1
Exhibit 4.2
$550,000,000
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of September 6, 1996
among
ANIXTER INC.
and
THE BORROWING SUBSIDIARIES
FROM TIME TO TIME PARTIES HERETO
as Borrowers,
ANIXTER INC.
and
ANIXTER INTERNATIONAL INC.,
as Guarantors,
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,
as Lenders,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
2
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms..................................... 2
1.02. Computation of Time Periods............................... 26
1.03. Accounting Terms. ........................................ 26
1.04. Other Definitional Provisions ............................ 26
1.05. Amendment and Restatement of Original Credit Agreement.... 26
1.06. Currency Equivalents ..................................... 27
ARTICLE II
THE LOANS
2.01. Commitments .............................................. 27
2.02. Loans .................................................... 28
2.03. Competitive Loans; Competitive Bid Procedure ............. 29
2.04. Ratable and Alternate Currency Borrowing Procedure ....... 31
2.05. Conversion and Continuation of Ratable Loans ............. 32
2.06. Fees ..................................................... 33
2.07. Repayment of Loans; Evidence of Debt ..................... 33
2.08. Interest on Loans ........................................ 34
2.09. Default Interest ......................................... 35
2.10. Deposits Unavailable or Interest Rate Unascertainable or
Inadequate; Impracticability ............................. 35
2.11. Termination and Reduction of Commitments ................. 35
2.12. Prepayment ............................................... 36
2.13. Reserve Requirements; Change in Circumstances ............ 37
2.14. Change in Legality ....................................... 38
2.15. Indemnity ................................................ 38
2.16. Pro Rata Treatment ....................................... 39
2.17. Sharing of Setoffs ....................................... 40
2.18. Payments ................................................. 41
2.19. Taxes .................................................... 41
2.20. Duty to Mitigate; Assignment of Commitments Under Certain
Circumstances ............................................ 44
2.21. Borrowing Subsidiaries ................................... 45
2.22. Terms of Alternate Currency Facilities ................... 45
2.23. Currency Fluctuations, etc. .............................. 46
2.24. Authorized Officers ...................................... 48
-i-
3
Section Page
ARTICLE III
LETTERS OF CREDIT
3.01. Obligation to Issue. ..................................... 48
3.02. Types and Amounts. ....................................... 48
3.03. Conditions. .............................................. 49
3.04. Issuance of Letters of Credit. ........................... 49
3.05. Reimbursement Obligations; Duties of the Issuing Banks.... 50
3.06. Participations. .......................................... 51
3.07. Payment of Reimbursement Obligations. .................... 52
3.08. Compensation for Letters of Credit. ...................... 53
3.09. Indemnification; Exoneration. ............................ 54
3.10. Reporting By Issuing Banks. .............................. 54
ARTICLE IV
CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.01. Conditions Precedent to the Effectiveness of this
Agreement................................................. 55
4.02. Conditions Precedent to all Loans and Letters of Credit... 56
4.03. Conditions Precedent to Initial Borrowing by each Borrowing
Subsidiary................................................ 57
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Representations. ......................................... 58
5.02. Subsequent Funding Representations and Warranties......... 62
ARTICLE VI
REPORTING COVENANTS
6.01. Financial Statements. .................................... 63
6.02. Environmental Notices. ................................... 66
ARTICLE VII
AFFIRMATIVE COVENANTS
7.01. Corporate Existence, Etc. ................................ 66
7.02. Corporate Powers, Etc. ................................... 66
7.03. Compliance with Laws. .................................... 66
7.04. Payment of Taxes and Claims. ............................. 67
7.05. Maintenance of Properties; Insurance. .................... 67
7.06. Inspection of Property; Books and Records; Discussions.... 67
7.07. Maintenance of Permits. .................................. 68
-ii-
4
Section Page
7.08. Employee Benefit Matters. ................................ 68
7.09. Additional Guarantors. ................................... 68
7.10. Use of Proceeds .......................................... 68
ARTICLE VIII
NEGATIVE COVENANTS
8.01. Indebtedness. ............................................ 68
8.02. Sales of Assets; Liens. .................................. 69
8.03. Investments. ............................................. 70
8.04. Accommodation Obligations. ............................... 71
8.05. Restricted Junior Payments. .............................. 72
8.06. Conduct of Business. ..................................... 72
8.07. Transactions with Affiliates. ............................ 73
8.08. Restriction on Fundamental Changes. ...................... 73
8.09. Employee Benefit Matters. ................................ 73
8.10. Environmental Liabilities. ............................... 74
8.11. Margin Regulations. ...................................... 74
8.12. Change of Fiscal Year. ................................... 74
8.13. Modification of Senior Note Indenture; Issuance of
Additional Senior Notes................................... 74
8.14. Hedging Contracts. ....................................... 74
ARTICLE IX
FINANCIAL COVENANTS
9.01. Reserved. ................................................ 74
9.02. Minimum Consolidated Net Worth............................ 74
9.03. Ratio of Indebtedness to Capitalization................... 75
9.04. Consolidated Interest Coverage Ratio...................... 75
9.05. Reserved.................................................. 75
9.06. Capital Expenditures...................................... 75
9.07. Calculation of Financial Covenants........................ 75
ARTICLE X
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
10.01. Events of Default......................................... 76
10.02. Rights and Remedies....................................... 78
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.01. Appointment............................................... 79
11.02. Nature of Duties.......................................... 80
-iii-
5
Section Page
11.03. Rights, Exculpation, Etc.................................. 80
11.04. Reliance. ................................................ 81
11.05. Indemnification. ......................................... 81
11.06. The Administrative Agent Individually..................... 81
11.07. Successor Administrative Agent; Resignation of
Administrative Agent...................................... 82
11.08. Reserved. ................................................ 82
11.09. Relations Among Lenders................................... 82
11.10. Notices to AXE............................................ 83
ARTICLE XII
GUARANTEE........................................................ 83
ARTICLE XIII
MISCELLANEOUS
13.01. Survival of Warranties and Agreements..................... 86
13.02. Assignments and Participations. .......................... 86
13.03. Expenses.................................................. 89
13.04. Indemnification and Waiver. .............................. 90
13.05. Limitation of Liability................................... 90
13.06. Setoff.................................................... 90
13.07. Reserved ................................................. 91
13.08. Amendments and Waivers.................................... 91
13.09. Reserved.................................................. 92
13.10. Notices................................................... 92
13.11. Failure or Indulgence Not Waiver; Remedies Cumulative..... 92
13.12. Termination. ............................................. 92
13.13. Marshalling; Recourse to Security; Payments Set Aside..... 92
13.14. Severability.............................................. 92
13.15. Headings.................................................. 93
13.16. Governing Law. ........................................... 93
13.17. Successors and Assigns; Subsequent Holders of Notes....... 93
13.18. Consent to Jurisdiction; Service of Process; Jury Trial... 93
13.19. Counterparts; Effectiveness; Inconsistencies.............. 94
13.20. Confidentiality........................................... 94
13.21. ENTIRE AGREEMENT.......................................... 95
13.22. No Strict Construction.................................... 95
13.23. Conversion of Currencies.................................. 95
13.24. Reaffirmation ............................................ 96
-iv-
6
EXHIBITS
Exhibit A -- Administrative Questionnaire
Exhibit B -- Alternate Currency Addendum
Exhibit C -- Assignment and Acceptance
Exhibit D -- Borrowing Subsidiary Agreement
Exhibit E -- Borrowing Subsidiary Termination
Exhibit F -- Competitive Bid Accept/Reject Letter
Exhibit G -- Competitive Bid Request
Exhibit H -- Compliance Certificate
Exhibit I -- Notice of Borrowing
Exhibit J -- Notice of Competitive Bid Request
Exhibit K -- Competitive Bid
Exhibit L -- Form of Note
Exhibit M-1 -- Opinion of Xxxxx, Xxxxx & Xxxxx, Counsel for Anixter
Exhibit M-2 -- Opinion of Xxxx X. Xxx, Counsel for Anixter
Exhibit M-3 -- Opinion of Xxxxx & XxXxxxxx, Counsel for Anixter
International N.V./S.A.
Exhibit N -- Opinion of Sidley & Austin, Counsel for the
Administrative Agent
-v-
7
SCHEDULES
Schedule 1.01-A -- List of Lenders, Issuing Banks, Domestic and Eurocurrency
Lending Offices, Letter of Credit Obligations and Commitments (Section Section
1.01, 13.02(c), 13.10)
Schedule 1.01-B -- Existing Indebtedness (Section 1.01)
Schedule 1.01-C -- Permitted Existing Liens (Section 1.01)
Schedule 5.01(c) -- Subsidiaries (Section Section 5.01(c), 7.01)
Schedule 5.01(d) -- Violation of Requirements of Law (Section 5.01(d))
Schedule 5.01(j) -- Pending or Threatened Litigation (Section 5.01(j))
Schedule 5.01(s) -- Environmental Matters (Section 5.01(s))
Schedule 5.01(w) -- Joint Ventures (Section 5.01(w))
Schedule 7.05 -- Insurance (Section 7.05)
Schedule 8.03 -- Existing Investments (Section 8.03)
Schedule II -- Alternative Loan and Payment Procedures
-vi-
8
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement dated as of September 6,
1996 (as amended, supplemented, modified or restated from time to time, the
"Agreement") is entered into among ANIXTER INC. (formerly known as Anixter
Bros., Inc.), a Delaware corporation ("Anixter"), the BORROWING SUBSIDIARIES
(as defined herein), the GUARANTORS (as defined herein), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF and each other financial
institution which from time to time becomes a party hereto in accordance with
Section 13.02(a) (together with their respective successors and assigns,
individually, a "Lender" and, collectively, the "Lenders"), and THE CHASE
MANHATTAN BANK (formerly known as Chemical Bank), in its separate capacity as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, Anixter, the Administrative Agent, The Bank of New York as
Issuing Bank (the "Original Issuing Bank") and the Lenders entered into that
certain Credit Agreement dated as of May 20, 1992 among Anixter, the Lenders,
the Original Issuing Bank and the Administrative Agent (as amended,
supplemented or modified prior to March 11, 1994, the "Original Credit
Agreement"), which Original Credit Agreement was restated and amended pursuant
to that certain Amended and Restated Credit Agreement dated as of March 11,
1994 among Anixter, the Lenders, the Administrative Agent and certain Issuing
Banks (the "First Restated Credit Agreement");
WHEREAS, the "Collateral" (as defined in the First Restated Credit
Agreement) has been released in accordance with the terms of the First Restated
Credit Agreement;
WHEREAS, Anixter, the Lenders, the Issuing Banks and the Administrative
Agent have agreed to enter into this Agreement in order to (i) amend and
restate the First Restated Credit Agreement in its entirety, (ii) re-evidence
the Obligations which shall be repayable in accordance with the terms of this
Agreement and (iii) set forth the terms and conditions under which the Lenders
and the Issuing Banks will, from time to time, make loans and extend other
financial accommodations to or for the benefit of the Borrowers;
WHEREAS, it is the intention of the parties to this Agreement that this
Agreement not constitute a novation of the indebtedness governed by the First
Restated Credit Agreement, and that, from and after the Effective Date, the
First Restated Credit Agreement shall be amended and restated hereby and all
references herein or in the other Loan Documents to the "Credit Agreement" and
all references herein to "hereunder", "hereof", "herein" or words of like
import shall mean and be a reference to the Original Credit Agreement and the
First Restated Credit Agreement as amended and restated hereby;
NOW THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of the
-1-
9
Borrowers by the Lenders, the Issuing Banks and the Administrative Agent, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings (such meanings to be applicable, except to the extent otherwise
indicated in a definition of a particular term, both to the singular and the
plural forms of the terms defined):
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Ratable Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Ratable Borrowing" shall mean a Ratable Borrowing comprised of ABR
Loans.
"Accommodation Obligation," as applied to any Person, shall mean 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 Dollar 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 Questionnaire" shall mean, with respect to each Lender, an
administrative questionnaire in the form of Exhibit A, submitted to the
Administrative Agent (with a copy to Anixter) duly completed by such Lender.
"Administrative Agent" shall have the meaning assigned to such term in the
preamble hereto and shall include any successor Administrative Agent appointed
pursuant to Section 11.07.
"Affiliate," as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For purposes of this definition,
-2-
10
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to vote 20% or more
of the Securities having voting power for the election of directors of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting Securities or
by contract or otherwise.
"Agreement" shall have the meaning assigned to such term in the preamble
hereto.
"Agreement Accounting Principles" shall mean 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 Requisite 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.
"Agreement Currency" shall have the meaning assigned to that term in
Section 13.23.
"AFI" shall have the meaning assigned to that term in the definition of
Foreign Subsidiaries below.
"AHI" shall have the meaning assigned to that term in the definition of
Foreign Subsidiaries below.
"Alternate Base Rate" shall mean, for any day, a fluctuating interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) as shall be
in effect from time to time, which rate per annum shall at all times be equal
to the greatest of (a) the Prime Rate in effect on such day; (b) the sum of
one-half of one percent (0.50%) and the Federal Funds Effective Rate in effect
on such day; and (c) the sum of one percent (1.0%) and the Three-Month
Secondary CD Rate in effect on such day. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by Chase as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective on the date such change is
publicly announced as being effective. "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Federal Reserve Board
through the public information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of the Federal Reserve
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by Chase from three New York City negotiable certificate of
deposit dealers of recognized standing
-3-
11
selected by the Administrative Agent. "Federal Funds Effective Rate" shall
mean, for any day, a fluctuating interest 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, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by Chase
from three Federal funds brokers of recognized standing selected by the
Administrative Agent. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate or both for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms hereof, the Alternate Base Rate shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective Rate
shall be effective on the effective date of such change.
"Alternate Currency" shall mean an Eligible Currency that is not a
Committed Currency.
"Alternate Currency Addendum" shall mean an Eligible Currency addendum
among Anixter, one or more Borrowers and one or more Alternate Currency
Lenders, substantially in the form of Exhibit B.
"Alternate Currency Agent" shall mean one or more entities (which may be
the Administrative Agent or its local affiliates), satisfactory to the
Administrative Agent, as specified in the applicable Alternate Currency
Addendum.
"Alternate Currency Borrowing" shall mean a Borrowing comprised of
Alternate Currency Loans.
"Alternate Currency Facility Maximum Borrowing Amount" shall have the
meaning assigned to such term in Section 2.22(b).
"Alternate Currency Lender" shall mean any Lender (or any Affiliate,
branch or agency thereof) party to an Alternate Currency Addendum. If any
agency or Affiliate of a Lender shall be party to an Alternate Currency
Addendum, such agency or Affiliate shall, to the extent of any commitment
extended and any Loans made by it, have all the rights of such Lender
hereunder; provided, however, that such Lender shall continue to the exclusion
of such agency or Affiliate to have all the voting and consensual rights vested
in it by the terms hereof.
"Alternate Currency Lender Maximum Borrowing Amount" shall have the
meaning assigned to such term in Section 2.22(b).
"Alternate Currency Loan" shall mean any loan denominated in an Alternate
Currency made to a Borrower pursuant to Section 2.01(b) and an Alternate
Currency Addendum. Each Alternate Currency Loan shall be a Eurocurrency Loan
unless otherwise specified in the applicable Alternate Currency Addendum.
"Anixter" shall have the meaning assigned to that term in the preamble
hereto.
-4-
12
"Anixter Distribution Stock Plan" shall mean the Anixter Distribution
Stock Option Plan dated as of January 1, 1993, as such agreement may be
amended, restated or otherwise modified from time to time.
"Anixter-Frontier Joint Venture" shall mean Anixter's New York general
partnership with Frontier Corporation, formerly known as Anixter Rotelcom.
"Anixter Philippines" shall mean Anixter Philippines, Inc., a Delaware
corporation.
"Anixter Puerto Rico" shall mean Anixter Puerto Rico, Inc., a Delaware
corporation.
"Anixter Thailand" shall mean Anixter Thailand Inc., a Delaware
corporation.
"Anixter Venezuela" shall mean Anixter Venezuela Inc., a Delaware
corporation.
"Applicable Creditor" shall have the meaning assigned to that term in
Section 13.23.
"Applicable Lending Office" shall mean, with respect to each Lender, such
Lender's Domestic Lending Office in the case of an ABR Loan or a Fixed Rate
Loan, such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Loan (other than a Eurocurrency Alternate Currency Loan) or such Lender's (or
its Affiliate's) branch or agency, as specified by such Lender, in the case of
an Alternate Currency Loan.
"Applicable Margin" shall mean on any date, with respect to Eurocurrency
Ratable Loans and Letters of Credit, the applicable percentage set forth below
based upon the Consolidated Interest Coverage Ratio and Senior Debt Ratings as
set forth below:
Consolidated Interest Senior Debt Applicable
Coverage Ratio Ratings Margin
----------------------- ------- ------
Catagory 1: Less than or equal to Not applicable 0.50%
4.0 to 1.0
Category 2: Greater than 4.0 to Not applicable 0.40%
1.0 and less than or
equal to 5.0 to 1.0
Category 3: Greater than 5.0 to 1.0 BBB- from S&P or 0.3125%
and less than or equal Duff & Xxxxxx, or
to 6.5 to 1 Baa3 from Xxxxx'x
Category 4: Greater than 6.5 to 1.0 BBB from S&P or 0.225%
Duff & Xxxxxx, or
Baa2 from Xxxxx'x
-5-
13
Category 5: Not applicable BBB+ from S&P or 0.20%
Duff & Xxxxxx, or
Baa1 from Xxxxx'x
Except as set forth below, the Consolidated Interest Coverage Ratio utilized
for purposes of determining the Applicable Margin shall be calculated for the
four Fiscal Quarters ending as of the end of each Fiscal Quarter after the
Effective Date. From the date hereof until the initial delivery of financial
statements pursuant to Section 6.01(b) or 6.01(c), the Applicable Margin shall
be determined by reference to Category 3. Each change in the Applicable Margin
resulting from a change in the Consolidated Interest Coverage Ratio shall be
effective on the first Business day after Anixter delivers the quarterly or
annual financial statements and related Compliance Certificate reflecting such
change. Each change in the Applicable Margin resulting from a change in the
Senior Debt Ratings shall be effective on the first Business Day after the
Administrative Agent receives notice of any such change. Each change in the
Applicable Margin shall be effective with respect to all Loans and Commitments
outstanding on and after the date of such change. Notwithstanding the
foregoing, at any time when Anixter has failed to deliver the financial
statements required by Section 6.01(b) or (c), the Applicable Margin shall be
determined by reference to Category 1. If the Senior Debt Ratings and the
Consolidated Interest Coverage Ratio do not correspond to the same pricing
level, then the one corresponding to the lower pricing will govern.
"Applicable Percentage" shall mean, for any Lender with respect to any
Letter of Credit, the ratio, expressed as a percentage, of such Lender's
Available Commitment at the time such Letter of Credit is issued to all
Available Commitments at such time; provided, however, that any "Letter of
Credit" issued or deemed issued under the First Restated Credit Agreement that
is outstanding immediately prior to the Effective Date shall be deemed to have
been issued on the Effective Date, before giving effect to any Alternate
Currency Borrowing on the Effective Date.
"Applicable Telerate Page" shall mean the relevant page on the Telerate
service or any other service that may be designated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for Dollars or the relevant
Eligible Currency.
"Assignment and Acceptance" shall mean an Assignment and Acceptance
substantially in the form of Exhibit C (with blanks appropriately completed)
delivered to the Administrative Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 13.02.
"AXE" shall mean Anixter International Inc., a Delaware corporation
formerly known as Itel Corporation, and its successors and assigns.
"Available Commitment" shall mean, as to any Lender at any time, an amount
equal to such Lender's Commitment at such time minus such Lender's Base Credit
Exposure.
"Bank Book" shall have the meaning assigned to that term in Section
5.01(h).
"Bank Default" shall have the meaning assigned to that term in Section
2.20.
"Bank Proceeding" shall have the meaning assigned to that term in Section
2.20.
-6-
14
"Base Amount" shall mean $275,600,000.
"Base Credit Exposure" shall mean, with respect to any Lender at any time,
the sum of (a) the aggregate principal amount at such time of all outstanding
Ratable Dollar Loans of such Lender, (b) the Dollar Equivalent of the aggregate
principal amount of all outstanding Ratable Committed Currency Loans of such
Lender, (c) the aggregate principal Dollar amount of all outstanding Letter of
Credit Obligations and (d) the Dollar Equivalent of the aggregate principal
amount of all outstanding Alternate Currency Loans of such Lender (and each
agency or Affiliate of such Lender acting as an Alternate Currency Lender).
"Benefit Plan" shall mean 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.
"Borrower" shall mean Anixter or any Borrowing Subsidiary.
"Borrowing" shall mean a Loan or group of Loans of a single Type and
currency made by the Lenders (or by the applicable Alternate Currency Lenders
or the Lender or Lenders whose Competitive Bids have been accepted pursuant to
Section 2.03, as the case may be) on a single date and as to which the same
Interest Period is in effect.
"Borrowing Subsidiary" shall mean any Foreign Subsidiary of Anixter named
as such on the signature pages hereto or designated as a Borrowing Subsidiary
by Anixter pursuant to Section 2.21.
"Borrowing Subsidiary Agreement" shall mean a Borrowing Subsidiary
Agreement substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" shall mean a Borrowing Subsidiary
Termination substantially in the form of Exhibit E.
"Business Day" shall mean, except as otherwise provided in an Alternate
Currency Addendum with respect to Alternate Currency Loans made thereunder, any
day (other than a day which is a Saturday, Sunday or legal holiday in the State
of New York) on which banks are open for business in New York City; provided,
however, that, when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in deposits in the applicable currency in the relevant interbank
market.
"Calculation Date" shall mean the last Business Day of each calendar month
or any other Business Day the Administrative Agent chooses.
"Capital Lease," as applied to any Person, shall mean 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 Equivalents" shall mean (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
-7-
15
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);
and (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
amount of Cash Equivalents under this clause (iv) shall not at any time exceed
$5,000,000.
"Change of Control" shall occur if 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 20% 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.
"Change in Law" shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof after the date of this
Agreement or (c) compliance by any Lender with any request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"Chase" shall mean The Chase Manhattan Bank, a New York banking
corporation formerly known as Chemical Bank, and any successor thereto.
"Commercial Letter of Credit" shall mean any letter of credit which is
drawable upon presentation of a sight draft and other documents evidencing the
sale or shipment of goods purchased by Anixter or any of its Subsidiaries in
the ordinary course of such entity's business.
"Commission" shall mean the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth in Schedule 1.01-A under the heading
"Ratable Commitment" or in an Assignment and Acceptance delivered by such
Lender under Section 13.02(a), as such Lender's Commitment may be permanently
terminated or reduced from time to time pursuant to Section 2.11 or
-8-
16
pursuant to one or more assignments under Section 13.02(a). The Commitment of
each Lender shall automatically and permanently terminate on the Termination
Date.
"Committed Currency" shall mean each Eligible Currency listed on Schedule
II, as such Schedule may be amended from time to time with the approval of 100%
of the Lenders.
"Committed Currency Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate Dollar Equivalent of the principal amount of
all outstanding Ratable Committed Currency Loans of such Lender.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
Anixter pursuant to Section 2.03(d) in the form of Exhibit F.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurocurrency Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.03 in the form of Exhibit G.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by Anixter under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a loan made pursuant to the bidding
procedure described in Section 2.03.
"Competitive Loan Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount of all outstanding Competitive Loans made
by such Lender.
"Compliance Certificate" shall mean a certificate in substantially the
form of Exhibit H delivered to the Administrative Agent and each Lender by
Anixter pursuant to Section 6.01(e) and covering the Borrowers' compliance with
the covenants contained in Article IX and certain other provisions of this
Agreement.
"Consolidated EBITDA" shall mean, for any period, for the Consolidated
Group calculated in accordance with Agreement Accounting Principles, (i) net
income (or loss) of the Consolidated Group 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) Consolidated Interest
Expense for such period; provided that there shall be excluded therefrom any
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 other than in connection with the discontinuance of operations)
during such period.
"Consolidated Group" shall mean Anixter and each of its Subsidiaries.
-9-
17
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the amount of
Consolidated Interest Expense of the Consolidated Group for such period
(provided, to the extent otherwise included in Consolidated Interest Expense,
there shall be excluded from such Consolidated Interest Expense amortization of
upfront fees payable on the Effective Date to the Administrative Agent and the
Lenders).
"Consolidated Interest Expense" shall mean, for any period, the net
interest expense of the Consolidated Group for such period calculated in
accordance with Agreement Accounting Principles; provided, however, there shall
be included in Consolidated Interest Expense, to the extent not otherwise
included, all fees payable in connection with the Letters of Credit.
"Consolidated Net Worth" shall mean, at a particular date, all amounts
which would be included under shareholders' equity for the Consolidated Group
determined in accordance with Agreement Accounting Principles.
"Contaminant" shall mean 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", as applied to any Person, shall mean any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, contract, undertaking, document, instrument or other agreement
or instrument to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject
(including, without limitation, any restrictive covenant affecting such Person
or any of its properties).
"Contribution Agreement" shall mean that certain Contribution Agreement
dated as of the date hereof, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"Customary Permitted Liens" shall mean:
(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
-10-
18
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 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 Operating Leases entered into in the ordinary course
of business.
"Default Rate" shall have the meaning assigned to that term in Section
2.09.
"DOL" shall mean the United States Department of Labor and any successor
department or agency.
"Dollar Borrowing" shall mean a Borrowing comprised of Dollar Loans.
"Dollar Equivalent" shall mean, on any date of determination, with respect
to any amount in any Eligible Currency, the equivalent in Dollars of such
amount, determined by the Administrative Agent using the Exchange Rate with
respect to such Eligible Currency then in effect as determined pursuant to
Section 2.23(a).
"Dollar Loan" shall mean any Loan denominated in Dollars.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Domestic Lending Office" shall mean, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" on Schedule
1.01-A or, as to any person who becomes a Lender after the Closing Date, on the
Assignment and Acceptance executed by such person or such other office of such
Lender as such Lender may hereafter designate from time to time as its
"Domestic Lending Office" by notice to Anixter and the Administrative Agent.
"Domestic Subsidiaries" shall mean Anixter-Real Estate, Inc., an Illinois
corporation, WireXpress, Inc., an Illinois corporation, Anixter Information
Systems Corporation, an Illinois corporation, Anixter Holdings Inc., a Delaware
-11-
19
corporation, Anixter Financial Inc., a Delaware corporation and any of
Anixter's other Subsidiaries (except those expressly included in the definition
of Foreign Subsidiaries set forth below) which are incorporated in any
jurisdiction in the United States and which exist immediately before, or are
created at any time after, the Senior Note Indenture becomes effective, and
their respective successors and assigns.
"Duff & Xxxxxx" shall mean Duff & Xxxxxx Credit Rating Co.
"Effective Date" shall mean September 6, 1996.
"Eligible Currency" shall mean any currency other than Dollars that is
readily available, freely traded and convertible into Dollars in or outside of
the international interbank market and as to which an Exchange Rate may be
calculated.
"Enforceable Judgment" means a judgment or order as to which (a) Anixter
has not demonstrated to the reasonable satisfaction of the Requisite 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
$20,000,000 be posted or provided, such judgment or order shall immediately be
an "Enforceable Judgment."
"Environmental Lien" shall mean 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 arising
from, or costs incurred by such Governmental Authority in response to, a
Release or threatened Release of a Contaminant into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the IRC) 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 IRC) 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 IRC) 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
-12-
20
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.
"Eurocurrency Alternate Currency Loan" shall mean any Alternate Currency
Loan bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of Eurocurrency
Loans.
"Eurocurrency Lending Office" shall mean, with respect to each Lender, the
branches or Affiliates of such Lender which such Lender has designated as its
"Eurocurrency Lending Office" on Schedule A or, as to any person who becomes a
Lender after the Closing Date, on the Assignment and Acceptance executed by
such person or such other office of such Lender as such Lender may hereafter
designate from time to time as its "Eurodollar Lending Office" by notice to
Anixter and the Administrative Agent.
"Eurocurrency Loan" shall mean any Eurodollar Competitive Loan,
Eurocurrency Ratable Loan or Eurocurrency Alternate Currency Loan.
"Eurocurrency Ratable Borrowing" shall mean a Borrowing comprised of
Eurocurrency Ratable Loans.
"Eurocurrency Ratable Loan" shall mean any Ratable Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall mean any of the occurrences set forth in Section
10.01 after the expiration of any applicable grace period expressly provided
therein.
"Exchange Rate" shall mean, with respect to any Eligible Currency on a
particular date, the rate at which such Eligible Currency may be exchanged into
Dollars, as set forth on such date on the applicable Reuters currency page,
with respect to a Committed Currency, or in the applicable Alternate Currency
Addendum, with respect to an Alternate Currency. If such rate does not appear
on the applicable Reuters currency page, the Exchange Rate with respect to such
Eligible Currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the
Administrative Agent and Anixter or, in the absence of such agreement, such
Exchange Rate shall instead be the Administrative Agent's spot rate of exchange
in the London interbank market or other market where the Administrative Agent's
foreign currency exchange operations in respect of such Eligible Currency are
then being conducted, at or about 10:00 A.M., local time, on such date for the
purchase of Dollars with such Eligible Currency for delivery two Business Days
later; provided, however, that if at the time of any such determination, for
any reason, no such spot rate is being quoted, the Administrative Agent may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Existing Indebtedness" shall mean the Indebtedness of Anixter and any of
its Subsidiaries reflected on Schedule 1.01-B, but in any event excluding the
Indebtedness evidenced by the Revolving Subordinated Notes.
-13-
21
"Existing Lender" shall mean any financial institution a party to the
First Amended Credit Agreement immediately prior to the execution and
effectiveness of this Agreement.
"Facility Availability" shall mean an amount equal to the excess of (a)
the Total Commitment over (b) the aggregate amount of all Alternate Currency
Facility Maximum Borrowing Amounts (determined, if applicable, after giving
effect to any reduction therein made pursuant to Section 2.23(a)).
"Facility Excess" shall have the meaning assigned to such term in Section
2.23(b).
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Facility Fee Percentage" shall mean on any date the applicable percentage
set forth below based upon the Consolidated Interest Coverage Ratio and Senior
Debt Ratings as set forth below:
Consolidated Interest Senior Debt Facility Fee
Coverage Ratio Ratings Percentage
----------------------- ------- --------------------
Category 1: Less than or equal to Not applicable 0.25%
4.0 to 1.0
Category 2: Greater than 4.0 to Not applicable 0.225%
1.0 and less than or
equal to 5.0 to 1.0
Category 3: Greater than 5.0 to 1.0 BBB- from S&P or 0.1875%
and less than or equal Duff & Xxxxxx, or
to 6.5 to 1 Baa3 from Xxxxx'x
Category 4: Greater than 6.5 to 1.0 BBB from S&P or 0.15%
Duff & Xxxxxx, or
Baa2 from Xxxxx'x
Category 5: Not applicable BBB+ from S&P or 0.10%
Duff & Xxxxxx, or
Baa1 from Xxxxx'x
Except as set forth below, the Consolidated Interest Coverage Ratio utilized
for purposes of determining the Facility Fee Percentage shall be calculated for
the four Fiscal Quarters ending as of the end of each Fiscal Quarter after the
Effective Date. From the date hereof until the initial delivery of financial
statements pursuant to Section 6.01(b) or 6.01(c), the Facility Fee Percentage
shall be determined by reference to Category 3. Each change in the Facility
Fee Percentage resulting from a change in the Consolidated Interest Coverage
Ratio shall be effective on the first Business Day after Anixter delivers the
quarterly or annual financial statements and related Compliance Certificate
-14-
22
reflecting such change. Each change in the Facility Fee Percentage resulting
from a change in the Senior Debt Ratings shall be effective on the first
Business Day after the Administrative Agent receives notice of any such change.
Each change in the Facility Fee Percentage shall be effective with respect to
all Loans and Commitments outstanding on and after the date of such change.
Notwithstanding the foregoing, at any time when Anixter has failed to deliver
the financial statements required by Section 6.01(b) or (c), the Facility Fee
Percentage shall be determined by reference to Category 1. If the Senior Debt
Ratings and the Consolidated Interest Coverage Ratio do not correspond to the
same pricing level, then the one corresponding to the lower pricing will
govern.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Funds Effective Rate" shall have the meaning assigned to that
term in the definition of Alternate Base Rate above.
"Federal Reserve Board" shall mean the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"Fees" shall mean the Facility Fee and the fees described in Section
2.06(b).
"Financial Officer" shall mean, 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.
"Financial Statement Delivery Date" shall mean the 90th day following the
end of the fourth Fiscal Quarter, and the 45th day following the end of each
other Fiscal Quarter, in each Fiscal Year.
"First Restated Credit Agreement" shall have the meaning assigned to that
term in the preamble to this Agreement.
"Fiscal Quarter" shall mean 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" shall mean 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.
"Fixed Rate" shall have the meaning assigned to that term in Section
2.08(c).
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"Foreign Currency Borrowing" shall mean a Borrowing comprised of Foreign
Currency Loans.
"Foreign Currency Loan" shall mean a loan denominated in an Eligible
Currency.
-15-
23
"Foreign Currency Maximum Amount" shall mean $150,000,000.
"Foreign Employee Benefit Plan" shall mean any plan, program, policy,
agreement or contract maintained or contributed to or for the benefit of
employees of Anixter, any of its Subsidiaries or any ERISA Affiliate which is
governed by the laws of a jurisdiction outside the United States of America.
"Foreign Pension Plan" shall mean 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 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" shall mean Anixter Puerto Rico, Anixter Venezuela,
Anixter Thailand, Anixter Philippines and any of Anixter's Subsidiaries which
are incorporated in any jurisdiction outside of the United States, and their
respective successors and assigns.
"Funding Date" shall mean, with respect to any Loan or Letter of Credit,
the date of the funding of such Loan or issuance of such Letter of Credit.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant
segments of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Governmental Acts" shall have the meaning assigned to that term in
Section 3.09(a).
"Governmental Authority" shall mean any nation, state, sovereign, or
government, any federal, regional, state, local or political subdivision and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantors" shall mean (a) Anixter, AXE ,each Domestic Subsidiary, and
(b) each Subsidiary that becomes a Guarantor as provided in Section 7.09.
"Hedging Contracts" shall mean 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.
"Hedging Obligations" with respect to any Person shall mean all
obligations of such Person in respect of any Hedging Contracts valued as at the
end of each calendar quarter in an amount equal to the highest termination
payment, if any, that would be payable by such Person, upon termination of such
Hedging Contract for any reason, on the date of determination.
"Indebtedness," as applied to any Person, shall mean any obligation for
the payment of money which is a Contractual Obligation, and shall include,
without limitation but without duplication, (i) all indebtedness, obligations
or other liabilities of such Person for borrowed money or under any debt
Securities, whether or not subordinated, (ii) all obligations with respect to
redeemable stock and
-16-
24
redemption or repurchase obligations under any equity securities or profit
payment agreements, (iii) all reimbursement obligations (absolute or
contingent) and other liabilities of such Person with respect to letters of
credit issued for such Person's account or for which such party is a
co-applicant, (iv) all obligations of such Person to pay the purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business as presently conducted, (v) all
obligations in respect of Capital Leases of such Person, (vi) all Accommodation
Obligations of such Person, and (vii) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any asset of such
Person, whether or not such indebtedness, obligations or liabilities are
assumed by or are a personal liability of such Person.
"Indemnified Matters" shall have the meaning assigned to that term in
Section 13.04.
"Indemnitees" shall have the meaning assigned to that term in Section
13.04.
"Interest Payment Date" shall mean (a) with respect to any Loan, the last
day of each Interest Period applicable to the Borrowing of which such Loan is a
part and, in addition, the date of any prepayment of such Loan or conversion of
such Loan to a Loan of a different Type, (b) in the case of a Eurocurrency Loan
with an Interest Period of more than three months' duration or a Fixed Rate
Loan with an Interest Period of more than 90 days' duration, each day that
would have been an Interest Payment Date for such Loan had successive Interest
Periods of three months' duration or 90 days' duration, as the case may be,
been applicable to such Loan, and (c) with respect to an Alternate Currency
Loan (other than a Eurocurrency Loan), such days as shall be specified in the
applicable Alternate Currency Addendum.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, or such period shorter than 1 month as may be
approved by the Administrative Agent, as the applicable Borrower may elect, (b)
as to any ABR Borrowing, the period commencing on the date of such Borrowing or
on the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Termination
Date and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.05 or repaid or prepaid in
accordance with Section 2.07 or Section 2.12, (c) as to any Fixed Rate
Borrowing, the period commencing on the date of such Borrowing and ending on
the date specified in the Competitive Bids in which the offers to make the
Fixed Rate Loans comprising such Borrowing were extended, which shall not be
earlier than fourteen days after the date of such Borrowing or later than 180
days after the date of such Borrowing, and (d) as to any Alternate Currency
Borrowing, such periods as shall be specified in the applicable Alternate
Currency Addendum; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurocurrency Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Investment" shall have the meaning assigned to that term in Section 8.03.
-17-
25
"IRC" shall mean the Internal Revenue Code of 1986, as amended from time
to time hereafter, and any successor statute.
"IRS" shall mean the Internal Revenue Service of the United States or any
Governmental Authority succeeding to the functions thereof.
"Issuing Banks" shall mean the Lenders listed on Schedule 1.01-A hereto
and identified as an Issuing Bank and any other Lender which, at Anixter's
request, agrees, in each such Lender's sole discretion, to become an Issuing
Bank for the purpose of issuing Letters of Credit and their respective
successors and assigns, in each case in such Lender's separate capacity as an
issuer of Standby Letters of Credit or Commercial Letters of Credit, or both,
pursuant to Article III.
"Judgment Currency" shall have the meaning assigned to such term in
Section 13.23.
"Lender" shall have the meaning assigned to such term in the preamble and
shall include Chase, in its individual capacity, the Issuing Banks and each
Person which at any time becomes a Lender pursuant to Section 12.02(a), and
their respective successors.
"Letter of Credit" shall mean any Commercial Letter of Credit or any
Standby Letter of Credit issued by any Issuing Bank for the account of Anixter
, or for the account of any Domestic Subsidiary or Foreign Subsidiary (in each
case for which Anixter is a co-applicant), pursuant to Article III.
"Letter of Credit Application" shall mean, with respect to any proposed
Letter of Credit requested to be delivered pursuant to Section 3.03, an
application substantially in the form of the applicable Issuing Bank's standard
form application for letters of credit of the type to be issued.
"Letter of Credit Obligations" shall mean, at any particular time, the sum
of (i) outstanding Reimbursement Obligations and (ii) the aggregate undrawn
face amount of outstanding Letters of Credit.
"Letter of Credit Reimbursement Agreement" shall mean, with respect to a
Letter of Credit, such reimbursement agreement as the applicable Issuing Bank
may employ in the ordinary course of business for its own account.
