA
LENDER COMMITMENT SHARE
------ ----------------- -------------
Bank of America, N.A. US$ 31,000,000.00 11.272727273%
Wachovia Bank N.A. US$ 31,000,000.00 11.272727273%
JPMorgan Chase Bank, N.A. US$ 26,000,000.00 9.000000000%
The Bank of Nova Scotia US$ 26,000,000.00 9.000000000%
Xxxxx Fargo Bank, National US$ 26,000,000.00 9.454545455%
Association
National City Bank of US$ 20,000,000.00 7.272727273%
Michigan/Illinois
SunTrust Bank US$ 20,000,000.00 7.272727273%
U.S. Bank National Association US$ 20,000,000.00 7.272727273%
Banca Nazionale del Lavoro US$ 15,000,000.00 5.454545455%
SPA-New York Branch
The Bank of New York US$ 15,000,000.00 5.454545455%
KeyBank National Association US$ 15,000,000.00 5.454545455%
The Northern Trust Company US$ 15,000,000.00 5.454545455%
The Royal Bank of Scotland plc US$ 15,000,000.00 5.454545455%
Total US$275,000,000.00 100.000000000%
SCHEDULE 2.04
APPLICABLE FOREIGN CURRENCY COMMITMENTS
AND APPLICABLE FOREIGN CURRENCY PRO RATA SHARES
APPLICABLE FOREIGN APPLICABLE FOREIGN
APPLICABLE FOREIGN CURRENCY COMMITMENT CURRENCY PRO RATA
CURRENCY LENDER (BRITISH (BRITISH POUNDS SHARE (BRITISH POUNDS
POUNDS STERLING) STERLING) STERLING)
------------------------- ------------------- ---------------------
Bank of America, N.A. US$40,000,000 50.000000000%
JPMorgan Chase Bank, N.A. US$20,000,000 25.000000000%
Wachovia Bank N.A. US$20,000,000 25.000000000%
Total US$80,000,000 100.000000000%
APPLICABLE FOREIGN APPLICABLE FOREIGN
APPLICABLE FOREIGN CURRENCY COMMITMENT CURRENCY PRO RATA
CURRENCY LENDER (EUROS) (EUROS) SHARE (EUROS)
------------------------- ------------------- ------------------
Bank of America, N.A. US$20,000,000 50.000000000%
JPMorgan Chase Bank, N.A. US$20,000,000 50.000000000%
Total US$40,000,000 100.000000000%
APPLICABLE FOREIGN APPLICABLE FOREIGN APPLICABLE FOREIGN
CURRENCY LENDER (CANADIAN CURRENCY COMMITMENT CURRENCY PRO RATA SHARE
DOLLARS) (CANADIAN DOLLARS) (CANADIAN DOLLARS)
------------------------- ------------------- -----------------------
The Bank of Nova Scotia US$30,000,000 100.000000000%
Total US$30,000,000 100.000000000%
SCHEDULE 2.04BA
CANADIAN BANKER'S ACCEPTANCES
1. EXECUTION OF CANADIAN BANKER'S ACCEPTANCES
(a) To facilitate the acceptance of Canadian Banker's Acceptances
hereunder, Anixter Canada Inc. hereby appoints each Canadian Lender as
its attorney to sign and endorse on its behalf, as and when considered
necessary by such Canadian Lender, an appropriate number of orders in
the form prescribed by such Canadian Lender.
(b) Each Canadian Lender may, at its option, execute any order in
handwriting or by the facsimile or mechanical signature of any of its
authorized officers, and each Canadian Lender is hereby authorized to
accept or pay, as the case may be, any order of Anixter Canada Inc.
which purports to bear such a signature notwithstanding that any such
individual has ceased to be an authorized officer of such Canadian
Lender. Any such order or Canadian Banker's Acceptance shall be as
valid as if he or she were an authorized officer at the date of issue
of the order or Canadian Banker's Acceptance.
(c) Any order or Canadian Banker's Acceptance signed by a Canadian Lender
as attorney for Anixter Canada Inc., whether signed in handwriting or
by the facsimile or mechanical signature of an authorized officer of a
Canadian Lender, may be dealt with by such Canadian Lender to all
intents and purposes and shall bind Anixter Canada Inc. as if duly
signed and issued by Anixter Canada Inc.
