FIVE-YEAR
REVOLVING CREDIT AGREEMENT
Dated as of October 6, 2000
among
ANIXTER INC.
and
THE BORROWING SUBSIDIARIES
FROM TIME TO TIME
PARTIES HERETO
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent,
THE BANK OF NOVA SCOTIA,
as Documentation Agent,
CREDIT LYONNAIS CHICAGO BRANCH and
SUNTRUST BANK,
as Managing Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
Section Page
iii
TABLE OF CONTENTS
Section Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms................................................1
1.02 Other Interpretive Provisions...............................25
1.03 Accounting Terms............................................26
1.04 Rounding....................................................26
1.05 References to Agreements and Laws...........................26
1.06 Euro........................................................26
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans.............................................26
2.02 Borrowings, Conversions and Continuations of Committed Loans27
2.03 Bid Loans...................................................28
2.04 Foreign Currency Loan Commitment............................31
2.05 Procedure for Foreign Currency Borrowings...................32
2.06 Participations in Foreign Currency Loans....................33
2.07 Prepayments.................................................34
2.08 Reduction or Termination of Commitments.....................35
2.09 Repayment of Loans..........................................35
2.10 Interest....................................................35
2.11 Fees........................................................36
2.12 Computation of Interest and Fees............................37
2.13 Evidence of Debt............................................37
2.14 Payments Generally..........................................37
2.15 Sharing of Payments.........................................39
2.16 Borrowing Subsidiaries......................................40
2.17 Currency Exchange Fluctuations..............................40
2.18 Participation Obligations Unconditional.....................41
ARTICLE III.TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.......................................................41
3.02 Illegality..................................................43
3.03 Inability to Determine Rates................................43
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on Eurocurrency Rate Loans..................................44
3.05 Funding Losses..............................................45
3.06 Matters Applicable to all Requests for Compensation.........45
3.07 Survival....................................................46
ARTICLE IV.CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension......................46
4.02 Conditions to all Credit Extensions.........................48
ARTICLE V.REPRESENTATIONS AND WARRANTIES
5.01 Organization; Corporate Powers..............................48
5.02 Authority...................................................49
5.03 Subsidiaries................................................49
5.04 No Conflict.................................................49
5.05 Governmental Consents.......................................49
5.06 Governmental Regulation.....................................50
5.07 Financial Position..........................................50
5.08 Litigation; Adverse Effects.................................50
5.09 No Material Adverse Change..................................51
5.10 Payment of Taxes............................................51
5.11 Performance.................................................51
5.12 Securities Activities.......................................51
5.13 Disclosure..................................................51
5.14 Requirements of Law.........................................51
5.15 Patents, Trademarks, Permits, Etc...........................52
5.16 Environmental Matters.......................................52
5.17 Employee Benefit Matters....................................52
5.18 Solvency....................................................52
5.19 Assets and Properties.......................................53
5.20 Joint Venture; Partnership..................................53
5.21 No Default..................................................53
5.22 Restricted Payments.........................................53
5.23 Subsequent Funding Representations and Warranties...........53
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements........................................53
6.02 Environmental Notices.......................................56
6.03 Corporate Existence, Etc....................................57
6.04 Corporate Powers, Etc.......................................57
6.05 Compliance with Laws........................................57
6.06 Payment of Taxes and Claims.................................57
6.07 Maintenance of Properties; Insurance........................57
6.08 Inspection of Property; Books and Records; Discussions......58
6.09 Maintenance of Permits......................................58
6.10 Employee Benefit Matters....................................58
6.11 Additional Guarantors.......................................59
6.12 Use of Proceeds.............................................59
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Indebtedness................................................59
7.02 Sales of Assets; Liens......................................60
7.03 Investments.................................................61
7.04 Accommodation Obligations...................................63
7.05 Restricted Payments.........................................63
7.06 Conduct of Business.........................................64
7.07 Transactions with Affiliates................................64
7.08 Restriction on Fundamental Changes..........................65
7.09 Employee Benefit Matters....................................65
7.10 Environmental Liabilities...................................66
7.11 Margin Regulations..........................................66
7.12 Change of Fiscal Year.......................................66
7.13 Modification of the Subordinated XXXXx Note, the Revolving
Subordinated Note or Senior Note Indenture; Issuance of
Additional Senior Notes.....................................66
7.14 Hedging Contracts...........................................66
7.15 Receivables Securitization Transactions.....................66
7.16 Minimum Consolidated Net Worth..............................67
7.17 Maximum Leverage Ratio......................................67
7.18 Minimum Consolidated Fixed Charge Coverage Ratio............67
7.19 Capital Expenditures........................................67
7.20 Calculation of Financial Covenants..........................67
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default...........................................68
8.02 Remedies Upon Event of Default..............................70
ARTICLE IX.ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.......71
9.02 Delegation of Duties........................................71
9.03 Liability of Administrative Agent...........................71
9.04 Reliance by Administrative Agent............................72