"Liabilities and Costs" shall mean 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.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the arithmetic average of the rates that appear
on the Applicable Telerate Page as of 11:00 a.m. (London time) two Business
Days prior to the beginning of such Interest Period, for deposits in Dollars or
in the applicable Eligible Currency and for a maturity comparable to such
Interest Period or, if no such rates appear on the Applicable Telerate Page,
the arithmetic average of the rates notified to the Administrative Agent by
each of the Reference Lenders as the rate at which such Reference Lender is
offered deposits in Dollars or the applicable Eligible Currency approximately
equal in principal amount
-18-
26
to such Reference Lender's portion of such Borrowing (or, in the case of a
Competitive Borrowing in which such Reference Lender is not participating,
approximately equal to the average principal amount of the Loans to be made by
each Lender as part of such Borrowing) and for a maturity comparable to such
Interest Period are offered to the principal office of each Reference Lender in
the London interbank market or other market where such Reference Lender's
foreign currency exchange operations in respect of such Eligible Currency are
then being conducted, at approximately 11:00 a.m., London time (or the time
zone of the applicable other market), two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including, but
not limited to, easements, rights of way and the like), judgment, lien
(statutory or other), Environmental Lien, Enforceable Judgment, security
agreement or transfer intended as security, including, without limitation, any
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease and any financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" shall mean a Competitive Loan, a Ratable Loan or an Alternate
Currency Loan.
"Loan Documents" shall mean this Agreement, the Alternate Currency
Addenda, the Subordination Agreement, the Notes, the Letters of Credit, the
Letter of Credit Applications, the Letter of Credit Reimbursement Agreements
and all other agreements delivered to the Administrative Agent, any Issuing
Bank or any Lender by or on behalf of Anixter or any Subsidiary of Anixter in
satisfaction or furtherance of the requirements of this Agreement or any other
Loan Document or otherwise relating hereto.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term in Regulation
G and Regulation U.
"Material Adverse Effect" shall mean a material adverse effect (a) upon
the business, assets or other properties, liabilities or condition (financial
or otherwise), results of operations or prospects of Anixter, individually, or
Anixter and its Subsidiaries taken as a whole, (b) upon the ability of Anixter
to pay the Obligations or on the Lenders' ability to enforce such Obligations,
or (c) upon the benefits provided to the Administrative Agent, Issuing Banks or
Lenders under any of the Loan Documents.
"Material Transaction" shall mean 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-month period represents
the disposition of an amount which is greater than ten percent (10.0%) of the
Consolidated Group's (x) assets, (y) revenues or (z) operating income.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
-19-
27
"Multiemployer Plan" shall mean 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" shall mean the Notes executed by the Borrowers and delivered to
each Lender pursuant to Section 2.07(e) or Section 13.02.
"Notice of Borrowing" shall mean, with respect to a proposed Ratable
Borrowing pursuant to Section 2.04(a) or a proposed issuance of a Letter of
Credit pursuant to Section 3.04(a), a notice substantially in the form of
Exhibit I.
"Notice of Competitive Bid Request" shall mean a notification made
pursuant to Section 2.03 in the form of Exhibit J.
"Obligations" shall mean the principal of and all interest on all Loans
and Reimbursement Obligations, all fees, expense reimbursements, taxes,
compensation and indemnities payable by the Borrowers (or any of them) to the
Administrative Agent, any Issuing Bank, or any Lender pursuant to this
Agreement and all other present and future Indebtedness and other monetary
liabilities of the Borrowers owing to the Administrative Agent, any Issuing
Bank, any Lender, or any Person entitled to indemnification pursuant to Section
13.04, or any of their respective successors, transferees or assigns, of every
type and description, whether or not evidenced by any note, guaranty or other
instrument, arising under or in connection with this Agreement, any Note or any
other Loan Document, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however arising.
"Officers' Certificate" shall mean, as to any corporation, a certificate
executed on behalf of such corporation by a Financial Officer of such
corporation.
"Operating Lease" shall mean, as applied to any Person, any lease of any
Property by that Person as lessee which is not a Capital Lease.
"Original Credit Agreement" shall have the meaning assigned to that term
in the preamble to this Agreement.
"Original Issuing Bank" shall have the meaning assigned to that term in
the preamble to this Agreement.
"Other Indebtedness" shall mean all Indebtedness of the Borrowers other
than the Obligations.
"Other Taxes" shall have the meaning assigned to that term in Section
2.19(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Permits" shall mean any permit, approval, consent, authorization,
license, variance, or permission required from a Governmental Authority under
an applicable Requirement of Law.
-20-
28
"Permitted Existing Liens" shall mean the Liens on any property of Anixter
or any Subsidiary of Anixter, in each case reflected on Schedule 1.01-C.
"Person" shall mean any natural person, corporation, limited partnership,
general partnership, limited liability company, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, or any other
non-governmental entity, or any Governmental Authority.
"Plan" shall mean 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.
"Potential Event of Default" shall mean an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"Prime Rate" shall have the meaning assigned to that term in the
definition of Alternate Base Rate above.
"Pro Rata Share" shall mean, with respect to any Lender, the percentage of
the Total Commitment represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Pro Rata Shares shall be determined
based upon the ratio of (i) the sum of such Lender's Base Credit Exposure and
Competitive Loan Exposure to (ii) the sum of the aggregate Base Credit
Exposures and Competitive Loan Exposures of all Lenders.
"Property" shall mean 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.
"Put Event" shall mean a "Put Event" under and as defined in Section 1010
of the Senior Note Indenture.
"RCRA" shall mean the Resource Conservation and Recovery Act, 42 U.S.C.
Section Section 6901 et seq., and any successor statute, and regulations
promulgated thereunder.
"Ratable Borrowing" shall mean a Ratable Committed Currency Borrowing or a
Ratable Dollar Borrowing.
"Ratable Committed Currency Borrowing" shall mean a Borrowing consisting
of simultaneous Ratable Committed Currency Loans from each of the Lenders then
having an Available Commitment.
"Ratable Committed Currency Loans" shall mean the revolving loans made
pursuant to Section 2.02(a) that are denominated in Committed Currencies. Each
Ratable Committed Currency Loan shall be a Eurocurrency Loan.
"Ratable Credit Availability" shall mean, with respect to any Lender, an
amount equal to the excess, if any, of (a) such Lender's Commitment over (b)
the aggregate Alternate Currency Lender Maximum Borrowing Amounts of such
Lender with respect to all Alternate Currency Addenda to which such Lender or
any of its Affiliates is a party.
-21-
29
"Ratable Credit Excess" shall have the meaning assigned to such term in
Section 2.23(a).
"Ratable Dollar Borrowing" shall mean a Borrowing consisting of
simultaneous Ratable Dollar Loans from each of the Lenders then having an
Available Commitment.
"Ratable Dollar Loans" shall mean the revolving loans made pursuant to
Section 2.01(a) that are denominated in Dollars. Each Ratable Dollar Loan
shall be a Eurocurrency Ratable Loan or an ABR Loan.
"Ratable Extensions of Credit" shall mean, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount of all Ratable Dollar
Loans made by such Lender then outstanding, (b) the Dollar Equivalent of the
aggregate principal amount of all Ratable Committed Currency Loans made by such
Lender then outstanding and (c) the aggregate principal Dollar amount of all
outstanding Letter of Credit Obligations.
"Ratable Loans" shall mean Ratable Dollar Loans and Ratable Committed
Currency Loans.
"Reference Lenders" shall mean Chase and Citibank, N.A.
"Register" shall have the meaning assigned to such term in Section
13.02(c).
"Registration Statement" shall mean that certain Registration Statement on
Form S-3, registration number 333-09185, filed by Anixter and AXE with the
Commission on July 30, 1996, as amended.
"Regulation D," "Regulation G," "Regulation T," "Regulation U" and
"Regulation X" shall mean Regulation D, Regulation G, Regulation T, Regulation
U and Regulation X, respectively, of the Federal Reserve Board as in effect
from time to time.
"Reimbursement Obligations" shall mean the reimbursement or repayment
obligations of Anixter or any Subsidiary of Anixter to the Issuing Banks
pursuant to any Letter of Credit and related Letter of Credit Applications or
Letter of Credit Reimbursement Agreements issued or delivered pursuant to
Article III hereof.
"Release" shall mean 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" shall mean 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.
"Reportable Event" shall mean the events described in Section 4043 of
ERISA.
-22-
30
"Requirements of Law" shall mean, as to any Person, the charter and
by-laws 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 G, 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.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the aggregate,
are equal to or greater than fifty-one percent (51%).
"Reset Date" shall have the meaning assigned to such term in Section
1.06(a).
"Restricted Junior Payment" shall mean (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, and (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); provided, however, Restricted Junior Payment shall not include (x)
any payment of dividends by any Subsidiary of Anixter to Anixter or any other
Subsidiary of Anixter, or (y) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any shares of capital stock of
Anixter issued to its employees under and pursuant to the provisions of the
Anixter Distribution Stock Plan pursuant to Section 8.03(iv)(b).
"Revolving Subordinated Notes" shall mean those certain demand promissory
notes from Anixter to AXE dated May 20, 1992, as the same may be amended,
modified or supplemented.
"Xxxxxx Xxxx Group" shall mean Xxxxxx Xxxx, Xxx Xxxxx or any of their
respective 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 their respective heirs and beneficiaries.
"Securities" shall mean any stock, shares, voting trust certificates,
bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities", or any certificates of interest,
shares, or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to
-23-
31
subscribe to, purchase or acquire any of the foregoing, but shall not include
any evidence of the Obligations.
"Securities Act" shall mean the Securities Act of 1933, as amended to the
date hereof and from time to time hereafter, and any successor statute.
"Securities Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended to the date hereof and from time to time hereafter, and any
successor statute.
"Senior Debt Ratings" shall mean the publicly announced senior unsecured
ratings of Anixter by Moody's, S&P or Duff & Xxxxxx Credit Rating Co.; provided
that Anixter shall have at least two such ratings and at least one of them
shall be from S&P or Moody's. If at any time the existing ratings are not
identical, then for purposes of determining the Applicable Margin and the
Facility Fee Percentage, the governing Senior Debt Rating or Ratings shall be
determined as follows:
(a) if there are two ratings, the lower rating will
govern;
(b) if there are three ratings and no two ratings are
at the same level, the intermediate rating will govern; and
(c) if there are three ratings and two ratings are at
the same level, then the level with two ratings will govern.
"Senior Note Indenture" shall mean that certain Indenture contemplated by
the Registration Statement, to be entered into among Anixter, AXE and The Bank
of New York, as Trustee, substantially on the terms disclosed to the
Administrative Agent and the Lenders prior to the Effective Date, as the same
may be amended, restated, supplemented or otherwise modified from time to time
in accordance with the terms hereof.
"Senior Notes" shall mean Anixter's Senior Notes due 2003, to be issued
pursuant to the Senior Note Indenture in an amount not to exceed $100,000,000.
"Solvent" shall mean, when used with respect to any Person, that at the
time of determination:
(i) 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
(ii) it is then able and expects to be able to pay its debts as they
mature; and
(iii) 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.
-24-
32
"S&P" shall mean Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Standby Letter of Credit" shall mean any Letter of Credit which is not a
Commercial Letter of Credit.
"Subordination Agreement" shall mean the Subordination Agreement dated as
of May 20, 1992 and reaffirmed as of the date hereof between AXE and the
Administrative Agent on behalf of itself and the Lenders in respect of the
Revolving Subordinated Notes issued to or to be issued to AXE and the other
obligations of Anixter to AXE, as such agreement was originally executed and as
it may be amended, restated, modified or supplemented from time to time with
the prior written consent of the Administrative Agent and the Requisite
Lenders.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership, limited liability company, trust or other entity of which a
majority of the stock (or equivalent ownership or controlling interest) having
voting power to elect a majority of the Board of Directors (if a corporation)
or to select the trustee or equivalent controlling interest is directly or
indirectly owned or controlled by such Person or one or more of the other
Subsidiaries of such Person or any combination thereof.
"Taxes" shall have the meaning assigned to such term in Section 2.19(a).
"Tax Allocation Agreement" shall mean 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
Requisite Lenders.
"Termination Date" shall mean the earlier of (a) September 6, 2001 and (b)
the date of termination of the Commitments pursuant to Section 2.11(b) or
Section 10.02(a).
"Termination Event" shall mean (i) a 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 on 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 withdrawal of Anixter or any ERISA Affiliate from
a Multiemployer Plan or a Foreign Pension Plan.
"Three-Month Secondary CD Rate" shall have the meaning assigned to that
term in the definition of Alternate Base Rate above.
-25-
33
"Total Commitment" shall mean, at any time, the aggregate Commitments of
all the Lenders, as in effect at such time.
"Total Indebtedness" shall mean, without duplication, all Indebtedness of
the Consolidated Group; provided, however, it is expressly agreed that there
shall be included in Total Indebtedness (whether or not such amounts would be
included as liabilities on the balance sheet or as Indebtedness) (i) contingent
liabilities with respect to Standby Letters of Credit and (ii) the maximum
amount of Indebtedness supported by any guaranty issued by Anixter other than
its guarantee hereunder.
"Transaction Costs" shall mean the 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" shall mean the Loan Documents, the Contribution
Agreement, the Tax Allocation Agreement and the Revolving Subordinated Notes.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the
LIBO Rate, the Alternate Base Rate and the Fixed Rate.
1.02. Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". Periods of days referred to in this Agreement shall be counted
in calendar days unless Business Days are expressly prescribed.
1.03. Accounting Terms. For purposes of this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with Agreement Accounting Principles.
1.04. Other Definitional Provisions. References to "Articles,"
"Sections," "subsections," "Schedules," "Exhibits" and "the preamble" shall be
to Articles, Sections, subsections, Schedules, Exhibits and the preamble,
respectively, of this Agreement unless otherwise specifically provided.
1.05. Amendment and Restatement of Original Credit Agreement. Anixter,
the Lenders, the Administrative Agent and the Original Issuing Bank agree that,
upon (i) the execution and delivery of this Agreement by each of the parties
hereto and (ii) satisfaction (or waiver by the Administrative Agent and all of
the Lenders) of the conditions precedent set forth in Section 4.01, the terms
and provisions of the First Amended Credit Agreement shall be and hereby are
amended, superseded and restated in their entirety by the terms and provisions
of this Agreement. This Agreement is not intended to and shall not constitute
a novation of the First Amended Credit Agreement or the indebtedness created
thereunder. All "Letters of Credit" issued or deemed issued for the account of
Anixter or any Subsidiary of Anixter under the First Amended Credit Agreement
which remain outstanding on the Effective Date shall continue as Letters of
Credit under (and shall be governed by the terms of) this Agreement. All Loans
made under the First Amended Credit Agreement shall be repaid on the Effective
Date. The commitments of each Lender that is a party to the First Amended
Credit Agreement shall, on the Effective Date, automatically be deemed amended
to constitute such Lender's Commitment hereunder.
-26-
34
1.06. Currency Equivalents. (a) Not later than 1:00 p.m., New York City
time, on each Calculation Date, the Administrative Agent and the Alternate
Currency Agents, as applicable, shall (i) determine the Exchange Rate as of
such Calculation Date with respect to each Committed Currency and each
Alternate Currency as to which an Alternate Currency Addendum is in effect and
(ii) give notice thereof to Anixter and the Lenders. The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "Reset Date"), shall remain
effective until the next succeeding Reset Date and shall during the period of
their effectiveness be employed in making any computation of currency
equivalents required to be made under this Agreement (other than any
computation required under Section 13.23).
(b) Not later than 5:00 p.m., New York City time, on each Reset Date and
on the date of each Borrowing, the Administrative Agent shall (i) determine the
Dollar Equivalents of each Ratable Committed Currency Loan and Alternate
Currency Loan then outstanding (after giving effect to any Ratable Committed
Currency Loan or Alternate Currency Loan made or repaid on such date), and (ii)
notify Anixter and the Lenders of the results of such determination.
ARTICLE II
THE LOANS
2.01. Commitments. (a) Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Ratable Loans, denominated in Dollars or in
any Committed Currency (as the applicable Borrower may elect), to any Borrower,
at any time and from time to time on and after the Effective Date and until the
Termination Date.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the applicable Alternate
Currency Addendum, each Alternate Currency Lender that is party to an Alternate
Currency Addendum agrees, severally and not jointly, to make Alternate Currency
Loans under such Alternate Currency Addendum to the Borrowers, at any time and
from time to time on and after the later of the Effective Date and the
execution of such Alternate Currency Addendum and until the earlier of the
Termination Date or the termination of such Alternate Currency Lender's
commitment under such Alternate Currency Addendum.
(c) Notwithstanding anything to the contrary contained in this Agreement,
in no event may any Borrowing be made under this Article II if, after giving
effect thereto (and to any concurrent repayment or prepayment of Loans), (i)
the sum of the aggregate Base Credit Exposures and the aggregate Competitive
Loan Exposures would exceed the Total Commitment then in effect, (ii) the Base
Credit Exposure of any Lender would exceed such Lender's Commitment, (iii) the
sum of the aggregate Committed Currency Credit Exposures and the aggregate
Dollar Equivalent of the Alternate Currency Loans outstanding would exceed the
Foreign Currency Maximum Amount, (iv) the Dollar Equivalent of the aggregate
Alternate Currency Loans outstanding under any Alternate Currency Addendum
would exceed the applicable Alternate Currency Facility Maximum Borrowing
Amount, or (v) the Dollar Equivalent of the aggregate Alternate Currency Loans
of any Lender outstanding under any Alternate Currency Addendum would exceed
the applicable Alternate Currency Lender Maximum Borrowing Amount.
-27-
35
(d) Within the foregoing limits, the Borrowers may borrow, pay or prepay
and reborrow Ratable Loans and Alternate Currency Loans hereunder, on and after
the Effective Date and prior to the Termination Date, subject to the terms,
conditions and limitations set forth herein.
2.02. Loans. (a) Each Ratable Loan shall be made as part of a Borrowing
consisting of Ratable Loans denominated in the same currency made by the
Lenders ratably in accordance with their Available Commitments at the time of
such Borrowing; provided, however, that the failure of any Lender to make any
Ratable Loan shall not relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible
for the failure of any other Lender to make any Loan required to be made by
such other Lender). Each Alternate Currency Loan shall be made as part of a
Borrowing consisting of Alternate Currency Loans denominated in the same
Alternate Currency and made by the applicable Alternate Currency Lenders
ratably in accordance with the applicable Alternate Currency Lender Maximum
Borrowing Amounts; provided, however, that the failure of any Alternate
Currency Lender to make any Alternate Currency Loan shall not relieve any other
Alternate Currency Lender of its obligation to lend hereunder (it being
understood, however, that no Alternate Currency Lender shall be responsible for
the failure of any other Alternate Currency Lender to make any Alternate
Currency Loan required to be made by such other Alternate Currency Lender).
Each Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.03. The Loans comprising any Borrowing shall be (i) in the case
of Competitive Loans, in an aggregate principal amount that is an integral
multiple of $1,000,000 and not less than $10,000,000, (ii) in the case of
Ratable Dollar Loans, in an aggregate principal amount that is an integral
multiple of $500,000 and not less than $1,000,000 (or an aggregate principal
amount equal to the remaining balance of the Available Commitments), (iii) in
the case of Ratable Committed Currency Loans, in an aggregate principal amount
the Dollar Equivalent of which is an integral multiple of $500,000 and is not
less than $1,000,000 and (iv) in the case of Alternate Currency Loans, in an
aggregate principal amount that complies with the requirements set forth in the
applicable Alternate Currency Addendum. All Competitive Loans shall be made in
Dollars.
(b) Each Competitive Borrowing shall be comprised entirely of Eurodollar
Competitive Loans or Fixed Rate Loans; each Ratable Dollar Borrowing shall be
comprised entirely of Eurocurrency Ratable Loans or ABR Loans; and each Ratable
Committed Currency Borrowing shall be comprised entirely of Eurocurrency
Ratable Loans, as the applicable Borrower may request pursuant to Section 2.03
or 2.04, as applicable. Each Lender may at its option make any Eurocurrency
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided, however, that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that no Borrower shall
be entitled to request any Borrowing which, if made, would result in an
aggregate of more than 15 separate Eurocurrency Ratable Loans and Competitive
Loans of any Lender being outstanding at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05 and to (i) in the case of any Ratable
Committed Currency Loan, any applicable alternative procedures set forth in
Schedule II or (ii) in the case of any Alternate Currency Loan, any alternative
procedures set forth in the applicable Alternate Currency Addendum, each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds to the Administrative Agent in New
York, New York, not later than 12:00 noon, New York City time, and the
Administrative Agent shall credit the amounts so received on such date to the
account or accounts specified from time to time in one or more notices
-28-
36
delivered by Anixter to the Administrative Agent or, if a Borrowing shall not
occur on such date because any condition precedent herein specified shall not
have been met, return the amounts so received to the respective Lenders.
Competitive Loans shall be made by the Lender or Lenders whose Competitive Bids
therefor are accepted pursuant to Section 2.03 in the amounts so accepted.
Unless the Administrative Agent shall have received notice from a Lender prior
to the date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c), and the Administrative Agent may, in
reliance upon such assumption, make a corresponding amount available to the
applicable Borrower on such date. If and to the extent that such Lender shall
not have made such portion available to the Administrative Agent, such Lender
and the applicable Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent at
(i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part
of such Borrowing for purposes of this Agreement.
(d) Each Competitive Loan shall be a Eurodollar Competitive Loan or a
Fixed Rate Loan. Each Ratable Dollar Loan shall be a Eurocurrency Ratable Loan
or an ABR Loan. Each Ratable Committed Currency Loan shall be a Eurocurrency
Ratable Loan. Each Alternate Currency Loan shall be a Eurocurrency Alternate
Currency Loan or shall bear interest at a rate specified in the applicable
Alternate Currency Addendum.
2.03. Competitive Loans; Competitive Bid Procedure. (a) Subject to the
terms and conditions of this Agreement, Anixter may request Competitive Loans
from time to time on any Business Day from the Effective Date to the
Termination Date. Within the limits and on the conditions hereinafter set
forth with respect to Competitive Loans, Anixter may borrow, repay and reborrow
Competitive Loans. In order to request Competitive Bids, Anixter shall hand
deliver or telecopy to the Administrative Agent a duly completed Competitive
Bid Request in the form of Exhibit G hereto, to be received by the
Administrative Agent (i) in the case of a Eurodollar Competitive Borrowing, not
later than 10:00 a.m., New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No ABR Loan shall be requested in, or made pursuant to,
a Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit G may be rejected in the Administrative
Agent's sole discretion, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy. Each Competitive Bid Request shall
refer to this Agreement and specify (x) whether the Borrowing then being
requested is to be a Eurocurrency Borrowing or a Fixed Rate Borrowing, (y) the
date of such Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof, which shall be in a minimum principal amount of
$10,000,000 and in an integral multiple of $1,000,000, and (z) the duration of
the Interest Period with respect thereto (which may not end after the
Termination Date). Promptly after its receipt of a Competitive Bid Request
that is not rejected as aforesaid, the Administrative Agent shall telecopy to
each Lender a Notice of Competitive Bid Request inviting the Lender to bid, on
the terms and conditions of this Agreement, to make Competitive Loans.
-29-
37
(b) Each Lender invited to bid may, in its sole discretion, make one or
more Competitive Bids responsive to Anixter's Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Administrative Agent by
telecopy, in the form of Exhibit K hereto, (i) in the case of a Eurodollar
Competitive Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to
the format of Exhibit K may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall refer to
this Agreement and specify (x) the principal amount (which shall be in a
minimum principal amount of $10,000,000 and in an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested) of the Competitive Loan or Loans that the Lender is
willing to make, (y) the Competitive Bid Rate or Rates at which the Lender is
prepared to make the Competitive Loan or Loans and (z) the Interest Period and
the last day thereof. If any Lender invited to bid shall elect not to make a
Competitive Bid, such Lender shall so notify the Administrative Agent by
telecopy (I) in the case of Eurodollar Competitive Loans, not later than 9:30
a.m., New York City time, three Business Days before a proposed Competitive
Borrowing, and (II) in the case of Fixed Rate Loans, not later than 9:30 a.m.,
New York City time, on the day of a proposed Competitive Borrowing; provided,
however, that failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Competitive Loan as part of such Competitive
Borrowing. A Competitive Bid submitted by a Lender pursuant to this paragraph
(b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify Anixter, by telecopy,
of all the Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Loan in respect of which a Competitive Bid was made,
and the identity of the Lender that made each bid. The Administrative Agent
shall send a copy of all Competitive Bids to Anixter for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.03.
(d) Anixter may in its sole and absolute discretion, subject only to the
provisions of this paragraph (d), accept or reject any Competitive Bid referred
to in paragraph (c) above. Anixter shall notify the Administrative Agent by
telephone, confirmed by telecopy in the form of a Competitive Bid Accept/Reject
Letter, whether and to what extent it has decided to accept or reject any of or
all the bids referred to in paragraph (c) above not more than one hour after it
shall have been notified of such bids by the Administrative Agent pursuant to
such paragraph (c); provided, however, that (i) the failure of Anixter to give
such notice shall be deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) Anixter shall not accept a bid made at a particular
Competitive Bid Rate if it has decided to reject a bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by Anixter shall not exceed the principal amount specified in the
Competitive Bid Request, (iv) if Anixter shall accept a bid or bids made at a
particular Competitive Bid Rate but the amount of such bid or bids shall cause
the total amount of bids to be accepted to exceed the amount specified in the
Competitive Bid Request, then Anixter shall accept a portion of such bid or
bids in an amount equal to the amount specified in the Competitive Bid Request
less the amount of all other Competitive Bids accepted with respect to such
Competitive Bid Request, which acceptance, in the case of multiple bids at such
Competitive Bid Rate, subject to a minimum principal amount of $5,000,000 per
Competitive Bid, shall be made pro rata in accordance with the amount of each
such bid at such Competitive Bid Rate, and (v) except pursuant to clause (iv)
above, no bid shall be accepted for a Competitive Loan unless such Competitive
Loan is in a minimum principal amount of $10,000,000 and an integral multiple
of $1,000,000; provided further, however, that if a Competitive Loan must be in
an amount
-30-
38
less than $10,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for an integral multiple of $1,000,000, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of $1,000,000 in a manner which shall be in
the discretion of Anixter. A notice given pursuant to this paragraph (d) shall
be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy, and each successful bidder will
thereupon become bound, subject to the other applicable conditions hereof, to
make the Competitive Loan in respect of which its bid has been accepted.
(f) No Competitive Borrowing shall be requested or made hereunder if
after giving effect thereto any of the conditions set forth in paragraph (c) of
Section 2.01 would not be met.
(g) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such bid directly to Anixter one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to the Administrative Agent pursuant to paragraph
(b) above.
2.04. Ratable and Alternate Currency Borrowing Procedure. (a) In order
to request a Ratable Borrowing, a Borrower shall hand deliver or telecopy to
the Administrative Agent a duly completed Notice of Borrowing in the form of
Exhibit I (i) in the case of a Eurocurrency Ratable Borrowing, not later than
10:30 a.m., New York City time, three Business Days before such Borrowing, and
(ii) in the case of an ABR Ratable Borrowing, not later than 10:30 a.m., New
York City time, on the day of such Borrowing. No Fixed Rate Loan shall be
requested or made pursuant to a Notice of Borrowing. Such notice shall be
irrevocable and shall in each case specify (A) the Borrower requesting such
Ratable Borrowing, (B) whether the Borrowing then being requested is to be a
Ratable Dollar Borrowing or a Ratable Committed Currency Borrowing and, if such
Ratable Borrowing is to be a Ratable Committed Currency Borrowing, the
Committed Currency in which such Borrowing shall be denominated, (C) if such
Borrowing is to be a Ratable Dollar Borrowing, whether the Borrowing then being
requested is to be a Eurocurrency Ratable Borrowing or an ABR Ratable
Borrowing; (D) the date of such Ratable Borrowing (which shall be a Business
Day) and the amount thereof; and (E) if such Borrowing is to be a Eurocurrency
Ratable Borrowing, the duration of the Interest Period with respect thereto.
If no election as to the Type of Ratable Borrowing is specified in any such
notice with respect to a Ratable Dollar Borrowing, then the requested Ratable
Borrowing shall be an ABR Ratable Borrowing. If no Interest Period with
respect to any Eurocurrency Ratable Borrowing is specified in any such notice,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. If no Committed Currency with respect to any Eurocurrency
Ratable Borrowing is specified in such notice, then the Borrower shall be
deemed to have elected to have such Ratable Borrowing be denominated in
Dollars. Notwithstanding any other provision of this Agreement to the
contrary, no Ratable Borrowing shall be requested if the Interest Period with
respect thereto would end after the Termination Date. The Administrative Agent
shall promptly advise the Lenders of any notice given pursuant to this Section
2.04 and of each Lender's portion of the requested Borrowing.
(b) In order to request an Alternate Currency Borrowing, a Borrower shall
give the notice required under the applicable Alternate Currency Addendum and
shall simultaneously deliver a copy of such notice to the Administrative Agent.
-31-
39
2.05. Conversion and Continuation of Ratable Loans. A Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (i) not later than 12:00 noon, New York City time, at least one Business
Day in advance of the conversion, to convert all or any part of any
Eurocurrency Ratable Borrowing denominated in Dollars into an ABR Ratable
Borrowing, and (ii) not later than 12:00 noon, New York City time, at least
three Business Days prior to conversion or continuation, to convert any ABR
Ratable Borrowing into a Eurocurrency Ratable Borrowing denominated in Dollars
or to continue any Eurocurrency Ratable Borrowing as a Eurocurrency Ratable
Borrowing denominated in the same currency for an additional Interest Period,
subject in each case to the following:
(a) if less than all the outstanding principal amount of any Ratable
Borrowing shall be converted or continued, the aggregate principal amount of
the Ratable Borrowing being converted or continued shall be an integral
multiple of $500,000 and not less than $1,000,000;
(b) accrued interest on a Ratable Borrowing (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(c) if any Eurocurrency Ratable Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.15;
(d) any portion of a Ratable Borrowing maturing or required to be
repaid in less than one month may not, without the consent of the
Administrative Agent, be converted into or continued as a Eurocurrency Ratable
Borrowing and shall, unless clause (e) applies to such Borrowing, be repaid at
the end of the Interest Period applicable thereto;
(e) any portion of a Eurocurrency Ratable Borrowing which is a Ratable
Dollar Borrowing and which cannot be continued as a Eurocurrency Ratable
Borrowing by reason of clause (d) above shall, if not repaid at the end of the
applicable Interest Period, be automatically converted at the end of the
Interest Period in effect for such Eurocurrency Ratable Borrowing into an ABR
Ratable Borrowing;
(f) no Interest Period may be selected for any Eurocurrency Ratable
Borrowing that would end later than the Termination Date; and
(g) no Ratable Borrowing may be continued as, or be converted into, a
Eurocurrency Ratable Borrowing if any Potential Event of Default or Event of
Default exists or if such continuation or conversion would otherwise be
prohibited by the terms of this Agreement.
Each notice pursuant to this Section 2.05 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Ratable
Borrowing to be converted or continued, (ii) whether such Ratable Borrowing is
to be converted to or continued as a Eurocurrency Ratable Borrowing or an ABR
Ratable Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Ratable Borrowing
is to be converted to or continued as a Eurocurrency Ratable Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in
any such notice with respect to any conversion to or continuation as a
Eurocurrency Ratable Borrowing, the Borrower shall be deemed to have selected
an Interest Period of one month's duration. If no notice shall have been given
in accordance with this Section 2.05 to convert or continue any Ratable Dollar
Borrowing, such Ratable Dollar Borrowing shall, at the end of
-32-
40
the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued into a new Interest Period as an ABR
Ratable Borrowing. If no notice shall have been given in accordance with this
Section 2.05 to continue any Ratable Committed Currency Borrowing, such Ratable
Committed Currency Borrowing shall, at the end of the Interest Period
applicable thereto, become due and payable.
2.06. Fees. (a) The Borrowers jointly and severally agree to pay to
each Lender, through the Administrative Agent, on each March 31, June 30,
September 30 and December 31 (with the first payment being due on September 30,
1996) until the Obligations have been repaid in full, a facility fee (a
"Facility Fee"), at a rate per annum equal to the Facility Fee Percentage from
time to time in effect on (i) so long as such Lender's Commitment is in effect,
the amount of the average daily Commitment of such Lender, whether used or
unused, during the preceding quarter (or other period ending with the
Termination Date and (ii) after such Lender's Commitment has terminated, the
average daily Dollar Equivalent of the sum of such Lender's Base Credit
Exposure and Competitive Loan Exposure. All Facility Fees shall be computed on
the basis of the actual number of days elapsed in a year of 365/366 days. The
Facility Fee due to each Lender shall be payable in arrears and shall commence
to accrue on the date hereof, and shall cease to accrue on the later of the
Termination Date and the repayment in full of the Obligations.
(b) Anixter agrees to pay to the Administrative Agent, for its own
account, the agency, auction and other fees separately agreed to by Anixter and
the Administrative Agent.
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances other than to correct errors in payment.
2.07. Repayment of Loans; Evidence of Debt. (a) Each of the Borrowers
agrees that the outstanding principal balance of each Ratable Loan or Alternate
Currency Loan shall be payable on the Termination Date (unless, in the case of
an Alternate Currency Loan, an earlier date is specified in the Alternate
Currency Addendum under which such Alternate Currency Loan was made) and that
the outstanding principal balance of each Competitive Loan shall be payable on
the last day of the Interest Period applicable thereto.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the currency of each Loan,
the Borrower of each Loan, the Type of each Loan and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
and (c) of this Section 2.07 shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain
-33-
41
such accounts or any error therein shall not in any manner affect the
obligations of the Borrowers to repay the Loans in accordance with their terms.
(e) Each Borrower shall execute and deliver to each Lender (or to the
Administrative Agent on behalf of each Lender) on or before the Effective Date
a substitute promissory note substantially in the form of Exhibit L to evidence
the aggregate amount of that Lender's Loans and with other appropriate
insertions. The Note delivered to each Lender shall be dated the date hereof
and shall be stated to mature on the Termination Date. Each Lender is hereby
authorized to, and prior to any transfer of the Notes issued to it each Lender
shall, endorse the date and amount of each Loan made by such Lender and each
payment or prepayment of principal of the Loans evidenced thereby on the
schedule annexed to and constituting a part of such Note, which endorsement
shall constitute prima facie evidence, absent manifest error, of the accuracy
of the information so endorsed, provided that failure by any such Lender to
make such endorsement shall not affect the obligations of the Borrower
hereunder or under such Note. In lieu of endorsing such schedule as
hereinabove provided, prior to any transfer of such Note, each Lender is hereby
authorized, at its option, to record such Loans and such payments or
prepayments in its books and records, such books and records constituting prima
facie evidence, absent manifest error, of the accuracy of the information
contained therein; provided, however, that if the Register differs from the
information endorsed by a Lender on such Lender's Note, the Register, absent
manifest error, shall govern.
2.08. Interest on Loans. (a) Subject to the provisions of Section 2.09,
the Loans comprising each Eurocurrency Borrowing shall bear interest (computed
on the basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to (i) in the case of each Eurocurrency Ratable Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin from time to time in effect, (ii) in the case of each
Eurodollar Competitive Loan, the LIBO Rate for the Interest Period in effect
for such Borrowing plus (or minus) the Margin offered by the Lender making such
Loan and accepted by the applicable Borrower pursuant to Section 2.03, (iii) in
the case of each Eurocurrency Alternate Currency Loan, the LIBO Rate for the
Interest Period in effect for such Loan plus any spread specified in or
pursuant to the applicable Alternate Currency Addendum, and (iv) in the case of
each Alternate Currency Loan that is not a Eurocurrency Alternate Currency
Loan, the rate specified in the applicable Alternate Currency Addendum.
(b) Subject to the provisions of Section 2.09, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, for periods
during which the Alternate Base Rate is determined by reference to the Prime
Rate and 360 days for other periods) at a rate per annum equal to the Alternate
Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan shall
bear interest at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the fixed rate of interest (a
"Fixed Rate") offered by the Lender making such Loan and accepted by the
applicable Borrower pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest Payment Date
applicable to such Loan except as otherwise provided in this Agreement or in an
applicable Alternate Currency Addendum. The applicable LIBO Rate or Alternate
Base Rate for each Interest Period or day within an Interest Period, as the
case may be, shall be presumed correct in the absence of facts indicating that
such determination is erroneous (it being understood that the Borrower shall
not have access to the internal records of the Administrative Agent for the
purpose of confirming such determination).
-34-
42
2.09. Default Interest. Notwithstanding the rates of interest
specified in Section 2.08(a)-(c) and the payment dates specified in Section
2.08(d), (i) from and after the occurrence of a payment default constituting an
Event of Default under Section 10.01(a), until the past-due amount is paid,
such amount not paid when due shall bear interest payable upon demand at a rate
per annum equal to the sum of (A) two percent (2.0%) and (B) the Alternate Base
Rate in effect from time to time (or, in the case of an Alternate Currency
Loan, such other rate as may be specified in the applicable Alternate Currency
Addendum) (the "Default Rate"), and (ii) (x) from and after the occurrence of
any Event of Default described in Sections 10.01(f) or 10.01(g) and (y) from
and after the occurrence of any other Event of Default set forth in a notice
from the Administrative Agent or Requisite Lenders to such Borrower, and for so
long thereafter as such Event of Default is continuing, the principal balance
of all Loans and other Agreement Obligations then outstanding (including,
without limitation, all amounts due and payable pursuant to Section 10.02(a))
and, to the extent permitted by applicable law, any interest payments on the
Loans not paid when due, shall bear interest payable upon demand at the Default
Rate.
2.10. Deposits Unavailable or Interest Rate Unascertainable or
Inadequate; Impracticability. If, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a
Eurocurrency Borrowing or Foreign Currency Borrowing the Administrative Agent
shall have determined (i) that deposits in the applicable currency in the
principal amounts of the Loans comprising such Borrowing are not generally
available in the London interbank market or any other market in which the
Lenders shall be funding such Loans, (ii) that the rates at which such deposits
in the applicable currency are being offered will not adequately and fairly
reflect the cost to the Requisite Lenders (or, in the case of Alternate
Currency Loans, Alternate Currency Lenders having Alternate Currency Lender
Maximum Borrowing Amounts representing at least 51% of the Alternate Currency
Facility Maximum Borrowing Amount at such time under the applicable Alternate
Currency Addendum (in each case determined without regard for any adjustments
thereto pursuant to Section 2.23)) of making or maintaining their Eurocurrency
Loans or Foreign Currency Loans during such Interest Period or (iii) that
reasonable means do not exist for ascertaining the LIBO Rate or any other rate
to be used in determining the interest rate applicable to any Alternate
Currency Loans, the Administrative Agent shall, as soon as practicable
thereafter, give telecopy notice of such determination to Anixter and the
Lenders or the applicable Alternate Currency Lenders. In the event of any such
determination, until the Administrative Agent shall have advised Anixter and
the Lenders or the applicable Alternate Currency Lenders that the circumstances
giving rise to such notice no longer exist, any request by a Borrower for a
Eurocurrency Borrowing pursuant to Section 2.03 or for a Borrowing denominated
in the applicable Alternate Currency shall be of no force and effect and shall
be denied by the Administrative Agent, and any request by a Borrower for a
Eurocurrency Ratable Borrowing denominated in Dollars pursuant to Section 2.04
shall be deemed to be a request for an ABR Ratable Borrowing. Each
determination by the Administrative Agent hereunder shall be presumed correct
in the absence of facts indicating that such determination is erroneous (it
being understood that the Borrower shall not have access to the internal
records of the Administrative Agent for the purpose of confirming such
determination).
2.11. Termination and Reduction of Commitments. (a) The Commitments
shall terminate automatically and permanently on the Termination Date.