(d) The receipt by a Canadian Lender of a request for a Foreign Currency
Borrowing by way of Canadian Banker's Acceptances shall be such
Canadian Lender's sufficient authority to execute, and each Canadian
Lender shall, subject to the terms and conditions of this Agreement,
execute orders in accordance with such request and the advice of the
Administrative Agent given pursuant to Section 4 of this Schedule, and
the orders so executed shall thereupon be deemed to have been
presented for acceptance.
2. SALE OF CANADIAN BANKER'S ACCEPTANCES
(a) It shall be the responsibility of each Canadian Lender to arrange, in
accordance with normal market practice, for the sale on each funding
date of the Canadian Banker's Acceptances to be accepted by that
Canadian Lender, failing which the Canadian Lender shall purchase its
Canadian Banker's Acceptances.
(b) In accordance with the procedures set forth in Section 4 of this
Schedule, the Canadian Lender will make the net proceeds of the
Foreign Currency Borrowing by way of Canadian Banker's Acceptances
available to Anixter Canada Inc. on
2.04BA-1
the funding date by crediting the account in Canada designated by
Anixter Canada Inc. with such amount.
3. SIZE AND MATURITY OF CANADIAN BANKER'S ACCEPTANCES AND ROLLOVERS
Each Foreign Currency Borrowing by means of Canadian Banker's Acceptances shall
be in a minimum amount of $2,500,000 and the maximum number of Canadian Banker's
Acceptances outstanding at any time shall not exceed ten. Each Canadian Banker's
Acceptance shall have a term of 1, 2, 3 or (subject to availability) 6 months
after the date of acceptance of the order by a Canadian Lender, but no Canadian
Banker's Acceptance may mature on a date which is not a Business Day or after
the Maturity Date. The face amount at maturity of a Canadian Banker's Acceptance
may be renewed as a Canadian Banker's Acceptance (by repayment and reissue) or
repaid.
4. CO-ORDINATION OF CANADIAN BA ADVANCES
Each Canadian Lender shall advance its Applicable Foreign Currency Pro Rata
Share of each Foreign Currency Borrowing by way of Canadian Banker's Acceptances
in accordance with the provisions set forth below.
(a) The Administrative Agent, promptly following receipt of a notice from
Anixter Canada Inc. pursuant to Section 2.04 requesting a Foreign
Currency Borrowing by way of Canadian Banker's Acceptances, shall
advise each Canadian Lender of the aggregate face amount and term(s)
of the Canadian Banker's Acceptances to be accepted by it, which
term(s) shall be identical for all Canadian Lenders. The aggregate
face amount of Canadian Banker's Acceptances to be accepted by a
Canadian Lender shall be determined by the Administrative Agent by
reference to the respective Canadian Commitments of the Canadian
Lenders, except that, if the face amount of a Canadian Banker's
Acceptance would not be $1,000,000 or a whole multiple thereof, the
face amount shall be increased or reduced by the Administrative Agent
in its sole discretion to the nearest whole multiple of $1,000,000.
(b) Each Canadian Lender shall transfer to Anixter Canada Inc., for value
not later than 11:00 a.m. (Toronto time) on each funding date
immediately available Canadian Dollars in an aggregate amount equal to
the Canadian BA Discount Proceeds of all Canadian Banker's Acceptances
accepted and sold or purchased by the Canadian Lender on such funding
date net of the applicable Canadian Banker's Acceptance Fee and net of
the amount required to pay any of its previously accepted Canadian
Banker's Acceptances that are maturing on the funding date or any of
its other Foreign Currency Borrowings that are being converted to
Canadian Banker's Acceptances on the funding date.
(c) Notwithstanding any other provision hereof, for the purpose of
determining the amount to be transferred by a Canadian Lender to
Anixter Canada Inc. in respect of the sale of any Canadian Banker's
Acceptance accepted by such Canadian
2.04BA-2
Lender and sold or purchased by it, the proceeds of sale thereof shall
be deemed to be an amount equal to the Canadian BA Discount Proceeds
calculated with respect thereto. Accordingly, in respect of any
particular Canadian Banker's Acceptance accepted by it, a Canadian
Lender in addition to its entitlement to retain the applicable
Canadian Banker's Acceptance Fee for its own account (i) shall be
entitled to retain for its own account the amount, if any, by which
the actual proceeds of sale thereof exceed the Canadian BA Discount
Proceeds calculated with respect thereto; and (ii) shall be required
to pay out of its own funds the amount, if any, by which the actual
proceeds of sale thereof are less than the Canadian BA Discount
Proceeds calculated with respect thereto.