9.05 Notice of Default...........................................72
9.06 Credit Decision; Disclosure of Information by Administrative
Agent.......................................................73
9.07 Indemnification of Administrative Agent.....................73
9.08 Administrative Agent in its Individual Capacity.............74
9.09 Successor Administrative Agent..............................74
9.10 Other Agents................................................75
ii
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc.............................................75
10.02 Notices and Other Communications; Facsimile Copies..........76
10.03 No Waiver; Cumulative Remedies..............................77
10.04 Attorney Costs, Expenses and Taxes..........................77
10.05 Indemnification by the Borrowers............................77
10.06 Payments Set Aside..........................................78
10.07 Successors and Assigns......................................78
10.08 Confidentiality.............................................81
10.09 Set-off.....................................................82
10.10 Interest Rate Limitation....................................82
10.11 Counterparts................................................82
10.12 Integration.................................................82
10.13 Survival of Representations and Warranties..................83
10.14 Severability................................................83
10.15 Foreign Lenders.............................................83
10.16 Removal and Replacement of Lenders..........................84
10.17 Judgment Currency...........................................85
10.18 Economic and Monetary Union in the European Community.......85
10.19 Borrowers' Agent............................................86
10.20 Governing Law...............................................86
10.21 Waiver of Right to Trial by Jury............................87
SCHEDULES
1.01 Associated Costs
5.03 Existing Subsidiaries
5.04 Conflicts
5.08 Litigation
5.16 Environmental Matters
5.20 Joint Ventures and Partnerships
6.07 Insurance
7.01 (ii)Existing Indebtedness
7.02 (b)Existing Liens
7.03 Existing Investments
10.02 Eurocurrency and Domestic Lending Offices, Addresses for Notices
EXHIBITS
A-1 Form of Committed Loan Notice
A-2 Form of Foreign Currency Loan Notice
B-1 Form of Bid Request
B-2 Form of Competitive Bid
C-1 Form of Borrowing Subsidiary Agreement
C-2 Form of Borrowing Subsidiary Termination
D-1 Form of Committed Loan Note
D-2 Form of Bid Loan Note
D-3 Form of Foreign Currency Loan Note
E Form of Compliance Certificate
F Form of Assignment and Acceptance
G Form of Guaranty
H Form of Opinion of Counsel
I Form of Allocation Notice
FIVE-YEAR
REVOLVING CREDIT AGREEMENT
This FIVE-YEAR REVOLVING CREDIT AGREEMENT ("Agreement") is entered into as
of October 6, 2000, among ANIXTER INC., a Delaware corporation ("Anixter"), the
BORROWING SUBSIDIARIES (as defined herein), each lender from time to time party
hereto (collectively, the "Lenders" and individually, a "Lender"), BANK ONE, NA,
as Syndication Agent, THE BANK OF NOVA SCOTIA, as Documentation Agent, and BANK
OF AMERICA, N.A., as Administrative Agent.
The Borrowers have requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein. In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows: ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMSARTICLE 2.
ARTICLE 2.01 Defined Terms . As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate.
"Accommodation Obligation", as applied to any Person, means any contractual
obligation, contingent or otherwise, of that Person with respect to any
Indebtedness or other obligation or liability of another, including, without
limitation, any such Indebtedness, obligation or liability directly or
indirectly guaranteed, supported by letter of credit, endorsed (otherwise than
for collection or deposit in the ordinary course of business), co-made or
discounted or sold with recourse by that Person, or in respect of which that
Person is otherwise directly or indirectly liable, including Contractual
Obligations (contingent or otherwise) arising through any agreement to purchase,
repurchase, or otherwise acquire such Indebtedness, obligation or liability or
any security therefor, or to provide funds for the payment or discharge thereof
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received. For
purposes of interpreting any provision of this Agreement which refers to the
amount of Accommodation Obligations of any Person, such provision shall be
deemed to mean the maximum amount of such Accommodation Obligations or, in the
case of an Accommodation Obligation to maintain solvency, assets, level of
income or other financial condition, the amount of Indebtedness to which such
Accommodation Obligation relates, or if less, the stated maximum, if any, in the
documents evidencing such Accommodation Obligation. Notwithstanding anything to
the contrary contained herein, the term "Accommodation Obligation" shall not be
interpreted to include any letter of credit Obligations or any other Obligations
hereunder guaranteed by Anixter or any other Guarantor.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
Anixter and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 20% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners; or (b)
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agent/Arranger Fee Letter" has the meaning specified in Section 2.11(b).
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Aggregate Commitments" means US$390,000,000, as such amount may be reduced
or adjusted from time to time in accordance with this Agreement.
"Aggregate Foreign Currency Commitments" means $75,000,000, as such amount
may be reduced or adjusted from time to time in accordance with this Agreement.
"Agreement" means this Five-Year Revolving Credit Agreement.
"Agreement Accounting Principles" means GAAP as of the date of this
Agreement together with any changes in GAAP after the date hereof which are not
"Material Accounting Changes" (as defined below). If any changes in GAAP are
hereafter required or permitted and are adopted by AXE or Anixter with the
agreement of its independent certified public accountants and such changes
result in a material change in the method of calculation of any of the financial
covenants, restrictions or standards herein or in the related definitions or
terms used therein ("Material Accounting Changes"), the parties hereto agree to
enter into negotiations, in good faith, in order to amend such provisions in a
credit neutral manner so as to reflect equitably such changes with the desired
result that the criteria for evaluating Anixter's consolidated financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, that no Material Accounting Change shall be given
effect in such calculations until such provisions are amended in a manner
reasonably satisfactory to the Required Lenders. If such amendment is entered
into, all references in this Agreement to Agreement Accounting Principles shall
mean GAAP as of the date of such amendment together with any changes in GAAP
after the date of such amendment which are not Material Accounting Changes.