(b) Upon at least five Business Days' prior irrevocable telecopy notice
to the Administrative Agent, Anixter may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $5,000,000 and in a minimum
principal
-35-
43
amount of $5,000,000 and (ii) no such termination or reduction shall be made
(A) which would reduce the Total Commitment to an amount less than the sum of
the aggregate Base Credit Exposures and the aggregate Competitive Loan
Exposures, (B) which would reduce any Lender's Commitment to an amount that is
less than the sum of such Lender's Base Credit Exposure, or (C) which would
reduce any Lender's Commitment to an amount that is less than the aggregate of
all the Alternate Currency Lender Maximum Borrowing Amounts of such Lender.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments.
Anixter shall pay to the Administrative Agent for the account of the Lenders,
on the date of each termination or reduction of the Total Commitment, the
Facility Fees on the amount of the Commitments so terminated accrued through
the date of such termination or reduction.
2.12. Prepayment. (a) The Borrowers shall have the right at any time
and from time to time to prepay any Ratable Borrowing and, unless otherwise
specified in the applicable Alternate Currency Addendum, any Alternate Currency
Borrowing or, upon the expiration of the applicable Interest Period, to prepay
any Eurocurrency Loan, in whole or in part, upon giving telecopy notice (or
telephone notice promptly confirmed by telecopy) to the Administrative Agent:
(i) before 10:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of a Eurocurrency Ratable Borrowing, (ii) before 10:00
a.m., New York City time, on the Business Day of prepayment, in the case of an
ABR Borrowing and (iii) in the case of an Alternate Currency Borrowing, by such
time as shall be specified in the applicable Alternate Currency Addendum;
provided, however, that (i) each partial prepayment of any Ratable Dollar
Borrowing shall be in an amount which is an integral multiple of $500,000 and
not less than $1,000,000, (ii) each partial prepayment of any Ratable Committed
Currency Borrowing shall be in a Dollar Equivalent which is an integral
multiple of $500,000 and not less than $1,000,000 and (iii) each partial
prepayment of any Alternate Currency Borrowing shall be in an amount which is
an integral multiple of $500,000 and not less than $1,000,000, unless otherwise
specified in the applicable Alternate Currency Addendum. No prepayment may be
made in respect of any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11, the Borrowers shall pay or prepay so much of the
Ratable Borrowings as shall be necessary so that the sum of the aggregate Base
Credit Exposures and the aggregate Competitive Loan Exposures will not exceed
the Total Commitment, after giving effect to such termination or reduction.
(c) If, on the last day of any Interest Period for any Borrowing, the sum
of the aggregate Base Credit Exposures and the aggregate Competitive Loan
Exposures exceeds the Total Commitment, the applicable Borrower shall, on such
day, prepay such Borrowing in an amount equal to the lesser of (i) such excess
and (ii) the amount of such Borrowing.
(d) If, on the last day of any Interest Period for any Borrowing that
includes a Loan of a particular Lender, the Base Credit Exposure of such Lender
exceeds such Lender's Commitment, the applicable Borrower shall, on such day,
prepay such Borrowing in an amount equal to the lesser of (i) the amount
necessary to eliminate such excess and (ii) the amount of such Borrowing.
(e) Each notice of prepayment given pursuant to paragraph (a) above shall
specify the prepayment date and the principal amount of each Borrowing (or
portion thereof) to be prepaid, shall be irrevocable and shall commit the
applicable Borrower to prepay such Borrowing (or portion thereof)
-36-
44
in the amount stated therein on the date stated therein. All prepayments under
this Section 2.12 shall be subject to Section 2.15 but otherwise without
premium or penalty. All prepayments under this Section 2.12 shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of payment.
2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, except as provided in Section
2.19, if any Change in Law shall result in the imposition, modification or
applicability of any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of or credit extended by any
Lender, or shall result in the imposition on any Lender or the London interbank
market or any other market in which the funding operations of any Lender shall
be conducted of any other condition affecting this Agreement, such Lender's
Commitment or any Eurocurrency Loan, Fixed Rate Loan or Alternate Currency Loan
made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurocurrency
Loan, Fixed Rate Loan or Alternate Currency Loan or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender to be material, then
the Borrowers agree jointly and severally to pay such additional amount or
amounts as will compensate such Lender for such additional costs or reduction.
Notwithstanding the foregoing, no Lender shall be entitled to request
compensation under this paragraph with respect to any Competitive Loan if the
Change in Law giving rise to such request was known by such Lender to be
applicable to it at the time of submission of the Competitive Bid pursuant to
which such Competitive Loan was made.
(b) If any Lender shall have determined that a Change in Law regarding
capital adequacy has or would have the effect of reducing the rate of return on
such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement, such Lender's Commitment or the Loans
made by such Lender pursuant hereto to a level below that which such Lender or
such Lender's holding company could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy) by
an amount deemed by such Lender to be material, then the Borrowers agree
jointly and severally to pay to such Lender from time to time such additional
amount or amounts as will compensate such Lender for such reduction.
(c) A certificate of each Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender or its holding company as
specified in paragraph (a) or (b) above, as the case may be, and setting forth
and explaining in reasonable detail the manner in which such amount or amounts
shall have been determined, shall be delivered to Anixter with a copy to the
Administrative Agent and shall be conclusive absent manifest error. The
Borrowers shall pay each Lender the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Lender's right to
demand such compensation with respect to such period or any other period,
except that no Lender shall be entitled to any compensation under this Section
2.13 for any costs incurred or reduction suffered with respect to any date
unless such Lender shall have notified Anixter that it will demand compensation
for such costs or reductions under paragraph (c) above not more than 90 days
after the later of (i) such date and (ii) the date on which such Lender shall
have become aware of such costs or reductions. The protection of this Section
shall be available to
-37-
45
each Lender regardless of any possible contention of the invalidity or
inapplicability of any law, rule, regulation or guideline or any Change in Law.
2.14. Change in Legality. (a) Notwithstanding any other provision
herein, if any Change in Law shall make it unlawful for any Lender or its
Applicable Lending Office to make or maintain any Eurocurrency Loan or Foreign
Currency Loan or to give effect to its obligations as contemplated hereby with
respect to any Eurocurrency Loan or Foreign Currency Loan or shall limit the
convertibility of any Eligible Currency into Dollars (or make such conversion
commercially impracticable), then, by written notice to Anixter and to the
Administrative Agent, such Lender may:
(i) declare that Eurocurrency Loans or Foreign Currency Loans in any
affected currency will not thereafter be made by such Lender hereunder,
whereupon (A) if Eurocurrency Loans denominated in Dollars shall be affected,
such Lender shall not submit a Competitive Bid in response to a request for
Eurodollar Competitive Loans, and (B) any request by any Borrower for
Eurocurrency Loans or Foreign Currency Loans in an affected currency shall, as
to such Lender only, (x) in the case of a request for Eurocurrency Loans
denominated in Dollars, be deemed a request for an ABR Loan in Dollars and (y)
in any other case, be of no force or effect; unless, in each case, such
declaration shall be subsequently withdrawn; and
(ii) promptly upon becoming aware of a prospective Change in Law enter
into negotiations with Anixter and negotiate in good faith to agree to a
solution to such illegality, limitation or impracticability; provided, however,
that if such an agreement has not been reached by the date at which such Change
in Law makes unlawful the outstanding Eurocurrency Loans or Foreign Currency
Loans of such Lender, such affected Loans shall immediately be prepaid by such
Borrower or, if denominated in Dollars, shall be converted to ABR Loans.
(b) In the event that a Lender determines at any time following its
giving of a notice referred to in Section 2.14(a) that such Lender may lawfully
make Eurocurrency Loans, such Lender shall promptly notify (by teletransmission
or by telephone promptly confirmed in writing) the applicable Borrower and the
Administrative Agent of that determination, whereupon such Borrower's right to
request of the Lenders and the Lenders' obligation to make Eurocurrency Loans
shall be restored. The Administrative Agent shall promptly forward any such
notice it receives to the Lenders.
(c) For purposes of this Section 2.14, a notice by any Lender shall be
effective as to each Eurocurrency Loan, if lawful, on the last day of the
Interest Period currently applicable to such Eurocurrency Loan; in all other
cases such notice shall be effective on the date of receipt.
2.15. Indemnity. The Borrowers agree, jointly and severally, to
indemnify each Lender against any loss or expense which such Lender may sustain
or incur as a consequence of (a) any failure by any Borrower to borrow or to
refinance, convert or continue any Loan hereunder after irrevocable notice of
such borrowing, refinancing, conversion or continuation has been given pursuant
to Section 2.03, 2.04 or 2.05, (b) any payment, prepayment or conversion of a
Loan to any Borrower required by any other provision of this Agreement or
otherwise made or deemed made, or any purchase required pursuant to the
provisions of Section 2.20(b), on a date other than the last day of the
Interest Period, if any, applicable thereto, or (c) any default by any Borrower
in payment or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, whether by scheduled maturity, acceleration, irrevocable notice
of
-38-
46
prepayment or otherwise), including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such Loan
or any part thereof excluding lost profits. Such loss or reasonable expense
shall include an amount equal to the excess, if any, as reasonably determined
by such Lender, of (i) its cost of obtaining the funds for the Loan being paid,
prepaid, refinanced or not borrowed (which in the case of a Eurocurrency Loan
will be assumed to be the LIBO Rate applicable thereto) for the period from the
date of such payment, prepayment, refinancing or failure to borrow or refinance
to the last day of the Interest Period for such Loan (or, in the case of a
failure to borrow or refinance, the Interest Period for such Loan which would
have commenced on the date of such failure) over (ii) the amount of interest
(as reasonably determined by such Lender) that would be realized by such Lender
in reemploying the funds so paid, prepaid or not borrowed or refinanced for
such period or Interest Period, as the case may be. A certificate of any
Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section and setting forth in reasonable detail the
manner in which such amount or amounts shall have been determined shall be
delivered to such Borrower with a copy to the Administrative Agent and shall be
conclusive absent manifest error. The Borrowers shall pay each Lender the
amount shown as due on any such certificate delivered by it within ten (10)
Business Days after the Borrowers' receipt of the same
2.16. Pro Rata Treatment. (a) So long as no Event of Default has
occurred and is continuing:
(i) Each payment of the Facility Fees and each reduction of the
Commitments shall be allocated pro rata among the Lenders in accordance
with their respective Commitments or, if the Commitments have been
terminated, in accordance with Section 2.06(a)(ii);
(ii) Except as required under Section 2.14, each payment or
prepayment of principal of any Ratable Borrowing and each refinancing or
conversion of any Ratable Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Ratable Loans comprising such
Borrowing;
(iii) Each payment of interest on any Ratable Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on
their outstanding Ratable Loans comprising such Borrowing;
(iv) Except as required under Section 2.14, each payment or
prepayment of principal of any Alternate Currency Borrowing and each
refinancing or conversion of any Alternate Currency Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding
Alternate Currency Loans comprising such Borrowing;
(v) Each payment of interest on any Alternate Currency Borrowing
shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Alternate Currency Loans comprising such
Borrowing;
(vi) Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing; and
-39-
47
(vii) Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Loans comprising such Borrowing.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole Dollar
amount.
(b) After the occurrence and during the continuance of an Event of
Default, the Administrative Agent shall apply all payments and prepayments in
respect of the Obligations in the following order:
(i) first, to pay interest on and then principal of any portion of the
Loans which the Administrative Agent may have advanced on behalf of any other
Lender or any Borrower and for which the Administrative Agent has not then been
reimbursed by such Lender or such Borrower;
(ii) second, to pay Obligations in respect of any costs, expenses or
reimbursements then due to the Administrative Agent;
(iii) third, to pay Obligations in respect of any costs, expenses or
reimbursements then due to the Lenders and the Issuing Banks, ratably in
accordance with the amount of such Obligations owed to each Lender and each
Issuing Bank;
(iv) fourth, ratably to pay (A) the Facility Fee, (B) interest due in
respect of the Loans and (C) interest and letter of credit fees due in respect
of Letter of Credit Obligations;
(v) fifth, ratably to the payment or prepayment of principal
outstanding on all Loans and Letter of Credit Obligations (all amounts applied
to Letter of Credit Obligations other than Reimbursement Obligations to be held
as cash collateral in accordance with the terms of this Agreement); and
(vi) sixth, to the ratable payment of all other Obligations, if any.
Amounts applied pursuant to clauses (iii), (iv), (v) and (vi) above shall be
allocated among the Lenders ratably in proportion to the aggregate amount of
Loans and Letter of Credit Obligations held by each Lender. The order of
priority set forth in this Section 2.16(b) and the related provisions of this
Agreement are set forth solely to determine the rights and priorities of the
Administrative Agent, the Lenders and the Issuing Banks as among themselves.
The order of priority set forth in this Section 2.16(b) may not be changed
without the prior written consent of each Lender, but with the consent of the
Lenders may be changed at any time and from time to time be changed without
necessity of notice to or consent of or approval by Anixter or any other
Person.
2.17. Sharing of Setoffs. Each Lender agrees that if it shall, through
the exercise of a right of banker's lien, setoff or counterclaim, or pursuant
to a secured claim under Section 506 of Title 11 of the United States Code or
other security or interest arising from, or in lieu of, such secured claim,
received by such Lender under any applicable bankruptcy, insolvency or other
similar law or
-40-
48
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loan or Loans as a result of which the unpaid principal portion
of its Ratable Loans comprising part of a Ratable Borrowing shall be
proportionately less than the unpaid principal portion of any other Lender's
Ratable Loans for that Borrowing, or the unpaid principal portion of its
Competitive Loan comprising part of a Competitive Borrowing shall be
proportionately less than the unpaid principal portion of any other Lender's
Competitive Loan comprising part of such Competitive Borrowing, it shall be
deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the applicable Loans of such other Lender, so that the
aggregate unpaid principal amount of the applicable Loans and participations in
the applicable Loans held by each Lender relating to a particular Ratable
Borrowing or Competitive Borrowing shall be in the same proportion to the
aggregate unpaid principal amount of all applicable Loans relating to such
Borrowing then outstanding as the principal amount of its applicable Loans
relating to such Borrowing prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all such outstanding
Loans relating to such Borrowing prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section
2.17 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. Any Lender holding a participation in a Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing to such Lender by reason
thereof as fully as if such Lender had made a Loan in the amount of such
participation. The sharing of payments resulting from any Alternate Currency
Lender's exercise of any banker's lien, setoff or counterclaim shall be as set
forth in the applicable Alternate Currency Addendum.
2.18. Payments. (a) Except as otherwise set forth in Schedule II with
respect to Ratable Committed Currency Loans or in any Alternate Currency
Addendum with respect to Alternate Currency Loans made thereunder, each
Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder not later than 12:00 noon,
New York City time, at the place and on the date due in Dollars or the
applicable Eligible Currency, as the case may be, in immediately available
funds to the Administrative Agent for the account of the Administrative Agent,
the Lenders or the Issuing Banks, as the case may be. All principal and
interest with respect to a Loan made in an Eligible Currency shall be repaid in
such Eligible Currency.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall, in
such case, be included in the computation of interest or Fees, if applicable.
2.19. Taxes. (a) Any and all payments by the Borrowers and Guarantors
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges, or withholdings, and all liabilities with respect thereto
including those arising after the date hereof as a result of the adoption of or
any change in any law, treaty, rule, regulation, guideline or determination of
a Governmental Authority or any change in the interpretation or application
thereof by a Governmental Authority but excluding, in the case of each Lender,
each Issuing Bank and the Administrative Agent, such taxes (including income
taxes, franchise taxes and branch profit taxes) as are imposed on or measured
by such Lender's, Issuing Bank's or Administrative Agent's, as the case may be,
income by the United States of America or any
-41-
49
Governmental Authority of the jurisdiction under the laws of which such Lender,
Issuing Bank or Administrative Agent, as the case may be, is organized or
maintains an Applicable Lending Office (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Administrative Agent, an Issuing Bank or a Lender determines to be applicable
to this Agreement, the other Loan Documents, the Commitments, the Loans or the
Letters of Credit being hereinafter referred to as "Taxes"). If any Borrower
or Guarantor shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under the other Loan Documents to any Lender,
Issuing Bank or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.19) such Lender, Issuing Bank or Administrative Agent (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 or Guarantor shall make such
deductions, and (iii) such Borrower or Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Borrower and each Guarantor agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made hereunder,
from the issuance of Letters of Credit hereunder, or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
other Loan Documents, the Commitments, the Loans or the Letters of Credit
(hereinafter referred to as "Other Taxes").
(c) Each Borrower and each Guarantor will indemnify each Lender, each
Issuing Bank and the Administrative Agent for the full amount of Taxes and
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any Governmental Authority on amounts payable under this Section 2.19) paid by
such Lender, Issuing Bank or the Administrative Agent (as the case may be) and
any liability (including penalties, interest, and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within
thirty (30) days after the date such Lender, Issuing Bank or the Administrative
Agent (as the case may be) makes written demand therefor. A certificate as to
any additional amount payable to any Lender, any Issuing Bank or the
Administrative Agent under this Section 2.19 submitted to such Borrower or
Guarantor and the Administrative Agent (if a Lender or Issuing Bank is so
submitting) by such Lender, Issuing Bank or the Administrative Agent shall show
in reasonable detail the amount payable and the calculations used to determine
such amount and shall, absent manifest error, be final, conclusive and binding
upon all parties hereto. With respect to such deduction or withholding for or
on account of any Taxes and to confirm that all such Taxes have been paid to
the appropriate Governmental Authorities, each Borrower and each Guarantor
shall promptly (and in any event not later than thirty (30) days after receipt)
furnish to each Lender, Issuing Bank and the Administrative Agent such
certificates, receipts and other documents as may be required (in the judgment
of such Lender, Issuing Bank or the Administrative Agent) to establish any tax
credit to which such Lender, Issuing Bank or the Administrative Agent may be
entitled. If a Lender or the Administrative Agent shall become aware that it
is entitled to receive a refund in respect of Taxes or Other Taxes as to which
it has been indemnified by any Borrower or any Guarantor pursuant to this
Section 2.19, it shall promptly notify Anixter of the availability of such
refund and shall, within 30 days after receipt of a request by Anixter, apply
for such refund at Anixter's expense. If any Lender or the Administrative
Agent receives a refund in respect of any Taxes or Other Taxes as to which it
has been indemnified by any Borrower or any Guarantor pursuant to this Section
2.19, it shall promptly notify Anixter of such refund and shall, within 30 days
after receipt of a request by Anixter (or promptly upon receipt, if Anixter has
requested application for such refund pursuant hereto), repay such refund to
the
-42-
50
applicable Borrower or Guarantor (to the extent of amounts that have been paid
by such Borrower or Guarantor under this Section 2.19 with respect to such
refund), net of all out-of-pocket expenses of such Lender and without interest
(except to the extent such refund includes any interest); provided that the
applicable Borrower or Guarantor, upon the request of such Lender or the
Administrative Agent, agrees to return such refund (plus penalties, interest or
other charges) to such Lender or the Administrative Agent if such Lender or the
Administrative Agent is required to repay such refund. Nothing contained in
this paragraph (c) shall require any Lender or the Administrative Agent to make
available any of its tax returns (or any other information relating to its
taxes which it deems to be confidential).
(d) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by a Borrower or a Guarantor, such Borrower or Guarantor will
furnish to the Administrative Agent, at its address referred to in Section
13.10, the original or a certified copy of a receipt evidencing payment
thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrowers and Guarantors hereunder, the agreements and obligations of the
Borrowers and Guarantors contained in this Section 2.19 shall survive the
payment in full of principal and interest hereunder, the termination of the
Letters of Credit and the termination of this Agreement.
(f) Without limiting the obligations of the Borrowers and Guarantors
under this Section 2.19, each Lender that is not created or organized under the
laws of the United States of America or a political subdivision thereof shall
deliver to each Borrower, each Guarantor and the Administrative Agent on or
before the initial Funding Date, or, if later, the date on which such Lender
becomes a Lender pursuant to Section 13.02 hereof, a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender,
in a form satisfactory to Anixter and the Administrative Agent, to the effect
that such Lender is capable under the provisions of an applicable tax treaty
concluded by the United States of America (in which case the certificate shall
be accompanied by two executed copies of Form 1001 of the IRS) or under Section
1442 of the IRC (in which case the certificate shall be accompanied by two
copies of Form 4224 of the IRS) of receiving payments of interest hereunder
without deduction or withholding of United States federal income tax. Each such
Lender further agrees to deliver to the Borrowers, the Guarantors and the
Administrative Agent from time to time a true and accurate certificate executed
in duplicate by a duly authorized officer of such Lender substantially in a
form satisfactory to Anixter and the Administrative Agent, before or promptly
upon the occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrowers and the Administrative
Agent pursuant to this Section 2.19(f). Further, each Lender which delivers a
certificate accompanied by Form 1001 of the IRS covenants and agrees to deliver
to the Borrowers, the Guarantors and the Administrative Agent within fifteen
(15) days prior to January 1, 1997, and every third (3rd) anniversary of such
date thereafter, on which this Agreement is still in effect, another such
certificate and two accurate and complete original signed copies of Form 1001
(or any successor form or forms required under the IRC or the applicable
regulations promulgated thereunder), and each Lender that delivers a
certificate accompanied by Form 4224 of the IRS covenants and agrees to deliver
to the Borrowers, the Guarantors and the Administrative Agent within fifteen
(15) days prior to the beginning of each subsequent taxable year of such Lender
during which this Agreement is still in effect, another such certificate and
two accurate and complete original signed copies of IRS Form 4224 (or any
successor form or forms required under the IRC or the applicable regulations
promulgated thereunder). Each such certificate shall certify as to one of the
following:
-43-
51
(i) that such Lender is capable of receiving payments of
interest hereunder without deduction or withholding of United States
of America federal income tax;
(ii) that such Lender is not capable of receiving payments of
interest hereunder without deduction or withholding of United States
of America federal income tax as specified therein but is capable of
recovering the full amount of any such deduction or withholding from
a source other than the Borrowers and the Guarantors and will not
seek any such recovery from the Borrowers or the Guarantors; or
(iii) that, as a result of the adoption of or any change in
any law, treaty, rule, regulation, guideline or determination of a
Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority after the date such
Lender became a party hereto, such Lender is not capable of
receiving payments of interest hereunder without deduction or
withholding of United States of America federal income tax as
specified therein and that it is not capable of recovering the full
amount of the same from a source other than the Borrowers and the
Guarantors.
Each Lender shall promptly furnish to the Borrowers, the Guarantors and
the Administrative Agent such additional documents as may be reasonably
required by the Borrowers or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be deducted
or withheld and which may be obtained without undue expense to such Lender.
2.20. Duty to Mitigate; Assignment of Commitments Under Certain
Circumstances. (a) Any Lender claiming any additional amounts payable
pursuant to Section 2.13 or 2.19, or exercising its rights under Section 2.14,
shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by Anixter or to
change the jurisdiction of its Applicable 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.
(b) If (i) any Lender shall have delivered a notice or certificate
pursuant to Section 2.13 or 2.14, (ii) any Borrower shall be required to make
additional payments to any Lender under Section 2.19, (iii) any Lender shall
become, or a substantial part of the property of any Lender shall become, the
subject of any receivership or similar proceeding (a "Bank Proceeding") or (iv)
any Lender shall default on its commitment to lend or issue a Letter of Credit
hereunder or under any applicable Alternate Currency Addendum (a "Bank
Default"), Anixter shall have the right, at its own expense, upon notice to
such Lender and the Administrative Agent, (x) to terminate the Commitment of
such Lender or (y) to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 13.02) all interests, rights and obligations contained hereunder to
another financial institution approved by the Administrative Agent (which
approval shall not be unreasonably withheld) or to another Lender which shall
assume such obligations; provided that (A) no such termination or assignment
shall conflict with any law, rule or regulation or order of any Governmental
Authority and (B) the assignee or Anixter, as the case may be, shall pay to the
affected Lender in immediately available funds on the date of such termination
or assignment the principal of and the interest accrued to the date of payment
on the Loans made by it hereunder and all other
-44-
52
amounts accrued for its account or owed to it hereunder (including, without
limitation, any amounts owed under Section 2.15).
2.21. Borrowing Subsidiaries. Anixter may designate any Foreign
Subsidiary as a Borrowing Subsidiary. Upon the receipt by the Administrative
Agent of a Borrowing Subsidiary Agreement in the form of Exhibit D executed by
such Subsidiary and Anixter, such Subsidiary shall be a Borrowing Subsidiary
and a party to this Agreement. Any Subsidiary shall cease to be a Borrowing
Subsidiary hereunder at such time as no Loans 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 E. Upon a Borrowing Subsidiary's liquidation, dissolution or disposal
of to a person other than Anixter or any Subsidiary, all Loans outstanding to
any Borrowing Subsidiary shall be due and payable and such Subsidiary shall no
longer be entitled to obtain any extensions of credit hereunder.
2.22. Terms of Alternate Currency Facilities. (a) Each of Anixter and
one or more Alternate Currency Lenders may in their respective discretion from
time to time agree that one or more Borrowers may borrow Alternate Currency
Loans on a revolving basis from any one or more Alternate Currency Lenders by
delivering an Alternate Currency Addendum to the Administrative Agent, executed
by Anixter, each such Borrowing Subsidiary and each such Alternate Currency
Lender; provided, however, that on the effective date of such Borrowing (i) an
Exchange Rate with respect to each Alternate Currency covered by such Alternate
Currency Addendum shall be determinable by reference to the Applicable Telerate
Page (or a comparable publicly available screen) or by another method set forth
in the applicable Alternate Currency Addendum) and (ii) no Potential Event of
Default or Event of Default shall have occurred and be continuing. Each
reference in this Agreement to any Lender shall, to the extent applicable, be
deemed also to be a reference to each Alternate Currency Lender, subject to the
second sentence of the definition of such term.
(b) Each Alternate Currency Addendum shall set forth (i) the maximum
amount (expressed in Dollars and without duplication) available to be borrowed
from all Alternate Currency Lenders under such Alternate Currency Addendum (as
the same may be reduced from time to time pursuant to Section 2.23(a) or
2.23(b), an "Alternate Currency Facility Maximum Borrowing Amount") and (ii)
with respect to each Alternate Currency Lender party to such Alternate Currency
Addendum, the maximum amount (expressed in Dollars and without duplication)
available to be borrowed from such Alternate Currency Lender thereunder (as the
same may be reduced from time to time pursuant to Section 2.23(a) or 2.23(b),
an "Alternate Currency Lender Maximum Borrowing Amount"). In no event shall
the aggregate of all Alternate Currency Lender Maximum Borrowing Amounts in
respect of any Alternate Currency Lender at any time exceed such Lender's
Commitment. Except as provided herein, the making of Alternate Currency Loans
by an Alternate Currency Lender under an Alternate Currency Addendum shall
under no circumstances reduce the amount available to be borrowed from such
Lender under any other Alternate Currency Addendum to which such Lender is a
party.
(c) Except as otherwise required by applicable law, in no event shall the
Alternate Currency Lenders have the right to accelerate the Alternate Currency
Loans outstanding under any Alternate Currency Addendum or to terminate their
commitments (if any) thereunder to make Alternate Currency Loans prior to the
stated termination date in respect thereof, except that such Alternate Currency
Lenders shall, in each case, have such rights upon an acceleration of the Loans
and a termination of the Commitments pursuant to Article X. No Alternate
Currency Loan may be made if (i) an Exchange Rate with respect to the
applicable Alternate Currency cannot be determined, or
-45-
53
(ii) after giving effect thereto, (A) the Base Credit Exposure of any Lender
would exceed such Lender's Commitment, (B) the Dollar Equivalent of the
aggregate principal amount of outstanding Alternate Currency Loans denominated
in a specified Alternate Currency would exceed the applicable Alternate
Currency Facility Maximum Borrowing Amount, (C) the sum of the aggregate Base
Credit Exposures of all Lenders and the aggregate Competitive Loan Exposures of
all Lenders would exceed the Total Commitment, (D) the sum of the aggregate
Committed Currency Credit Exposures and the aggregate Dollar Equivalent of the
Alternate Currency Loans outstanding would exceed the Foreign Currency Maximum
Amount, or (E) the Dollar Equivalent of the aggregate Alternate Currency Loans
of any Lender outstanding under any Alternate Currency Addendum would exceed
the applicable Alternate Currency Lender Maximum Borrowing Amount.
(d) The applicable Borrower and the applicable Alternate Currency
Lenders, or, if so specified in the relevant Alternate Currency Addendum, an
Alternate Currency Agent acting on their behalf, shall furnish to the
Administrative Agent, promptly following the making, payment or prepayment of
each Alternate Currency Loan, and at any other time at the reasonable request
of the Administrative Agent, a statement setting forth the outstanding
Alternate Currency Loans made under such Alternate Currency Addendum.
(e) Anixter shall furnish to the Administrative Agent copies of any
amendment, supplement or other modification to the terms of any Alternate
Currency Addendum promptly after the effectiveness thereof.
(f) Anixter may terminate any Alternate Currency Addendum in its sole
discretion if there are no Loans outstanding thereunder (or, if there are Loans
outstanding thereunder, with the consent of each Alternate Currency Lender
party thereto), by written notice to the Administrative Agent, which notice
shall be executed by Anixter, each relevant Borrowing Subsidiary and, if their
consent is required, each such Alternate Currency Lender. Once notice of such
termination is received by the Administrative Agent, such Alternate Currency
Addendum and the loans and other obligations outstanding thereunder shall
immediately cease to be subject to the terms of this Agreement.
2.23. Currency Fluctuations, etc. (a) If, on any Reset Date or the date
of any Borrowing (after giving effect to (i) any Loans to be made or repaid on
such date and (ii) any amendment, supplement or other modification to any
Alternate Currency Addendum effective on such date of which the Administrative
Agent has received notice), the aggregate outstanding Ratable Extensions of
Credit of any Lender exceed the Ratable Credit Availability of such Lender (the
amount of such excess being called the "Ratable Credit Excess"), then such
Lender's Alternate Currency Lender Maximum Borrowing Amount under each
Alternate Currency Addendum to which such Lender is a party shall be reduced on
such date by an amount equal to the product of such Ratable Credit Excess times
a fraction the numerator of which shall equal the Alternate Currency Lender
Maximum Borrowing Amount under such Alternate Currency Addendum and the
denominator of which shall equal the aggregate of all the Alternate Currency
Lender Maximum Borrowing Amounts of such Lender. After giving effect to any
such reduction in Alternate Currency Lender Maximum Borrowing Amounts, the
Alternate Currency Facility Maximum Borrowing Amount with respect to each
Alternate Currency Addendum shall in turn be reduced to an amount equal to the
aggregate of the Alternate Currency Lender Maximum Borrowing Amounts of all
Lenders party to such Alternate Currency Addendum. Reductions in Alternate
Currency Facility Maximum Borrowing Amounts and Alternate Currency Lender
Maximum Borrowing Amounts pursuant to this paragraph shall be effective until
the amount thereof shall be recalculated by the Administrative Agent or the
Alternate Currency Agent, as applicable, on the next
-46-
54
succeeding Reset Date or date of a Borrowing, and shall not be deemed to reduce
the stated amount of any commitment of any Alternate Currency Lender in respect
of any Alternate Currency Addendum.
(b) If, on any Reset Date or date of a Borrowing (after giving effect to
(i) any Loans to be made or repaid on such date, (ii) any amendment, supplement
or other modification to any Alternate Currency Addendum effective on such date
of which the Administrative Agent has received notice and (iii) any reduction
in the Alternate Currency Facility Maximum Borrowing Amounts pursuant to
paragraph (a) above effective on such date), the sum of (A) the aggregate
outstanding Ratable Extensions of Credit of all the Lenders and (B) the
aggregate Competitive Loan Exposure exceeds the Facility Availability (the
amount of such excess being called the "Facility Excess"), then the Alternate
Currency Facility Maximum Borrowing Amount under each Alternate Currency
Addendum shall be reduced on such date by an amount equal to the product of
such Facility Excess times a fraction the numerator of which shall equal the
Alternate Currency Facility Maximum Borrowing Amount under such Alternate
Currency Addendum and the denominator of which shall equal the aggregate of the
Alternate Currency Facility Maximum Borrowing Amounts with respect to all
Alternate Currency Addenda. Each such reduction in the Alternate Currency
Facility Maximum Borrowing Amount under an Alternate Currency Addendum shall in
turn reduce the respective Alternate Currency Lender Maximum Borrowing Amounts
of each Alternate Currency Lender party to such Alternate Currency Addendum,
pro rata on the basis of the respective Alternate Currency Lender Maximum
Borrowing Amounts of such Alternate Currency Lenders immediately prior to such
reduction. Reductions in Alternate Currency Facility Maximum Borrowing Amounts
and Alternate Currency Lender Maximum Borrowing Amounts pursuant to this
paragraph shall be effective until the amount thereof shall be recalculated by
the Administrative Agent or the Alternate Currency Agent, as applicable, on the
next succeeding Reset Date or date of a Borrowing, and shall not be deemed to
reduce the stated amount of any commitment of any Alternate Currency Lender in
respect of any Alternate Currency Addendum.
(c) If on any Reset Date, the Dollar Equivalent of all Alternate Currency
Loans outstanding under any Alternate Currency Addendum exceeds 105% of the
Alternate Currency Facility Maximum Borrowing Amount with respect thereto
(after giving effect to any reductions therein effected pursuant to paragraphs
(a) and (b) above on such date), the relevant Borrower shall on such Reset Date
(i) subject to paragraphs (a) and (b) above, increase the Alternate Currency
Facility Maximum Borrowing Amount with respect to such Alternate Currency
Facility in accordance with Section 13.08 and/or (ii) prepay Alternate Currency
Loans, in either case in an aggregate amount such that, after giving effect
thereto, (x) the Dollar Equivalent of all such Alternate Currency Loans shall
be equal to or less than such Alternate Currency Facility Maximum Borrowing
Amount and (y) the Dollar Equivalent of the Alternate Currency Loans of each
relevant Alternate Currency Lender shall be equal to or less than such
Alternate Currency Lender's Alternate Currency Lender Maximum Borrowing Amount
with respect to such Alternate Currency Addendum.
(d) If on any Reset Date, the sum of the aggregate Committed Currency
Credit Exposures and the aggregate Dollar Equivalent of all Alternate Currency
Loans outstanding exceeds 105% of the Foreign Currency Maximum Amount, the
Borrowers shall, on such Reset Date, prepay Ratable Committed Currency Loans
and Alternate Currency Loans in an aggregate amount such that, after giving
effect thereto, the sum of the aggregate Committed Currency Credit Exposures
and the aggregate Dollar Equivalent of all Alternate Currency Loans outstanding
shall be equal to or less than the Foreign Currency Maximum Amount.
-47-
55
(e) The Administrative Agent or the Alternate Currency Agent, as
applicable, shall promptly notify the relevant Lenders of the amount of any
reductions in Alternate Currency Facility Maximum Borrowing Amounts or
Alternate Currency Lender Maximum Borrowing Amounts required pursuant to this
Section 2.23.
2.24. Authorized Officers. Each Borrower shall notify the Administrative
Agent and the Issuing Banks in writing of the names of the Financial Officers
and the other officers and employees authorized to request Loans and Letters of
Credit and to request a conversion or continuation of any Loan and shall
provide the Administrative Agent with a specimen signature of each such
Financial Officer, officer or employee. The Administrative Agent and the
Issuing Banks shall be entitled to rely conclusively on such Financial
Officer's, officer's or employee's authority to request such Loan or Letter of
Credit or such conversion or continuation until the Administrative Agent and
the Issuing Banks receive written notice to the contrary. The Administrative
Agent and the Issuing Banks shall have no duty to verify the authenticity of
the signature appearing on any written Notice of Borrowing or request for
conversion or continuation and, with respect to an oral request for such a Loan
or Letter of Credit or such conversion or continuation, the Administrative
Agent and the Issuing Banks shall have no duty to verify the identity of any
person representing himself or herself as one of the Financial Officers,
officers or employees authorized to make such request on behalf of a Borrower.
Neither the Administrative Agent, nor any Issuing Bank nor any Lender shall
incur any liability to any Borrower in acting upon any telephonic notice
referred to above which the Administrative Agent believes to have been given by
a duly authorized Financial Officer, officer or other person authorized to
borrow on behalf of such Borrower.
ARTICLE III
LETTERS OF CREDIT
3.01. Obligation to Issue. Subject to the terms and conditions set forth
in this Agreement, from time to time during the period commencing on the
Effective Date and ending on the Business Day which is twenty (20) Business
Days prior to the Termination Date, Anixter may request any Issuing Bank, and
upon such request such Issuing Bank agrees, to issue for the account of
Anixter, or for the account of any Subsidiary of Borrower if Borrower is named
as a co-applicant with respect to such Letter of Credit, one or more Letters of
Credit; provided, however, no Issuing Bank shall be required to issue any
Letter of Credit if, after giving effect to the Letter of Credit requested,
such Issuing Bank's Letter of Credit Obligations would exceed the maximum
Letter of Credit Obligations indicated for such Issuing Bank on Schedule 1.01-A
attached hereto.
3.02. Types and Amounts. Notwithstanding the provisions of Section 3.01,
no Issuing Bank shall have any obligation to issue any Letter of Credit at any
time:
(a) if the aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving effect to the
Letter of Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
(b) if, after giving effect to such requested Letter of Credit, (i)
the sum of the aggregate Base Credit Exposures and the aggregate Competitive
Loan Exposures would exceed the Total Commitment then in effect, (ii) the Base
Credit Exposure of any Lender would exceed such Lender's Commitment, or (iii)
the aggregate outstanding Letter of
-48-
56
Credit Obligations would exceed $75,000,000; and any Letter of Credit
issued by any Issuing Bank in excess of any such amounts shall not, to the
extent of the excess, constitute a Letter of Credit hereunder and the deemed
purchase of participations pursuant to Section 3.06 shall not occur with
respect to such Letter of Credit;
(c) which has an expiration date which is (i) more than (1) one year
after the date of issuance of such Letter of Credit (provided that a Standby
Letter of Credit may provide for an annual renewal if such renewal is consented
to by the Issuing Bank and the conditions precedent to the issuance of such
Standby Letter of Credit are met at the time of such renewal) or (ii) after
three (3) Business Days immediately preceding the Termination Date and any
letter of credit issued by an Issuing Bank with an expiration date after three
(3) Business Days immediately preceding the Termination Date, shall not
constitute a Letter of Credit hereunder and the deemed purchase of
participations pursuant to Section 3.06 shall not occur with respect to such
Letter of Credit; or
(d) which is not denominated in Dollars.
Notwithstanding anything herein to the contrary, letters of credit which
constituted "Letters of Credit" under the First Amended Credit Agreement and
which remain outstanding on the Effective Date shall constitute Letters of
Credit under this Agreement.
3.03. Conditions. In addition to being subject to the satisfaction of
the conditions precedent contained in Sections 4.01 and 4.02, the obligation of
any Issuing Bank to issue any Letter of Credit is subject to the satisfaction
in full of the following conditions:
(a) Anixter shall have delivered to such Issuing Bank, at such times and
in such manner as such Issuing Bank may prescribe, a Letter of Credit
Application and a Letter of Credit Reimbursement Agreement and such other
documents and materials as may be required pursuant to the terms thereof and
the terms of the proposed Letter of Credit shall be reasonably satisfactory to
such Issuing Bank and shall be consistent with such Issuing Bank's ordinary
practice with respect to terms of its letters of credit; and
(b) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain such Issuing Bank from issuing such Letter of Credit and no
law, rule or regulation applicable to such Issuing Bank and no request or
directive (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) from any Governmental Authority
with jurisdiction over such Issuing Bank shall prohibit or request such Issuing
Bank to refrain from the issuance of letters of credit generally or the
issuance of that Letter of Credit.
