EXHIBIT 10.24
EXECUTION COPY
ANIXTER CANADA INC.
AS BORROWER
-AND-
ANIXTER INC.
ANIXTER INTERNATIONAL INC.
ANIXTER-REAL ESTATE INC.
ANIXTER INFORMATION SYSTEMS CORPORATION
ANIXTER FINANCIAL INC.
AS GUARANTORS
-AND-
SCOTIA CAPITAL
AS ARRANGER
-AND-
THE BANK OF NOVA SCOTIA
AS ADMINISTRATIVE AGENT
-AND-
THE LENDERS FROM TIME TO TIME
PARTY TO THIS AGREEMENT
----------
CDN. $40,000,000 CREDIT FACILITY
CREDIT AGREEMENT
DATED AS OF 18 NOVEMBER 2005
----------
(XXXXXX XXXXXX XXXXXXX LOGO)
XXXXXX XXXXXX GERVAIS LLP
TABLE OF CONTENTS
ARTICLE 1
DEFINED TERMS
1.1 Defined Terms........................................................ 1
1.2 Construction......................................................... 19
1.3 References to U.S. Credit Agreement.................................. 19
1.4 Certain Rules of Interpretation...................................... 19
ARTICLE 2
CREDIT
2.1 Amount and Availment Options......................................... 20
2.2 Revolving Credit..................................................... 20
2.3 Use of the Credit.................................................... 21
2.4 Term and Repayment................................................... 21
2.5 Voluntary Prepayments................................................ 21
2.6 Applicable Margin for Interest Rates, Fees and Commissions........... 21
2.7 Standby Fee.......................................................... 22
2.8 Assignment and Other Fees............................................ 23
2.9 Exchange Rate Fluctuations........................................... 23
ARTICLE 3
SECURITY
3.1 Security............................................................. 23
3.2 Obligations Secured by the Security.................................. 23
ARTICLE 4
DISBURSEMENT CONDITIONS
4.1 Conditions Precedent to Initial Advance.............................. 25
(1) Other Debt and Encumbrances.................................... 25
(2) Documentation and Ancillary Information........................ 25
(3) Opinions....................................................... 26
(4) Other Matters.................................................. 26
4.2 Conditions Precedent to all Advances................................. 26
ARTICLE 5
ADVANCES
5.1 Evidence of Indebtedness............................................. 27
5.2 Conversions.......................................................... 27
5.3 Notice of Advances and Payments...................................... 27
5.4 Prepayments and Reductions........................................... 28
5.5 Prime Rate, Base Rate and LIBOR Advances............................. 28
5.6 LIBOR Periods........................................................ 29
(i)
5.7 Co-ordination of Prime Rate Advances, Base Rate Advances and LIBOR
Advances............................................................. 30
5.8 Execution of Banker's Acceptances.................................... 30
5.9 Sale of Banker's Acceptances......................................... 31
5.10 Size and Maturity of Banker's Acceptances and Rollovers.............. 31
5.11 Co-ordination of BA Advances......................................... 32
5.12 Payment of Banker's Acceptances...................................... 33
5.13 Deemed Advance - Banker's Acceptances................................ 33
5.14 Waiver............................................................... 34
5.15 Degree of Care....................................................... 34
5.16 Obligations Absolute................................................. 34
5.17 Shortfall on Drawdowns, Rollovers and Conversions.................... 34
5.18 Issuance and Maturity of L/Cs........................................ 35
5.19 Payment of L/C Commissions and Fronting Fees......................... 35
5.20 Payment of L/Cs and Participation by Lenders in L/Cs................. 36
5.21 Deemed Advance - L/Cs................................................ 37
5.22 Failure of Lender to Fund............................................ 37
5.23 Payment by the Borrower.............................................. 38
5.24 Payment by Agent..................................................... 39
5.25 Provisions Relating to Swingline Availability........................ 40
5.26 Prohibited Rates of Interest......................................... 41
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties....................................... 42
(1) Corporate Matters.............................................. 42
(2) Loan Documents, etc............................................ 43
(3) Litigation, Financial Statements and Other Matters............. 43
(4) Business, Property, Capital Stock, Material Contracts and
Material Permits............................................... 44