"Allocation Notice" means a written notice from the Arranger and
Anixter to a Lender substantially in the form of Exhibit I setting forth such
Lender's Commitment.
"Anixter" has the meaning assigned to that term in the preamble hereto.
"Anixter Distribution Stock Plan" means the Anixter Distribution Stock
Option Plan dated as of January 1, 1993.
"Applicable Currency" means, with respect to any Loan, the currency in
which such Loan is denominated.
"Applicable Margin" means the following percentages per annum, based upon
the Debt Rating:
Applicable Margin
Pricing Debt Ratings Facility fee Base Rate
Level S&P/Xxxxx'x/Fitch Eurocurrency +
-
Rate +
--------- ------------------- ------------ ---------- ---------
1 $A-/A3 0.175% 0.575% zero
- ------ ------ ------ ----
2 BBB+/Baa1 0.20% 0.675% zero
- --------- ----- ------ ----
3 BBB/Baa2 0.225% 0.775% zero
- -------- ------ ------ ----
4 BBB-/Baa3 0.25% 0.875% zero
- --------- ----- ------ ----
5 BB+/Ba1 0.275% 1.100% zero
- ------- ------ ------ ----
6 -
US$_______________): US$______ C. Maximum permitted capital expenditures
(US$50,000,000 + Line V.B.): US$ D. Excess (deficiency) for covenant compliance
(Line V.C - V.A): US$
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent.
The assignor identified on the signature page hereto (the "Assignor") and
the assignee identified on the signature page hereto (the "Assignee") agree as
follows:
1. (a) Subject to paragraph 11, effective as of the date specified on
Schedule 1 hereto (the "Effective Date"), the Assignor hereby irrevocably sells
and assigns to the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, the interest described on Schedule 1 hereto (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Agreement.
(b) From and after the Effective Date, (i) the Assignee shall be a party
under the Agreement and will have all the rights and obligations of a Lender for
all purposes under the Loan Documents to the extent of the Assigned Interest and
be bound by the provisions thereof, and (ii)the Assignor shall relinquish its
rights and be released from its obligations under the Agreement to the extent of
the Assigned Interest. The Assignor and/or the Assignee, as agreed by the
Assignor and the Assignee, shall deliver, in immediately available funds, any
applicable assignment fee required under Section 10.07(b) of the Agreement.
2. On the Effective Date, the Assignee shall pay to the Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed upon by the Assignor and the Assignee.
3. From and after the Effective Date, the Administrative Agent shall make
all payments under the Agreement and the Notes, if any, in respect of the
Assigned Interest (including all payments of principal, interest and fees with
respect thereto) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Agreement and such Notes, if any,
for periods prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
(a) The Assignor is the legal and beneficial owner of the Assigned
Interest, and the Assigned Interest is free and clear of any adverse claim;
(b) the Assigned Interest listed on Schedule 1 accurately and completely
sets forth the Outstanding Amount of all Loans relating to the Assigned Interest
as of the Effective Date;
(c) it has the power and authority and the legal right to make, deliver and
perform, and has taken all necessary action, to authorize the execution,
delivery and performance of this Assignment and Acceptance, and any and all
other documents delivered by it in connection herewith and to fulfill its
obligations under, and to consummate the transactions contemplated by, this
Assignment and Acceptance and the Loan Documents, and no consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or therewith; and
(d) this Assignment and Acceptance constitutes the legal, valid and binding
obligation of the Assignor. The Assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Anixter or
any of its Affiliates or the performance by Anixter or any of its Affiliates of
their respective obligations under the Loan Documents, and assumes no
responsibility with respect to any statements, warranties or representations
made under or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
other than as expressly set forth above.
5. The Assignee represents and warrants to the Assignor and the
Administrative Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to make,
deliver and perform, and has taken all necessary action, to authorize the
execution, delivery and performance of this Assignment and Acceptance, and any
and all other documents delivered by it in connection herewith and to fulfill
its obligations under, and to consummate the transactions contemplated by, this
Assignment and Acceptance and the Loan Documents, and no consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or therewith;
(c) this Assignment and Acceptance constitutes the legal, valid and binding
obligation of the Assignee;
(d) under applicable Laws no tax will be required to be withheld by the
Administrative Agent or Anixter with respect to any payments to be made to the
Assignee hereunder or under any Loan Document, and unless otherwise indicated in
the space opposite the Assignee's signature below, no tax forms described in
Section 10.15 of the Agreement are required to be delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement, together with copies
of the most recent financial statements of Anixter delivered pursuant thereto,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance. The Assignee has independently and without reliance upon the
Assignor or the Administrative Agent and based on such information as the
Assignee has deemed appropriate, made its own credit analysis and decision to
enter into this Assignment and Acceptance. The Assignee will, independently and
without reliance upon the Administrative Agent or any Lender, and based upon
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Agreement.
6. The Assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto.
7. If either the Assignee or the Assignor desires a Note to evidence its
Loans, it shall request the Administrative Agent to procure a Note from the
related Borrowers.
8. The Assignor and the Assignee agree to execute and deliver such other
instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Assignment and
Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided,
however, that the Assignee shall not assign its rights or obligations hereunder
without the prior written consent of the Assignor and any purported assignment,
absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile signatures
with the same force and effect as if manually signed and may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Assignment and
Acceptance shall be governed by and construed in accordance with the laws of the
state specified in the Section of the Agreement entitled "Governing Law."