3.04. Issuance of Letters of Credit.
(a) Anixter shall give the applicable Issuing Bank and the Administrative
Agent written notice not later than 12:00 noon (New York City time) on the
fifth (5th) Business Day immediately preceding the requested issuance of a
Letter of Credit under this Agreement, which notice as provided to the
Administrative Agent shall be accompanied by a Notice of Borrowing as required
pursuant to Section 4.02. The Administrative Agent shall promptly provide a
copy of such notice to each Lender.
-49-
57
Such notice shall be irrevocable and shall specify (i) the stated amount of the
Letter of Credit requested, (ii) the effective date (which day shall be a
Business Day) of issuance of such requested Letter of Credit, (iii) whether
such Letter of Credit is a Commercial Letter of Credit or a Standby Letter of
Credit, (iv) the date on which such requested Letter of Credit is to expire,
which date shall be a Business Day, (v) the Person for whose benefit the
requested Letter of Credit is to be issued, (vi) the amount of Letter of Credit
Obligations then outstanding, (vii) if such Letter of Credit is also for the
account of any Subsidiary of Anixter, the name of such Subsidiary, (viii) the
Issuing Bank being requested to issue such Letter of Credit and (ix) any other
terms to be included in such Letter of Credit. Prior to issuing any Letter of
Credit, the applicable Issuing Bank shall request and the Administrative Agent
shall provide confirmation that the request for such Letter of Credit complies
with the provisions of Section 3.02(b). If the Administrative Agent notifies
the applicable Issuing Bank that it is authorized to issue such Letter of
Credit, and the conditions described in Sections 3.02, 3.03, 4.01 (if issued on
the Effective Date) and 4.02 otherwise have been satisfied, then such Issuing
Bank shall issue such Letter of Credit as requested. The applicable Issuing
Bank shall give the Administrative Agent and each Lender prompt notice of the
issuance of any such Letter of Credit by it.
(b) No Letter of Credit may be amended, extended, modified or
supplemented unless Anixter shall have complied with the requirements of
Section 3.04(a) to the same extent as if such Letter of Credit, as so amended,
extended, renewed, modified or supplemented, were requested to be reissued
hereunder. No Issuing Bank may amend, extend, renew, modify or supplement any
Letter of Credit if the issuance of a new Letter of Credit having the same
terms as such Letter of Credit as so amended, extended, modified or
supplemented would be prohibited by Section 3.02. Each Issuing Bank shall
provide the Administrative Agent and each Lender with a copy of each amendment,
extension, renewal, modification or supplement to any Letter of Credit.
3.05. Reimbursement Obligations; Duties of the Issuing Banks.
(a) Notwithstanding any provisions to the contrary in any Letter of
Credit Reimbursement Agreement or Letter of Credit Application:
(i) Anixter shall reimburse (or cause the Subsidiary which is a
co-applicant with respect thereto to reimburse) the applicable Issuing Bank (by
paying the Administrative Agent, for the account of such Issuing Bank) for
drawings under a Letter of Credit issued by it, in Dollars, no later than the
earlier of (a) the time specified in such Letter of Credit Reimbursement
Agreement or Letter of Credit Application, and (b) one (1) Business Day after
the payment by such Issuing Bank; and
(ii) any Reimbursement Obligation with respect to any Letter of Credit
shall bear interest from the date of the relevant drawing under the pertinent
Letter of Credit at the interest rate then applicable to ABR Loans until the
first (1st) Business Day after such date on which the applicable Issuing Bank
with respect to such Letter of Credit gives notice of such drawing to Borrower
and thereafter at the Default Rate. All such interest shall be paid in
Dollars.
(b) No action taken or omitted to be taken by any Issuing Bank under or
in connection with any Letter of Credit shall put an Issuing Bank under any
resulting liability to any Lender (except for its gross negligence or willful
misconduct in connection therewith, as determined by the final judgment of a
court of competent jurisdiction) or, subject to Sections 3.02 and 3.03, relieve
that Lender of its
-50-
58
obligations hereunder to the Issuing Banks. If this Agreement and any Letter
of Credit Reimbursement Agreement or any Letter of Credit Application are
inconsistent, the terms of this Agreement shall prevail. In determining
whether to pay under any Letter of Credit, the Issuing Bank shall have no
obligation to the Lenders other than to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear on their face to comply with the requirements of such Letter of
Credit.
3.06. Participations.
(a) Immediately upon issuance by any Issuing Bank of any Letter of Credit
for the account of Borrower in accordance with the procedures set forth in this
Article III, each Lender irrevocably and unconditionally agrees that it shall
be deemed to have purchased and received from the applicable Issuing Bank,
without recourse or warranty, an undivided interest in the amount of such
Lender's Applicable Percentage of such Letter of Credit (other than the fees
earned with respect to such Letter of Credit pursuant to 3.08(b)) and any
security therefor or guaranty pertaining thereto; provided, however, that a
letter of credit issued by any Issuing Bank shall not be deemed to be a Letter
of Credit for purposes of this Section 3.06(a) if the Issuing Bank shall not
have received the confirmation from the Administrative Agent provided for in
Section 3.04(a) or shall have received written notice from the Administrative
Agent or any Lender on or before the Business Day immediately prior to the date
of the Issuing Bank's issuance of such letter of credit that one or more
conditions of this Article III is not satisfied and, if any Issuing Bank
receives such a notice, it shall have no further obligation to issue any Letter
of Credit until such notice is subsequently withdrawn or it receives notice
from the Administrative Agent that such conditions have been waived in writing
by the Requisite Lenders or otherwise have been satisfied.
(b) If any Issuing Bank makes any payment under any Letter of Credit and
Anixter (or the Subsidiary which is a co-applicant with respect thereto) does
not repay such amount to such Issuing Bank pursuant to Section 3.05(a), 3.07 or
3.09, such Issuing Bank shall promptly notify the Administrative Agent of such
failure and the Administrative Agent shall, in turn, promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the Administrative Agent for the account of such Issuing Bank an amount
equal to such Lender's Applicable Percentage of such payment, in Dollars and in
immediately available funds, and the Administrative Agent shall promptly pay
such amount, and any other amounts received by the Administrative Agent for
such Issuing Bank's account pursuant to this Section 3.06(b), to such Issuing
Bank. If the Administrative Agent so notifies any such Lender prior to 12:00
noon (New York City time) on any Business Day of such failure, such Lender
shall make available to the Administrative Agent for the account of the
applicable Issuing Bank its Applicable Percentage of the amount of such payment
on such Business Day in Dollars and in immediately available funds, and
otherwise on the next succeeding Business Day. If and to the extent such
Lender shall not have so made its Applicable Percentage of the amount of such
payment available to the Administrative Agent for the account of the applicable
Issuing Bank, such Lender agrees to pay to the Administrative Agent for the
account of the applicable Issuing Bank forthwith on demand such amount together
with interest thereon, for each day from the date such payment was first due
until the date such amount is paid to the Administrative Agent for the account
of such Issuing Bank, at a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds (which determination shall
be conclusive absent manifest error). The failure of any Lender to make
available to the Administrative Agent for the account of the applicable Issuing
Bank its Applicable Percentage of any such payment shall not relieve any other
Lender of its obligation
-51-
59
hereunder to make available to the Administrative Agent for the account of the
applicable Issuing Bank its Applicable Percentage of any payment on the date
such payment is to be made.
(c) Whenever any Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which the
Administrative Agent has previously received payments from the Lenders for such
account of the Issuing Bank pursuant to this Section 3.06, it shall promptly
pay to the Administrative Agent and the Administrative Agent shall promptly pay
to each Lender which has funded its participating interest therein, in Dollars,
an amount equal to such Lender's Applicable Percentage thereof. Each such
payment shall be made by the applicable Issuing Bank or the Administrative
Agent, as the case may be, on the Business Day on which such Person receives
the funds paid to such Person pursuant to the preceding sentence, if received
prior to 12:00 noon (New York City time) on such Business Day, and otherwise on
the next succeeding Business Day together with interest thereon at the Federal
Funds Effective Rate (as such term is defined in the definition of Alternate
Base Rate).
(d) Promptly upon the request of any Lender, any Issuing Bank shall
furnish to such Lender copies of any documentation with respect to the Letters
of Credit issued by it as may reasonably be requested by such Lender.
(e) The obligations of a Lender to make payments to the Administrative
Agent for the account of the Issuing Banks with respect to a Letter of Credit
issued on behalf of Anixter or Anixter and one of its Subsidiaries shall be
irrevocable, shall not be subject to any qualification or exception whatsoever,
and shall be honored in accordance with the terms and conditions of this
Agreement under all circumstances (subject to Section 3.02), including, without
limitation, (i) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents; (ii) the existence of any claim, set-off, defense
or other right which Anixter or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit or any transferee of any
Letter of Credit (or any Person for whom any such transferee may be acting),
the Administrative Agent, any Issuing Bank, any Lender or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transactions between Anixter or any Subsidiary and the beneficiary
named in any Letter of Credit); (iii) any draft, certificate or any other
document presented under any 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 (in the absence of gross negligence or willful
misconduct in connection therewith, as determined by the final judgment of a
court of competent jurisdiction, on the part of the applicable Issuing Bank);
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; (v) any failure by
the Administrative Agent or any Issuing Bank to make any reports required
pursuant to Section 3.10; or (vi) the occurrence of any Event of Default or
Potential Event of Default.
3.07. Payment of Reimbursement Obligations.
(a) Anixter agrees to pay (or cause its Subsidiary which is a
co-applicant with respect thereto to pay) to the Issuing Banks the amount of
all Reimbursement Obligations, interest and other amounts payable to the
Issuing Banks under or in connection with any Letter of Credit issued on behalf
of Anixter immediately when due, irrespective of any and all events, including,
without limitation, (i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents; (ii) the existence of any claim,
set-off, defense or other right which Anixter or any of its Subsidiaries may
have
-52-
60
at any time against a beneficiary named in a Letter of Credit or any transferee
of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Bank, any Lender or any other
Person, whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transactions between Anixter and the beneficiary named in any Letter
of Credit); (iii) any draft, certificate or any other document presented under
any 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 (in the absence of gross negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of competent
jurisdiction, on the part of the applicable Issuing Bank); (iv) the surrender
or impairment of any security for the performance or observance of any of the
terms of any of the Loan Documents; (v) any failure by the Administrative Agent
or any Issuing Bank to make any reports required pursuant to Section 3.10; or
(vi) the occurrence of any Event of Default or Potential Event of Default.
(b) If any payment by Anixter (or by any of its Subsidiaries which is a
co-applicant with respect thereto) received by any Issuing Bank with respect to
any Letter of Credit and distributed by the Administrative Agent to the Lenders
on account of their participations is thereafter set aside, avoided or
recovered from the applicable Issuing Bank in connection with any receivership,
liquidation or bankruptcy proceeding or otherwise, each Lender which received
such distribution shall, upon demand by such Issuing Bank, contribute such
Lender's Applicable Percentage of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by such Issuing Bank
upon the amount required to be repaid by it.
3.08. Compensation for Letters of Credit.
(a) Lenders' Letter of Credit Fees. Anixter shall pay, with respect to
each Letter of Credit, a Letter of Credit fee equal to the Applicable Margin in
effect from time to time (computed based upon actual days elapsed in a
365/366-day year) of the maximum amount available to be drawn under such Letter
of Credit. Such fee shall be paid to the Administrative Agent, for the account
of the Lenders in proportion to their respective aggregate Applicable
Percentages of all Letters of Credit then outstanding, quarterly in arrears, on
the last calendar day of each March, June, September and December occurring
after the Effective Date. Each of the Issuing Banks shall provide Anixter and
the Administrative Agent on or before the last Business Day of each March,
June, September and December occurring after the Effective Date a statement
calculating the Letter of Credit fees payable under this Section 3.08(a) for
the quarter then ending with respect to Letters of Credit issued by such
Issuing Bank.
(b) Issuing Bank Fees. In addition to the fees under clause (a) above,
Anixter shall pay to each Issuing Bank, (i) with respect to each Commercial
Letter of Credit, such fronting fee as shall have been agreed to (both with
respect to amount and timing) between the applicable Issuing Bank and Anixter
and the customary charges of the applicable Issuing Bank with respect thereto
for commercial letters of credit of similar type and for similar credit risks,
such charges to be payable at such time as is agreed to between Anixter and the
applicable Issuing Bank, (ii) with respect to each Standby Letter of Credit,
such fronting fee as shall have been agreed to (both with respect to amount and
timing) between the applicable Issuing Bank and Anixter and (iii) with respect
to all Letters of Credit issued by such Issuing Bank, on demand, such Issuing
Bank's customary administration fees charged in connection with its issuance,
administration, transfer or amendment of or drawing under any Letter of Credit.
Such fees shall be paid directly to and shall be solely for the account of the
applicable Issuing Bank.
-53-
61
3.09. Indemnification; Exoneration. (a) In addition to amounts payable
as elsewhere provided in this Article III, Anixter agrees to protect,
indemnify, pay and save harmless the Administrative Agent, the Issuing Banks
and each Lender from and against any and all Liabilities and Costs which the
Administrative Agent, any Issuing Bank or any Lender may incur or be subject to
as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of any Issuing Bank, as a result of its gross
negligence or willful misconduct, as determined by the final judgment of a
court of competent jurisdiction or (ii) the failure of any Issuing Bank to
honor a drawing under such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
Governmental Authority (all such acts or omissions herein called "Governmental
Acts").
(b) As among Anixter, the Lenders, the Issuing Banks and the
Administrative Agent, Anixter assumes all risks of the acts and omissions of,
or misuse of such Letter of Credit by, the beneficiary of any Letter of Credit.
In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit Applications and Letter of Credit
Reimbursement Agreements, the Issuing Banks, the Administrative Agent and the
Lenders shall not be responsible (in the absence of gross negligence or willful
misconduct in connection therewith, as determined by the final judgment of a
court of competent jurisdiction): (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) 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;
(iii) for failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of technical
terms; (vi) for any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (vii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
and (viii) for any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Bank and the Lenders including, without
limitation, any Governmental Acts. None of the above shall affect, impair, or
prevent the vesting of any of the Issuing Banks' rights or powers under this
Section 3.09.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with Letters of Credit issued on behalf of Anixter
or Anixter and one of its Subsidiaries or any related certificates shall not,
in the absence of gross negligence or willful misconduct, as determined by the
final judgment of a court of competent jurisdiction, put such Issuing Bank, the
Administrative Agent or any Lender under any resulting liability to Anixter or
relieve Anixter of any of its obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of Anixter
hereunder, Anixter's agreements and obligations in this Section 3.09 shall
survive the payment in full of principal and interest hereunder, the
termination of the Letters of Credit and the termination of this Agreement.
3.10 Reporting By Issuing Banks. On or before the thirtieth (30th) day
following the end of each calendar month ending after the Effective Date, each
of the Issuing Banks shall provide the
-54-
62
Administrative Agent and each Lender with a written report describing, as of
the end of such month, the then aggregate outstanding face amount of each
Letter of Credit issued by it, whether such Letter of Credit is a Standby
Letter of Credit or Commercial Letter of Credit, the beneficiary of such Letter
of Credit, the name of any Subsidiary of Anixter which is a co-applicant with
respect to any such Letter of Credit and any other additional information with
respect thereto which the Administrative Agent or any Lender reasonably
requests. Together with each monthly report, each of the Issuing Banks shall
provide the Administrative Agent and each Lender with a copy of each Letter of
Credit issued by it during the immediately preceding month and each Letter of
Credit Application and/or Letter of Credit Reimbursement Agreement executed in
connection therewith.
ARTICLE IV
CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.01. Conditions Precedent to the Effectiveness of this Agreement. The
effectiveness of this Agreement and the obligation of each Lender to make any
Loan requested to be made by it on the Effective Date, and the obligation of
each Issuing Bank to issue and of each Lender to participate in any Letter of
Credit on the Effective Date, shall be subject to the satisfaction on or before
the Effective Date of all of the following conditions precedent:
(a) The Administrative Agent shall have received:
(i) counterparts of this Agreement signed by each of the parties hereto;
(ii) the Notes, signed by each Borrower;
(iii) counterparts of the Contribution Agreement, signed by each
Person that is a Guarantor as of the Effective Date;
(iv) a certificate, dated the Effective Date, signed by a Financial
Officer of Anixter to the effect set forth in Section 4.02(b);
(v) all documents the Administrative Agent may reasonably request
relating to the existence or good standing of AXE, Anixter or any Borrowing
Subsidiary, the corporate power and authority of any such party to enter into,
and the validity of, this Agreement and the other Loan Documents, and any other
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent;
(vi) opinions of Xxxxx, Xxxxx & Xxxxx, counsel for Anixter, Xxxx X.
Xxx, counsel for Anixter, and Xxxxx & XxXxxxxx, counsel for Anixter
International N.V./S.A., substantially in the forms of Exhibits X-0, X-0 xxx
X-0 hereto, respectively, dated the Effective Date and covering such additional
matters relating to the transactions contemplated hereby as the Requisite
Lenders may reasonably request (and Anixter instructs Xxxxx, Xxxxx & Xxxxx,
Xxxx X. Dul and Xxxxx & XxXxxxxx to deliver such opinions to the Administrative
Agent and the Lenders);
-55-
63
(vii) any governmental and third party approvals necessary or
advisable in connection with the transactions contemplated hereby; and
(viii) an opinion of Sidley & Austin, counsel for the Administrative
Agent, substantially in the form of Exhibit N hereto, dated the Effective Date
and covering such matters relating to the transactions contemplated hereby as
the Administrative Agent may reasonably request (and the Administrative Agent
instructs Sidley & Austin to deliver such opinion to the Lenders).
(b) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received any notice that litigation is pending or threatened which is
likely to (i) enjoin, prohibit or restrain this Agreement from becoming
effective, the making of the Loans and/or the issuance of Letters of Credit on
or after Effective Date or (ii) impose or result in the imposition of a
Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of AXE, Anixter, or
Anixter and its Subsidiaries taken as a whole shall have occurred since
December 31, 1995, which change, in the judgment of the Lenders, will have or
is reasonably likely to have a Material Adverse Effect.
(d) Representations and Warranties. All of the representations and
warranties contained in Section 5.01 and in any of the other Loan Documents
shall be true and correct in all material respects on and as of the Effective
Date.
(e) No Default. No Event of Default or Potential Event of Default under
the Original Credit Agreement or this Agreement shall have occurred and be
continuing or would result from the effectiveness of this Agreement.
(f) Legal Matters. All legal and regulatory matters shall be
satisfactory to the Administrative Agent and its counsel and to each Lender and
its counsel.
4.02. Conditions Precedent to all Loans and Letters of Credit. The
obligation of each Lender to make any Loan requested to be made by it and of
each Issuing Bank to issue any Letter of Credit, on any date, is subject to the
following conditions precedent as of such date:
(a) Notice of Borrowing. The Administrative Agent shall have received in
accordance with the provisions of Section 2.02(a), with respect to any Loan, or
Section 3.04(a), with respect to any Letter of Credit, an original and duly
executed Notice of Borrowing.
(b) Additional Matters. As of the Funding Date for any Loan or the date
of issuance of any Letter of Credit:
(i) Representations and Warranties. All of the representations and
warranties of the Borrowers contained in Section 5.01,or repeated pursuant to
Section 5.02, and of any Borrower or any Subsidiary of any Borrower contained
in any other Loan Document (other than representations and warranties which
expressly speak only as of a different
-56-
64
date) shall be true and complete in all respects on and as of such
Funding Date or issuance date, as though made on and as of such date both
before and after taking into account the requested Loans to be made and Letters
of Credit to be issued;
(ii) No Default. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan or the issuance of the requested Letter of Credit;
(iii) No Injunction. No law or regulation shall have been adopted, no
order, judgment or decree of any Governmental Authority shall have been issued,
and no litigation shall be pending or threatened (other than as a result of any
condition described in Section 2.13, 2.15 or 2.19), which in the reasonable
judgment of the Requisite Lenders, would enjoin, prohibit or restrain any
Lender from making the requested Loan or the applicable Issuing Bank from
issuing the requested Letter of Credit or as a result of making any such Loan
or issuing such Letter of Credit impose or result in the imposition of any
material adverse condition upon any Lender or any Issuing Bank; and
(iv) No Material Adverse Change. No event shall have occurred after
December 31, 1995 which, in the reasonable judgment of the Requisite Lenders,
has had or could reasonably be expected to have a Material Adverse Effect.
The request by a Borrower for any Loan made, or to be made, or any Letter
of Credit issued, or to be issued, on any Funding Date shall constitute a
representation and warranty by such Borrower as of such Funding Date that all
the conditions contained in this Section 4.02 have been satisfied or waived in
writing pursuant to Section 13.08.
4.03. Conditions Precedent to Initial Borrowing by each Borrowing
Subsidiary. The obligation of each Lender to make a 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:
(a) a Borrowing Subsidiary Agreement executed by such Borrowing
Subsidiary and acknowledged by Anixter;
(b) a Note payable to each Lender, signed by such Borrowing Subsidiary;
(c) 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
(d) any governmental and third party approvals necessary or advisable
in connection with the execution, delivery and performance of this Agreement by
such Borrowing Subsidiary.
-57-
65
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Representations. To induce each Lender, each Issuing Bank and the
Administrative Agent to enter into this Agreement and to make the Loans and to
issue or participate in the Letters of Credit, each Borrower represents and
warrants to each Lender, each Issuing Bank and the Administrative Agent that
the following statements are true and correct:
(a) 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 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.
(b) Authority. (i) AXE, Anixter and 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.
(ii) The execution, delivery and performance (or filing or recording, as
the case may be) of each of the Transaction Documents to which it is 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.
(iii) 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 and constitutes its legal,
valid and binding obligation, 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), is in full force and effect (unless terminated in accordance with
the terms thereof) and no term or condition thereof has been amended, modified
or waived from the terms and conditions contained therein without the prior
written consent of the Administrative Agent and the Requisite Lenders or, where
so required, all of the Lenders, and AXE, Anixter and each Subsidiary of
Anixter party thereto and, to the best of such Borrower's knowledge, the other
parties thereto have performed and complied in all material respects with all
the material terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by such parties on or before the
effective date thereof, and no default by any such party exists thereunder.
(c) Subsidiaries. Anixter has no Subsidiaries other than those described
in Schedule 5.01(c) and those, if any, which are permitted by Section 8.03 to
be created after the Effective Date.
-58-
66
(d) No Conflict. The execution, delivery and performance of each
Transaction Document to which it is a party by AXE, Anixter and each Subsidiary
of Anixter party thereto 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
5.01(d), 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 in favor of any Issuing Bank
arising pursuant to the Loan Documents or Liens permitted pursuant to Section
8.02(b)), or (v) require any approval of stockholders of any such Person,
unless such approval has been obtained.
(e) 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 party thereto, 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.
(f) 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.
(g) Financial Position. (i) As of the Effective 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 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.
(ii) 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 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.
Except as contemplated in the Transaction Documents, the Consolidated Group,
taken as a whole, has no material obligations, contingent liabilities or
liabilities for taxes, long-term leases or material or unusual forward or
long-term commitments which are not reflected in such financial statements and
the notes thereto.
-59-
67
(h) Pro Forma Financials and Projections. As of the date of this
Agreement, the pro forma financial statements of Anixter and its Subsidiaries
dated August, 1996 set forth in that certain Confidential Information
Memorandum furnished by the Administrative Agent and Chase Securities Inc. on
behalf of Anixter to the Lenders (the "Bank Book") fairly present the financial
condition of Anixter and its Subsidiaries and the results of operations and
changes in cash flows for the periods covered thereby (subject to normal
year-end adjustments). As of the date of such pro forma financial statements,
neither Anixter nor any of its Subsidiaries has any material obligations,
contingent liabilities or liabilities for taxes, long-term leases or material
or unusual forward or long-term commitments which are not reflected in such pro
forma financial statements or the notes thereto. As of the date of this
Agreement the projections concerning Anixter and its Subsidiaries dated August,
1996 set forth in the Bank Book accurately represent the good faith projections
of Anixter of each such Person's projected financial performance and are based
upon reasonable assumptions.
(i) Reserved.
(j) Litigation; Adverse Effects. (i) Except as set forth in Schedule
5.01(j), 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 if adversely determined could be reasonably expected to
result in any Material Adverse Effect.
(ii) 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 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.
(k) 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 December 31, 1995 which has or could reasonably be expected to have a
Material Adverse Effect.
(l) Payment of Taxes. All 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
of Governmental Authorities which do not exceed $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. All such tax assessments are being contested in good faith by Anixter
or such Subsidiary or a settlement with respect to any such assessment is being
negotiated in good faith by such Person and appropriate reserves have been
established in accordance with GAAP.
-60-
68
(m) Reserved.
(n) 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 under any agreement or instrument the absence or termination
of which Contractual Obligations 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 or could not reasonably
expected to have a Material Adverse Effect.
(o) 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 the proceeds of any
Loan to purchase or carry Margin Stock.
(p) 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.
(q) 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 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.
(r) 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 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.
(s) Environmental Matters. Except as disclosed in Schedule 5.01(s) 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 Anixter and its Subsidiaries comply in all respects
with all applicable environmental, health and safety Requirements of Law; (ii)
each of
-61-
69
Anixter and its Subsidiaries has obtained all environmental, health and safety
Permits necessary for its operations, all such Permits are in good standing and
Anixter and its Subsidiaries are in compliance with all terms and conditions of
such Permits; and (iii) (A) neither Anixter nor any Subsidiary of Anixter, nor
any of their present Property or operations and (B) none of 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.
(t) 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 the
Effective Date, the present value of all accumulated benefit obligations under
all Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) do not exceed the fair market value of the assets
of such Plans. As of each date that this representation is made or deemed
made, the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$5,000,000 the fair market value of the assets of all such underfunded Plans.
(u) Solvency. Each of Anixter, individually, and Anixter and its
Subsidiaries, considered as one enterprise, 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.
(v) 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 8.02(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.
(w) Joint Venture; Partnership. Except as set forth in Schedule 5.01(w),
neither AXE nor Anixter nor any Subsidiary of Anixter is engaged in any joint
venture or partnership with any other Person.
(x) Reserved.
(y) No Default. No Potential Event of Default or Event of Default
exists.
(z) Restricted Junior Payments. On or after the Effective 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
Junior Payment or agreed to do so, except to the extent permitted pursuant to
Section 8.05.
5.02. Subsequent Funding Representations and Warranties. To induce each
Lender, each Issuing Bank and the Administrative Agent to enter into this
Agreement, to make the Loans and to
-62-
70
issue or participate in Letters of Credit, each Borrower represents and
warrants to each Lender, each Issuing Bank and the Administrative Agent that
the statements set forth in Section 5.01 (except to the extent that such
statements expressly are made only as of the Effective Date), are true, correct
and complete in all material respects on and as of the Funding Date in respect
of each Borrowing after the Effective Date and the date of issuance of each
Letter of Credit, 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 required or permitted
under this Agreement.
ARTICLE VI
REPORTING COVENANTS
So long as any Borrower shall have any outstanding Obligations or any
Lender shall have any Commitment hereunder or any Letter of Credit remains
outstanding:
6.01. Financial Statements. Each Borrower shall 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) [Reserved].
(b) Quarterly Reports. As soon as practicable, and in any event within
forty-five (45) days after the end of each of 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 for 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.
(c) 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 corresponding periods of 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 and does not
contain any disclaimer) thereon of the 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
-63-
71
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.
(d) Budget and Business Plan. Promptly upon completion, but in any event
not later than sixty (60) 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 each such group, taken as a whole, for the next succeeding Fiscal Year of
Anixter, all in form customarily prepared by Anixter's management, and promptly
after preparation of any commentary on any such budget or projected financial
statements, a copy of such commentary, 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 of sound financial
planning practice and that such Financial Officer has no reason to believe they
are incorrect or misleading in any material respect.
(e) Compliance Certificate; MD&A. Together with each delivery of (i) the
financial statements pursuant to subsections (b) and (c) above, (A) 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 an Event of Default or
Potential Event of Default, or, if 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; and (B)
a Compliance Certificate (1) demonstrating in reasonable detail compliance
during and at the end of such accounting periods with the provisions set forth
in Section 8.05 and Article IX, (2) reporting the Senior Debt Ratings and based
upon its calculations, the Applicable Margin and Facility Fee Percentage and
(3) in the case of the financial statements delivered pursuant to subsection
(b) above, stating that such financial statements present fairly the financial
position of Anixter and its Subsidiaries as at the dates indicated and the
results of their operations and changes in their cash flow for the periods
indicated in conformity with GAAP (except as otherwise noted therein)
consistently applied and (ii) the financial statements pursuant to subsections
(b) and (c) above, a written discussion and analysis by the management of
Anixter of such financial statements.
(f) Accountant's Compliance Certificate. Simultaneously with the
delivery of the financial statements referred to in subsection (c) 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 Event of Default or Potential Event of Default.
(g) Report of Material Events. Promptly upon Anixter obtaining knowledge
(A) of any condition or event which constitutes an Event of Default or
Potential Event of 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 Senior Notes, the Senior Note
Indenture, the Subordination Agreement, (C) of any condition or event which is
required to be disclosed in a
-64-
72
current report filed by Anixter with the Commission on Form 8-K, or (D) 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.
(h) 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 $2,500,000
or any Property of Anixter, any Borrowing Subsidiary or any Domestic Subsidiary
of Anixter valued in excess of $2,500,000 except where the same is fully
covered (other than any applicable deductible) by insurance (other than
insurance in the nature of retro-premium insurance or other self insurance
programs) and of any material adverse change in any such existing action, suit,
proceeding, governmental investigation or arbitration; 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 the 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 declaration
has or could reasonably be expected to have a Material Adverse Effect.
(i) 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 result in liability of Anixter and its ERISA
Affiliates in an aggregate amount exceeding $2,000,000, 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 or proposes to take with respect
thereto.
(j) 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, and of all press releases made available
generally by AXE or Anixter to the public, if any, concerning material
developments in the business of AXE, Anixter or any of Anixter's Subsidiaries.
(k) Reserved.
(l) Reserved.
(m) Notices regarding the Senior Note Indenture. (i) A copy of each
notice or other written communication delivered by or on behalf of Anixter to
any holder of Senior Notes or to the trustee under the Senior Note Indenture,
such delivery to be made at the same time and by the same means as such notice
or other written communication is delivered to such Person, (ii) a copy of each
notice or other written communication received by Anixter from the holders of
or trustee for the Senior Notes, such delivery to be made promptly after such
notice or other written communication is received by Anixter and (iii) notice
of any material amendment or modification of, or supplement to, the Senior Note
Indenture, including, without limitation, any supplement governing the issuance
of any additional notes under the Senior Note Indenture.
(n) Senior Debt Ratings. Promptly after learning thereof, (i) notice of
the initial establishment of any of the Senior Debt Ratings for Anixter and
thereafter any change therein and (ii) a
-65-
73
copy of each notice or other written communication received by Anixter from
S&P, Xxxxx'x, Xxxx & Xxxxxx or any other nationally recognized rating agency
relating to any of the Senior Debt Ratings.
(o) 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 13.20 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.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, from and after the date hereof
and so long as any Borrower shall have any outstanding Obligations or any
Lender shall have any Commitment hereunder or any Letter of Credit remains
outstanding:
7.01. 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 8.08 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 5.01(c) hereto.
7.02. 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.
7.03. Compliance with Laws. Each Borrower shall, and Anixter shall cause
each of its Subsidiaries to, comply with all Requirements of Law, and all
restrictive covenants affecting it or its
-66-
74
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.
7.04. 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 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.
7.05. 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, which companies shall be licensed to do business in the states or
other jurisdictions where such Property is located, the insurance policies and
programs, including, self-insurance retention levels, listed on Schedule 7.05
hereto (or substantially similar programs or policies and amounts or other
programs, policies and amounts acceptable to the Requisite 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 thirty (30) 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.
7.06. 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 of any Lender shall be at such Lender's
expense.
-67-
75
7.07. 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, 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.
7.08. Employee Benefit Matters. Each Borrower shall establish, maintain
and operate, and Anixter shall cause each of its Subsidiaries and other ERISA
Affiliates to establish, maintain and operate, all Plans in all material
respects in compliance with the applicable provisions of ERISA, the IRC, 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.
7.09. Additional Guarantors. Upon the request of the Administrative
Agent, Anixter will promptly cause each Subsidiary that shall not be a
Guarantor hereunder (other than any Foreign Subsidiary (except as provided
below) or any Subsidiary with no significant assets or operations) to execute
and deliver to the Administrative Agent: (i) an instrument satisfactory in form
and substance to the Administrative Agent under which it shall undertake the
obligations of a Guarantor, and (ii) an instrument satisfactory in form and
substance to the Administrative Agent under which it shall become a party to
the Contribution Agreement, 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 instruments 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, Anixter Philippines, Anixter Thailand, or Anixter
Venezuela have become material, such Subsidiary shall execute and deliver the
aforementioned documents to the Administrative Agent.
7.10. Use of Proceeds. The proceeds of the Loans and the Letters of
Credit may be used only in the ordinary course of business and for working
capital and other proper corporate purposes. Letters of Credit may be used (a)
to support financial or performance obligations of the Borrowers, and/or (b)
with respect to Commercial Letters of Credit, to facilitate international
purchases.
ARTICLE VIII
NEGATIVE COVENANTS
Each Borrower covenants and agrees that, on and after the date hereof and
so long as any Borrower shall have any outstanding Obligations or any Lender
shall have any Commitment hereunder or any Letter of Credit remains
outstanding:
8.01. 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;
-68-
76
(iii) the Senior Notes;
(iv) Indebtedness in respect of Accommodation Obligations permitted by
Section 8.04;
(v) Indebtedness of any Subsidiary to Anixter or any other Subsidiary;
(vi) Indebtedness of Anixter to any Subsidiary;
(vii) other Indebtedness of Anixter and its Subsidiaries, including
without limitation subordinated indebtedness, which does not exceed in the
aggregate $250,000,000 at any one time outstanding.
8.02. Sales of Assets; Liens.
(a) Limitation on Sales. No Borrower shall, and Anixter shall not permit
any Subsidiary of Anixter to, 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); and
(v) transfers of assets to any Affiliate for less than fair market
value to the extent such transfer constitutes a permitted Investment pursuant
to Section 8.03.
(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
8.03(vii);
(iv) 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 Liens securing purchase money Indebtedness for Property to the
extent the aggregate
-69-
77
outstanding principal amount of such Indebtedness does not exceed
$20,000,000, is permitted under Section 8.01 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 Potential Event of Default hereunder; and
(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 $2,500,000.
8.03. 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 8.03;
(iii) Investments arising from sales in the ordinary course of
business on customary trade terms;
(iv) Investments constituting (a) loans by Anixter or any Subsidiary
of Anixter to its employees in each case in the ordinary course of business not
in excess of an aggregate amount of $5,000,000 outstanding at any one time and
(b) in addition to the loans permitted pursuant to clause (a), loans by Anixter
to its employees concurrent with the exercise of an option for the purchase of
capital stock of Anixter pursuant to the Anixter Distribution Stock Plan, which
loans shall: (1) be in an amount not to exceed the lesser of (A) $15,000,000 in
the aggregate and (B) the sum of (i) the exercise price with respect to the
stock being purchased plus (ii) the amount of tax withheld on the difference
between the exercise price with respect to such stock and the fair market value
of such stock on the date of exercise of such option; and (2) be secured by a
pledge in favor of Anixter of the capital stock so purchased;
(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 not in excess of an individual amount of $25,000,000 or an aggregate
amount of $50,000,000 over the term of this Agreement;
(vi) Investments in the Anixter-Frontier Joint Venture, and
Investments in connection with the purchase of any other Person's interest in
the Anixter-Frontier Joint Venture, not to exceed $20,000,000 in the aggregate;
(vii) Investments in any joint ventures other than the
Anixter-Frontier Joint Venture, and Investments in connection with the purchase
of any other Person's interest in any such joint ventures, which do not exceed
$20,000,000 in the aggregate;
-70-
78
(viii) Investments (other than those set forth on Schedule 8.03) in
notes receivable received in connection with transactions permitted pursuant to
Section 8.02(a); provided, the aggregate amount of such Investments at any one
time outstanding shall not exceed $5,000,000;
(ix) Investments by Anixter in any Subsidiary of Anixter; provided,
however, that after giving effect to any such Investment, the sum of (a) the
aggregate amount of such Investments made after the Effective Date and not
constituting loans or extensions of credit, and (b) the aggregate outstanding
principal balance of such Investments constituting loans or extensions of
credit, shall not exceed twenty-five percent (25%) of Anixter's total assets as
of the end of the most recent Fiscal Quarter then ended, determined on a
consolidated basis in accordance with Agreement Accounting Principles;
(x) Investments by any Subsidiary of Anixter in any other Subsidiary of
Anixter;
(xi) Investments constituting loans permitted by Section 8.01(vi); and
(xii) other Investments not to exceed $5,000,000 in the aggregate
outstanding at any time.
Notwithstanding anything to the contrary contained in this Section 8.03,
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.
8.04. 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:
(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 of Anixter arising in connection with
the proposed issuance of Canadian rate reset bonds by a Canadian Subsidiary of
Anixter in an aggregate principal amount not to exceed the Dollar Equivalent of
$50,000,000;
(iv) 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 $5,000,000;
(v) Accommodation Obligations of Anixter and its Subsidiaries arising
in connection with Hedging Contracts entered into with any of the Lenders; and
-71-
79
(vi) Other Accommodation Obligations by Anixter and its Subsidiaries
in an aggregate amount outstanding at any time not to exceed the Dollar
Equivalent of Forty Million Dollars ($40,000,000), except that such
Accommodation Obligations may exceed the Dollar Equivalent of $40,000,000
provided that at all times when such Accommodation Obligations exceed
$40,000,000, the Borrowers maintain unused Commitments hereunder at least equal
to the amount by which such Accommodation Obligations exceed $40,000,000;
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 Potential Event of Default.
8.05. Restricted Junior Payments. No Borrower shall, and Anixter shall
not permit any Subsidiary of Anixter to, declare or make any Restricted Junior
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 provided: (a) at the time thereof and
after taking into account the payment thereof, no Event of Default or Potential
Event of Default exists or is pending, whether or not such Event of Default or
Potential Default has been reported to the Administrative Agent; and (b) the
aggregate amount of such dividends, redemptions, retirements, purchases or
other acquisitions does not exceed $11,500,000 plus fifty percent (50%) of the
consolidated net income of the Consolidated Group for the period from January
1, 1996 to the date of such calculation; and
(ii) 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 IRC) 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 Potential Event of Default exists or
is pending, whether or not such Event of Default or Potential 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 10.01(f) or 10.01(g).
8.06. Conduct of Business. No Borrower shall, and Anixter shall not
permit any of its Subsidiaries to, engage in any business other than the
business engaged in by Anixter or such Subsidiary 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.
-72-
80
8.07. 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 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 transactions permitted pursuant to Section 8.05, and
payments to AXE in respect of directors' fees and reasonable allocated expenses
not to exceed $3,000,000 per year in the aggregate.