(d) Whenever Anixter Canada Inc. requests a Foreign Currency Borrowing
that includes Canadian Banker's Acceptances, each Lender that is not
permitted by applicable law or by customary market practice to accept
a Canadian Banker's Acceptance (a "Non BA Lender") shall, in lieu of
accepting its pro rata amount of such Canadian Banker's Acceptances,
make available to the Borrower on the Drawdown Date a non-interest
bearing loan (a "Canadian BA Equivalent Loan") in Canadian Dollars in
an amount equal to the Canadian BA Discount Proceeds of its pro rata
amount of the Canadian Banker's Acceptances based on the Canadian BA
Discount Rate applicable to a Canadian Lender named on Schedule I to
the Bank Act (Canada) plus 0.10% per annum. Each Non BA Lender shall
also be entitled to deduct from the Canadian BA Equivalent Loan an
amount equal to the Canadian Banker's Acceptance Fee that would have
been applicable had it been able to accept Canadian Banker's
Acceptances. The Canadian BA Equivalent Loan shall have a term equal
to the term of the Canadian Banker's Acceptances that the Non BA
Lender would otherwise have accepted and Anixter Canada Inc. shall, at
the end of that term, be obligated to pay the Non BA Lender an amount
equal to the aggregate face amount of the Canadian Banker's
Acceptances that it would otherwise have accepted. All provisions of
this Agreement applicable to Canadian Banker's Acceptances and
Canadian Lenders that accept Canadian Banker's Acceptances shall apply
mutatis mutandis to Canadian BA Equivalent Loans and Non BA Lenders
and, without limiting the foregoing, Foreign Currency Borrowings shall
include Canadian BA Equivalent Loans.
5. PAYMENT OF CANADIAN BANKER'S ACCEPTANCES; CASH COLLATERAL; TAXES, YIELD
PROTECTION AND ILLEGALITY
(a) Anixter Canada Inc. shall provide for the payment to each Canadian
Lender of the full face amount of each Canadian Banker's Acceptance
accepted for its account on the earlier of (i) the date of maturity of
a Canadian Banker's Acceptance; and (ii) the date on which any
Obligations become due and payable pursuant to Section 8.02. Each
Canadian Lender shall be entitled to recover interest from Anixter
Canada Inc. at the Default Rate, upon any amount payment of which has
not been provided for by Anixter Canada Inc. in accordance with this
Section. Interest shall be calculated from and including the date of
maturity of each such
2.04BA-3
Canadian Banker's Acceptance up to but excluding the date such
payment, and all interest thereon, is provided for by Anixter Canada
Inc., both before and after demand, default and judgment.
(b) For purposes of this Schedule 2.04BA, Section 2.04(f) and Section
8.02(c), "Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the Canadian
Lenders and the Lenders, as collateral for the Obligations in respect
of Canadian Banker's Acceptances, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Canadian Lenders (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 Canadian Lenders 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.
(c) The provisions of Article III applicable to Loans, Letters of Credit
and the Commitments and Obligations in respect thereof apply to
Canadian Banker's Acceptances and the Commitments and Obligations in
respect thereof, mutatis mutandis.
6. DEEMED ADVANCE - CANADIAN BANKER'S ACCEPTANCES
Except for amounts which are paid from the proceeds of a rollover of a Canadian
Banker's Acceptance or for which payment has otherwise been funded by Anixter
Canada Inc., any amount which a Canadian Lender pays to any third party on or
after the date of maturity of a Canadian Banker's Acceptance in satisfaction
thereof or which is owing to the Canadian Lender in respect of such a Canadian
Banker's Acceptance on or after the date of maturity of such a Canadian Banker's
Acceptance, shall be deemed to be a Foreign Currency Loan in Canadian Dollars to
Anixter Canada Inc. under this Agreement. Each Canadian Lender shall forthwith
give notice of the making of such a Foreign Currency Loan to Anixter Canada
Inc., the Administrative Agent and to the other Canadian Lenders. Interest shall
be payable on such Foreign Currency Loans in accordance with the terms
applicable to Foreign Currency Loans in Canadian Dollars.