11. The effectiveness of the assignment described herein is subject to:
(a) if such consent is required by the Agreement, receipt by the Assignor
and the Assignee of the consent of the Administrative Agent and/or Anixter to
the assignment described herein. By delivering a duly executed and delivered
copy of this Assignment and Acceptance to the Administrative Agent, the Assignor
and the Assignee hereby request any such required consent and request that the
Administrative Agent register the Assignee as a Lender under the Agreement
effective as of the Effective Date; and
(b) receipt by the Administrative Agent of (or other arrangements
acceptable to the Administrative Agent with respect to) any applicable
assignment fee referred to in Section 10.07(b) of the Agreement and any tax
forms required by Section 10.15 of the Agreement.
By signing below, the Administrative Agent agrees to register the Assignee
as a Lender under the Agreement, effective as of the Effective Date with respect
to the Assigned Interest, and will adjust the registered Pro Rata Share of the
Assignor under the Agreement to reflect the assignment of the Assigned Interest.
12. Attached hereto as Schedule 2 is all contact, address, account and
other administrative information relating to the Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
Assignor: [Name of Assignor]
By:
Name:
Title:
o Tax forms required by Section 10.15 of the Assignee: Agreement included
[Name of Assignee]
By:
Name:
Title:
(Signatures continue)
In accordance with and subject to Section 10.07 of the Credit Agreement,
the undersigned consent to the foregoing assignment as of the Effective Date:
ANIXTER INC.
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Title:
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
Effective Date: ______________________
Assigned Commitment Type and amount of outsta Assigned Pro Rata Share
Obligations assigned
US$ [type] US$ %
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts,
addresses, phone and facsimile numbers,
electronic mail addresses and account
and payment information)
EXHIBIT G
GUARANTY
This GUARANTY, dated as of October 6, 2000, is by ANIXTER INTERNATIONAL
INC., a Delaware corporation, ANIXTER INC., a Delaware corporation ("Anixter"),
ANIXTER-REAL ESTATE, INC., an Illinois corporation, ANIXTER
INFORMATION SYSTEMS CORPORATION, an Illinois corporation, and ANIXTER
FINANCIAL INC., a Delaware corporation (each a "Guarantor" and collectively, the
"Guarantors"), in favor of BANK OF AMERICA, N.A., as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders (as
hereafter defined).
Recitals
A. Anixter, Anixter U.K. Ltd., an English limited liability company and
Anixter International N.V./S.A., a Belgian company (together with Anixter and
Anixter U.K. Ltd., and any other Subsidiary that may become a Borrowing
Subsidiary in accordance with the terms thereof, collectively, the "Borrowers"
and individually a "Borrower"), the financial institutions from time to time
party thereto (the "Lenders"), Bank One, NA, as Syndication Agent, The Bank of
Nova Scotia, as Documentation Agent, and the Administrative Agent have entered
into a Five-Year Revolving Credit Agreement, dated as of October 6, 2000. The
Credit Agreement as now in effect or hereafter extended, renewed, modified,
supplemented, amended, or restated is hereinafter called the "Credit Agreement".
B. The Lenders are willing to make the Loans to the Borrowers on the condition
(among others) that the Guarantors enter into this Guaranty.
C. Each Guarantor will derive substantial and direct benefits (which
benefits are hereby acknowledged by the Guarantors) from the Loans and other
benefits to be provided to the Borrowers under the Credit Agreement.
D. In order to induce the Lenders to make the Loans to the Borrowers as
provided in the Credit Agreement, and for other valuable consideration, the
Guarantors hereby issue this Guaranty.
1. Definitions. Unless otherwise defined herein, capitalized terms used in
this Guaranty have the
meanings given to them from time to time in the Credit Agreement.
2. Guaranty. 2.1 Guaranty. The Guarantors, jointly and severally, hereby
irrevocably, absolutely and unconditionally guarantee the full and punctual
payment or performance when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand, or otherwise, of all of the
Guaranteed Obligations, including Guaranteed Obligations in respect of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.ss.101 et seq.)
(the "Bankruptcy Code") or the operation of Sections 502(b) and 506(b) of the
Bankruptcy Code. This Guaranty constitutes a guaranty of payment and performance
when due and not of collection, and the Guarantors specifically agree that it
shall not be necessary or required that the Administrative Agent or any Lender
exercise any right, assert any claim or demand, or enforce any remedy whatsoever
against the Borrowers (or any other Person) before or as a condition to the
obligations of the Guarantors hereunder. The Administrative Agent or any Lender
may permit the indebtedness of the Borrowers to the Administrative Agent or any
Lender to include indebtedness other than the Guaranteed Obligations, and may
apply any amounts received from any source, other than from the Guarantors, to
that portion of the Borrowers' indebtedness to the Administrative Agent or any
Lender which is not a part of the Guaranteed Obligations. The obligations and
liabilities of the Guarantors hereunder are joint and several. "Guaranteed
Obligations" shall mean all Obligations plus all obligations of the Borrowers to
the Administrative Agent and the Lenders pursuant to any agreement (including
any master agreement and any agreement, whether or not in writing, relating to
any single transaction) that is an interest rate swap agreement, basis swap,
forward rate agreement, commodity swap, commodity option, equity or equity index
swap or option, bond option, interest rate option, forward foreign exchange
agreement, rate cap, collar or floor agreement, currency swap agreement,
cross-currency rate swap agreement, station, currency option or any other,
similar agreement (including any option to enter into any of the foregoing).