8.08. Restriction on Fundamental Changes.
(a) No Borrower shall, and Anixter shall not permit any of its
Subsidiaries to, 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 8.02(a); and
(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 8.03.
8.09. 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 IRC 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 IRC), 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;
-73-
81
(vi) fail to pay any required installment or any other payment
required under Section 412 of the IRC 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 IRC;
(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.
8.10. 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.
8.11. 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
G, 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.
8.12. 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.
8.13. Modification of Senior Note Indenture; Issuance of Additional
Senior Notes. Anixter shall not amend, modify or supplement the Senior Note
Indenture in any manner materially adverse to the Lenders, or issue additional
senior notes pursuant to the Senior Note Indenture which have covenants or
other undertakings by Anixter that are materially less favorable to Anixter
than the covenants and undertakings set forth in the Senior Note Indenture .
8.14. 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.
ARTICLE IX
FINANCIAL COVENANTS
9.01. Reserved.
9.02. Minimum Consolidated Net Worth. Each Borrower covenants and agrees
that, on and after the date hereof so long as any Borrower shall have any
Obligations or any Lender has any Commitment hereunder or any Letter of Credit
remains outstanding, no Borrower shall permit Consolidated Net Worth at any
time to be less than (i) the Base Amount plus (ii) fifty percent (50%) of
cumulative consolidated net income of the Consolidated Group from and after
July 1, 1996 minus (iii)
-74-
82
an amount, not to exceed $15,000,000 in the aggregate, in connection with all
redemptions, retirements, purchases or other acquisitions for value, direct or
indirect, of any shares of capital stock of Anixter issued to its employees
under and pursuant to the provisions of the Anixter Distribution Stock Plan
made in conformity with the provisions of Section 8.03(iv)(b).
9.03 Ratio of Indebtedness to Capitalization. Each Borrower covenants
and agrees that, on and after the date hereof so long as any Borrower shall
have any Obligations or any Lender has any Commitment hereunder or any Letter
of Credit remains outstanding, no Borrower shall permit the ratio of (a) Total
Indebtedness to (b) the sum of (i) Consolidated Net Worth and (ii) Total
Indebtedness, as of the end of any Fiscal Quarter, to be greater than the
following:
Period Ratio of Indebtedness to Capitalization
-------------------------------- ---------------------------------------
From the Effective Date
through and including
September 30, 1997 .65 to 1.00
From and after December 31, 1997 .60 to 1.00
9.04. Consolidated Interest Coverage Ratio. Each Borrower covenants and
agrees that, on and after the date hereof so long as any Borrower shall have
any Obligations or any Lender has any Commitment hereunder or any Letter of
Credit remains outstanding, no Borrower shall permit the Consolidated Interest
Coverage Ratio calculated at the end of each Fiscal Quarter for the period of
the immediately preceding four Fiscal Quarters to be less than 3.50 to 1.
9.05. Reserved.
9.06. Capital Expenditures. No Borrower shall, and Anixter shall not
permit any of its Subsidiaries which are members of the Consolidated Group to,
in any Fiscal Year, purchase, invest in or otherwise acquire, including by
Capital Leases, additional property, plant and equipment or other fixed assets
which capital expenditures, net of dispositions of fixed assets during such
Fiscal Year (determined based upon the lesser of the book value of such
disposed assets or the net cash proceeds received), exceed the sum of
$45,000,000 in the aggregate for each of the Fiscal Years ending December 31,
1996 and December 31, 1997, or $55,000,000 in the aggregate for each Fiscal
Year thereafter, in each case plus the difference, if positive, between (1) the
maximum aggregate amount of such capital expenditures permitted pursuant to
this Section 9.06 for the immediately preceding Fiscal Year and (2) the
aggregate amount of actual capital expenditures for such preceding Fiscal Year.
9.07. Calculation of Financial Covenants. All financial covenants in
this Article IX shall be calculated after the elimination of the minority
interest in any Subsidiaries which are not wholly-owned Subsidiaries.
-75-
83
ARTICLE X
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
10.01. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. Any Borrower shall fail (i) to
pay when due any principal of any Loan or Reimbursement Obligation, or (ii) to
pay when due any interest on any Loan or Reimbursement 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 (d), (f), (i),
and (j) thereof), 7.01, 7.05, 7.10 or under Articles VIII (other than Section
8.09 thereof) or IX hereof.
(c) Breach of Representation or Warranty. Any representation or warranty
made or deemed made by any Borrower or any Guarantor to the Administrative
Agent, any Issuing Bank 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 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 10.01(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 $5,000,000 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 $5,000,000 in the aggregate.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) An
involuntary case shall be commenced against AXE, Anixter or any Subsidiary of
Anixter with assets in excess of $1,000,000, 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 or any Subsidiary of Anixter with assets in excess of
$1,000,000 in an involuntary case, under
-76-
84
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 AXE, Anixter or any Subsidiary of
Anixter with assets in excess if $1,000,000, 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 or any Subsidiary of Anixter with
assets in excess if $1,000,000, 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 or
any Subsidiary of Anixter with assets in excess if $1,000,000, 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 or
any Subsidiary of Anixter with assets in excess of $1,000,000 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 or any Subsidiary of Anixter with assets in excess of
$1,000,000 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 or any Subsidiary of Anixter with assets in excess if
$1,000,000 adopts 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 $2,000,000 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 $1,000,000
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 if $1,000,000 shall
otherwise dissolve or cease to exist, in each case except as expressly
permitted pursuant to Section 8.08.
(j) Reserved.
(k) Change in Control. (i) Any Change of Control occurs, or any Put
Event occurs and holders of Senior Notes notify Anixter of their election to
require Anixter to purchase Senior Notes having an aggregate outstanding
principal balance of $2,500,000 or more; (ii) Anixter shall cease to own
directly or indirectly all of the capital stock of the Borrowing Subsidiaries,
(other than director's qualifying shares); or (iii) except as permitted in
Section 8.02, Anixter shall cease to own at least 51% of each class of the
capital stock of each Subsidiary of Anixter (other than the Borrowing
Subsidiaries).
-77-
85
(l) 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 $2,000,000 in the
aggregate; (ii) the plan administrator of any Plan applies under Section 412(d)
of the IRC for a waiver of the minimum funding standards of Section 412(a) of
the IRC 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 $2,000,000 in the aggregate.
(m) Contribution Agreement Default. Any party to the Contribution
Agreement shall terminate or revoke any of its obligations under the
Contribution Agreement or breach any of the terms of the Contribution
Agreement.
(n) Subordination Default. Any breach or other violation by any holder
of Revolving Subordinated Notes of the subordination or enforcement
restrictions, including, without limitation, those in the Subordination
Agreement, shall occur.
(o) Guaranty Default. Any party to the guaranty set forth in Article XII
hereof shall terminate or revoke any of its obligations thereunder or breach
any of the terms thereof, or such guaranty shall otherwise become unenforceable
for any reason.
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 13.08.
10.02. Rights and Remedies.
(a) Acceleration and Termination of Commitments. Upon the occurrence of
any Event of Default described in Section 10.01(f) or 10.01(g) with respect to
any Borrower or any Domestic Subsidiary, the Commitments shall automatically
and immediately terminate and the unpaid principal amount of and any and all
accrued interest on the Loans, all Reimbursement Obligations and all other
Obligations shall automatically become immediately due and payable, with all
additional interest from time to time accrued thereon and without presentment,
demand, or protest or other requirements of any kind (including, without
limitation, valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and of acceleration), all of which are expressly
waived by the Borrowers, and the obligation of each Lender to make any Loan
hereunder and of each Issuing Bank to issue any Letter of Credit shall
thereupon terminate; and upon the occurrence and during the continuance of any
other Event of Default, the Administrative Agent shall at the request, or may
with the consent, of the Requisite Lenders, by written notice to Anixter, (i)
declare that the Commitments are terminated, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder and of each Issuing Bank
to issue any Letter of Credit shall immediately terminate, and (ii) declare the
unpaid principal amount of and any and all accrued and unpaid interest on the
Loans, and all Reimbursement Obligations and all other Obligations to be, and
the same shall thereupon be, immediately due and payable with all additional
interest from time to time accrued thereon and without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are expressly waived by the
Borrowers.
-78-
86
(b) Deposit for Letters of Credit. In addition, upon demand by the
Administrative Agent, the applicable Issuing Bank or the Requisite Lenders
after the occurrence and during the continuance of any Event of Default,
Anixter shall deposit with the Administrative Agent for the benefit of the
applicable Issuing Bank with respect to each Letter of Credit then outstanding
which was issued by such Issuing Bank, cash or Cash Equivalents in Dollars in
an amount equal to the greatest amount for which such Letter of Credit may be
drawn. Such deposit and cash deposits shall be held by the Administrative
Agent for the benefit of such Issuing Bank as cash collateral and security for,
and to provide for the payment of, the Reimbursement Obligations, and may, and
will at the request of the applicable Issuing Bank, be applied by the
Administrative Agent from time to time in payment of any of the Reimbursement
Obligations then due and payable. Anixter grants to the Administrative Agent,
for the benefit of itself, the Lenders and the Issuing Banks, a security
interest in and right of setoff against any such deposit or deposits. Pending
the application of such deposit to payment of the Reimbursement Obligations,
the Administrative Agent may invest such deposit in an open account or similar
immediately available savings deposit and all interest accrued thereon shall be
held with such deposit as additional security for the Reimbursement
Obligations. Such deposits shall be held by the Administrative Agent until the
Reimbursement Obligations have been paid in full and all Letters of Credit have
expired or been canceled.
(c) Rescission. If at any time after acceleration of the maturity of the
Loans, the Borrowers shall pay all arrears of interest and all payments on
account of principal of the Loans and Reimbursement Obligations which shall
have become due otherwise than by acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default
(other than nonpayment of principal of and accrued interest on the Loans due
and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to Section 12.08, then by written notice to Anixter, the Requisite
Lenders may elect, in the sole discretion of such Requisite Lenders, to
rescind and annul the acceleration and its consequences and thereupon the
Administrative Agent shall release any deposit made pursuant to Section
10.02(b); but such action shall not affect any subsequent Event of Default or
Potential Event of Default or impair any right or remedy consequent thereon.
The provisions of the preceding sentence are intended merely to bind the
Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrowers and do not give any
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.01. Appointment. (a) Each Lender and each Issuing Bank designates and
appoints Chase as the Administrative Agent under this Agreement and the Loan
Documents, and each Lender and each Issuing Bank irrevocably authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers as are
set forth herein or therein, together with such other powers as are incidental
thereto. The Administrative Agent agrees to act as such on the express
conditions contained in this Article XI.
(b) The provisions of this Article XI are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Banks, and no Borrower shall
have any right to rely on or enforce any of the provisions hereof (other than
as expressly set forth in Section 11.07 or in Section 11.08). In
-79-
87
performing its functions and duties under this Agreement, the Administrative
Agent shall act solely on behalf of the Lenders and the Issuing Banks and does
not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for any Borrower or any Affiliate of
any Borrower.
11.02. Nature of Duties. The Administrative Agent shall be an
independent contractor of the Lenders and the Issuing Banks and shall not have
any duties or responsibilities except those expressly set forth in this
Agreement or in the other Loan Documents. The duties of the Administrative
Agent shall be mechanical and administrative in nature. Each Lender
acknowledges and agrees that the use of the term "Administrative Agent" herein
is based upon market convention and is not intended to create, and shall not
create, a fiduciary relationship between the Person acting in the capacity of
"Administrative Agent" and any Lender or any Issuing Bank. Nothing in this
Agreement or any of the other Loan Documents, expressed or implied, is intended
to or shall be construed to impose upon the Administrative Agent any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein. Each of the Lenders agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims
each Lender waives. Each Lender and each Issuing Bank shall make its own
independent investigation of the financial condition and affairs of Anixter and
its Subsidiaries in connection with the making and the continuance of the Loans
hereunder, the issuance of Letters of Credit and the entering into any Hedging
Contract and shall make its own appraisal of the creditworthiness of Anixter
and its Subsidiaries, and the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any
Lender or any Issuing Bank with any credit or other information with respect
thereto, whether coming into its possession before the Effective Date or at any
time or times thereafter, except as expressly required herein. If the
Administrative Agent seeks the consent or approval of the Requisite Lenders to
the taking or refraining from taking any action hereunder, the Administrative
Agent shall send notice thereof to each Lender. The Administrative Agent shall
promptly notify each Lender at any time that the Requisite Lenders or, where
expressly required, all of the Lenders, have instructed the Administrative
Agent to act or refrain from acting pursuant hereto.
11.03. Rights, Exculpation, Etc. Neither the Administrative Agent nor
any of its Affiliates nor any of its officers, directors, employees, agents,
attorneys or consultants shall be liable to any Lender or any Issuing Bank for
any action taken or omitted by it or such Person hereunder or under any of the
Loan Documents, or in connection herewith or therewith, except that (i) the
Administrative Agent shall be obligated on the terms set forth herein for
performance of its express obligations hereunder, and (ii) no Person shall be
relieved of any liability imposed by law for its gross negligence or willful
misconduct (as determined by the final judgment of a court of competent
jurisdiction). The Administrative Agent shall not be liable for any
apportionment or distribution of payments made by it in good faith pursuant to
the terms of this Agreement and if any such apportionment or distribution is
subsequently determined to have been made in error the sole recourse of any
Lender or Issuing Bank to whom payment was due, but not made, shall be to
recover from other Lenders and Issuing Banks any payment in excess of the
amount to which they are determined to have been entitled. The Administrative
Agent shall not be responsible to any Lender or any Issuing Bank for any
recitals, statements, representations or warranties herein or for the
execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents, or any of the transactions contemplated hereby and thereby, or of
any of the Transaction Documents or any of the transactions contemplated
thereby, or for the financial condition of Anixter or any of its Subsidiaries.
The Administrative Agent shall not be required to make any inquiry concerning
-80-
88
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any of the Loan Documents or the financial
condition of Anixter or any of its Subsidiaries, or the existence or possible
existence of any Potential Event of Default or Event of Default. The
Administrative Agent may at any time request instructions from the Lenders with
respect to any actions or approvals which by the terms of this Agreement or of
any of the other Loan Documents the Administrative Agent is permitted or
required to take or to grant, and if such instructions are promptly requested,
the Administrative Agent shall be absolutely entitled to refrain from taking
any action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Loan Documents until it shall have received such
instructions from the Requisite Lenders or, where expressly required, all of
the Lenders. Without limiting the foregoing, no Lender or Issuing Bank shall
have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the
instructions of the Requisite Lenders or, where expressly required, all of the
Lenders.
11.04. Reliance. The Administrative Agent shall be entitled to rely upon
any written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the other Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel (including counsel
for any Borrower), independent public accountants and other experts selected by
it in good faith.
11.05. Indemnification. To the extent that the Administrative Agent is
not reimbursed and indemnified by the Borrowers, or the Borrowers fail upon
demand by the Administrative Agent to perform their obligations to reimburse or
indemnify the Administrative Agent for obligations arising under Sections 13.03
and 13.04, the Lenders will reimburse and indemnify the Administrative Agent
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any of the other Loan Documents or any action taken or omitted by
the Administrative Agent under this Agreement or any of the other Loan
Documents, in proportion to each Lender's Pro Rata Share; provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction. The obligations of the Lenders under this Section 11.05 shall
survive the payment in full of the Loans and Reimbursement Obligations and the
termination of this Agreement.
11.06. The Administrative Agent Individually. With respect to its Pro
Rata Share and Applicable Percentages hereunder and the Loans made and Letters
of Credit issued and participated in by it, the Administrative Agent shall have
and may exercise the same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set forth herein for any
other Lender. The terms "Lenders" or "Requisite Lenders" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity as a Lender or one of the
Requisite Lenders. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other business
with the Borrowers as if it were not acting as Administrative Agent pursuant
hereto.
-81-
89
11.07. Successor Administrative Agent; Resignation of Administrative
Agent. (a) The Administrative Agent may resign from the performance of its
functions and duties hereunder at any time by giving at least thirty (30) days
prior written notice to the Lenders and Anixter. If the Administrative Agent
gives notice of its desire to resign from the performance of its functions and
duties as Administrative Agent, any such resignation shall take effect only
upon the acceptance by a successor Administrative Agent of appointment pursuant
to clauses (b) and (c) below or as otherwise provided below.
(b) The Requisite Lenders shall appoint a successor Administrative Agent
who shall be reasonably satisfactory to Anixter provided no such approval of
Anixter shall be required after the occurrence and during the continuance of an
Event of Default.
(c) If a successor Administrative Agent shall not have been so appointed
within said thirty (30) day period, the retiring Administrative Agent, with the
consent of Anixter (which may not be withheld unreasonably), shall then appoint
a successor Administrative Agent who shall serve as Administrative Agent until
such time, if any, as the Requisite Lenders, with the consent of Anixter (which
may not be withheld unreasonably), appoint a successor Administrative Agent as
provided above. No consent of Anixter shall be required after the occurrence
and during the continuance of an Event of Default.
(d) Upon the appointment of a successor Administrative Agent, the term
"Administrative Agent" shall, for all purposes of this Agreement, thereafter
include such successor, except that the retiring Administrative Agent shall
reserve all rights as to Obligations accrued or due to it, in its capacity as
such, at the time of such succession and all rights (whenever arising) under
Section 12.04.
(e) Notwithstanding anything in this Section 11.07 to the contrary, no
Person shall serve as an Administrative Agent unless such Person is a Lender.
11.08. Reserved.
11.09. Relations Among Lenders.
(a) Except with respect to the exercise of set-off rights of any Lender
in accordance with Section 13.06, the proceeds of which are applied in
accordance with this Agreement, and except as set forth below, each Lender
agrees that it will not take any action, nor institute any actions or
proceedings, against any Borrower or any other obligor hereunder or with
respect to any Loan Document, without the prior written consent of the
Requisite Lenders or, as may be provided in this Agreement or the other Loan
Documents, at the direction of the Administrative Agent.
(b) The Lenders are not partners or co-venturers, and no Lender shall be
liable for the acts or omissions of, or (except as otherwise set forth herein
in case of the Administrative Agent) authorized to act for, any other Lender.
Notwithstanding the foregoing, and subject to Section 12.07(a) hereof, any
Lender shall have the right to enforce on an unsecured basis the payment of the
principal of and interest on any Loan made by it after the date such principal
or interest has become due and payable pursuant to the terms of this Agreement.
-82-
90
(c) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, any Issuing Bank, any Existing Lender
or any other Lender and based on the financial statements prepared by Anixter
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, any Issuing Bank 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 this Agreement and the other Loan Documents.
11.10. Notices to AXE. At any time after the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and shall at
the direction of the Requisite Lenders, notify AXE of the occurrence of such
Event of Default in connection with AXE's obligations under the Subordination
Agreement.
ARTICLE XII
GUARANTEE
In order to induce the Lenders to extend credit hereunder and the Issuing
Banks to issue the Letters of Credit hereunder, each Guarantor fully and
unconditionally guarantees, as a primary obligor and not merely as a surety,
jointly with the other Guarantors and severally, the Obligations (including,
without limitation, interest accruing hereunder after the commencement of any
case under the United States Bankruptcy Code, whether or not allowed as a claim
in such case). Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its Guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
Each Guarantor waives presentment to, demand of payment from and protest
to any Borrower of any of the Obligations, and also waives notice of acceptance
of its obligations and notice of protest for nonpayment. The obligations of
the Guarantors hereunder shall not be affected by the failure of any Lender,
any Issuing Bank or the Administrative Agent to assert any claim or demand or
to enforce any right or remedy against any Borrower under the provisions of
this Agreement or any of the other Loan Documents or otherwise, or, except as
specifically provided therein, by any rescission, waiver, amendment or
modification of any of the terms or provisions of this Agreement, any of the
other Loan Documents or any other agreement.
Each Guarantor further agrees that its Guarantee hereunder constitutes a
promise of payment when due and not merely of collection, and waives any right
to require that any resort be had by any Lender or any Issuing Bank to any
balance of any deposit account or credit on the books of any Lender or any
Issuing Bank in favor of any Borrower or any other person.
Each Guarantor agrees that its obligations under this Guarantee shall be
unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or subordination
of any of the Obligations or any of the Loan Documents;
-83-
91
(ii) the absence of any attempt by, or on behalf of, any Lender, any
Issuing Bank or the Administrative Agent to collect, or to take any other
action to enforce, all or any part of the Obligations whether from or against
any Borrower, any other guarantor of the Obligations or any other Person;
(iii) the election of any remedy by, or on behalf of, any Lender, any
Issuing Bank or the Administrative Agent with respect to all or any part of the
Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, any Lender, any Issuing Bank or the
Administrative Agent with respect to any provision of any of the Loan
Documents;
(v) the failure of the Administrative Agent to take any steps to
perfect and maintain its security interest in, or to preserve its rights to,
any security or collateral for the Obligations;
(vi) the election by, or on behalf of, any one or more of the Lenders
or Issuing Banks, in any proceeding instituted under Chapter 11 of Title 11 of
the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims of any of the Lenders, any of the Issuing
Banks or the Administrative Agent for repayment of all or any part of the
Obligations; or
(ix) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of any Borrower or any Guarantor.
The obligations of the Guarantors hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. The Lenders and Issuing Banks, either themselves or acting through
the Administrative Agent, are authorized, without notice or demand and without
affecting the liability of any Guarantor hereunder, from time to time, (a) to
renew, extend, accelerate or otherwise change the time for payment of, or other
terms relating to, all or any part of the Obligations, or to otherwise modify,
amend or change the terms of any of the Loan Documents; (b) to accept partial
payments on all or any part of the Obligations; (c) to take and hold security
or collateral for the payment of all or any part of the Obligations, this
Guarantee, or any other guaranties of all or any part of the Obligations, (d)
to exchange, enforce, waive and release any such security or collateral; (e) to
apply such security or collateral and direct the order or manner of sale
thereof as in their discretion they may determine; (f) to settle, release,
exchange, enforce, waive, compromise or collect or otherwise liquidate all or
any part of the Obligations, this Guarantee, any other guaranty of all or any
part of the Obligations, and any security or collateral for the Obligations or
for any such guaranty.
-84-
92
The Guarantors consent and agree that none of the Lenders, Issuing Banks
nor the Administrative Agent nor any Person acting for or on behalf of the
Lenders, Issuing Banks or the Administrative Agent shall be under any
obligation to xxxxxxxx any assets in favor of any Guarantor or against or in
payment of any or all of the Obligations. The Guarantors further agree that,
to the extent that any Borrower, any Guarantor or any other guarantor of all or
any part of the Obligations makes a payment or payments to any Lender, any
Issuing Bank or the Administrative Agent, or any Lender, any Issuing Bank or
the Administrative Agent receives any proceeds of collateral for all or any
part of the Obligations, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to such Borrower, such Guarantor, such other
guarantor or any other Person, or their respective estates, trustees, receivers
or any other party, under any bankruptcy law, state or federal law, common law
or equitable cause, then, to the extent of such payment or repayment, the part
of the Obligations which has been paid, reduced or satisfied by such amount
shall be reinstated and continued in full force and effect as of the time
immediately preceding such initial payment, reduction or satisfaction.
In furtherance of the foregoing and not in limitation of any other right
which the Administrative Agent or any Lender may have at law or in equity
against the Guarantors by virtue hereof, upon the failure of any Borrower to
pay any of the Obligations when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash, the amount
of such unpaid Obligations. The Guarantors further agree, jointly and
severally, that if payment in respect of any of the Obligations owed to any
Lender or any Issuing Bank shall be due in a currency other than Dollars and/or
at a place of payment other than New York and if, by reason of any Change in
Law, disruption of currency or foreign exchange markets, war or civil
disturbance or other event, payment of such Obligations in such currency or
such place of payment shall be impossible or, in the judgment of such Lender or
Issuing Bank, not consistent with the protection of its rights or interests,
then, at the election of such Lender or Issuing Bank, the Guarantors shall make
payment of such Obligation in Dollars (based upon the applicable Exchange Rate
in effect on the date of payment) and/or in New York, and shall indemnify such
Lender or Issuing Bank against any losses or expenses that it shall sustain as
a result of such alternative payment.
Until the Obligations have been indefeasibly paid in full in cash, the
Guarantors (i) shall have no right of subrogation with respect to such
Obligations and (ii) waive any right to enforce any remedy which the Lenders,
Issuing Banks or the Administrative Agent (or any of them) now have or may
hereafter have against any Borrower, any endorser or any guarantor of all or
any part of the Obligations or any other Person, and the Guarantors waive any
benefit of, and any right to participate in, any security or collateral given
to the Lenders, the Issuing Banks and the Administrative Agent (or any of them)
to secure the payment or performance of all or any part of the Obligations or
any other liability of the Borrowers to the Lenders or Issuing Banks.
This Guarantee shall continue in full force and effect and may not be
terminated or otherwise revoked until the Obligations shall have been fully and
indefeasibly paid (in cash) and discharged and this Agreement and all financing
arrangements between the Borrowers and the Lenders and Issuing Banks shall have
been terminated. If, notwithstanding the foregoing, the Guarantors (or any of
them) shall have any right under applicable law to terminate or revoke this
Guarantee, the Guarantors agree that such termination or revocation shall not
be effective until a written notice of such revocation or termination,
specifically referring hereto, signed by the Guarantors, is actually received
by the Administrative Agent. Such notice shall not affect the right and power
of any of the Lenders, any of
-85-
93
the Issuing Banks or the Administrative Agent to enforce rights arising prior
to receipt thereof by the Administrative Agent. If any Lender grants loans or
takes other action, or any Issuing Bank issues Letters of Credit, after a
Guarantor terminates or revokes this Guarantee but before the Administrative
Agent receives such written notice, the rights of such Lender or Issuing Bank
with respect thereto shall be the same as if such termination or revocation had
not occurred. The provisions of this Article XII shall remain in full force
and effect, notwithstanding any termination of this Agreement, until the
Obligations shall have been fully and indefeasibly paid (in cash) and
discharged.
ARTICLE XIII
MISCELLANEOUS
13.01. Survival of Warranties and Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the other Loan Documents and the making of the
Loans hereunder.
13.02. Assignments and Participations.
(a) At any time after the Effective Date, each Lender may assign to one
or more banks or financial institutions all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, Loans, participations in the Letters of Credit and
its obligations to acquire such participations) in conformity with the
following provisions:
(i) each such assignment shall be of a constant, and not a varying,
percentage of the assigning Lender's rights and obligations under this
Agreement and the assignment shall transfer the same percentage of such
Lender's Commitment, Loans, Letter of Credit Obligations and other interests
hereunder, except that this clause shall not apply to rights in respect of
outstanding Competitive Loans; provided, however, any assignment by any Issuing
Bank shall not include an assignment of its obligation to issue Letters of
Credit;
(ii) unless the Administrative Agent and Anixter otherwise consent, the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000, and
after giving effect to any assignment, other than an assignment of all of the
Lender's rights and obligations under this Agreement, such assigning Lender
shall have a Commitment of at least $5,000,000 (provided that assignments
between Lenders shall have no minimum amount and assignments after the
occurrence and during the continuance of an Event of Default shall not require
Anixter's consent regardless of the size of such assignment);
(iii) the Administrative Agent and the Issuing Banks shall each consent
(which consent shall not unreasonably be withheld) to each such assignment
(other than an assignment between Lenders) and the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,000, and
the assignee, if it is not a Lender, shall deliver an Administrative
Questionnaire to the Administrative Agent; and
-86-
94
(iv) With respect to any assignment made at a time when no Event of
Default exists, Anixter shall have consented to such assignment, which consent
shall not unreasonably be withheld.
Upon such execution, delivery, approval, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
date thereof, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned or negotiated
to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned or
negotiated by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an 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 2.13, 2.15, 2.19, 3.09, 13.03 and 13.04, as well as to any
fees accrued for its account hereunder and not yet paid.
(b) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) the assignment
made under such Assignment and Acceptance is made without recourse and, other
than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or any other document, instrument or
agreement executed or delivered in connection herewith or therewith or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (ii) such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of Anixter or any Subsidiary of Anixter or the performance
or observance by Anixter or any Subsidiary of Anixter of any of its obligations
under any Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements most recently
delivered pursuant to Article VI and such other Loan Documents and other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative
Agent, the Issuing Banks, such assigning Lender 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
this Agreement; (v) such assignee appoints and authorizes the Administrative
Agent to take such action as an Administrative Agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to on
Schedule 1.01-A a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
each Lender and the Commitment of, and principal amount of the Loans owing to,
such Lender 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
-87-
95
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by Anixter and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by the
assignee and the assigning Lender and the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
Administrative Agent shall, if such Assignment and Acceptance has been properly
completed and is in substantially the form of Exhibit C and if the conditions
for the assignment referred to in the Assignment and Acceptance and set forth
in Section 13.02(a) have been met, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to Anixter. No assignment shall be effective unless it
has been recorded in the Register as provided in this paragraph (d).
(e) Each Lender may sell participations to one or more banks or other
entities as to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments,
Loans, participations in the Letters of Credit and its obligations to acquire
such participations); provided, that (i) notice thereof is given to Anixter and
the Administrative Agent, (ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrowers hereunder)
shall remain unchanged, (iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iv) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.13, 2.15, 2.19, and 3.09 to
the same extent as if they were Lenders; provided, however, that no such
participating bank or entity shall be entitled to receive any greater amount
pursuant to such Sections than the Lender from which it purchased its
participation would have been entitled to receive in respect of the amount of
the participation transferred by such Lender to such participating bank or
entity had no transfer occurred, (v) the Borrowers, the Administrative Agent,
the Issuing Banks and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and with regard to any and all payments to be
made under this Agreement, and (vi) the holder of any such participation shall
not be entitled to voting rights under this Agreement; provided, that the
participation agreement between a Lender and its participants may provide that
such Lender will obtain the approval of such participant prior to any amendment
or waiver of any provisions of this Agreement which would (A) extend the
scheduled maturities of the Loans, the Termination Date or the Reimbursement
Obligations or the time of payment of interest thereon or fees, (B) reduce the
interest rate or any fees hereunder, or the principal amount of the Loans or
the Letter of Credit Obligations, (C) increase the aggregate amount of the
Commitment or the Loans of the Lender granting the participation, or increase
such Lender's Pro Rata Share, or (D) except as expressly contemplated herein or
therein, release AXE from its obligations as a Guarantor hereunder.
(f) Upon the acceptance by the Administrative Agent of any Assignment and
Acceptance, the parties to such Assignment and Acceptance may at any time
request that new Notes be issued to the Lender assignor and the Lender assignee
by (i) providing written notice of such request to the Administrative Agent and
Anixter and (ii) delivering to Anixter such assigning Lender's Notes for
cancellation and substitution, if applicable. Promptly following Anixter's
receipt of any such notice, and verification from the Administrative Agent that
the applicable Assignment and Acceptance shall have been accepted by the
Administrative Agent, Anixter forthwith shall cause to be executed, and shall
deliver to the Lender assignee, a new Note to the order of the assignee and, if
applicable, a replacement Note to the order of the Lender assignor, and such
Notes shall equal the aggregate principal amount of such assigning Lender's
Notes issued by each Borrower immediately prior to the
-88-
96
acceptance by the Administrative Agent of the applicable Assignment and
Acceptance. Each Borrower shall immediately upon delivery of such new Note(s),
cancel the original Note delivered by the Lender assignor to such Borrower, if
applicable.
(g) Notwithstanding anything herein to the contrary, each Lender may
assign all or any portion of its rights under this Agreement as collateral
security to the Federal Reserve Bank or any Governmental Authority succeeding
to its functions.
13.03. Expenses.
(a) Generally. Whether or not any Funding Date shall have occurred, the
Borrowers agree upon demand to pay, or reimburse the Administrative Agent for,
all of the Administrative Agent's and any of its Affiliates' reasonable costs
and expenses of every type and nature (including, without limitation, the
reasonable fees, expenses and disbursements of attorneys and legal assistants
(including allocated costs of internal counsel and legal assistants), auditors,
accountants, appraisers, printers, insurance and environmental advisers, and
other consultants retained by the Administrative Agent, and other legal,
travel, search and filing fees and expenses and all fees, taxes (except income
and franchise taxes), assessments and duties incurred by any of them) incurred
by the Administrative Agent or its Affiliates in connection with (i) the
negotiation, preparation and execution of this Agreement and any amendments or
waivers thereto (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article IV) and the other
Loan Documents or any amendment or waiver thereto and the making of the Loans
hereunder; (ii) the administration of this Agreement, the Loan Documents and
the Loans; and (iii) the protection, collection or enforcement of any of the
Obligations. In addition, the Borrowers shall pay, or reimburse the
Administrative Agent, the Issuing Banks and the Lenders for, all reasonable
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' and legal assistants' fees (including allocated costs of internal
counsel and costs of settlement) incurred by the Administrative Agent, any
Issuing Bank or any Lender prior to the occurrence of an Event of Default in
commencing, defending or intervening in any litigation or in filing a petition,
complaint, answer, motion or other pleading in any legal proceeding relating to
Anixter or any Subsidiary of Anixter and arising out of or in connection with
the Transaction Documents.
(b) After Default. The Borrowers further agree to pay, or reimburse the
Administrative Agent, the Issuing Banks and the Lenders for, all reasonable
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' and legal assistants' fees, expenses and disbursements (including
allocated costs of internal counsel and costs of settlement) incurred by the
Administrative Agent, any Issuing Bank or any Lender after the occurrence of an
Event of Default (i) in enforcing any of the Obligations or exercising or
enforcing any other right or remedy available by reason of such Event of
Default; (ii) in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or in
any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer,
motion or other pleading in any legal proceeding relating to Anixter or any
Subsidiary of Anixter and related to or arising out of the transactions
contemplated hereby or by any of the Transaction Documents; (iv) in taking any
other action in or with respect to any suit or proceeding (whether in
bankruptcy or otherwise); (v) in protecting, preserving, collecting, leasing,
selling, taking possession of, or liquidating any collateral for the
Obligations; or (vi) in attempting to enforce or enforcing any Lien securing
any of the Obligations.
-89-
97
13.04. Indemnification and Waiver. The Borrowers agree: (a) to defend,
protect, indemnify, and hold harmless the Administrative Agent, each and all of
the Issuing Banks and each and all of the Lenders, each of their respective
Affiliates and each of the respective officers, directors, employees and agents
of each of the foregoing (collectively called the "Indemnitees") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees (whether direct, indirect or consequential
and whether based on any federal or state laws or other statutory regulations,
including, without limitation, securities and commercial laws and regulations,
under common law or at equitable cause, or on contract or otherwise, including
any liabilities and costs under federal, state or local environmental, health
or safety laws, regulations, or common law principles, arising from or in
connection with the past, present or future operations of Anixter and its
Subsidiaries, or their respective predecessors in interest, or the past,
present or future environmental condition of the Property of Anixter or any
Subsidiary of Anixter, the presence of asbestos-containing materials at any
such Property, or the Release or threatened Release of any Contaminant into the
environment from any such Property) in any manner relating to or arising out of
this Agreement or any of the other Transaction Documents, the capitalization of
Anixter, the Lenders' Commitments, the making of, issuance of, management of
and participation in the Loans or the Letters of Credit, or the use or intended
use of the Letters of Credit and the proceeds of the Loans hereunder
(collectively, the "Indemnified Matters"); provided, that the Borrowers shall
have no obligation to an Indemnitee hereunder with respect to (i) matters for
which such Indemnitee has been compensated pursuant to or for which an
exemption is provided in Section 2.13 or 2.15 or any other provision of this
Agreement and (ii) Indemnified Matters caused by or resulting from the gross
negligence or willful misconduct of that Indemnitee, as determined by a final
judgment of a court of competent jurisdiction; and (b) to assert no claim
against the Administrative Agent, any of the Lenders, any of the Issuing Banks
or any other Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages, all of which claims, if any, are waived. To
the extent that the undertaking to indemnify, pay and hold harmless set forth
in the preceding clause (a) may be unenforceable because it violates any law or
public policy, each Borrower shall contribute the maximum portion which it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees. Without
prejudice to the survival of any other agreement of the Borrowers hereunder,
the agreements and obligations of the Borrowers contained in this Section 13.04
shall survive the payment in full of principal and interest hereunder, the
termination of the Letters of Credit and the termination of this Agreement.
13.05. Limitation of Liability. No claim shall be made by any Borrower,
any Lender or other Person against the Administrative Agent, any Issuing Bank,
or any Lender or the Affiliates, directors, officers, employees, or agents of
any of them for any special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement or
any other Loan Document, or any act, omission or event occurring in connection
therewith, and each Borrower and each Lender waives, releases and agrees not to
xxx upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
13.06. Setoff. In addition to any Liens now or hereafter granted to the
Administrative Agent, the Issuing Banks or Lenders and any rights now or
hereafter granted under applicable law and not by way of limitation of any such
Lien or rights, upon the occurrence and during the continuance of
-90-
98
any Event of Default, each Lender and each Issuing Bank is authorized by each
Borrower at any time or from time to time, without notice to such Borrower, or
to any other Person (any such notice being expressly waived) to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender or that Issuing Bank to
or for the credit or the account of such Borrower against and on account of the
Obligations of such Borrower to that Lender or that Issuing Bank including, but
not limited to, all Loans and Reimbursement Obligations and all claims of any
nature or description arising out of or connected with this Agreement or
any of the other Loan Documents, irrespective of whether or not (i) that Lender
or that Issuing Bank shall have made any demand hereunder or (ii) the
Administrative Agent shall have declared the principal of and interest on the
Loans and other amounts due hereunder to be due and payable as permitted by
Article X and although said obligations and liabilities, or any of them, may be
contingent or unmatured. Any amount so received by a Lender or an Issuing Bank
shall be subject to the provisions of Section 2.17.
13.07. Reserved.
13.08. Amendments and Waivers. No amendment or modification of any
provision of this Agreement shall be effective without the written agreement of
the Requisite Lenders and Anixter, and no termination or waiver of any
provision of this Agreement, or consent to any departure by any Borrower
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders, which the Requisite Lenders shall have the right to
grant or withhold at their sole discretion; except that any amendment,
modification, or waiver of any provision of this Agreement which would (i)
extend the time of expiration or termination of any of the Commitments or the
scheduled maturities of the Loans or the Reimbursement Obligations or the time
of payment of interest thereon or fees (including, without limitation by any
amendment to or waiver of Section 10.02(a)), (ii) reduce the interest rate, the
amount of any fees, indemnities or reimbursements hereunder, or the principal
amount of the Loans or the Letter of Credit Obligations (including, without
limitation by any amendment to or waiver of Section 10.02(a)), (iii) increase
the aggregate amount of the Commitments or the Loans of the Lenders or increase
any Lender's Pro Rata Share, (iv) amend the definitions of "Applicable
Percentage," "Committed Currency," "Requisite Lenders," "Pro Rata Share", the
first two sentences of Section 2.02(a), Section 2.16(b) or the provisions
contained in this Section 13.08 or the parties whose consent is required for
action hereunder or under the other Loan Documents, or (v) release any
Guarantor from all or any material part of its obligations under Article XII,
shall be effective only if evidenced by a writing signed by or on behalf of all
Lenders. No amendment, modification, termination, or waiver of any provision
of Article XI or any other provision referring to the Administrative Agent
shall be effective without the written concurrence of the Administrative Agent.