7. WAIVER
Anixter Canada Inc. shall not claim from a Canadian Lender any days of grace for
the payment at maturity of any Canadian Banker's Acceptances presented and
accepted by such Canadian Lender pursuant to this Agreement. Anixter Canada Inc.
waives any defence to payment which might otherwise exist if for any reason a
Canadian Banker's Acceptance shall be held by a Canadian Lender in its own right
at the maturity thereof, and the doctrine of merger shall not apply to any
Canadian Banker's Acceptance that is at any time held by a Canadian Lender in
its own right.
2.04BA-4
8. DEGREE OF CARE
Any executed orders to be used as Canadian Banker's Acceptances shall be held in
safekeeping with the same degree of care as if they were the Canadian Lender's
own property, and shall be kept at the place at which such orders are ordinarily
held by such Canadian Lender.
9. OBLIGATIONS ABSOLUTE
The obligations of Anixter Canada Inc. with respect to Canadian Banker's
Acceptances under this Agreement shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following circumstances:
(i) any lack of validity or enforceability of any order accepted by a
Canadian Lender as a Canadian Banker's Acceptance; or
(ii) the existence of any claim, set-off, defence or other right which
Anixter Canada Inc. may have at any time against the holder of a
Canadian Banker's Acceptance, a Canadian Lender or any other
Person, whether in connection with this Agreement or otherwise.
10. SHORTFALL ON DRAWDOWNS, ROLLOVERS AND CONVERSIONS
Anixter Canada Inc. agrees that:
(i) the difference between the amount of a Foreign Currency Borrowing
requested by Anixter Canada Inc. by way of Canadian Banker's
Acceptances and the actual proceeds of the Canadian Banker's
Acceptances;
(ii) the difference between the actual proceeds of a Canadian Banker's
Acceptance and the amount required to pay a maturing Canadian
Banker's Acceptance, if a Canadian Banker's Acceptance is being
rolled over; and
(iii) the difference between the actual proceeds of a Canadian
Banker's Acceptance and the amount required to repay any Foreign
Currency Borrowing which is being converted to a Canadian
Banker's Acceptance;
shall be funded and paid by Anixter Canada Inc. from its own resources, by 11:00
a.m. on the day of the Foreign Currency Borrowing or may be advanced as a
Foreign Currency Loan in Canadian Dollars under an Applicable Foreign Currency
Commitment if Anixter Canada Inc. is otherwise entitled to a Foreign Currency
Borrowing under this Agreement.
2.04BA-5
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.
CA4-702-02-25
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxxx.xxxx@xxxxxxxxxxxxx.xxx
Payment Instructions:
Bank of America, N.A.
ABA# 111 000 012
Account No.: 3750836479
Ref: Anixter
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
CA5-701-05-19
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxx.xxx@xxxxxxxxxxxxx.xxx
With a copy to:
Bank of America, N.A.
10.02-1
IL1-231-10-50
000 Xxxxx XxXxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: Xxxxxx.Xxxxxx@xxxxxxxxxxxxx.xxx
L/C Issuer:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
Mail Code: CA9-703-19-23
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: Xxxxxx.xxxx@xxxxxxxxxxxxx.xxx
Applicable Office of Administrative Agent for British Pound Sterling Payments:
Bank of America, N.A.
CA4-702-02-25
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxxx.xxxx@xxxxxxxxxxxxx.xxx
Applicable Office of Administrative Agent for Euro Payments:
Bank of America, N.A.
CA4-702-02-25
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxxx.xxxx@xxxxxxxxxxxxx.xxx
Applicable Office of Administrative Agent for Canadian Dollar Payments:
Bank of America, N.A.
10.02-2
CA4-702-02-25
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Electronic Mail: xxxxx.xxxx@xxxxxxxxxxxxx.xxx
10.02-3
EXHIBIT A-2
FORM OF FOREIGN CURRENCY BORROWING 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 June 18, 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):
- A Borrowing of Foreign Currency Loans
- A continuation of Loans
- Canadian Banker's Acceptance(s) [Anixter Canada Inc. only]
1. On ______________ (a Business Day).
2. In the amount of _______________ in [Available Foreign Currency].
3. [With an Interest Period of _____ months][With a maturity of _____
months].
[The Foreign Currency Borrowing requested herein complies with the proviso
to the first sentence of Section 2.03 of the Agreement.]
[BORROWER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-2-1