2.2 Obligations Independent. The obligations hereunder are
independent of the obligations of the Borrowers, and a separate action or
actions may be brought and prosecuted against any or all of the Guarantors
whether action is brought against a Borrower or whether any Borrower be joined
in any such action or actions.
2.3 Authorization of Renewals, Etc. Each Guarantor authorizes the
Administrative Agent and each Lender, without notice or demand and without
affecting its liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate, or otherwise change the time
for payment, or otherwise change the terms, of the Guaranteed Obligations,
including increase or decrease of the rate of interest thereon, or otherwise
change the terms of the Credit Agreement or any other Loan Document;
(b) to receive and hold security for the payment of this Guaranty or the
obligations and exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any such security;
(c) to apply such security and direct the order or manner of sale thereof
as the Administrative Agent, or any Lender, as the case may be, in its or their
discretion may determine; and
(d) to release or substitute any one or more of any endorsers or guarantors
of the Guaranteed Obligations.
Each Guarantor further agrees that the performance or occurrence of any of
the acts or events described in clauses (a), (b), (c), and (d) above with
respect to indebtedness or other obligations of the Borrowers other than the
Guaranteed Obligations, to the Administrative Agent or any Lender, shall not
affect the liability of the Guarantors hereunder.
2.4 Waiver of Certain Rights. Each Guarantor waives any right to require
the Administrative
Agent or any Lender:
(a) to proceed against the Borrowers, a Borrower or any other Person;
(b) to proceed against or exhaust any security for the Guaranteed
Obligations or any other indebtedness of the Borrowers to the Administrative
Agent or any Lender; or
(c) to pursue any other remedy in the Administrative Agent's or any such
Lender's power whatsoever.
2.5 Waiver of Certain Defenses and Rights. Each Guarantor waives any
defense arising by reason of any disability or other defense of the Borrowers,
or the cessation from any cause whatsoever of the liability of the Borrowers,
whether consensual or arising by operation of law or any bankruptcy, insolvency
or debtor relief proceeding, or from any other cause, or any claim that such
Guarantor's obligations exceed or are more burdensome than those of the
Borrowers. Each Guarantor waives any defense arising by reason of any statute of
limitations affecting the liability of the Borrowers. Each Guarantor waives all
rights and defenses arising out of an election of remedies by the Administrative
Agent or any Lender, even though that election of remedies, has destroyed such
Guarantor's rights of subrogation and reimbursement against the Borrowers by
operation of applicable law, and all rights or defenses such Guarantor may have
by reason of protection afforded to the Borrowers with respect to the Guaranteed
Obligations pursuant to the antideficiency laws or other laws of the applicable
jurisdiction limiting or discharging the Guaranteed Obligations.
2.6 Waiver of Presentments, Etc. Each Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this Guaranty and of
the existence, creation, or incurring of new or additional Guaranteed
Obligations or any other indebtedness of Borrowers to the Administrative Agent
or any Lender.
2.7 Information Relating to Borrowers. Each Guarantor acknowledges and
agrees that it shall have the sole responsibility for obtaining from the
Borrowers such information concerning the Borrowers, financial condition or
business operations as such Guarantor may require, and that neither the
Administrative Agent nor any Lender has any duty at any time to disclose to the
Guarantors any information relating to the business operations or financial
condition of the Borrowers.
2.8 Right of Setoff. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default has occurred and is continuing, each
Lender is authorized at any time and from time to time, without prior notice to
the Guarantors, any such notice being waived by each Guarantor to the fullest
extent permitted by law, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of one or more Guarantors against any and all obligations of the
Guarantors now or hereafter existing under this Guaranty or any other Loan
Document, irrespective of whether or not the Administrative Agent or such Lender
shall have made demand under this Guaranty or any other Loan Document. Each
Lender agrees promptly to notify the Guarantors and the Administrative Agent
after any such set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 2.8 are in addition to
the other rights and remedies (including, without limitation, other rights of
set-off) which such Lender may have.
2.9 Subordination. Any obligations of any Borrower to one or more of the
Guarantors, now or hereafter existing, including, but not limited to,
obligations to one or more of the Guarantors as subrogee of the Administrative
Agent or any Lender or resulting from one or more of the Guarantors' performance
under this Guaranty, are hereby fully subordinated in time and priority of
payment to the Guaranteed Obligations and all other indebtedness of the
Borrowers to the Administrative Agent or any Lender. The obligations of such
Borrower to the Guarantors if the Lenders so request shall be enforced and
performance received by the Guarantors as trustee for the Administrative Agent
and the Lenders and the proceeds thereof shall be paid over to the
Administrative Agent and the Lenders on account of the Guaranteed Obligations,
but without reducing or affecting in any manner the liability of the Guarantors
under the other provisions of this Guaranty.