No amendment, modification, termination or waiver of any provision of Article
III shall be effective without the written consent of each of the Issuing
Banks. The Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on any Borrower in any case shall entitle any
Borrower to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 13.08 shall be binding on each
assignee, transferee or recipient of a Lender's Commitment or Loans, each
future assignee, transferee, recipient of a Lender's Commitment or Loans, and,
if signed by Anixter, on each Borrower.
-91-
99
13.09. Reserved.
13.10. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, telecopied, telexed or sent by courier
service or United States mail and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of a telecopy or telex
(with confirmation of transmission or delivery) or four (4) Business Days after
deposit in the United States mail (registered or certified, with postage
prepaid and properly addressed). Notices to the Administrative Agent shall not
be effective until received by the Administrative Agent. For the purposes
hereof, the addresses of the parties hereto (until notice of a change thereof
is delivered as provided in this Section 13.10) shall be as set forth in
Schedule 1.01-A or on the applicable Assignment and Acceptance or, in the case
of a Lender, at its address set forth on its Administrative Questionnaire or,
as to each party, at such other address as may be designated by such party in a
written notice to all of the other parties.
13.11. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure
or delay on the part of the Administrative Agent, any Issuing Bank or any
Lender in the exercise of any power, right or privilege under any of the Loan
Documents shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under the Loan Documents are cumulative to and not exclusive
of any rights or remedies otherwise available.
13.12. Termination. Upon the termination in whole of the Commitments
pursuant to the terms of this Agreement, the Borrowers shall pay to the
Administrative Agent for the benefit of the Lenders and the Issuing Banks an
amount equal to any and all Obligations then outstanding.
13.13. Marshalling; Recourse to Security; Payments Set Aside. None of
the Lenders, the Issuing Banks or the Administrative Agent shall be under any
obligation to marshal any assets in favor of any Borrower or any other party or
against or in payment of any or all of the Obligations. Recourse to security
shall not be required at any time. To the extent that any Borrower makes a
payment or payments to the Administrative Agent, the Lenders or the Issuing
Banks, or the Administrative Agent, the Lenders or the Issuing Banks enforce
any security interest or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, state or federal law, common law or equitable cause, then
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
13.14. Severability. In case any provision in or obligation under
this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
-92-
100
13.15. Headings. Article and Section headings in this Agreement and in
the Table of Contents hereto are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose or
be given any substantive effect.
13.16. Governing Law. The Administrative Agent accepts this agreement,
on behalf of itself, the Lenders and the Issuing Banks, at New York, New York
by acknowledging and agreeing to it there. Any dispute between any Borrower or
any Guarantor and the Administrative Agent, any Lender or any Issuing Bank
arising out of, connected with, related to, or incidental to the relationship
established between them in connection with, this Agreement or any of the other
Loan Documents, and whether arising in contract, tort, equity, or otherwise,
shall be resolved in accordance with the laws of the State of New York.
13.17. Successors and Assigns; Subsequent Holders of Notes. This
Agreement and the other Loan Documents shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit of
the parties hereto and the successors and permitted assigns of the Lenders.
The terms and provisions of this Agreement shall inure to the benefit of any
assignee or transferee of the Loans and the Commitments of any Lender (to the
extent such assignment or transfer is effected in accordance with Section
13.02), and in the event of such transfer or assignment, the rights and
privileges herein conferred upon such Lender shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions hereof. No Borrower's rights or any interest therein hereunder, and
no Borrower's duties or Obligations hereunder, may be assigned without the
written consent of all of the Lenders. All of each Borrower's obligations and
duties under this Agreement and under each of the other Loan Documents shall
be binding upon each of such Borrower's successors and assigns, including,
without limitation, any receiver, trustee or debtor-in-possession of or for
such Borrower.
13.18. Consent to Jurisdiction; Service of Process; Jury Trial.
(a) Exclusive Jurisdiction. Except as provided in subsection (b), each
of the parties hereto agrees that all disputes among them arising out of,
connected with, related to, or incidental to the relationship established among
them in connection with, this agreement or any of the other loan documents
whether arising in contract, tort, equity, or otherwise, shall be resolved
exclusively by state or federal courts located in New York, New York, but the
parties hereto acknowledge that any appeals from those courts may have to be
heard by a court located outside of New York, New York. Each of the parties
hereto waives in all disputes brought pursuant to this subsection any objection
that it may have to the location of the court considering the dispute.
(b) Other Jurisdictions. Each Borrower and each Guarantor agrees that
the Administrative Agent, any Lender or any Issuing Bank shall have the right
to proceed against such Borrower or Guarantor or its property in a court in any
location to enable such person to (1) obtain personal jurisdiction over such
Borrower or Guarantor or (2) realize on any security for the Obligations or to
enforce a judgment or other court order entered in favor of such Person. Each
Borrower and each Guarantor agrees that it will not assert any permissive
counterclaims in any proceeding brought by such Person to realize on any
security for the obligations or to enforce a judgment or other court order in
favor of such person. Each Borrower and each Guarantor waives any objection
that it may have to the location of the court in which such Person has
commenced a proceeding described in this subsection.
-93-
101
(c) Service of Process. Each Borrowing Subsidiary and each Guarantor
(other than Anixter) waives personal service of any process upon it and
irrevocably appoints Anixter as such Borrowing Subsidiary's or Guarantor's
agent for the purpose of accepting service of process issued by any court.
Each Borrower and each Guarantor irrevocably waives any objection (including,
without limitation, any objection of 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 such action or proceeding with respect to this agreement or any
other instrument, document or agreement executed or delivered in connection
herewith in any jurisdiction set forth above.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO 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 HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Waiver of Bond. Each Borrower and each Guarantor waives the posting
of any bond otherwise required of any party hereto in connection with any
judicial process or proceeding to realize on any security for the Obligations
or to enforce any judgment or other court order entered in favor of such party,
or to enforce by specific performance, temporary restraining order, preliminary
or permanent injunction, this Agreement or any other Loan Document.
(F) Advice of Counsel. Each of the parties represents to each other
party hereto that it has discussed this Agreement and, specifically, the
provisions of this Section 13.18, with its counsel.
13.19. Counterparts; Effectiveness; Inconsistencies. This Agreement
and any amendments, waivers, consents, or supplements may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually signed counterpart
hereof. This Agreement shall become effective against each of Anixter, each
Lender and the Administrative Agent on the date when all of such parties have
duly executed and delivered this Agreement to each other (delivery by Anixter
to the Lenders and by any Lender to Anixter and any other Lender being deemed
to have been made by delivery to the Administrative Agent). This Agreement and
each of the other Loan Documents shall be construed to the extent reasonable to
be consistent one with the other, but to the extent that the terms and
conditions of this Agreement are actually inconsistent with the terms and
conditions of any other Loan Document, this Agreement shall govern.
13.20 Confidentiality. Each of the Administrative Agent, Issuing Banks,
and Lenders agrees and will cause each of its affiliates, representatives,
agents and employees to agree, to keep confidential the Information (as
defined below) and all copies thereof, extracts therefrom and analyses
-94-
102
or other materials based thereon, except that the Administrative Agent, any
Issuing Bank or any Lender shall be permitted to disclose such Information (a)
at the request of a bank regulatory agency or in connection with an examination
by bank examiners, (b) pursuant to subpoena or other court process, (c)
at the express direction of any other authorized government agency, (d) to
the independent auditors of the Administrative Agent, such Issuing Bank or
such Lender, (e) otherwise as required by law, (f) in connection with the
enforcement of this Agreement or any other Loan Document, or (g) to prospective
assignees or participants who agree to keep such Information confidential on
substantially the terms of this Section 13.20. For the purposes of this
Section, "Information" shall mean all information that is received from the
Borrower and relates to the Borrower or the Subsidiaries or to candidates
for acquisition by the Borrower or a Subsidiary and which is designated
as confidential in writing by Anixter, other than any such information
available to the Administrative Agent, any Issuing Bank or any Lender on a
non-confidential basis prior to its disclosure hereunder and information which
becomes available to the Administrative Agent, any Issuing Bank or any Lender
on a non-confidential basis from a source that is not bound to keep such
information confidential. The provisions of this Section 13.20 shall remain
operative and in full force and effect until the expiration of this Agreement.
13.21 ENTIRE AGREEMENT. THIS WRITTEN CREDIT AGREEMENT REPRESENTS THE
FINAL AGREEMENT AMONG THE PARTIES AS TO ITS SUBJECT MATTER AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
13.22. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. If an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
13.23. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures in the relevant jurisdiction
the first currency could be purchased with such other currency on the Business
Day immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 13.23 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
-95-
103
13.24 Reaffirmation. AXE consents to the terms of this Agreement and
reaffirms its obligations under the Subordination Agreement, which remains in
full force and effect.
-96-
104
IN WITNESS WHEREOF, this Agreement has been duly executed on the date set
forth above.
ANIXTER INC.,
By: Signature
------------------------
Its: Title
------------------------
ANIXTER INTERNATIONAL INC,
as a Guarantor
By: Signature
------------------------ Its: Title
-----------------------
ANIXTER-REAL ESTATE, INC.,
as a Guarantor
By: Signature
------------------------ Its: Title
------------------------
WIREXPRESS, INC.,
as a Guarantor
By: Signature
------------------------ Its: Title
------------------------
ANIXTER INFORMATION SYSTEMS
CORPORATION,
as a Guarantor
By: Signature
------------------------ Its: Title
-------------------------
-S1-
105
ANIXTER HOLDINGS INC.,
as a Guarantor
By: Signature
------------------------ Its: Title
------------------------
ANIXTER FINANCIAL INC.,
as a Guarantor
By: Signature
------------------------ Its: Title
------------------------
ANIXTER INTERNATIONAL N.V./S.A.,
as a Borrowing Subsidiary
By: Signature
------------------------ Its: Title
------------------------
-S2-
000
XXX XXXXX XXXXXXXXX BANK,
as Administrative Agent and as a
Lender
By: Signature
------------------------
Its: Title
-----------------------
-S3-
107
EXHIBIT A
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
Anixter Inc.
Administrative Questionnaire
Please accurately complete all the following information and return via FAX to
the attention of [ ] at The Chase Manhattan Bank (telecopy: )
as soon as possible.
FAX NUMBER:
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
----------------------------------------------------------
-------------------------------------------------------------------------------
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
----------------------------------------------
Institution Name:
-------------------------------------------------------
Street Address:
-------------------------------------------------------
City, State, Zip Code:
-------------------------------------------------------
GENERAL INFORMATION - EUROCURRENCY LENDING OFFICE:
--------------------------------------------------
Institution Name:
-------------------------------------------------------
Street Address:
-------------------------------------------------------
City, State, Zip Code:
-------------------------------------------------------
CONTACTS/NOTIFICATION METHODS:
------------------------------
CREDIT CONTACTS:
Primary Contact:
-------------------------------------------------------
Street Address:
-------------------------------------------------------
City, State, Zip Code:
-------------------------------------------------------
Phone Number:
-------------------------------------------------------
FAX Number:
-------------------------------------------------------
108
Backup Contact:
-------------------------------------------------------
Street Address:
-------------------------------------------------------
City, State, Zip Code:
-------------------------------------------------------
Phone Number:
-------------------------------------------------------
FAX Number:
-------------------------------------------------------
TAX WITHHOLDING:
------------------------
Non Resident Alien Y* N
-------------------- -----------------
* If yes, please attach Form 4224 or 1001.
Tax ID Number
------------------------------------------------------
CONTACTS/NOTIFICATION METHODS:
------------------------------
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
------------------------------------------------------
Street Address:
-------------------------------------------------------
City, State, Zip Code:
--------------------------------------------------------
Phone Number:
--------------------------------------------------------
FAX Number:
--------------------------------------------------------
PAYMENT INSTRUCTIONS:
---------------------
Name of Bank where funds are to be transferred:
---------------------------------------------------------------------
Routing Transit/ABA number of Bank where funds are to be transferred:
---------------------------------------------------------------------
Name of Account, if applicable:
---------------------------------------------------------------------
2
109
Account Number:
-------------------------------------------------------
Additional Information:
-------------------------------------------------------
MAILINGS:
---------
Please specify who should receive financial information:
Name:
-------------------------------------------------------
Street Address:
-------------------------------------------------------
City, State, Zip Code:
-------------------------------------------------------
3
110
EXHIBIT B
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
FORM OF
ALTERNATE CURRENCY ADDENDUM
---------------------------
[SPECIFY CURRENCY] ADDENDUM dated as of [ ], to the
Credit Agreement (as defined below).
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Addendum, the following
terms shall have the meanings specified below:
"Alternate Currency Loan" shall mean any extension of credit, denominated
in [specify currency], made to a Borrower pursuant to Section 2.01(b) of the
Credit Agreement and this Addendum. An Alternate Currency Loan shall bear
interest at the rate specified in Schedule II.
"Anixter" shall mean Anixter Inc., a Delaware corporation.
"Base Rate" shall mean [identify any base rate customarily used in
connection with loans in the applicable currency].
"Credit Agreement" shall mean the Second Amended and Restated Credit
Agreement dated as of September 6, 1996, among Anixter, the Borrowing
Subsidiaries named therein, the Guarantors named therein, the Financial
Institutions from time to time party thereto as Lenders, and The Chase
Manhattan Bank, as Administrative Agent, and as the same may be amended, waived
or modified from time to time.
SECTION 1.02. Terms Generally. Terms defined in the Credit Agreement
shall have the same meanings in this Addendum. Wherever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". All references herein to
Sections and Schedules shall be deemed references to Sections of and Schedules
to this Addendum unless the context shall otherwise require.
ARTICLE II
The Credits
-----------
SECTION 2.01. Alternate Currency Loans. (a) This Addendum (as the same
may be amended, waived or modified from time to time) is an "Alternate Currency
Addendum" as defined in
111
the Credit Agreement and is, together with the borrowings made hereunder,
subject in all respects to the terms and provisions of the Credit Agreement.
The Alternate Currency Lenders party to this Addendum are set forth
on Schedule I.
(b) Any modifications to the Interest Payment Dates, Interest Periods,
interest rates and any other special provisions applicable to Alternate
Currency Loans under this Addendum are set forth on Schedule II. If Schedule
II states "None" with respect to any item listed thereon, then the
corresponding provisions of the Credit Agreement, without modification, shall
govern this Addendum.
(c) Any special borrowing procedures or funding arrangements for
Alternate Currency Loans under this Addendum, any provisions for the issuance
of promissory notes to evidence the Alternate Currency Loans made hereunder and
any additional information requirements applicable to Alternate Currency Loans
under this Addendum are set forth on Schedule III. If no such special
procedures, funding arrangements, provisions or additional requirements are set
forth on Schedule III, then the corresponding procedures, funding arrangements,
provisions and information requirements set forth in the Credit Agreement shall
govern this Addendum.
SECTION 2.02. Maximum Borrowing Amounts. (a) The Alternate Currency
Lender Maximum Borrowing Amount for each Alternate Currency Lender party to
this Addendum is set forth on Schedule I. The Alternate Currency Facility
Maximum Borrowing Amount under this Addendum is set forth on Schedule I.
(b) Upon at least [10] Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, Anixter may from time to time
reduce (including to zero) the aggregate Alternate Currency Lender Maximum
Borrowing Amounts under this Addendum; provided, however, that (i) each partial
reduction shall be in an integral multiple of [$500,000] and in a minimum
principal amount of [$1,000,000] and (ii) no such reduction shall be permitted
if, after giving effect thereto, to any repayments of Loans made on the
effective date thereof and to any adjustments under Section 2.23 of the Credit
Agreement (A) the Dollar Equivalent of all Loans outstanding under this
Addendum would exceed the Alternate Currency Facility Maximum Borrowing Amount
under this Addendum or (B) the Dollar Equivalent of all Loans of any Alternate
Currency Lender outstanding under this Addendum would exceed the Alternate
Currency Lender Maximum Borrowing Amount of such Alternate Currency Lender.
Any such reduction shall be allocated pro rata among all the Alternate Currency
Lenders party to this Addendum by reference to their respective Alternate
Currency Lender Maximum Borrowing Amounts hereunder (and without taking into
account Section 2.23 of the Credit Agreement).
ARTICLE III
Representations and Warranties
------------------------------
Each Borrower party hereto makes and confirms each representation and
warranty applicable to each Borrower or any of its Subsidiaries contained in
Article V of the Credit Agreement. Each Borrower represents and warrants to
each of the Alternate Currency Lenders party to this Addendum that no Potential
Event of Default or Event of Default has occurred and is continuing, and no
Potential Event of Default or Event of Default shall arise as a result of the
making of Loans hereunder or any other transaction contemplated hereby.
2
112
ARTICLE IV
Miscellaneous Provisions
------------------------
SECTION 4.01. Amendment; Termination. (a) This Addendum (including the
Schedules hereto) may not be amended without the prior written consent of
Lenders representing a majority in amount of the Alternate Currency Lender
Maximum Borrowing Amounts hereunder, but subject to the provisions of Section
13.08 of the Credit Agreement; provided, however, that this Section 4.01(a)
shall not restrict assignments pursuant to Section 4.02.
(b) This Addendum may not be terminated without the prior written consent
of each Alternate Currency Lender party hereto unless there are no Alternate
Currency Loans outstanding hereunder, in which case no such consent shall be
required; provided, however, that this Addendum shall terminate on the date
that the Credit Agreement terminates in accordance with its terms.
SECTION 4.02. Assignments. Section 13.08 of the Credit Agreement shall
apply to assignments by Alternate Currency Lenders of obligations and Loans
hereunder; provided, however, that a Alternate Currency Lender may not assign
any obligations or rights hereunder to any Person who is not (and does not
simultaneously become) a Lender under the Credit Agreement.
SECTION 4.03. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the Borrower, to it at [ ], Attention [
] (Telecopy No. [ ]) with a copy to Anixter at its
address or telecopy number referenced in Section 13.10 of the Credit
Agreement;
(b) if to the Alternate Currency Agent, to it at the Alternate
Currency Agent's branch of account with a copy to the Administrative
Agent at their telecopy numbers referenced in Section 13.10 of the Credit
Agreement; and
(c) if to an Alternate Currency Lender, to it at its address (or
telecopy number) set forth in Schedule I or in the Assignment and
Acceptance pursuant to which such Alternate Currency Lender became a
party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section with telephonic confirmation
of receipt thereof by such party or in accordance with the latest unrevoked
direction from such party given in accordance with this Section.
SECTION 4.04. Ratification of Guarantee and Subordination Agreement. By
its execution of this Addendum, each Guarantor ratifies and confirms its
guarantee contained in Article XII of the Credit Agreement with respect to the
Alternate Currency Loans made pursuant to this Addendum, and AXE reaffirms its
obligations under the Subordination Agreement, which remains in full force and
effect
3
113
SECTION 4.05. Setoff. Each Alternate Currency Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or any other security or interest arising from, or in
lieu of, such secured claim, received by such Alternate Currency Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
similar means, obtain payment (voluntary or involuntary) of any Alternate
Currency Loan or Loans as a result of which the unpaid principal portion of
the Alternate Currency Loans of such Alternate Currency Lender shall be
proportionately less than the unpaid principal portion of the Alternate
Currency Loans of any other Alternate Currency Lender it shall be deemed
simultaneously to have purchased from such other Alternate Currency Lender at
face value, and shall promptly pay to such other Alternate Currency Lender the
purchase price for, a participation in the Alternate Currency Loans of such
other Alternate Currency Lender, so that the aggregate unpaid principal amount
of the Alternate Currency Loans and participations in the Alternate Currency
Loans held by each Alternate Currency Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Alternate Currency Loans then
outstanding as the principal amount of its Alternate Currency Loans prior to
such exercise of banker's lien, setoff or counterclaim or other event was to
the principal amount of all Alternate Currency Loans outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 4.05 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Each Borrower party to this Addendum
expressly consents to the foregoing arrangements and agrees that any Alternate
Currency Lender holding a participation in an Alternate Currency Loan deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by such Borrowing
Subsidiary to such Alternate Currency Lender by reason thereof as fully as if
such Alternate Currency Lender had made an Alternate Currency Loan directly to
such Borrower in the amount of such participation.
SECTION 4.06. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4
114
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
ANIXTER INC.
By: _______________________________
Name:
Title:
ANIXTER INTERNATIONAL INC.
By: _______________________________
Name:
Title:
[OTHER BORROWERS]
By: _______________________________
Name:
Title:
[OTHER GUARANTORS]
By: _______________________________
Name:
Title:
[ALTERNATE CURRENCY LENDERS]
By: _______________________________
Name:
Title:
5
115
SCHEDULE I
to Alternate Currency Addendum
ALTERNATE CURRENCY LENDERS
Alternate Currency Facility Name and Address of Alternate Currency Lender
-------------------------
Maximum Borrowing Amount Alternate Currency Lender Maximum Borrowing Amount
--------------------------- ------------------------- -------------------------
US$
========== US$
116
SCHEDULE II
to Alternate Currency Addendum
MODIFICATIONS
1. Interest Payment Dates.
-----------------------
2. Interest Periods.
-----------------
3. Spreads.
--------
4. Interest Rates.
---------------
5. Other.
------
2
117
SCHEDULE III
to Alternate Currency Addendum
OTHER PROVISIONS
1. Borrowing Procedures.
---------------------
2. Funding Arrangements.
---------------------
3. Promissory Notes.
-----------------
4. Information Requirements.
-------------------------
3
118
EXHIBIT C
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Dated: , 19
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 6, 1996 (as it may hereafter be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among
Anixter Inc. ("Anixter"), the Borrowing Subsidiaries named therein, the
Guarantors named therein, the financial institutions from time to time party
thereto as Lenders, and The Chase Manhattan Bank, as Administrative Agent.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
1. The Assignor sells and assigns, without recourse, to the Assignee,
and the Assignee purchases and assumes, without recourse, from the Assignor,
effective as of the effective date of assignment set forth below (the
"Assignment Date"), a ____% interest (the "Interest") in and to all of the
Assignor's rights and obligations under the Credit Agreement, including,
without limitation, all of its rights and obligations with respect to the
Assignor's Commitment, the Loans, participations in the Letters of Credit
and the obligations to acquire such participations; provided, however, with
respect to the Assignor's rights and obligations under its Competitive
Loans, the Assignee purchases and assumes, without recourse from the
Assignor, a percentage interest, as set forth on Schedule I hereto
(collectively, the "Competitive Loan Interest") in and to the Assignor's
rights and obligations with respect to Competitive Loans set forth opposite
such percentage interests on Schedule I (the Interest and the Competitive
Loan Interest being referred to collectively as the "Assigned Interest").
2. The Assignor represents and warrants that, as of the date hereof
(and without giving effect to any assignment of such interest which has not
become effective) (i) the Assignor's Commitment is $__________, (ii) the
aggregate outstanding principal amount of Ratable Loans owing to it is
$________, (iii) the aggregate outstanding principal amount of Alternate
Currency Loans owing to it is $_________, (iv) [the aggregate outstanding
principal amount of Competitive Loans owing to it is $__________, and (v)]
the aggregate outstanding principal amount of its participation in Letter of
Credit Obligations is $_________.
3. Each of the Assignor and the Assignee makes and agrees to be bound
by all the representations, warranties and agreements set forth in Section
13.02 of the Credit Agreement, a copy of which has been received by each
such party. From and after the Assignment Date, (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder, and (ii) the Assignor shall,
to the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
4. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under
the laws of a jurisdiction outside the United States, the forms referenced
in Section 2.19(f) of the Credit Agreement, duly completed and executed by
such Assignee, (ii) if the Assignee is not already a Lender under the Credit
Agreement, an Administrative
1
119
Questionnaire in the form of Exhibit A to the Credit Agreement and (iii)
a processing and recordation fee of $3,000.
5. This Assignment and Acceptance shall be governed by and construed
in accordance with the law of the State of New York.
Date of Assignment: ____________________________________________________
Legal Name of Assignor: ________________________________________________
Legal Name of Assignee: ________________________________________________
Assignee's Address for Notices: ________________________________________
Assignee's Domestic Lending Office Address:_____________________________
________________________________________________________________________
Assignee's Eurocurrency Lending Office Address:_________________________
________________________________________________________________________
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment): ___________________________________
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:____________________________ By:____________________________
Name: Name:
Title: Title:
Acknowledged and agreed to this __
day of _______, 19__.
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:____________________________
Name:
Title:
[________________], as an Issuing Bank
By:_____________________________
Name:
Title:
2
120
Schedule I
Assignment and Acceptance
COMPETITIVE LOAN INTERESTS
Competitive Loan Percentage Assigned
---------------- -------------------
121
EXHIBIT D
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
BORROWING SUBSIDIARY AGREEMENT
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Date]
Ladies and Gentlemen:
The undersigned, Anixter Inc. ("Anixter"), refers to the Second Amended
and Restated Credit Agreement dated as of September 6, 1996 (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 Guarantors named therein, the financial institutions from time to time
party thereto as Lenders, and The Chase Manhattan Bank, as Administrative
Agent. 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,
Articles IV and XII 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 Article XII of the
Credit Agreement 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 New York. Loan proceeds should be deposited as provided
in the Credit Agreement.
122
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 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 4.03 of the Credit Agreement.
Very truly yours,
ANIXTER INC.
By: ______________________________
Name:
Title:
123
[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.
THE CHASE MANHATTAN BANK, as Administrative Agent
By: __________________________
Name:
Title:
3
124
EXHIBIT E
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
BORROWING SUBSIDIARY TERMINATION
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
with a copy to:
Chase Securities Inc.
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
[Date]
Ladies and Gentlemen:
Anixter Inc. ("Anixter"), refers to the Second Amended and Restated Credit
Agreement dated as of September 6, 1996 (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 Guarantors named
therein, the financial institutions from time to time party thereto as Lenders,
and The Chase Manhattan Bank, as Administrative Agent. 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 and any Alternate
Currency Addendum 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 New York.
Very truly yours,
ANIXTER INC.
By: __________________________
Name:
Title:
125
EXHIBIT F
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
with a copy to:
Chase Securities Inc.
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Ladies and Gentlemen:
Anixter Inc. ("Anixter"), refers to the Second Amended and Restated Credit
Agreement dated as of September 6, 1996 (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 Guarantors named
therein, the financial institutions from time to time party thereto as Lenders,
and The Chase Manhattan Bank, as Administrative Agent. Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.
In accordance with Section 2.03(c) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
, 19[ ], and in accordance with Section 2.03(d) of the Credit
Agreement, we accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Interest Rate Basis Lender
---------------- ----------------- ------------------- ------
$ [%]/[+/- %]
$
126
We reject the following bids:
Principal Amount Fixed Rate/Margin Interest Rate Basis Lender
---------------- ----------------- ------------------- ------
$ [%]/[+/- %]
$
The $ ___ should be deposited in Chase account number [] on [date].
Very truly yours,
ANIXTER INC.
By: _________________________
Name:
Title:
2
127
EXHIBIT G
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
COMPETITIVE BID REQUEST
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
with a copy to:
Chase Securities Inc.
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
[Date]
Ladies and Gentlemen:
Anixter Inc. ("Anixter"), refers to the Second Amended and Restated Credit
Agreement dated as of September 6, 1996 (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 Guarantors named
therein, the financial institutions from time to time party thereto as Lenders,
and The Chase Manhattan Bank, as Administrative Agent. Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.
Anixter notifies you pursuant to Section 2.03(a) of the Credit Agreement
that it requests a Competitive Borrowing under the Credit Agreement, and in
that connection sets forth below the terms on which such Competitive Borrowing
is requested to be made:
(A) Date of Competitive Borrowing
(which is a Business Day) _____________
(B) Principal amount of _____________
Competitive Borrowing(1)
_____________
___________________________________
(1) Not less than $10,000,000 (and in integral multiples of $1,000,000) or
greater than the aggregate Available Commitments.
128
(C) Interest rate basis(2) _____________
(D) Interest Period and the
last day thereof(3) _____________
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, Anixter shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.02(b) of the
Credit Agreement have been satisfied. Any amounts borrowed shall be deposited
in Chase account number [ ].
Very truly yours,
ANIXTER INC.
By: ________________________
Name:
Title:
__________________________________________
(2) Eurodollar Loan or Fixed Rate Loan.
(3) Which shall be subject to the definition of "Interest Period" and end not
later than the Termination Date.
2
129
EXHIBIT H
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
COMPLIANCE CERTIFICATE
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 6, 1996 (as it may hereafter be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among Anixter
Inc., a Delaware corporation ("Anixter"), the Borrowing Subsidiaries named
therein, the Guarantors named therein, the financial institutions from time to
time party thereto as Lenders, and The Chase Manhattan Bank, as Administrative
Agent. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 6.01(e) of the Credit Agreement, Anixter delivers to
the Administrative Agent, together with the Financial Statements being
delivered to the Administrative Agent and the Lenders pursuant to Sections
6.01(b) and 6.01(c) of the Credit Agreement, this Compliance Certificate (the
"Certificate") for the accounting period from , 199 to
, 199 .
A. RESTRICTED JUNIOR PAYMENTS (Section 8.05)
(i) Aggregate amount of dividends paid to
AXE during the period from January 1, 1996
to the end of the period covered
by this Certificate. $_____________
(ii) Net income of the Consolidated
Group since January 1, 1996. $_____________
(iii) 50% of amount in (ii). $_____________
(iv) Excess of the amount in (i) over
the sum of (a) [$ ] plus
(b) the amount in (iii) (which excess,
if any, constitutes an unpermitted dividend). $_____________
B. MINIMUM CONSOLIDATED NET WORTH (Section 9.02)
1. Consolidated Net Worth as of end of
the period covered by this Certificate. $_____________
2. Required Consolidated Net Worth: $=============
Base Amount [$______________]
130
plus
----
50% of consolidated net income
since the Effective Date $_______________
minus
-----
Redemptions, etc. of Anixter
capital stock under Anixter
Distribution Stock Plan
(not to exceed $15,000,000) $_______________
TOTAL: $
==============
C. RATIO OF INDEBTEDNESS TO CAPITALIZATION (Section 9.03)
The ratio of Total Indebtedness to the sum of Consolidated Net Worth and
Total Indebtedness during the period covered by this Certificate.
ACTUAL:
Total Indebtedness = $__________________
Consolidated Net Worth = $__________________
Total Indebtedness ___________________ = _____
---------------------------------------------
(Consolidated Net Worth + Total Indebtedness) = 1.00
REQUIRED: .65 to 1.0
(from Effective
Date thru 9/30/97)
.60 to 1.0
(from and after
12/31/97)
D. MINIMUM INTEREST COVERAGE RATIO (Section 9.04)
The Consolidated Interest Coverage Ratio
calculated as of the end of the most recently
ended fiscal quarter during the period covered
by this certificate.
ACTUAL:
Consolidated EBITDA = $___________________
2
131
Consolidated Interest Expense of
the Consolidated Group = $___________________
Consolidated EBITDA = $___________________ = ______
-------------------
Consolidated Interest Expense $ 1.00
REQUIRED: 3.50 to 1.0
E. CAPITAL EXPENDITURES (Section 9.06)
ACTUAL: $______________________
MAXIMUM PERMITTED:
(i) $45,000,000 (or $55,000,000
for fiscal years commencing
on and after January 1, 1998),
plus
(ii) Maximum capital
expenditures permitted for
the preceding fiscal year: $_______________________
minus
(iii) Capital expenditures
actually made during the
preceding fiscal year $_______________________
TOTAL: $
========================
F. CALCULATION OF APPLICABLE MARGIN AND FACILITY FEE PERCENTAGE
Current Senior Debt Ratings:
Duff & Xxxxxx: ___________
Xxxxx'x ___________
S&P ___________
Senior Debt Rating (as defined in the Credit Agreement): ______
Consolidated Interest Coverage Ratio (from above): ______
3
132
Category(1): ______
Applicable Margin: ______
Facility Fee Percentage: ______
Anixter certifies, through its officer indicated below, that (i) the
representations made above are true, correct, and complete in all respects on
and as of the date hereof, (ii) the information set forth above is accurate as
of ______________, 19__ , to the best of such officer's knowledge after
diligent inquiry, and (iii) that the financial statements delivered herewith
present fairly the financial position of Anixter and its Subsidiaries at the
dates indicated and the results of their operations and changes in their cash
flows for the periods indicated in conformity with GAAP, consistently applied.
Dated:_________, 19__
ANIXTER INC.
By:________________________
Name:
Title:
______________________________
(1) From definitions of Applicable Margin and Facility Fee Percentage.
4
133
EXHIBIT I
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
NOTICE OF BORROWING
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
with a copy to:
Chase Securities Inc.
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
[Name and address of applicable Issuing Bank](1)
[Date]
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 6, 1996 (as it may hereafter be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among Anixter
Inc. ("Anixter"), the Borrowing Subsidiaries named therein, the Guarantors
named therein, the financial institutions from time to time party thereto as
Lenders, and The Chase Manhattan Bank, as Administrative Agent. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
[The undersigned Borrower notifies you pursuant to Section 2.04 of the
Credit Agreement that it requests a Ratable Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Ratable Borrowing is requested to be made:
(A) Date of Ratable Borrowing
(which is a Business Day) ___________________
___________________________________
(1) Include if Notice is for the issuance of a Letter of Credit.
134
(B) Denomination of Ratable
Borrowing(1) _______________________
(C) Principal amount of
Ratable Borrowing(2) _______________________
(D) Interest rate basis(3) _______________________
(E) Interest Period and the
last day thereof(4) _______________________
Any amounts borrowed shall be deposited in Chase account number
__________________.](5)
[Anixter gives you irrevocable notice pursuant to Section 3.04(a) of the
Credit Agreement that it requests the issuance of a [Commercial][Standby]
Letter of Credit under the Credit Agreement for the account of Anixter [and
insert name of Subsidiary, if any], and in that connection sets forth below the
terms on which such Letter of Credit is requested to be issued:
(A) Amount and currency of
Letter of Credit(6) _______________________
(B) Effective date of Letter
of Credit (which is a
Business Day) _______________________
(C) Expiration date _______________________
(D) Beneficiary of Letter
of Credit _______________________
(E) Amount of Outstanding Letter
_______________________
(1) Dollars or a Committed Currency.
(2) Not less than $1,000,000 or the Dollar Equivalent thereof (and in integral
multiples of $500,000 or the Dollar Equivalent thereof).
(3) Eurocurrency Ratable Loan or, in the case of a Ratable Dollar Borrowing, an
ABR Loan.
(4) Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
(5) Use bracketed language if Notice is for a Ratable Borrowing.
(6) Dollars [or a Committed Currency].
2
135
the date hereof _______________________
(F) Any additional terms ] _______________________ (1)
Upon acceptance of any or all of the [Loans made by the Lenders][Letters
of Credit Issued by the Issuing Banks] in response to this request, the
undersigned Borrower shall be deemed to have represented and warranted that the
conditions precedent to [lending][the issuance of Letters of Credit] specified
in Section 4.02(b) of the Credit Agreement have been satisfied.
Very truly yours,
[ANIXTER INC.](2)
By:___________________
Name:
Title:
_______________________
(1) Use bracketed language if Notice is for the issuance of a Letter of Credit.
(2) Or, in the case of a Ratable Borrowing, a Borrowing Subsidiary.
3
136
EXHIBIT J
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
[Date]
Attention: [ ]
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 6, 1996 (as it may hereafter be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among Anixter
Inc. ("Anixter"), the Borrowing Subsidiaries named therein, the Guarantors
named therein, the financial institutions from time to time party thereto as
Lenders, and The Chase Manhattan Bank, as Administrative Agent. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
Anixter made a Competitive Bid Request on ___________, 19[ ], pursuant to
Section 2.03(a) of the Credit Agreement, and in that connection you are invited
to submit a Competitive Bid by [Date]/[Time].(1) Your Competitive Bid must
comply with Section 2.03(b) of the Credit Agreement and the terms set forth
below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing ________________________
(B) Principal amount of
Competitive Borrowing ________________________
(C) Interest rate basis ________________________
(D) Maturity of Competitive
Borrowing ________________________
(E) Interest Period and the
last day thereof ________________________
Very truly yours,
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:________________________
Name
Title
_______________________
(1) The Competitive Bid must be received by the Administrative Agent (i) in the
case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing, and (ii) in
the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on
the Business Day of a proposed Competitive Borrowing.
137
EXHIBIT K
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
COMPETITIVE BID
The Chase Manhattan Bank, as Administrative Agent
Administrative Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
with a copy to:
Chase Securities Inc.
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
[Date]
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Second Amended and
Restated Credit Agreement dated as of September 6, 1996 (as it may hereafter be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among Anixter Inc. ("Anixter"), the Borrowing Subsidiaries named
therein, the Guarantors named therein, the Financial Institutions from time to
time party thereto as Lenders, and The Chase Manhattan Bank, as Administrative
Agent. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The undersigned makes a Competitive Bid pursuant to Section 2.03(b) of the
Credit Agreement, in response to the Competitive Bid Request made by Anixter on
____, 19[ ], and in that connection sets forth below the terms on which
such Competitive Bid is made:
(A) Principal Amount(1) $____________________
(B) Competitive Bid Rate(2) _____________________
_______________________
(1) Not less than $10,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of, $1,000,000. Multiple bids will be
accepted by the Administrative Agent.
(2) i.e. LIBO Rate-or-a Margin, in the case of Eurodollar Competitive Loans or a
fixed percentage rate, in the case of Fixed Rate Loans.
138
(C) Maturity of Competitive
Borrowing _____________________
(D) Interest Period and last day
thereof _____________________
The undersigned confirms that it is prepared, subject to the conditions
set forth in the Credit Agreement, to extend credit to the Borrower upon
acceptance by such Borrower of this bid in accordance with Section 2.03(d) of
the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:___________________
Name:
Title:
139
EXHIBIT L
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
[FORM OF]
NOTE
___________ __, 19__
FOR VALUE RECEIVED, the undersigned,_____________, a __________
corporation ("Borrower"), UNCONDITIONALLY PROMISES TO PAY to the order of
______________________ (the "Lender") the aggregate unpaid amount of all of the
Loans made by the Lender to the Borrower pursuant to the "Credit Agreement" (as
hereinafter defined). Capitalized terms used herein and not otherwise defined
herein are used as defined in the Credit Agreement.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement or in any
Alternate Currency Addendum with respect to Alternate Currency Loans made
thereunder, and, if not sooner paid in full, on the Termination Date. The
Borrower further promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until the principal amount thereof is paid
in full, at such interest rates, and payable at such times, as are specified in
the Credit Agreement or in any Alternate Currency Addendum with respect to
Alternate Currency Loans made thereunder.
All payments of principal and interest in respect of each Loan evidenced
by this Note shall be made payable to the Administrative Agent in the currency
in which such Loan was made, in same-day funds, for the Lender's account at
__________, Account No. _________, [Address], Re: Payment for [NAME OF
BORROWER] Loan, or at such other place as shall be designated in writing by the
Administrative Agent for such purpose in accordance with the terms of the
Credit Agreement.
All Loans made by the Lender to the Borrower, the respective Interest
Periods thereof, and all repayments of the principal thereof shall be recorded
by the Lender and, prior to any transfer thereof, endorsed by the Lender on the
schedule attached hereto and made a part hereof; provided, that the failure of
the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, that certain Second Amended and Restated Credit Agreement dated as
of September 6, 1996 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement") among Anixter Inc., the Borrowing
Subsidiaries named therein, the Guarantors named therein, the financial
institutions from time to time party thereto as Lenders, and The Chase
Manhattan Bank, as Administrative Agent. The Credit Agreement, among other
things, (i) provides for the making of Loans by the Lender to the Borrower from
time to time and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
140
The Borrower waives demand, presentment, protest and notice of nonpayment
and protest.
Whenever in this Note reference is made to the Administrative Agent, the
Lender or the Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The
provisions of this Note shall be binding upon and shall inure to the benefit of
said successors and assigns. The Borrower's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the Borrower.
THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[NAME OF BORROWER]
By:_______________________
Name:
Title:
2
141
[BORROWER] Note Schedule
---------- -------------
Amount of Unpaid
Amount of Type of Interest Principal Principal Notation
Date Loan Loan Period Repaid Balance Made By
----- ----------- --------- ---------- --------- --------- ---------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
3
142
EXHIBIT M-1
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
FORM OF
OPINION OF XXXXX, XXXXX & XXXXX
COUNSEL FOR ANIXTER INC.
Attached.
143
[XXXXX XXXXX & XXXXX LETTERHEAD]
September 6, 1996
To each of the Lenders
to the "Credit Agreement"
as defined below), and
to the Chase Manhattan Bank,
as Administrative Agent
Anixter Inc.
0000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: Anixter Inc. Credit Agreement
Ladies and Gentlemen:
We have acted as special counsel to Anixter Inc., a Delaware
corporation ("ANIXTER"), Anixter International Inc., a Delaware Corporation
("AXE"), Anixter International N.V./S.A., a Belgium corporation ("BCC"),
Anixter-Real Estate, Inc., an Illinois corporation ("ANIXTER-REAL ESTATE"),
Anixter Information Systems Corporation, an Illinois corporation ("ANIXTER
INFORMATION"), Anixter Holdings, Inc., a Delaware corporation ("ANIXTER
HOLDINGS"), Anixter Financial Inc., a Delaware corporation ("ANIXTER
FINANCIAL"), and WireXpress, Inc., an Illinois corporation ("WIREXPRESS")
(collectively, the "COMPANIES") in connection with the Second Amended and
restated Credit Agreement of even date herewith (the "CREDIT AGREEMENT") to
which you are parties, and the transactions contemplated thereby. Capitalized
terms used herein and not otherwise defined are used as defined in the Credit
Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise indentified to our satisfaction, of the following:
(i) the Credit Agreement;
(ii) the Notes;
144
XXXXX XXXXX & XXXXX
The Chase Manhattan Bank
as Administrative Agent
September 6, 1996
Page 2
(iii) the Contribution Agreement;
(iv) the various Alternate Currency Addenda executed and delivered
on the date hereof; and
(v) the other documents and instruments executed on the date hereof
in connection with the transactions contemplated by the Credit
Agreement (collectively the "OTHER DOCUMENTS").
The foregoing agreements, except for the Other Documents, are sometimes
hereinafter referred to collectively as the "LOAN AGREEMENTS." The Loan
Agreements and the Other Documents are hereinafter collectively referred to as
the "TRANSACTION DOCUMENTS."
In rendering the opinions set forth herein, we have also examined
originals or copies, certified to our satisfaction, of such (i) certificates of
public officials, (ii) certificates of officers and representatives of the
Companies, copies of which are attached hereto as Exhibit A, and (iii) other
documents and records as we have deemed relevant or necessary as the basis for
such opinions. We have relied upon, and assumed the accuracy of, such
certificates, documents and records supplied to us by the Companies with
respect to the factual matters set forth therein, and we have assumed the
genuineness of all signatures (other than signatures of officers of the
Companies) and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Transaction Documents, other than
the Companies, are duly organized, validly existing, and in good
standing under the laws of their respective jurisdictions of
organization and have the requisite corporate power to enter into such
Transaction Documents; and
(ii) the execution and delivery of the Transaction Documents
have been duly authorized by all necessary corporate action and
proceedings on the part of all parties thereto other than the
Companies; the Transaction
145
XXXXX XXXXX & XXXXX
The Chase Manhattan Bank,
as Administrative Agent
September 6, 1996
Page 3
Documents have been duly executed and delivered by all parties thereto
other than the Companies and constitute the valid and binding
obligations of such parties, enforceable against such parties in
accordance with their respective terms; the respective terms and
provisions of each of the Transaction Documents do not, and the
execution, delivery and performance thereof by each of the parties
thereto other than the Companies will not, violate or conflict with the
certificate of incorporation or bylaws of any such party, any contract
or indenture to which it is a party or by which it is created or bound,
or any law, order or decree of any court, administrative agency or
other governmental authority applicable to any such party.
In rendering the opinions set forth in paragraphs 1, 2(a), 2(b), 2(d),
3, the first sentence of 4, and 5, to the extent the opinions relate to any of
the Companies, we have relied upon the opinion of even date herewith of Xxxx X.
Xxx, general counsel or associate general counsel to all of the Companies, a
copy of which is attached as Exhibit B.
Based upon the foregoing and subject to the qualifications stated
herein, we are of the opinion that, as of the date hereof:
1. Each of the Companies has been duly organized and is validly
existing and in good standing under the laws of the State of its incorporation
and is duly qualified to do business in each jurisdiction where the character
of its activities requires such qualification (other than in jurisdictions
where the failure to be so qualified could not have a Material Adverse Effect).
Each Company has the requisite corporate power and authority to own and
encumber its properties and assets and to conduct its business as currently
conducted and as currently proposed to be conducted.
2. Each Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents to which it is a party. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper
corporate action of each Company,
146
XXXXX XXXXX & XXXXX
The Chase Manhattan Bank
as Administrative Agent
September 6, 1996
Page 4
(b) do not violate any provision of the certificate of
incorporation or by-laws of any Company or require any approval of any
Company's shareholders,
(c) will not violate any law or regulation of the States of
New York or Illinois (including, without limitation, any usury laws) or
of the United States of America (including, without limitation,
Regulations G, T, U or X) applicable to any Company, to the extent Loans
and Letters of Credit are used for the purposes set forth in the Credit
Agreement,
(d) (i) will not violate any order of any court, (ii) will
not violate, or require the termination of, or require the approval or
consent of any Person under, the terms of any indenture, mortgage, deed
of trust, loan agreement, lease agreement or any other material
agreement to which any Company is a party or by which any Company or
any of its properties may be bound and (iii) will not result in or
require the creation or imposition of any lien or security interest upon
or with respect to any of the properties or assets of any Company, and
(e) will not require any registration with, consent or
approval of, notice to, or action by any Governmental Authority.
3. To our knowledge, except as set forth on Schedule 5.01(j) to
the Credit Agreement, (a) there are no judgments outstanding against any of the
Companies, nor, to our knowledge, is there now pending or overtly threatened
any action, suit or proceeding before any court or any governmental or
regulatory authority, by, against or involving any of the Companies which could
reasonably be expected to result in a Material Adverse Effect, and (b) no
Company is in default with respect to or in violation of any order of any
court, applicable order, regulation or demand of any governmental agency or
instrumentality which default or violation has, or might reasonably be
expected to have, a Material Adverse Effect.
4. Each of the Transaction Documents has been duly executed and
delivered by a duly authorized officer of the Company delivering the same.
Each of the Loan Agreements constitutes the valid and binding obligation of the
company delivering the same, enforceable in accordance with its respective
terms.
147
XXXXX XXXXX & XXXXX
The Xxxxx Manhattan Bank,
as Administrative Agent
September 6, 1996
Page 5
5. To our knowledge, exept as set forth on Schedule 5.31 d to the
Credit Agreement, there is no default by any Company under any material
contract, lease agreement, instrument or commitment to which such Company is a
party which has, or could reasonably be expected to have, a Material Adverse
Effect.
6. No Company is an "investment company" registered or required to
be registered under the Investment Company Act of 1946, as amended, or, to our
knowledge, controlled by such a company.
7. No Company is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and
enforceability in paragraph 4 above are subject to limitations imposed
by any applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting the enforcement of
creditors' rights generally. In addition, our opinions relating to
enforceablity in paragraph 4 above are subject to (i) the effect of
general principles of equity (regardless of whether considered in a
proeeding in equity or at law) and (ii) limitations imposed by public
policy under certain circumstances on the enforceability of provisions
indemnifying a party against liability for its own wrongful or
negligent acts.
(b) Certain remedial provisions of the Loan Agreements may
be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Loan Agreements;
however, the unenforceability of such provisions may result in delays
in the enforcement of the Administrative Agent's and the Lenders'
rights and remedies under the Loan Agreements (and we express no opinion
as to the economic consequences, if any, of such delays). The Loan
Agreements contain adequate provisions for enforcing payment of the
Obligations and for the practical realization of the rights and benefits
intended to be afforded thereby.
148
XXXXX XXXXX & XXXXX
The Xxxxx Manhattan Bank,
as Administrative Agent
September 6, 1996
Page 6
(c) We express no opinion as to the effect of the
compliance or noncompliance by the Administrative Agent or any of the
Lenders with any state or federal laws or regulations applicable to the
Administrative Agent or any of the Lenders because of the
Administrative Agent's or any of the Lenders' legal or regulatory
status or the nature of the business of the Administrative Agent or any
of the Lenders.
This opinion letter is furnished by us solely for your benefit and the
benefit of your successors and your assignees and participants (including
prospective assignees and participants under the Credit Agreement, and it may
not be relied upon, quoted from or delivered to any person other than your
successors and your assignees and participants (including prospective assignees
and participants) under the Credit Agreement, your legal counsel and the legal
counsel of your successors and your assignees and participants (including
prospective assignees and participants) under the Credit Agreement.
Very truly yours,
/s/ Xxxxx Xxxxx & Xxxxx
149
XXXXX XXXXX & XXXXX
EXHIBIT A
OFFICER'S CERTIFICATE
TO: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
I, Xxx Xxxxxxxxx, Assistant Treasurer of Anixter Inc. ("ANIXTER"),
HEREBY CERTIFY to you for the purposes of your opinion to be rendered to the
Lenders and the Administrative Agent parties with the Borrower to the Credit
Agreement of even date herewith that, to the best of my knowledge each of the
representations and warranties contained in the Transaction Documents (as such
term is defined in your opinion) are true and accurate.
IN WITNESS WHEREOF, I have signed this Certificate this 6th day of
September, 1996.
/s/ Xxx Xxxxxxxxx
----------------------------
Xxx Xxxxxxxxx, Assistant Treasurer
150
EXHIBIT B
[LETTERHEAD OF XXXX X. XXX]
September 6, 1996
To each of the Lenders
to the "Credit Agreement"
(as defined below), and
to The Chase Manhattan Bank,
as Administrative Agent
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Anixter Inc. Credit Agreement
Ladies and Gentlemen:
I am the general counsel or associate general counsel of each of
Anixter Inc., a Delaware corporation ("ANIXTER"), Anixter International Inc., a
Delaware Corporation ("AXE"), Anixter International N.V./S.A., a Belgium
corporation ("BCC"), Anixter-Real Estate, Inc., an Illinois corporation
("ANIXTER-REAL ESTATE"), Anixter Information Systems Corporation, an Illinois
corporation ("ANIXTER INFORMATION"), Anixter Holdings, Inc., a Delaware
corporation ("ANIXTER HOLDINGS"), Anixter Financial Inc., a Delaware
corporation ("ANIXTER FINANCIAL"), and WireXpress, Inc., an Illinois
corporation ("WIREXPRESS") (collectively, the "COMPANIES") which are parties
with the Lenders and the Administrative Agent to that certain Second Amended
and Restated Credit Agreement of even date herewith (the "CREDIT AGREEMENT").
Capitalized terms used herein and not otherwise defined are used as defined in
the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following:
(i) the Credit Agreement;
151
(ii) the Notes;
(iii) the Contribution Agreement;
(iv) the various Alternate Currency Addenda executed and delivered
on the date hereof; and
(v) the other documents and instruments executed on the date hereof
in connection with the transactions contemplated by the Credit
Agreement (collectively the "OTHER DOCUMENTS").
The foregoing agreements, except for the Other Documents, are sometimes
hereinafter referred to collectively as the "LOAN AGREEMENTS." The Loan
Agreements and the Other Documents are hereinafter collectively referred to as
the "TRANSACTION DOCUMENTS."
In rendering the opinions set forth herein, I have also examined
originals or copies, certified to my satisfaction, of such certificates of
public officials and other documents and records as I have deemed relevant or
necessary as the basis for such opinions. I have assumed the authenticity of
all documents submitted to me as originals and the conformity to original
documents of all documents submitted to me as certified or photostatic copies.
In rendering the opinions set forth herein, I have assumed that:
(i) all the parties to the Transaction Documents, other than
the Companies, are duly organized, validly existing, and in good
standing under the laws of their respective jurisdictions of
organization and have the requisite corporate power to enter into such
Transaction Documents;
(ii) the execution and delivery of the Transaction Documents
have been duly authorized by all necessary corporate action and
proceedings on the part of all parties thereto other than the
Companies; the Transaction Documents have been duly executed and
delivered by all parties thereto other than the Companies and constitute
the valid and binding obligations of such parties, enforceable against
such parties in accordance with their respective terms; the respective
terms and provisions of each of the Transaction Documents do not, and
the execution, delivery and performance thereof by each of the parties
thereto other than the Companies will not, violate or conflict with the
certificate of incorporation or
152
bylaws of any such party, any contract or indenture to which it is a
party or by which it is created or bound, or any law, order or decree
of any court, administrative agency or other governmental authority
applicable to any such party.
In rendering the opinions set forth in paragraphs 1 and 2 to the extent
the opinions relate to BCC and Belgium law I have relied upon the opinion of
even date herewith of Xxxxx & XxXxxxxx, a copy of which is attached as
Exhibit A.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
1. Each of the Companies has been duly organized and is validly
existing and in good standing under the laws of the State of its incorporation
and is duly qualified to do business in each jurisdiction where the character
of its activities requires such qualification (other than in jurisdictions
where the failure to be so qualified could not have a Material Adverse Effect).
Each Company has the requisite corporate power and authority to own and
encumber its properties and assets and to conduct its business as currently
conducted and as currently proposed to be conducted.
2. Each Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents to which it is a party. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper
corporate action of each Company,
(b) do not violate any provision of the certificate of
incorporation or by-laws of any Comapny or require any approval of any
Company's shareholders, and
(c) (i) will not violate any order of any court, (ii) will
not violate, or require the termination of, or require the approval or
consent of any Person under, the terms of any indenture, mortgage, deed
of trust, loan agreement, lease agreement or any other material
agreement to which any Company is a party or by which any Company or
any of its properties may be bound and (iii) will not result in or
require the creation or imposition of any lien or security interest
upon or with respect to any of the properties or assets of any Company
(other than the liens and security interests created pursuant to the
Loan Agreements).
153
3. To my knowledge, except as set forth on Schedule 5.11 to the Credit
Agreement, (a) there are no judgments outstanding against any of the Companies,
nor, to my knowledge, is there now pending or overtly threatened any action,
suit or proceeding before any court or any governmental or regulatory
authority, by, against or involving any of the companies which could reasonably
be expected to result in a Material Adverse Effect, and (b) no Company is in
default with respect to or in violation of any order of any court, applicable
order, regulation or demand of any governmental agency or instrumentality which
default or violation has, or might reasonably be expected to have, a Material
Adverse Effect.
4. Each of the Transaction Documents has been duly executed and
delivered by a duly authorized officer of the Company delivering the same.
Each of the Loan Agreements constitutes the valid and binding obligation of the
Company delivering the same, enforceable in accordance with its respective
terms.
5. To my knowledge, except as set forth on Schedule 5.01(d) to the
Credit Agreement, there is no default by any Company under any material
contract, lease agreement, instrument or commitment to which such Company is a
party which has, or could reasonably be expected to have, a Material Adverse
Effect.
The foregoing opinions are limited to the laws of the United States and
the State of Illinois, and the General Corporation Law of the State of
Delaware, and I express no opinion with respect to the laws of any other state
or jurisdiction.
My opinions above are subject to the following qualifications. My
opinions relating to validity, binding effect and enforceability in paragraph 4
above are subject to limitations imposed by any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar laws
affecting the enforcement of creditors' rights generally. In addition, my
opinions relating to enforceability in paragraph 4 above are subject to (i) the
effect of general principles of equity (regardless of whether considered in a
proceeding in equity or at law) and (ii) limitations imposed by public policy
under certain circumstances on the enforceability of provisions indemnifying a
party against liability for its own wrongful or negligent acts.
This opinion letter is furnished by us solely for your benefit and the
benefit of your successors and your assignees and participants under the Credit
Agreement, and it may not be relied upon, quoted from or delivered to any
person other than your successors and your assignees and participants under the
Credit Agreement, your legal counsel and the legal counsel of your successors,
your assignees and participants under the Credit Agreement, and Messrs. Xxxxx
Xxxxx & Xxxxx.
Very truly yours,
154
EXHIBIT M-2
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
FORM OF
OPINION OF XXXX X. XXX
COUNSEL FOR ANIXTER INC.
Attached.
155
[ANIXTER LETTERHEAD]
September 6, 1996
To each of the Lenders
to the "Credit Agreement"
(as defined below), and
to The Chase Manhattan Bank,
as Administrative Agent
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
RE: ANIXTER INC. CREDIT AGREEMENT
Ladies and Gentlemen:
I am the general counsel or associate general counsel of each of
Anixter Inc., a Delaware corporation ("ANIXTER"), Anixter International Inc., a
Delaware corporation ("AXE"), Anixter International N.V./S.A., a Belgian
corporation ("BCC"), Anixter-Real Estate, Inc., an Illinois corporation
("ANIXTER-REAL ESTATE"), Anixter Information Systems Corporation, an Illinois
corporation ("ANIXTER INFORMATION"), Anixter Holdings, Inc., a Delaware
corporation ("ANIXTER HOLDINGS"), Anixter Financial Inc., a Delaware
corporation ("ANIXTER FINANCIAL") and WireXpress, Inc., an Illinois corporation
("WIREXPRESS") (collectively, the "COMPANIES") which are parties with the
Lenders and the Administrative Agent to that certain Second Amended and
Restated Credit Agreement of even date herewith (the "CREDIT AGREEMENT").
Capitalized terms used herein and not otherwise defined are used as defined in
the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:
(i) the Credit Agreement;
(ii) the Notes;
(iii) the Contribution Agreement;
(iv) the various Alternate Currency Addenda executed and delivered
on the date hereof; and
156
Xxxxx, Xxxxx & Xxxxx
September 6, 1996
Page 2
(v) the other documents and instruments executed on the
date hereof in connection with the transactions contemplated by
the Credit Agreement (collectively, the "OTHER DOCUMENTS")
The foregoing agreements, except for the Other Documents, are sometimes
hereinafter referred to collectively as the "LOAN AGREEMENTS." The Loan
Agreements and the Other Documents are hereinafter collectively referred to as
the "TRANSACTION DOCUMENTS."
In rendering the opinions set forth herein, I have also examined
originals or copies certified to my satisfaction, of such certificates of
public officials and other documents and records as I have deemed relevant or
necessary as the basis for such opinions. I have assumed the authenticity of
all documents submitted to me as originals and the conformity to original
documents of all documents submitted to me as certified or photostatic copies.
In rendering the opinions set forth herein, I have assumed that:
(i) all the parties to the Transaction Documents, other
than the Companies, are duly organized, validly existing, and
in good standing under the laws of their respective
jurisdictions of organization and have the requisite corporate
power to enter into such Transaction Documents.
(ii) the execution and delivery of the Transaction Documents
have been duly authorized by all necessary corporate action and
proceedings on the part of all parties thereto other than the
Companies; the Transaction Documents have been duly executed
and delivered by all parties thereto other than the Companies
and constitute the valid and binding obligations of such
parties, enforceable against such parties in accordance with
their respective terms; the respective terms and provisions of
each of the Transaction Documents do not, and the execution,
delivery and performance thereof by each of the parties thereto
other than the Companies will not, violate or conflict with the
certificate of incorporation or bylaws of any such party, any
contract or indenture to which it is a party or by which it is
created or bound, or any law, order or decree of any court,
administrative agency or other governmental authority
applicable to any such party.
In rendering the opinions set forth in paragraphs 1 and 2, to the
extent the opinions relate to BCC and Belgian law, I have relied upon the
opinion of even date herewith of Xxxxx & XxXxxxxx, a copy of which is attached
hereto as Exhibit A.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
157
[ANIXTER LOGO]
Xxxxx, Xxxxx & Xxxxx
September 6, 1996
Page 3
1. Each of the Companies has been duly organized and is
validly existing and in good standing under the laws of the
State of its incorporation and is duly qualified to do
business in each jurisdiction where the character of its
activities requires such qualification (other than in
jurisdictions where the failure to be so qualified could not
have a Material Adverse Effect). Each Company has the
requisite corporate power and authority to own and encumber
its properties and assets and to conduct its business as
currently conducted and as currently proposed to be conducted.
2. Each Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under
each of the Transaction Documents to which it is a party.
Such execution, delivery and performance:
(a) have been duly authorized by all necessary and
proper corporate action of each Company,
(b) do not violate any provision of the certificate
of incorporation or bylaws of any Company or require
any approval of any Company's shareholders, and
(c) (i) will not violate any order of any court,
(ii) will not violate, or require the termination of, or
require the approval or consent of any Person under,
the terms of any indenture, mortgage, deed of trust,
loan agreement, lease agreement or any other material
agreement to which any Company is a party or by which
any Company or any of its properties may be bound and
(iii) will not result in or require the creation or
imposition of any lien or security interest upon or
with respect to any of the properties or assets of any
Company.
3. To my knowledge, execept as set forth on Schedule
5.01(j) to the Credit Agreement, (a) there are no judgments
outstanding against any of the Companies, nor, to my knowledge,
is there now pending or overtly threatened any action, suit or
proceeding before any court or any governmental or regulatory
authority, by, against or involving any of the Companies which
could reasonably be expected to result in a Material Adverse
Effect, and (b) no Company is in default with respect to or in
violation of any order of any court, applicable order,
regulation or demand of any governmental agency or
instrumentality which default or violation has, or might
reasonably be expected to have, a Material Adverse Effect.
4. Each of the Transaction Documents has been duly
executed and delivered by a duly authorized officer of the
Company delivering the same. Each of the Loan Agreements
constitutes the valid and binding obligation of the Company
delivering the same, enforceable in accordance with its
respective terms.
158
[ANIXTER LOGO]
Xxxxx, Xxxxx & Xxxxx
September 6, 1996
Page 4
5. To my knowledge, except as set forth on Schedule 5.01(d)
to the Credit Agreement, there is no default by any Company
under any material contract lease agreement, instrument or
commitment to which such Company is a party which has, or could
reasonably be expected to have, a Material Adverse Effect.
The foregoing opinions are limited to the laws of the United States and
the State of Illinois, and the General Corporation Law of the State of
Delaware, and I express no opinion with respect to the laws of any other state
or jurisdiction.
My opinions above are subject to the following qualifications. My
opinions relating to validity, binding effect and enforceablity in paragraph 4
above are subject to limitations imposed by any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar laws
affecting the enforcement of creditors' rights generally. In addition, my
opinion relating to enforceablity in paragraph 4 above is subject to (i) the
effect of general principles of equity (regardless of whether considered in a
proceeding in equity or at law) and (ii) limitations imposed by public policy
under certain circumstances on the enforceability of provisions indemnifying a
party against liability for its own wrongful or negligent acts.
This opinion letter is furnished by me solely for your benefit and the
benefit of your successors and your assignees and participants under the Credit
Agreement, and it may not be relied upon, quoted from or delivered to any
person other than your successors and your assignees and participants under the
Credit Agreement, your legal counsel and the legal counsel of your successors,
your assignees and participants under the Credit Agreement, and Messrs. Xxxxx,
Xxxxx & Xxxxx.
Very truly yours
/s/ Xxxx X. Xxxx
JAD:jk
Attachment
159
DRAFT
September 6, 1996
To: The Chase Manhattan Bank, as Administrative Agent and each of the Lenders
party to the Agreement referred to below
Xxxx Xxx, Anixter, Inc., 0000 Xxxx Xxxx, Xxxxxx, XX 00000
Re: Anixter International N.V./S.A. (the "BCC")
Ladies and Gentlemen:
This opinion is furnished to you pursuant to [Section 4.03(c) of ] the Second
Amended and Restated Credit Agreement dated September 6, 1996 (the
"Agreement"), among Anixter Inc., a Delaware corporation, the BCC, a company
organised and existing under the laws of The Kingdom of Belgium, the other
Borrowing Subsidiaries, the Guarantors, the Lenders and the Administrative
Agent.
(1) Introduction
We have acted as special Belgian counsel to the BCC in connection with the
execution and delivery of the Agreement and in connection with the issuance of
this opinion.
Capitalized terms used but not defined herein are used herein with the meanings
assigned to such terms in the Agreement. In addition:
"Documents" means the Agreement and the Notes, the Alternate Currency Addenda
and the Contribution Agreement to which BCC is a party;
"Organic Documents" has the meaning set out in paragraph 2(b) below.
160
-2-
(2) Documents
For the purpose of this opinion we have examined and relied upon originals, or
copies certified or otherwise identified to our satisfaction as being true
copies of the executed originals, each dated September 6, 1996 unless otherwise
indicated:
(a) The Agreement as sent to us on September 5, 1996 by Sidly &
Austin, including a counterpart signature page executed by BCC;
(b) a certificate of the Board of Directors of the BCC as to (i)
the by-laws ("status") updated as at May 15, 1996 of the BCC and the
Royal Decree of October 22, 1990 recognizing the BCC as a coordination
center pursuant to Royal Decree Nr. 187 of December 30, 1982
(collectively, the "Organic Documents"), (ii) resolutions adopted on
[September 5, 1996] by the Board of Directors of the BCC; and (iii)
certain other matters; and
(c) a copy of the minutes of a meeting of the Board of Directors of
the BCC held on September 5, 1996 and approving, inter alia, (i) the
execution and delivery by BCC of the Documents and (ii) the Statement of
Benefits and Conditions attached thereto as Annex A.
We have also examined originals or copies of such other documents, records,
certificates, opinions and instruments as we have deemed necessary as a basis
for the opinions expressed below. As to questions of fact material to such
opinions, we have, without independent investigation, relied upon all of the
foregoing and upon certificates of the officers of the BCC.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring solely to
the actual knowledge, based on the Certificate referred to in (2)(b) above, of
the particular Xxxxx & XxXxxxxx (Brussels) attorneys who have represented the
BCC in connection with the execution and delivery of the Agreement and the
issuance of this opinion. Except as expressly set forth herein, we have not
undertaken any independent investigation to determine the existence or absence
of such facts and no inference as to our knowledge concerning such facts should
be drawn from the fact that such representation has been undertaken by us.
(3) Assumptions
For the purpose of this opinion we have assumed:
(a) that under the laws of New York, the Documents constitute
the legally valid and binding and enforceable obligations of all
other parties thereto, enforceable against each such other party in
accordance with their terms;
161
-3-
(b) the completeness and the conformity to original
documents of instruments submitted to us as copies of originals and the
authenticity of all documents submitted to us as originals;
(c) the genuineness of all signatures and seals on the
documents and instruments submitted to us;
(d) the capacity, power and authority of all parties, other
than the BCC, to enter into, and the due execution and delivery by such
parties of the Documents;
(e) that there have been no amendments to the Statutes of
the BCC or to the Royal Decree of October 22, 1990 in the form
certified to us as referred to in paragraph 2(b) above;
(f) the capacity, power and authority of all parties other
than the BCC to enter into, and the due execution and delivery by such
parties of, the Documents;
(g) that there are no provisions of the laws of any
jurisdiction outside the Kingdom of Belgium which would affect the
validity or legally binding nature of the obligations of the BCC
contained in the Documents to which it is expressed to be party or
would otherwise have any implication on the opinions we express;
(h) that the facts and circumstances set out in the annexed
Director's certificate are and continue to be correct.
(i) that none of the parties is or will be seeking to
achieve any purpose not apparent from the Documents which might render
such documents illegal or void and that no documents relating to the
transaction and binding on the BCC exist or will be created other than
the Documents;
(j) that performance by any party to the Documents other
than the BCC of such party's obligations thereunder is lawful in the
place of performance and that performance by the BCC outside the
Kingdom of Belgium of its obligations under the Documents is lawful in
the place of performance in accordance with the laws of such place; and
(k) that the proceeds of any drawing under the Agreement
will not be used for the purpose mentioned in article 52 ter of the
Belgian coordinated laws on commercial companies, to wit in view of
acquiring, or financing the acquisition of, any equity interest in the
BCC.
We have made such examination of the laws of the Kingdom of Belgium as currently
applied by Belgian courts as in our judgement is necessary for the purpose of
this opinion. We do not however purport to be qualified to pass upon and
express no opinion herein as to the laws of any jurisdiction other than those
of the Kingdom of Belgium. This opinion is governed by and shall be construed
in accordance with Belgian law.
162
-4-
(4) Opinions
Based upon and subject to the assumptions and qualifications stated herein and
upon such investigation as we have deemed necessary, we are of the opinion
that:
(a) The BCC is a company recognised as a coordination
centre pursuant to Royal Decree number 187 of December 30, 1982, as
amended, and is duly organised and validly existing as a coordination
centre under the laws of the Kingdom of Belgium, is in good standing
under such laws (in the absence of a defined meaning under Belgian law,
we define good standing to mean that the BCC has filed all documents
and paid all fees required to maintain its corporate existence and its
legal capacity to carry out its business in accordance with the Organic
Documents). The BCC has the requisite corporate power and authority to
own or hold under lease and operate and encumber its own properties and
to conduct its business as currently conducted and as currently
proposed to be conducted.
(b) The BCC has the requisite corporate power and authority
to execute, deliver and perform its obligations under each of the
Documents to which it is a party.
(c) Such execution, delivery and performance (i) have been duly
authorised by all necessary and proper corporate action of the BCC;
(ii) do not violate any provision of the Organic Documents of the BCC;
(iii) will not violate Belgian law or regulation (including without
limitation, any usury laws, except as stated in the qualifications
under item 5(i) below) applicable to BCC; (iv) to our knowledge (a)
will not violate any order of any court, and (b) will not result in or
require the creation or imposition of any lien or security interest
upon or with respect to any of the properties or assets of the BCC; and
(v) to our knowledge, will not violate, or require the termination of,
or require the approval or consent of any Person under, the terms of
any indenture, mortgage, deed of trust, loan agreement, lease agreement
or any other material agreement disclosed to us to which the BCC is a
party or by which the BCC or any of its properties may be bound.
(d) The Documents have been duly executed and delivered by the BCC.
(e) In a properly presented case, a Belgian court should
give effect to the choice of law provisions of the Documents and should
hold that such Documents are to be governed by the laws of the State of
New York rather than the laws of the Kingdom of Belgium. In rendering
the foregoing opinion, we note that by their terms the Documents
expressly select the laws of the State of New York as the laws
governing their interpretation, that the Documents were delivered by
the parties thereto in the State of New York, advances to be made by
the Lenders pursuant to the Agreement will be made by the Lenders in
the State of New York, and that payments required to be made under the
Agreement are payable in the State of New York. The choice of law
provisions of the Documents are not voidable under Belgian law. Even
if a Belgian court holds that the Documents are to be governed by the
laws of the Kingdom of Belgium, in a properly presented case, a Belgian
court should hold that none of the provisions of the Documents violate
Belgian usury laws, except to the extent stated in the qualifications
under item 5 (i) below. A
163
-5-
registration duty amounting to 3% is due on any sum of money
exceeding BEF 500,000 which any debtor is ordered to pay by judgment
rendered or enforced by a Belgian court (excluding interest not
quantified by the judgment). Both the debtor(s) and the creditor(s)
are responsible for the payment of such registration duty, it being
understood that the maximum liability of any creditor is limited to 50%
of the sums received by such creditor and that the tax administration of
The Kingdom of Belgium has a priority right on any amounts payable
purusant to the judgment as security for the effective payment of the
registration duty. The costs of a sworn transfer would be payable if,
in a Belgian action, the court requires the Agreement or any other
Document to be submitted in one of the official Belgian languages.
(f) No recording, filing, privilege or other tax must be
paid in Belgium unless executed in Belgium in which case a nominal (BF,
600) stamp duty may be payable in connection with the execution,
delivery, recordation or enforcement of any Document.
(g) No approval by, authorization of, or filing with, any
Belgian Governmental Authority is necessary in connection with the
execution and delivery of the Documents and the performance of the BCC's
obligations thereunder.
(5) Qualifications
The opinions set forth above are subject to the following qualifications:
(a) the validity, performance and enforcement of the
Agreement each Document may be limited by statutes of
limitation, lapse of time and by laws relating to bankruptcy,
insolvency, reorganization, liquidation, moratorium arrangements or
similar laws affecting creditors' rights generally and claims may be or
become subject to set-off or counterclaim; and
(b) with respect to paragraphs 4(d) and 4(e) above, a
Belgian court may refuse to apply New York law to the Agreement or any
other Document and may refuse to enforce a provision thereof if such
application or enforcement would be manifestly incompatible with any
principle of Belgian public policy. No term or provision of the Credit
Agreement is manifestly incompatible with any principle of Belgian
public policy;
(c) equitable remedies, such as injunction and specific
performance, are discretionary and may not be awarded by the Belgian
Courts; in particular, such remedies may not be available where damages
are considered to be an adequate and appropriate remedy;
(d) a provision that a calculation, determination or
certificate will be conclusive and binding will not apply to a
calculation, determination or certificate which is given unreasonably,
arbitrarily or without good faith or which is fraudulent or manifestly
inaccurate and will not necessarily prevent judical enquiry into the
merits of any claim;
164
- 6 -
(e) failure to exercise a right may operate as a waiver of
that right notwithstanding a provision to the contrary in any of the
Documents;
(f) we express no opinion on the accuracy or completeness
of any statements or warranties of fact set out in the Documents, which
statements and warranties we have not independently verified;
(g) we express no opinion on any provision in any of the
Documents requiring written amendments and waivers of such
documents insofar as it suggets that oral or other modifications,
amendments or waivers could not be effectively agreed upon or granted
by or between the parties;
(h) we express no opinion as to whether any provision in
the Documents conferring a right of set-off or similar right would be
effective against a liquidator, administrator or a creditor; and
(i) we express no opinion as to the enforceability against
the Borrower in the Kingdom of Belgium with respect to the
following: (i) the provisions of the Documents insofar as the
application of the post-maturity rates specified therein results in an
increase of the rate of interest applicable prior to maturity of any
amount remaining unpaid after its maturity by more than one half of one
percent (1/2%) per annum on the total outstanding principal amount
remaining unpaid after its maturity; (iii) the provisions of the
Documents insofar as they require payment of interest on past due
interest amounts for a period of less than one calendar year or insofar
as no formal demand has been served or no specific agreement has been
made in respect of interest amounts past due for a period of at least
one calendar year; (ii) the provisions of the Documents insofar as
amounts due thereunder in case of (p)repayment (for instance on a date
other than the last day of an applicable Interest Period) exceed an
amount equal to 6 months' interest on the principal amount (p)repaid
calculated at the rate applicable to such prepaid amount prior to
prepayment, (iv) upon the commencement of, or during the continuance
of, any bankruptcy proceeding with respect to the BCC or any similar
proceeding affecting creditors' rights generally, the provisions of the
Documents insofar as they purport to create a security interest or a
right of set-off on the amounts paid thereunder; and (v) the provisions
of the Documents insofar as they require the BCC to reimburse
attorneys' fees in connection with the enforcement by the Lenders of
their rights before Belgian courts.
165
-7-
This opinion is given for the sole benefit of yourself, your counsel, Xxxxx
Xxxxx & Xxxxx, the Administrative Agent and each Lender party to the Agreement
in connection with the transactions contemplated by the Agreement and the other
Documents. This opinion is not to be disclosed to any other person nor is it
to be relied upon by any other person other than any assignee or participant
under the Agreement or for any other purpose or quoted or referred to in any
public document without our prior written consent.
Very truly yours,
Xxxxx & XxXxxxxx
By
---------------
Xxxxxx Xxxx
166
EXHIBIT M-3
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
FORM OF
OPINION OF XXXXX & XxXXXXXX
COUNSEL FOR ANIXTER INTERNATIONAL N.V./S.A.
Attached.
167
[XXXXX & XXXXXXXX LETTERHEAD]
September 6, 1996
To: The Chase Manhattan Bank, as Administrative Agent and each of the Lenders
party to the Agreement referred to below
Xx. Xxxx Xxx, Anixter Inc., 0000 Xxxx Xxxx, Xxxxxx, XX 00000
Re: Anixter International N.V./S.A. (the "BCC")
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4.03(c) of the Second
Amended and Restated Credit Agreement dated September 6, 1996 (the
"Agreement"), among Anixter Inc., a Delaware corporation, the BCC, a company
organised and existing under the laws of The Kingdom of Belgium, the other
Borrowing Subsidiaries, the Guarantors, the Lenders and the Administrative
Agent.
(1) Introduction
We have acted as special Belgian counsel to the BCC in connection with the
execution and delivery of the Agreement and in connection with the issuance of
this opinion.
Capitalised terms used but not defined herein are used herein with the meanings
assigned to such terms in the Agreement. In addition:
"Documents" means the Agreement and the Notes, the Alternate Currency Addenda
and the Contribution Agreement to which BCC is a party;
"Organic Documents" has the meaning set out in paragraph 2(b) below.
168
-2-
(2) Documents
For the purpose of this opinion we have examined and relied upon originals, or
copies certified or otherwise identified to our satisfaction as being true
copies of the executed originals, each dated September 6, 1996 unless otherwise
indicated:
(a) The Agreement as sent to us on September 5, 1996 by Sidley &
Austin, including a counterpart signature page executed by BCC;
(b) a certificate of the Board of Directors of the BCC as to
(i) the by-laws ("statutes") updated as at May 15, 1996 of the BCC and
the Royal Decree of October 22, 1990 recognizing the BCC as a
coordination center pursuant to Royal Decree Nr. 187 of December 30,
1982 (collectively, the "Organic Documents"), (ii) resolutions adopted
on September 5, 1996 by the Board of Directors of the BCC; and (iii)
certain other matters; and
(c) a copy of the minutes of a meeting of the Board of Directors of
the BCC held on September 5, 1996 and approving, inter alia, (i) the
execution and delivery by BCC of the Documents and (ii) the Statement
of Benefits and Conditions attached thereto as Annex A.
We have also examined originals or copies of such other documents, records,
certificates, opinions and instruments as we have deemed necessary as a basis
for the opinions expressed below. As to questions of fact material to such
opinions, we have, without independent investigation, relied upon all of the
foregoing and upon certificates of the officers of the BCC.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring solely to
the actual knowledge, based on the Certificate referred to in (2)(b) above, of
the particular Xxxxx & XxXxxxxx (Brussels) attorneys who have represented the
BCC in connection with the execution and delivery of the Agreement and the
issuance of this opinion. Except as expressly set forth herein, we have not
undertaken any independent investigation to determine the existence or absence
of such facts and no inference as to our knowledge concerning such facts should
be drawn from the fact that such representation has been undertaken by us.