2.10 Reinstatement of Guaranty. If any payment or transfer of any interest
in property by any Borrower to the Administrative Agent or any Lender in
fulfillment of any obligation is rescinded or must at any time (including after
the return or cancellation of this Guaranty) be returned, in whole or in part,
by the Administrative Agent or any Lender to a Borrower or any other Person,
upon the insolvency, bankruptcy, or reorganization of such Borrower or
otherwise, this Guaranty shall be reinstated with respect to any such payment or
transfer, regardless of any such prior return or cancellation.
2.11 Powers. It is not necessary for the Administrative Agent or any Lender
to inquire into the powers of any Borrower or any other Person obligated in
respect of the Guaranteed Obligations or of the officers, directors, partners,
or agents acting or purporting to act on its or their behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
2.12 Taxes. (a) Any and all payments by any Guarantor to each Lender or the
Administrative Agent under this Guaranty shall be made free and clear of, and
without deduction for, any Taxes. In addition, the Guarantors shall pay all
Other Taxes.
(b) If any Guarantor shall be required by law to deduct any Taxes, from or
in respect of any sum payable hereunder to any Lender or the Administrative
Agent, then:
(i) the sum payable shall be increased as necessary so that, after making
all required deductions (including deductions applicable to additional sums
payable under this Section), such Lender or the Administrative Agent, as the
case may be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions been made;
(ii) the Guarantors shall make such deductions;
(iii) the Guarantors shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable law; and
(iv) the Guarantors shall also pay to each Lender or the Administrative
Agent for the account of such Lender, at the time interest is paid, such
additional amount that the respective Lender specifies as necessary to preserve
the after-tax yield the Lender would have received if such Taxes or Other Taxes
had not been imposed.
(c) Each Guarantor agrees to indemnify and hold harmless each Lender and
the Administrative Agent for the full amount of (i) Taxes and (ii) Other Taxes,
and (iii) amounts payable under Section 2.12(b)(iv), and (iv) any liability
(including penalties, interest, additions to tax, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days after the date the Lender or the Administrative Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by any Guarantor of Taxes
or Other Taxes, such Guarantor shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
2.13 Addition of Guarantors. Each Guarantor at any time a party hereto
consents and agrees that, at any time that any Person executes and delivers to
Administrative Agent a letter, substantially in the form of Exhibit A attached
hereto, with such changes, if any, as Administrative Agent shall approve, such
Person shall, without further action on the part of any Person, automatically
become a party hereto and a "Guarantor" hereunder.
2.14 Limit of Liability. Notwithstanding anything to the contrary contained
herein, each Guarantor shall be liable hereunder only for the largest amount
that would not render such Guarantor's obligations hereunder subject to
avoidance under Section 548 of the Bankruptcy Code or comparable provisions of
any applicable state law; provided that such amount shall be presumed to be the
entire amount of the Guaranteed Obligations. If any Guarantor claims that such
Guarantor's liability hereunder is less than the entire amount of the
Obligations, such Guarantor shall have the burden of proving, by clear and
convincing evidence, that such Guarantor's liability hereunder should be so
limited since the information concerning, and the circumstances of, the
financial condition of such Guarantor are more readily available to and are
under the control of such Guarantor.
2.15 Waiver of Subrogation. Until such time as the Guaranteed Obligations
shall have been indefeasibly paid in full in cash, each Guarantor waives any
right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or right of
subrogation under the Bankruptcy Code or any successor statute, against the
Borrowers arising from the existence or performance of this Guaranty, and each
Guarantor waives any right to enforce any remedy which the Administrative Agent
or any Lender now has or may hereafter have against the Borrowers, and waives
any benefit of, and any right to participate in, any security now or hereafter
held by the Administrative Agent or any Lender securing the Guaranteed
Obligations.
3. Representations and Warranties. Each Guarantor represents and warrants
to the Administrative Agent and each Lender as follows:
3.1 Organization; Corporate Powers. Such Guarantor (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction in which it owns or
leases real property or in which the nature of its business requires it to be so
qualified, except those jurisdictions where the failure to be in good standing
or to so qualify has not had or could not reasonably be expected to have a
Material Adverse Effect, and (iii) has all requisite corporate power and
authority to own, operate and encumber its property and assets and to conduct
its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by the Transaction Documents.
3.2 Authority.
(1) Such Guarantor has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Guaranty.
(2) The execution, delivery and performance (or filing or recording, as the
case may be) of this Guaranty and the consummation of the transactions
contemplated thereby, have been duly authorized by all necessary corporate
action on the part of this Guaranty and no other proceedings on the part of any
such Person are necessary to consummate such transactions.
(3) This Guaranty has been duly executed and delivered (or filed or
recorded, as the case may be) by such Guarantor, constitutes its legal, valid
and binding obligations, enforceable against it in accordance with its terms
(except as enforceabiltiy may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles), and is in full
force and effect (unless terminated in accordance with the terms thereof).
3.3 No Conflict. The execution, delivery and performance of this Guaranty
and each of the transactions contemplated hereby, do not and will not (i)
conflict with any Contractual Obligation of such Guarantor, any liability
resulting from which would have or could be reasonably expected to have a
Material Adverse Effect, or (ii) conflict with or violate such Guarantor's
certificate or articles of incorporation or by-laws or similar charter and
constituting documents, or (iii) conflict with, result in a breach of or
constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of such Guarantor, or require
termination of any Contractual Obligation of such Guarantor, or (iv) result in
or require the creation or imposition of any Lien whatsoever upon any of the
properties or assets of any such Person (other than Liens permitted pursuant to
Section 7.02(b) of the Credit Agreement), or (v) require any approval of
stockholders of such Guarantor, unless such approval has been obtained.