(3) Assumptions
For the purpose of this opinion we have assumed:
(a) that under the laws of New York, the Documents constitute the
legally valid and binding and enforceable obligations of all other
parties thereto, enforceable against each such other party in accordance
with their terms;
169
-3-
(b) the completeness and the conformity to original documents of
instruments submitted to us as copies of originals and the authenticity
of all documents submitted to us as originals;
(c) the genuineness of all signatures and seals on the documents
and instruments submitted to us;
(d) the capacity, power and authority of all parties, other than
the BCC, to enter into, and the due execution and delivery by such
parties of the Documents;
(e) that there have been no amendments to the Statuts of the BCC or
to the Royal Decree of October 22, 1990 in the form certified to us as
referred to in paragraph 2(b) above;
(f) the capacity, power and authority of all parties other than the
BCC to enter into, and the due execution and delivery by such parties
of, the Documents;
(g) that there are no provisions of the laws of any jurisdiction
outside the Kingdom of Belgium which would affect the validity or
legally binding nature of the obligations of the BCC contained in the
Documents to which it is expressed to be party or would otherwise have
any implication on the opinions we express;
(h) that the facts and circumstances set out in the annexed
Director's certificate are and continue to be correct.
(i) that none of the parties is or will be seeking to achieve any
purpose not apparent from the Documents which might render such
documents illegal or void and that no documents relating to the
transaction and binding on the BCC exist or will be created other than
the Documents;
(j) that performance by any party to the Documents other than the
BCC of such party's obligations thereunder is lawful in the place of
performance and that performance by the BCC outside the Kingdom of
Belgium of its obligations under the Documents is lawful in the
place of performance in accordance with the laws of such place; and
(k) that the proceeds of any drawing under the Agreement will not
be used for the purpose mentioned in article 52 ter of the Belgian
coordinated laws on commercial companies, to wit in view of
acquiring, or financing the acquisition of, any equity interest in the
BCC.
170
-4-
We have made such examination of the laws of the Kingdom of Belgium as
currently applied by Belgian courts as in our judgement is necessary for the
purpose of this opinion. We do not however purport to be qualified to pass
upon and express an opinion herein as to the laws of any jurisdiction other
than those of the Kingdom of Belgium. This opinion is governed by and shall be
construed in accordance with Belgian law.
(4) Opinions
Based upon and subject to the assumptions and qualifications stated herein and
upon such investigation as we have deemed necessary, we are of the opinion
that:
(a) The BCC is a company recognised as a coordination centre
pursuant to Royal Decree number 187 of December 30, 1982, as amended,
and is duly organised and validly existing as a coordination centre
under the laws of the Kingdom of Belgium, is in good standing under
such laws (in the absence of a defined meaning under Belgian law, we
define good standing to mean that the BCC has filed all documents and
paid all fees required to maintain its corporate existence and its
legal capacity to carry out its business in accordance with the Organic
Documents). The BCC has the requisite corporate power and authority to
own or hold under lease and operate and encumber its own properties
and to conduct its business as currently conducted and as
currently proposed to be conducted.
(b) The BCC has the requisite corporate power and authority to
execute, deliver and perform its obligations under each of the
Documents to which it is a party.
(c) Such execution, delivery and performance (i) have been duly
authorised by all necessary and proper corporate action of the BCC;
(ii) do not violate any provison of the Organic Documents of the
BCC; (iii) wil not violate Belgian law or regulation (including without
limitation, any usury laws, except as stated in the qualifications
under item 5 (i) below) applicable to BCC; (iv) to our knowledge (a)
will not violate any order of any court, and (b) will not result in or
require the creation or imposition of any lien or security interest
upon or with respect to any of the properties or assets of the BCC; and
(v) to our knowledge, will not violate, or require the termination of,
or require the approval or consent of any Person under, the terms of any
indenture, mortgage, deed of trust, loan agreement, lease agreement or
any other material agreement disclosed to us to which the BCC is a
party or by which the BCC or any of its properties may be bound.
(d) The Documents have been duly executed and delivered by the BCC.
171
-5-
(e) In a properly presented case, a Belgian court should
give effect to the choice of law provisions of the Documents and
should hold that such Documents are to be governed by the laws of the
State of New York rather than the laws of the Kingdom of Belgium. In
rendering the foregoing opinion, we note that by their terms the
Documents expressly select the laws of the State of New York as the laws
governing their interpretation, that the Documents were delivered by
the parties thereto in the State of New York, advances to be made by the
Lenders pursuant to the Agreement will be made by the Lenders in the
State of New York, and that payments required to be made under the
Agreement are payable in the State of New York. The choice of law
provisions of the Documents are not voidable under Belgian law. Even if
a Belgian court holds that the Documents are to be governed by the laws
of the Kingdom of Belgium, in a properly presented case, a Belgian court
should hold that none of the provisions of the Documents violate Belgian
usury laws, except to the extent stated in the qualifications under item
5 (i) below. A registration duty amounting to 3% is due on any sum of
money exceeding BEF 500,000 which any debtor is ordered to pay by
judgment rendered or enforced by a Belgian court (excluding interest not
quantified by the judgment). Both the debtor(s) and the creditor(s) are
responsible for the payment of such registration duty, it being
understood that the maximum liability of any creditor is limited to 50%
of the sums received by such creditor and that the tax administration of
The Kingdom of Belgium has a priority right on any amounts payable
pursuant to the judgment as security for the effective payment of the
registration duty. The costs of a sworn translator would be payable if,
in a Belgian action, the court requires the Agreement or any other
Document to be submitted in one of the official Belgian languages.
(f) No recording, filing, privilege or other tax must be paid in
Belgium unless executed in Belgium in which case a nominal (BF.600)
stamp duty may be payable in connection with the execution, delivery,
recordation or enforcement of any Document.
(g) No approval by, authorization of, or filing with, any Belgian
Governmental Authority is necessary in connection with the execution and
delivery of the Documents and the performance of the BCC's obligations
thereunder.
(5) Qualifications
The opinions set forth above are subject to the following qualifications;
(a) the validity, performance and enforcement of theAgreement each
Document may be limited by statutes of limitation, lapse of time and by
laws relating to bankruptcy, insolvency, reorganization, liquidation,
moratorium
172
-6-
arrangements or similar laws affecting creditors' rights generally and
claims may be or become subject to set-off or counterclaim; and
(b) with respect to paragraphs 4(d) and 4(e) above, a Belgian court
may refuse to apply New York law to the Agreement or any other
Document and may refuse to enforce a provision thereof if such
application or enforcement would be manifestly incompatible with any
principle of Belgian public policy. No term or provision of the Credit
Agreement is manifestly incompatible with any principle of Belgian
public policy;
(c) equitable remedies, such as injunction and specific
performance, are discretionary and may not be awarded by the Belgian
Courts; in particular, such remedies may not be available where
damages are considered to be an adequate and appropriate remedy;
(d) a provision that a calculation, determination or certificate
will be conclusive and binding will not apply to a calculation,
determination or certificate which is given unreasonably, abitrarily or
without good faith or which is fraudulent or manifestly inaccurate
and will not necessarily prevent judicial enquiry into the merits of any
claim;
(e) failure to exercise a right may operate as a waiver of that
right notwithstanding a provision to the contrary in any of the
Documents;
(f) we express no opinion on the accuracy or completeness of any
statements or warranties of fact set out in the Documents, which
statements and warranties we have not independently verified;
(g) we express no opinion on any provision in any
of the Documents requiring written amendments and waivers of such
documents insofar as it suggests that oral or other modifications,
amendments or waivers could not be effectively agreed upon or granted
by or between the parties;
(h) we express no opinion as to whether any provision in the
Documents conferring a right of set-off or similar right would be
effective against a liquidator, administrator or a creditor; and
(i) we express no opinion as to the enforceability against the
Borrower in the Kingdom of Belgium with respect to the
following: (i) the provisions of the Documents insofar as the
application of the post-maturity rates specified therein results in an
increase of the rate of interest applicable prior to maturity of any
amount remaining unpaid after its maturity by more than one half of one
percent (1/2%) per annum on the total outstanding principal amount
remaining unpaid after its maturity; (iii) the provisions of the
Documents insofar as they require payment of interest on past due
interest amounts for a period of less
173
-7-
than one calendar year or insofar as no formal demand has been
served or no specific agreement has been made in respect of interest
amounts past due for a period of at least one calendar year; (ii) the
provisions of the Documents insofar as amounts due thereunder in case
of (p)repayment (for instance on a date other than the last day of an
applicable Interest Period) exceed an amount equal to 6 months'
interest on the principal amount (p)repaid calculated at the rate
applicable to such prepaid amount prior to prepayment, (iv) upon the
commencement of, or during the continuance of, any bankruptcy
proceeding with respect to the BCC or any similar proceeding affecting
creditors' rights generally, the provisions of the Documents insofar as
they purport to create a security interest or a right of set-off on the
amounts paid thereunder; and (v) the provisions of the Documents
insofar as they require the BCC to reimburse attorneys' fees in
connection with the enforcement by the Lenders of their rights before
Belgian courts.
This opinion is given for the sole benefit of yourself, your counsel, Xxxxx
Xxxxx & Xxxxx, the Administrative Agent and each Lender party to the Agreement
in connection with the transactions contemplated by the Agreement and the other
Documents. This opinion is not to be disclosed to any other person nor is it
to be relied upon by any other person other than any assignee or participant
under the Agreement or for any other purpose or quoted or referred to in any
public document without our prior written consent.
Very truly yours,
Xxxxx & XxXxxxxx
By: /s/ Xxxxxx Xxxx
----------------
Xxxxxx Xxxx
174
EXHIBIT N
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 6, 1996
FORM OF
OPINION OF SIDLEY & AUSTIN
COUNSEL FOR THE ADMINISTRATIVE AGENT
Attached.
2
175
[SIDLEY & AUSTIN LETTERHEAD]
September 6, 1996
To each of the Lenders that is a
party to the "Credit Agreement"
(as defined below) and to
The Chase Manhattan Bank, as
Administrative Agent
Re: Anixter Inc.
Ladies and Gentlemen
We have acted as counsel to the Administrative Agent (as hereinafter
defined) in connection with that certain Second Amended and Restated Credit
Agreement, dated as of September 6, 1996 (the "Credit Agreement"), among
Anixter Inc., a Delaware corporation ("Anixter"), the Borrowing Subsidiaries
named therein, the Guarantors named therein, the financial institutions from
time to time party thereto as Lenders, and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
are used as defined in the Credit Agreement.
In connection with this opinion, we have examined and relied upon
originals or copies, certified or otherwise, of the following documents:
(a) the Credit Agreement,
(b) the Notes,
(c) the Contribution Agreement,
(d) the various Alternate Currency Addenda executed and delivered
on the date hereof, and
(e) the Opinion of Xxxxx, Xxxxx & Xxxxx, counsel for Anixter, the
Opinion of Xxxxx & XxXxxxxx, Belgian counsel for
Anixter, and the Opinion of Xxxx X. Xxx, general counsel of
Anixter (collectively, the "Opinions")
176
[SIDLEY & AUSTIN LETTERHEAD]
To each of the Lenders
September 6, 1996
Page 2
(the above documents (a) through (d), inclusive, are hereinafter
referred to as the "Loan Documents"). In our examination of the Loan
Documents, we have assumed the authenticity of all such documents submitted to
us as originals, the conformity to authentic originals of all such documents
submitted to us as copies, the genuiness of all signatures, the due
authorization, execution and delivery by each of the parties executing such
documents and such other legal and factual assumptions as are described in the
Opinions. We have also assumed the accuracy of the legal conclusions set forth
in the Opinions, except as to the matters on which we expressly opine below.
We have further assumed that the execution, delivery and performance of the
Loan Documents by Anixter, the Borrowing Subsidiaries and the Guarantors
(collectively, the "Loan Parties") (i) do not require any action by any
governmental agency or private party except for those which have been obtained,
(ii) do not violate any provision of law applicable to the Loan Parties and
(iii) do not conflict with, result in a breach of or constitute a default
under any indenture, agreement, or other instrument to which any of the Loan
Parties is a party or by which any of the Loan Parties is bound.
Based upon the foregoing assumptions and examination of documents and
upon such investigation as we have deemed necessary, and subject to the
qualifications set forth in subparagraphs (a) through (d) below, we are of the
opinion as of the date hereof that each Loan Document to which any of the Loan
Parties is a party constitutes the legal, valid and binding obligation of such
Loan Party enforceable against such Loan Party in accordance with its terms.
Our opinion is expressly qualified as follows:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fradulent conveyance and other laws
affecting creditors' rights generally and to the effect of general equitable
principles (whether considered in a proceeding in equity or at law). In
applying such principles, a court, among other things, might not allow a
creditor to accelerate maturity of a debt upon the occurrence of a default
deemed immaterial or for non-credit reasons or might decline to order a debtor
to perform covenants. Such principles applied by a court might include a
requirement that a creditor act with reasonableness and in good faith.
Furthermore, a court may refuse to enforce a covenant or any provision
providing for indemnification if and to the extent that it deems such covenant
or indemnification provision to be violative of applicable public policy.
(b) Certain provisions of the Loan Documents may be unenforceable in
whole or in part under the laws of the State of New York, but the inclusion of
such provisions does not affect the validity of the Loan Documents taken as a
whole and, except as set forth in subparagraph (a) above, the Loan Documents
taken as a whole contain adequate provisions for enforcing payment of the
Obligations and for the practical realization of the benefits of the security
interests created thereby.
000
XXXXXX & XXXXXX XXXXXXX
To each of the Lenders
September 6, 1996
Page 3
(c) Our opinions expressed are limited to the law of the State of
New York and the federal laws of the United States, and we do not express any
opinion concerning any other laws.
(d) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Lenders with any
federal or state laws or regulations applicable to the Administrative Agent, or
any of the Lenders because of any such entity's legal or regulatory status or
the nature of such entity's business or requiring the Administrative Agent or
any of the Lenders to qualify to conduct business in any jurisdiction.
The opinions expressed herein are being delivered to you as of
the date hereof and are solely for your benefit in connection with the
transactions contemplated in the Credit Agreement and may not be relied on in
any manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other
person or entity without our express prior written consent, except that you may
furnish copies thereof (1) to any party that becomes a Lender after the date
hereof pursuant to the Credit Agreement and to a prospective assignee of the
Loans, (2) to your independent auditors and attorneys, (3) upon the request of
any state or federal authority or official having regulatory jurisdiction over
you, and (4) pursuant to order or legal process of any court or governmental
agency or in any legal proceedings involving the Loan Documents or this
opinion. We do not express any opinion, either implicitly or otherwise, on any
issue not expressly addressed above. The opinions expressed above are based
solely on factual matters in existence as of the date hereof and laws and
regulations in effect on the date hereof. We assume no obligation to revise or
supplement this opinion should such factual matters change or should such laws
or regulations be changed by legislative or regulatory action, judicial decision
or otherwise.
Very truly yours,
/s/ Sidley & Xxxxxx
Xxxxxx & Xxxxxx
178
SCHEDULE 1.01-A
-------------------------------------- ------------------------------------ ----------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
-------------------------------------- ------------------------------------ ----------------------
THE CHASE MANHATTAN BANK Xxx Xxxxxx $42,000,000
Chase Securities Inc.
Domestic Lending Office: 00 Xxxxx XxXxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx 0000
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000
Phone: (000) 000-0000
Administrative Contact: Fax: (000) 000-0000
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
Chase Manhattan International Limited
Trinity Tower
9 Xxxxxx Xxxx Street
London E19YT England
Attn: Xxxxx Xxxxxx
Phone: 00-000-000-0000
Phone: 00-000-000-0000
-------------------------------------- ------------------------------------ ----------------------
CITIBANK, N.A. Xxxx Xxxxx $38,000,000
000 X. Xxxxxx Xx.
Domestic Lending Office: 00xx Xxxxx
Xxx Xxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000
Xxxx Xxxxxx Xxxx, XX 00000 Phone: (000) 000-0000
Attn: Xxxx Xxxxxx Fax: (000) 000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
Citibank International PLC
Xxxxxxxxx Xxxxx, 0xx Xxxxx
00 Xxxxxxxxxx Xx.
Lewisham SE 13 7EU England
Attn: Xxxxx Xxxxxxx/Xxx Xxxxxxxx
-------------------------------------- ------------------------------------ ----------------------
179
2
----------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
----------------------------------------------------------------------------------------------------
BANK OF AMERICA ILLINOIS Xxxxxxxxx Xxxxxxx $33,000,000
000 X. XxXxxxx Xxxxxx
Domestic Lending Office: Xxxxxxx, XX 00000
000 X. XxXxxxx Xxxxxx Phone: (000) 000-0000
Xxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Victoria Drungola
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Victoria Drungola
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
BANK OF MONTREAL Xxxxxx Xxxxxx $33,000,000
000 Xxxxx XxXxxxx Street, 12th Floor
Domestic Lending Office: Xxxxxxx, XX 00000
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx Phone: (000) 000-0000
Xxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
2
180
3
----------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
----------------------------------------------------------------------------------------------------
THE BANK OF NEW YORK Xxxx X. Xxxxxxx $33,000,000
One Wall Street, 19th Floor
Domestic Lending Office: Xxx Xxxx, XX 00000
000 Xxxxxxx Xxxxxx Phone: (000) 000-0000
Xxx Xxxx, XX 00000 Fax: (000) 000-0000/09
Attn: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000/24
Eurocurrency Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000/24
----------------------------------------------------------------------------------------------------
CAISSE NATIONALE DE CREDIT Xxxxxx XxXxxxxx $33,000,000
AGRICOLE 00 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Domestic Lending Office: Phone: (000) 000-0000
00 X. Xxxxxx Xxxxxx, 00xx Xxxxx Fax: (000) 000-0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X'Xxxxxx/Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
00 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X'Xxxxxx/Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
3
181
4
----------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
----------------------------------------------------------------------------------------------------
CREDIT LYONNAIS CHICAGO Xxxxx Xxxxxx, Vice President $33,000,000
BRANCH 000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Domestic Lending Office: Xxxxxxx, XX 00000
000 Xxxx Xxxxxx Xxxxxx Phone: (000) 000-0000
Suite 3800 Fax: (000) 000-0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
NBD BANK Xxxxx Xxxxxx $33,000,000
The First National Bank of Chicago
Domestic Lending Office: One First National Plaza, Suite 0088
611 Xxxxxxxx Chicago, IL 60670
Xxxxxxx, XX 00000 Phone: (000) 000-0000
Attn: Xxxx Habermoos Fax: (000) 000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Habermoos
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
4
182
NBD BANK
Domestic Lending Office:
000 Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Habermoos
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office: Xxxxx Xxxxxx
611 Xxxxxxxx The First National Bank of Chicago
Xxxxxxx, XX 00000 One First National Plaza, Suite 0088
Attn: Xxxx Habermoos Xxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 $33,000,000
183
5
----------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
----------------------------------------------------------------------------------------------------
NATIONSBANK, N.A. Xxxxxxx Xxxxxx, Xx. $33,000,000
000 Xxxxx Xxxxxx Xxxxx
Domestic Lending Office: Suite 2800
101 X. Xxxxx Street Chicago, IL 60606
Xxxxxxxxx, XX 00000 Phone: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx Fax: (000) 000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
PNC BANK, NATIONAL ASSOCIATION Xxxx X. Xxxxxxx $33,000,000
Assistant Vice President
Domestic Lending Office: 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx, XX 00000
Suite 3140 Phone: (000) 000-0000
Xxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
----------------------------------------------------------------------------------------------------
5
184
-----------------------------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
-------------------------- -------------------- ------------
-----------------------------------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA Xxxxx X. Xxxxxxxxxxxxxx $33,000,000
000 X. Xxxxxxx Xx.
Domestic Lending Office: Suite 3700
Atlanta Agency Xxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000 Phone: (000) 000-0000
Xxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
ScotiaBank (U.K.) Limited
Scotia House, 00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Attn: Xxxxx Xxxxxx
Phone: 00-0000-000-0000
Fax: 00-0000-000-0000
-----------------------------------------------------------------------------------------------------------------------
ABN AMRO BANK, N.V. Xxx Xxxxxxxx $26,000,000
000 X. XxXxxxx Xxxxxx
Domestic Lending Office: Xxxxxxx, XX 00000
000 X. XxXxxxx Xxxxxx Phone: (000) 000-0000
Xxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Loan Operations
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Loan Operations
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
6
185
7
-----------------------------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
-----------------------------------------------------------------------------------------------------------------------
BANQUE PARIBAS CHICAGO Xxxxxxxx X. Xxxx $21,000,000
BRANCH 000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Domestic Lending Office: Phone: (000) 000-0000
000 X. Xxxxxx Xxxxxx, Xxxxx 0000 Fax: (000) 000-0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
COMMERZBANK AG, Xxxxxxx Xxxxxx $21,000,000
CHICAGO BRANCH 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Domestic Lending Office: Phone: (000) 000-0000
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 Fax: (000) 000-0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Administrative Contact:
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
Commerzbank AG, Grand Cayman Branch
c/o Chicago Branch
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------
7
186
8
-----------------------------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
-----------------------------------------------------------------------------------------------------------------------
FIRST BANK NATIONAL Xxxxxx X. Xxxxxx $21,000,000
ASSOCIATION 000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000- 4302
Domestic Lending Office: Phone: (000) 000-0000
000 Xxxxxx Xxxxxx Xxxxx Fax: (000) 000-0000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
THE MITSUBISHI TRUST AND Xxxxx Xxxx $21,000,000
BANKING CORPORATION, 000 X. Xxxxxx Xx., Xxxxx 0000
XXXXXXX XXXXXX Xxxxxxx, XX 00000
Phone: (000) 000-0000
Domestic Lending Office: Fax: (000) 000-0000
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Prach Waranimman
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Prach Waranimman
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
8
187
-----------------------------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
-------------------------- -------------------- ------------
-----------------------------------------------------------------------------------------------------------------------
THE NORTHERN TRUST COMPANY Xxxxxxxx X. Teleak $21,000,000
00 X. XxXxxxx Xxxxxx
Domestic Lending Office: Xxxxxxx, XX 00000
00 X. XxXxxxx Xxxxxx Phone: (000) 000-0000
Xxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx Honda
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Honda
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
THE SANWA BANK LIMITED, Xxxxxx X. Xxxxxx $21,000,000
CHICAGO BRANCH 00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Domestic Lending Office: Phone: (000) 000-0000
00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx Fax: (000) 000-0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
9
188
-----------------------------------------------------------------------------------------------------------------------
CONTACT PERSON U.S. DOLLAR
AND TELEPHONE EQUIVALENT
NAME AND ADDRESS OF LENDER AND TELECOPY NUMBERS COMMITMENT
-----------------------------------------------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA, N.A. Xxx Xxxxxxx Xxxx $21,000,000
000 Xxxxxxxxxx Xxxxxx, 11th Floor
Domestic Lending Office: Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx Phone: (000) 000-0000
Xxx Xxxxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Eurocurrency Lending Office:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
10
189
11
CONTACT PERSON AND
TELEPHONE AND TELECOPY
NAME AND ADDRESS OF BORROWER NUMBERS
---------------------------- -----------------------
ANIXTER INC. Xxxxx X. Xxxxxx
0000 Xxxx Xxxx ph: 847-677-2600
Xxxxxx, Xxxxxxxx 00000 fax: 000-000-0000
ANIXTER INTERNATIONAL N.V./S.A. Xxxxx X. Xxxxxx
c/o Anixter Inc. ph: 000-000-0000
0000 Xxxx Xxxx fax: 000-000-0000
Xxxxxx, Xxxxxxxx 00000
ISSUING BANKS COMMITMENT
---------------------------- -----------------------
THE CHASE MANHATTAN BANK $75,000,000
THE BANK OF NOVA SCOTIA $75,000,000
THE BANK OF NEW YORK $75,000,000
11
190
ANIXTER INC.
SCHEDULE 1.01-B
EXISTING INDEBTEDNESS
AS OF JULY 26, 1996 (USD)
-----------------------------------
OBLIGOR DESCRIPTION COMMITMENT OUTSTANDING
------- ----------- ---------- -----------
Anixter Belgium Generale Bank Secured Credit Facility
maturing January 31, 1998 $ 9,744,000 $ 8,806,169
Anixter Sweden Nordenbanken Overdraft Facility $ 543,636 $ -
due on demand
Anixter-Frontier Xxxx Xxxxxx Bank Secured Credit Facility $ 7,000,000 $ 7,000,000
maturing October 1, 1996
Anixter UK NBD Bank Secured Credit Facility
maturing July 31, 1998 $25,095,420 $21,609,945
Anixter Canada Bank of Nova Scotia Secured Credit Facility
maturing July 1, 1998 $36,185,000 $28,222,874
VALUE AS OF
THIRD PARTY INTEREST RATE SWAP TRANSACTIONS 12/31/95
------------------------------------------- --------
Anixter Inc. Counter Party: Chase Manhattan Bank $ 750,987
Amount: $50,000,000
Maturity: June 5, 1998
Fixed Rate (Anixter): 5.98%
Floating Rate (Chase Manhattan Bank): 6 month LIBOR
Anixter Inc. Counter Party: Bank of New York $ 968,026
Amount: $50,000,000
Maturity: July 10, 2000
Fixed Rate (Anixter): 6.1150%
Floating Rate (Bank of New York): 6 month LIBOR
Anixter Inc. Counter Party: Chase Manhattan Bank $ 529,003
Amount: $25,000,000
Maturity: July 10, 2000
Fixed Rate (Anixter): 6.14%
Floating Rate (Chase Manhattan Bank): 6 month LIBOR
Anixter Inc. Counter Party: Bank of Nova Scotia $ 475,000
Amount: $25,000,000
Maturity: July 10, 2000
Fixed Rate (Anixter): 6.0895%
Floating Rate (Bank of Nova Scotia): 6 month LIBOR
VALUE AS OF
THIRD PARTY INTEREST RATE CAP WITH COLLAR TRANSACTION 12/31/95
----------------------------------------------------- --------
Anixter Inc. Counter Party: Citibank $ 1,223,875
Amount: $50,000,000
Maturity: January 25, 2002
Cap Strike Rate (Anixter): 6.50%
Cap Floor Rate (Citibank): 6.30%
Knock-in Rate (Citibank): 5.30%
Floating Rate: 6 month LIBOR
191
Schedule 1.01 (c)
DEBTOR: ANIXTER INC.
File Filing
Jurisdiction Secured Party No. Date Collateral
------------ ------------- ---- ------ ----------
California Xxxxxx Made Office Systems 91219841 9/30/91 Canon NP6650
Crown Credit Company 94168351 8/16/94 Crown lift trucks and related
equipment
Crown Lift Trucks 9513160201 5/8/95 Crown lift trucks and related
equipment
AT&T Credit Corporation 9518760377 6/29/95 AT&T Intuity
Crown Credit Company 9617660568 6/19/96 Crown lift trucks and related
equipment
AT&T Credit Corporation 9620660508 7/23/96 Definity G3SI
Colorado Crown Lift Trucks 952035002 5/8/95 Crown lift trucks and related
equipment
Illinois Xerox Corporation 3182209 10/27/93 Xerox model 5100 (two)
Xerox Corporation 3184317 11/2/93 Xerox model 5090
Xerox Corporation 3189676 11/17/93 Xerox model 1090
Norwest Equipment Finance 3245742 4/14/94 Symmetrix 4208-2S
Newcourt Financial 3294219 8/15/94 Symmetrix III 5500-3072
Xerox Corporation 3294672 8/16/94 Xerox 5365
Xerox Corporation 3294695 8/16/94 Xerox model 5388
Xerox Corporation 3294696 8/16/94 Xerox model 5388
BA Credit Corporation 3353420 1/18/95 Equipment leased or sold
under a Financing Program
Agreement dated 12/30/94
Canon Financial Services 3414561 6/19/95 Canofile model 51
192
File Filing
Jurisdiction Secured Party No. Date Collateral
------------ ------------- ---- ------ ----------
Crown Credit Company 3424545 7/19/95 Crown lift truck and related
equipment
Crown Credit Company 3430301 8/1/95 Crown lift truck and related
equipment
Newcourt Financial 3430707 8/2/95 computer equipment
Crown Credit Company 3430762 8/2/95 Crown lift truck and related
equipment
Crown Lift Trucks 3441871 8/31/95 Crown lift truck and related
equipment
XXX Xxxxxxxxxxx 3470560 11/15/95 (10) 5000-9M2
Gelco Corp. 3548789 6/5/96 material handling equipment
AT&T Credit Corporation 3548833 6/5/96 Definity G3S
Massachusetts Crown Lift Trucks 306767 4/18/95 Crown lift truck and related
equipment
New Jersey CBL Capital Corporation 1528158 8/31/93 leased motor vehicles
Crown Credit Company 1608449 12/14/94 Crown lift truck and related
equipment
Gelco Corporation 1677834 1/18/96 Leased equipment
Gelco Corporation 1701786 6/3/96 Leased equipment
Texas CBL Capital Corporation 209975 11/1/93 leased motor vehicles
Crown Credit Company 161202 8/15/94 Crown lift truck and related
equipment
Crown Credit Company 238997 12/12/94 Crown lift truck and related
equipment
Crown Lift Trucks 062893 3/31/95 Crown lift truck and related
equipment
-2-
193
File Filing
Jurisdiction Secured Party No. Date Collateral
------------ ------------- ---- ------ ----------
Crown Lift Trucks 088991 5/5/95 Crown lift truck and related
equipment
AT&T Credit Corporation 126526 6/29/95 AT&T Definity G31 upgrade
Crown Credit Company 177397 9/11/95 Crown lift truck and related
equipment
AT&T Credit Corporation 022404 2/8/96 AT&T Definity G3 with
Intuity
AT&T Credit Corporation 022405 2/8/96 AT&T Definity G3 related
equipment
Gelco Corp. 108875 6/4/96 material handling equipment
DEBTOR: WIREEXPRESS, INC.
File Filing
Jurisdiction Secured Party No. Date Collateral
------------ ------------- ---- ------ ----------
Illinois AT&T Credit Corporation 3548832 6/5/96 Definity G3S
THE CREDIT FACILITIES OF ANIXTER BELGIUM, ANIXTER-FRONTIER, ANIXTER UK AND
ANIXTER CANADA REFERENCED ON SCHEDULE 1.01(b) ARE SECURED BY VARIOUS ASSETS OF
THOSE ENTITIES.
-3-
194
ANIXTER INC.
SCHEDULE 5.01(C) - SUBSIDIARIES
Anixter Inc., a Delaware corporation owns directly or indirectly:
- Anixter Information Systems Corporation, an Illinois Corporation
- Anixter Holdings, Inc., a Delaware corporation
- Anixter-Real Estate, Inc., an Illinois corporation
- WireXpress, Inc., an Illinois corporation
- Anixter Puerto Rico, Inc., a Delaware corporation
- Anixter Canada Inc., a Canadian corporation
- WireXpress Ltd., a Canadian corporation
- Anixter de Mexico S.A. de C.V., a Mexican corporation
- Anixter Venezuela Inc., a Delaware corporation
- Anixter do Brasil Ltda., a Brasilian corporation
- Anixter Financial Inc., (formerly Anixter International Inc.,)
a Delaware corporation
- Anixter Europe Holdings B.V., a Netherland corporation
- Anixter Austria GmbH., an Austrian corporation
- Anixter International N.V., a Belgian corporation
- Anixter Belgium N.V., a Belgian corporation
- Anixter Deutschland GmbH., a German corporation
- Anixter Espana S.A., a Spanish corporation
- Anixter France S.A., a French corporation
- Anixter Greece Network Systems LLC, a Greek corporation
- Anixter Italia S.r.l., an Italian corporation
- Anixter Nederland B.V., a Netherland corporation
- Anixter Norge A.S., a Norwegian corporation
- Anixter Portugal S.A., a Portuguese corporation
- Anixter Sverige A.B., a Swedish corporation
- Anixter Switzerland S.A./A.G., a Swiss corporation
- Anixter International Limtied, a UK corporation
- Anixter (U.K.) Limited, a UK corporation
- Anixter Poland Sp.z.o.o., a Polish corporation
- Anixter Thailand Inc., a Delaware corporation
- Anixter Australia Pty Limited, an Australian corporation
- Anixter Singapore Pte Ltd., a Singapore corporation
- Anixter Hong Kong Limited, a Hong Kong corporation
- Anixter Argentina S.A., an Argentine corporation
- Anixter Colombia S.A., a Colombian corporation
- Anixter Philippines Inc., a Delaware corporation
See Schedule 5.01(w) for Joint Ventures
195
SCHEDULE 5.01(d)
Violations of Requirements of Law
---------------------------------
None
196
SCHEDULE 5.01 (j)
PENDING OR THREATENED LITIGATION
NONE
197
SCHEDULE 5.01(s)
ENVIRONMENTAL MATTERS
NONE
198
SCHEDULE 5.01(w)
----------------
JOINT VENTURES
--------------
Anixter - Frontier, a New York general partnership
Anixter Lincoln, a Nebraska general partnership
199
SCHEDULE 7.05
TYPE COMPANY POLICY NUMBER
---- ------- -------------
Comprehensive General Liability Zurich Insurance Company GLO 8985886-01
Comprehensive Auto Liability Zurich Insurance company
Texas BAP 8985880-01
Virginia BAP 8985881-01
All Other States BAP 8985879-01
Workers' Compensation Zurich Insurance Company
Deductible Program WC 8985885-01
Guaranteed Cost Program WC 8985884-01
Property
Domestic Protection Mutual 26601-95
Foreign CNA MNF 062926548
Transit Royal Insurance Company POC 100082
Professional Liability Gulf Insurance Company G6112757
Excess Liability Illinois National BE 9321758
Westchester Fire XLA 260801-0
Reliance Indemnity NEA 0123948
National Surety XXK 0009556751
Aviation Products Liability Illinois National AP338-0501-03
Comprehensive CrimeGuard National Union 445-4793
Non-Owned Aviation USAIG 360AC-250070
Fiduciary Liability Aetna Casualty & Surety 08 FF 100731829
Canadian General Liability Guardian 1911082
Canadian Auto Liability Guardian 1208291
Foreign General Liability Zurich Insurance Company CGL 8293005-01
and Affiliates
Foreign Voluntary Workers' Zurich Insurance Company WC 8293007-01
Compensation & Employers' Liab. and Affiliates
200
SCHEDULE 8.03
EXISTING INVESTMENT IN SUBSIDIARIES
JULY, 1996
INTERCO I/C SALES & INTERCO EQUITY TOTAL
ACCOUNT PURCH. DIFF LOANS SECTION 07/26/96
------- ----------- ------- ------- ----------
INTERNATIONAL EXPORT SALES (2,176,482) 0 734,114 (1,442,368)
U.K. DISTRIBUTION 6,345,968 225,497 0 17,611,253 24,182,718
CANADA DISTRIBUTION 3,068,273 (2,995,869) 0 41,149,846 41,222,250
S.E. ASIA (SINGAPORE, ASIA PAC GRP) 5,201,919 (216,771) 0 7,930,081 12,915,229
MALAYSIA 1,466,984 0 0 (2,101,497) (634,513)
THAILAND 226,576 0 (512,515) (285,939)
AUSTRALIA 2,500,247 244,060 0 7,258,895 10,003,202
NORTHERN ASIA (A.P. & HONG KONG) 1,303,726 (11,358) 0 3,948,991 5,241,359
TAIWAN 1,226,704 0 0 (466,884) 759,820
MEXICO 9,255,367 951,547 0 775,990 10,982,904
VENEZUELA 2,811,390 0 0 (1,592,897) 1,218,493
BRAZIL 3,154,388 0 0 1,780,587 4,934,975
ARGENTINA 3,777,388 0 (1,380,367) 2,397,021
COLOMBIA 266,728 0 74,112 340,840
ANIXTER FINANCE INC. 20,923,223 0 21,914,671 42,837,894
U.K. (INT'L) HOLDING, LTD. 0 0 13,646,065 13,646,065
HEADQUARTERS 2,680,282 (23,937,528) 8,763,523 (12,493,723)
DUTCH HOLDING 587,394 4,558,350 46,419,499 51,565,243
EUROPE HUB 0 (104,042) 0 0 (104,042)
BELGIUM 1,033,178 (225,564) 48,927,065 48,038 49,782,717
SWITZERLAND 684,369 (57,205) (3,306,597) 2,745,318 65,885
SPAIN 346,830 15,238 (626,472) 3,373,175 3,108,771
ITALY 401,168 4,395 (678,251) 5,488,145 5,215,457
GERMANY 264,290 (67,835) (2,154,187) 1,663,729 (294,003)
NORWAY 117,517 395 (399,289) (39,799) (321,176)
FRANCE 391,955 8,407 (3,844,108) 3,614,982 171,236
NETHERLANDS 54,892 2,753 (12,789,036) 5,084,103 (7,647,288)
PORTUGAL 352 (1,638,763) 322,970 (1,315,441)
SWEDEN 612,897 (532,552) 2,363,112 2,443,457
AUSTRIA 178,502 (49,582) (802,362) 599,147 (74,295)
GREECE 1,962 73,565 24,333 99,860
DENMARK 4,930 (1,965,833) (1,275) (1,962,178)
POLAND 0 829,791 8,515 838,306
191,247,960 257,398,736
ELIMINATING ENTRY 66,712,917 (2,275,934) 1,713,793 (116,090,362) (116,090,362)
------------ ------------ ------------ ------------- -------------
TOTAL FOREIGN 66,712,917 (2,275,934) 1,713,793 75,157,598 141,308,374
------------ ------------ ------------ ------------- -------------
ANIXTER REAL ESTATE (2,014,978) 0 0 4,073,810 2,058,832
WIRE EXPRESS (1,637,880) 0 0 7,226,899 5,589,019
ANIXTER INFO. SYSTEMS CORP. 4,507,447 0 0 (2,374,904) 2,132,543
ANIXTER HOLDING (9,000,000) 0 (300,000,000) 307,429,440 (1,570,560)
------------ ------------ ------------ ------------- -------------
TOTAL DOMESTIC (8,145,411) 0 (300,000,000) 316,355,245 8,209,834
------------ ------------ ------------ ------------- -------------
SUBTOTAL 149,518,208
ADJUSTMENTS TO EQUITY: ------------
FOREIGN CURRENCY TRANSLATION 12,981,675
RETAINED EARNINGS 19,314,586
------------
TOTAL 181,814,469
============
201
ANIXTER INC.
SCHEDULE 8.03
OTHER EXISTING INVESTMENTS
JULY 26, 1996
PAGE 2
EMPLOYEE LOANS:
---------------
Domestic $ 1,286,986.55
Foreign 77,206.73
--------------
$ 1,364,193.28
==============
STOCK OPTION LOANS:
-------------------
Stock Option Loans $ 4,136,241.52
==============
INVESTMENTS IN JOINT VENTURES:
------------------------------
Equity Investment in Anixter Lincoln $ 424,602.00
==============
Equity Investment in Anixter-Frontier 3,097,491.00
Loan to Anixter-Frontier 7,000,000.00
--------------
$10,097,491.00
==============
NOTES RECEIVABLE:
-----------------
Xxxx County $ 72,510.30
Ruppman Marketing 18,263.27
State of California 13,830.50
State of California 44,104.12
Teknon Corporation 66,782.99
Xxxxxxxx, Xxxxxxxx & Xxxxxx 18,244.65
--------------
$ 233,735.83
==============
ANIXTER CANADA'S INVESTMENT:
----------------------------
Preferred Stock in Anixter Europe Holdings B.V. $ 8,974,490.00 CND
==============
202
SCHEDULE II
Committed Currencies
Pounds Sterling
French Francs
Deutschmarks
Canadian Dollars
Swedish Kronor
No modifications to borrowing procedures.