3.4 Governmental Consents. The execution, delivery and performance of this
Guaranty by such Guarantor, and the transactions contemplated hereby do not and
will not require any registration with, consent or approval of, or notice to, or
other action with or by, any Governmental Authority, except filings, consents or
notices which have been made, obtained or given and are in full force and
effect.
3.5 Governmental Regulation. Such Guarantor is not subject to regulation
under the Public Utility Holdings Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act, the Investment Company Act of 1940 or any other
statute or regulation of any Governmental Authority such that its ability to
incur indebtedness is limited or its ability to consummate the transactions
contemplated hereby is materially impaired.
4. Miscellaneous.
4.1 Application of Payments on Guaranty. All payments required to be made
by the Guarantors hereunder shall, unless otherwise expressly provided herein,
be made to the Administrative Agent for the account of the Lenders at the
Administrative Agent's Office. The Administrative Agent will promptly distribute
to each Lender its Pro Rata Share (or other applicable share as expressly
provided herein) of such payment in like funds as received. Payments received
from the Guarantors shall, unless otherwise expressly provided herein, be
applied to costs, fees, or other expenses due under the Loan Documents, any
interest (including interest due under [subsection 2.09(c)] of the Credit
Agreement), any principal due under the Loan Documents and any other Guaranteed
Obligations, in such order as the Administrative Agent, with the consent of or
at the request of the Lenders, shall determine.
4.2 Assignments, Participations, Confidentiality. Subject to the provisions
of [Section 10.07] of the Credit Agreement, any Lender may from time to time,
without notice to the Guarantors and without affecting the Guarantors'
obligations hereunder, transfer its interest in the Guaranteed Obligations. Each
Guarantor agrees that each such transfer will give rise to a direct obligation
of the Guarantors to each such transferee and that each such transferee shall
have the same rights and benefits under this Guaranty as it would have if it
were a Lender party to the Credit Agreement and this Guaranty.
4.3 Loan Document. This Guaranty is a Loan Document executed and delivered
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered, and applied in accordance with the terms and
provisions thereof. Without limiting the generality of the foregoing, the
provisions of Sections [1.02 through 1.06] of the Credit Agreement shall apply
to the interpretation and administration of this Guaranty as if such provisions
were incorporated herein, with all references to the "Agreement" in such
Sections being deemed to be references to this Guaranty.
4.4 Waivers; Writing Required. No delay or omission by the Administrative
Agent or any Lender to exercise any right under this Guaranty shall impair any
such right, nor shall it be construed to be a waiver thereof. No waiver of any
single breach or default under this Guaranty shall be deemed a waiver of any
other breach or default. Any amendment or waiver of any provision of this
Guaranty must be in writing and signed by the Guarantors and the Administrative
Agent, with the written consent of the Required Lenders or all of the Lenders,
in accordance with the terms of Section 10.01 of the Credit Agreement.
4.5 Revocation. Each Guarantor absolutely, unconditionally, knowingly, and
expressly waives any right to revoke such Guarantor's guaranty obligation
hereunder as to future Guaranteed Obligations. Each Guarantor fully realizes and
understands that, upon execution of this Guaranty, such Guarantor will not have
any right to revoke this Guaranty as to any future indebtedness and, thus, may
have no control over such Guarantor's ultimate responsibility for the Guaranteed
Obligations. If, contrary to the express intent of this Guaranty, any such
revocation is effective notwithstanding the foregoing waiver, each Guarantor
acknowledges and agrees that: (a) no such revocation shall be effective until
written notice thereof has been received by the Administrative Agent and the
Lenders; (b) no such revocation shall apply to any Guaranteed Obligations in
existence on such date (including any subsequent continuation, extension, or
renewal thereof, or change in the interest rate, payment terms, or other terms
and conditions thereof); (c) no such revocation shall apply to any Guaranteed
Obligations made or created after such date to the extent made or created
pursuant to a legally binding commitment of the Lenders which is, or is believed
in good faith by the Lenders to be, in existence on the date of such revocation;
(d) no payment by any other source, prior to the date of such revocation shall
reduce the obligations of any Guarantor hereunder; and (e) any payment by any
Borrower or from any source other than a Guarantor, subsequent to the date of
such revocation, shall first be applied to that portion of the Guaranteed
Obligations, if any, as to which the revocation by a Guarantor is effective (and
which are not, therefore, guarantied by the Guarantors hereunder), and, to the
extent so applied, shall not reduce the Guaranteed Obligations of the Guarantors
hereunder.
4.6 Remedies. All rights and remedies provided in this Guaranty and any
instrument or agreement referred to herein are cumulative and are not exclusive
of any rights or remedies otherwise provided by law. Any single or partial
exercise of any right or remedy shall not preclude the further exercise thereof
or the exercise of any other right or remedy.
4.7 Costs and Expenses. Each Guarantor agrees to pay or reimburse the
Administrative Agent and each Lender within five Business Days after demand for
all reasonable costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Guaranty (including in connection with any
"workout" or restructuring regarding amounts due under this Guaranty, and
including in any Insolvency Proceeding or appellate proceeding).
4.8 Severability. The illegality or unenforceability of any provision of
this Guaranty or any instrument or agreement referred to herein shall not in any
way affect or impair the legality or enforceability of the remaining provisions
of this Guaranty or any instrument or agreement referred to herein.
4.9 Notices. All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by facsimile (i) shall be immediately confirmed by a telephone call
to the recipient at the number specified on Schedule 10.02 to the Credit
Agreement, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on the signature pages hereof in the case of
Guarantors and as provided in the Credit Agreement in the case of Administrative
Agent and Lenders; or to such other address as shall be designated by any such
party in a written notice to the other parties. All such notices, requests and
communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the fourth
Business Day after the date deposited into the U.S. mail, or if delivered, upon
delivery. Any agreement of the Administrative Agent and the Lenders to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Guarantors. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by a Guarantor to give such notice and the Administrative Agent and
the Lenders shall not have any liability to any Guarantor or other Person on
account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Guarantors hereunder shall not be affected in any way or to any extent by
any failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice. 4.10 Governing Law and Jurisdiction. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF ILLINOIS; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
4.11 Waiver of Jury Trial. EACH GUARANTOR, THE LENDERS, AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING, OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE GUARANTORS, THE LENDERS, AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR
MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
4.12 Entire Agreement. This Guaranty (a) integrates all the terms and
conditions mentioned herein or incidental hereto, (b) supersedes all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) is intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties.
4.13 Execution in Counterparts. This Guaranty may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument.
Delivery of an executed counterpart of the signature page to this Guaranty by
telecopier shall be effective as delivery of a manually executed counterpart of
this Guaranty. Any party delivering an executed counterpart of the signature
page to this Guaranty by telecopier shall thereafter also promptly deliver a
manually executed counterpart of this Guaranty, but the failure to deliver such
manually executed counterpart shall not affect the validity, enforceability, and
binding effect of this Guaranty.
THIS WRITTEN GUARANTY, TOGETHER WITH THE OTHER WRITTEN LOAN DOCUMENTS
EXECUTED IN CONNECTION HEREWITH, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its duly
authorized officers as of the day and year first above written.
ANIXTER INTERNATIONAL INC.
By:
Title:
Notice Information:
0000 Xxxx Xxxx
Xxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
ANIXTER INC.
By:
Title:
Notice Information:
0000 Xxxx Xxxx
Xxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
ANIXTER-REAL ESTATE, INC.
By:
Title:
Notice Information:
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn : Xxx Xxxxxxx
ANIXTER INFORMATION SYSTEMS CORPORATION
By:
Title:
Notice Information:
0000 Xxxx Xxxx
Xxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
ANIXTER FINANCIAL INC.
By:
Title:
Notice Information:
0000 Xxxx Xxxx
Xxxxxx, XX 00000
Attn : Xxx Xxxxxxxxx
EXHIBIT A
TO GUARANTY AGREEMENT
_______________, 200___
To the Lenders and Administrative Agent
Referenced below:
Ladies and Gentlemen:
Reference is made to the following documents: (a) that certain Five-Year
Revolving Credit Agreement, dated as October 6, 2000 (as amended or modified
from time to time, the "Credit Agreement"), among Anixter Inc., a Delaware
corporation ("Anixter"), Anixter U.K. Ltd., an English limited liability company
and Anixter International N.V./S.A., a Belgian company (together with Anixter
and Anixter U.K. Ltd., collectively, the "Borrowers" and individually a
"Borrower"), the financial institutions from time to time party thereto (the
"Lenders"), Bank One, NA, as Syndication Agent, The Bank of Nova Scotia, as
Documentation Agent, and Bank of America, N.A., as Administrative Agent; and (b)
that certain Guaranty dated as of October 6, 2000 (as amended or modified from
time to time, the "Guaranty"), by certain Affiliates of the Borrowers party
thereto in favor of Administrative Agent. Unless specifically defined herein,
capitalized terms used herein have the meaning set forth in the Credit
Agreement.
The undersigned hereby confirms and agrees that it has been furnished with
and has read each of the Loan Documents in effect as of the date hereof and
that, effective as of the date hereof, the undersigned is a party to and
obligated as a Guarantor under the Guaranty. The undersigned hereby warrants and
represents to you that the representations and warranties of the undersigned as
a Guarantor under Section 3 of the Guaranty are true, correct, and complete in
all material respects on the date hereof.
Very truly yours,
[NAME OF NEW GUARANTOR], a _______________
By:
Title:
Notice Information:
EXHIBIT H
FORM OF OPINION OF COUNSEL
EXHIBIT I
FORM OF ALLOCATION NOTICE
BANC OF AMERICA SECURITIES LLC
October [__], 2000
[LENDER]
Dear Ladies and Gentlemen:
This Confirmation is delivered with reference to the Five-Year Credit
Agreement and the 364-Day Credit Agreement, each dated as of October __, 2000
among Anixter Inc., certain of its subsidiaries, various financial institutions,
and Bank of America, N.A, as administrative agent (together, the "Credit
Agreements").
The undersigned serves as the Lead Arranger for the Commitments under the
Credit Agreements, and hereby confirms your allocation of the following
Commitments under the Credit Agreements:
Five-Year Commitment $ 364-Day Commitment $
BANC OF AMERICA SECURITIES LLC
By: ________________________________
Title: _______________________________
ANIXTER INC.
By: ________________________________
Title: __________________________