(5) Environmental Matters.......................................... 45
(6) Taxes and Withholdings......................................... 46
(7) Pension and Welfare Plans...................................... 47
(8) Cumulative Material Adverse Effect............................. 48
6.2 Survival of Representations and Warranties........................... 48
ARTICLE 7
COVENANTS
7.1 Financial Covenants of the Borrower.................................. 49
7.2 Positive Covenants................................................... 49
(1) Payments and Operation of Business............................. 49
(2) Inspection..................................................... 50
(3) Insurance...................................................... 50
(4) Taxes and Withholdings......................................... 50
(5) Other Matters.................................................. 50
7.3 Reporting and Notice Requirements.................................... 51
(1) Periodic Financial Reports..................................... 51
(ii)
(2) Requirements for Notice........................................ 52
7.4 Negative Covenants................................................... 53
(1) Debt and Encumbrances.......................................... 53
(2) Distributions, Financial Assistance and other Financial
Transactions................................................... 54
(3) Business and Property.......................................... 54
(4) Corporate Matters.............................................. 55
ARTICLE 8
DEFAULT
8.1 Events of Default.................................................... 55
8.2 Acceleration and Termination of Rights, Pre-Acceleration Rights...... 57
8.3 Payment of L/Cs, etc................................................. 58
8.4 Remedies............................................................. 58
8.5 Saving............................................................... 58
8.6 Perform Obligations.................................................. 58
8.7 Third Parties........................................................ 59
8.8 Remedies Cumulative.................................................. 59
ARTICLE 9
THE AGENT AND THE LENDERS
9.1 Authorization of Agent............................................... 59
9.2 Administration of the Credit......................................... 60
9.3 Acknowledgements, Representations and Covenants of Lenders........... 62
9.4 Provisions Operative Between Lenders and Agent Only.................. 63
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Accounting Terms..................................................... 63
10.2 Defined Terms........................................................ 63
10.3 Severability......................................................... 63
10.4 Amendment, Supplement or Waiver...................................... 63
10.5 Governing Law........................................................ 64
10.6 This Agreement to Govern............................................. 64
10.7 Permitted Encumbrances............................................... 64
10.8 Currency............................................................. 64
10.9 Liability of Lenders................................................. 64
10.10 Interest on Miscellaneous Amounts.................................... 65
10.11 Judgment Currency.................................................... 65
10.12 Address for Notice................................................... 65
10.13 Time of the Essence.................................................. 65
10.14 Further Assurances................................................... 66
10.15 Term of Agreement.................................................... 66
10.16 Payments on Business Day............................................. 66
10.17 Whole Agreement...................................................... 66
(iii)
10.18 English Language..................................................... 66
10.19 Senior Indebtedness.................................................. 66
10.20 Date of Agreement.................................................... 67
SCHEDULE A - FORM OF NOTICE OF ADVANCE OR PAYMENT
SCHEDULE B - FORM OF BORROWER COMPLIANCE CERTIFICATE
SCHEDULE C - FORM OF ANIXTER INC. COMPLIANCE CERTIFICATE
SCHEDULE D - MODEL CREDIT AGREEMENT PROVISIONS
SCHEDULE E - APPLICABLE PERCENTAGES OF LENDERS
SCHEDULE F - DETAILS OF CAPITAL STOCK, PROPERTY, ETC.
SCHEDULE G - OTHER SECURED OBLIGATIONS
SCHEDULE H - ORGANIZATIONAL STRUCTURE
SCHEDULE I - EXISTING SCOTIA L/CS
(iv)
THIS CREDIT AGREEMENT is dated as of 18 November 2005
BETWEEN:
ANIXTER CANADA INC.
a corporation incorporated under the laws of Canada
as Borrower
- and -
ANIXTER INC.
ANIXTER INTERNATIONAL INC.
ANIXTER-REAL ESTATE INC.
ANIXTER INFORMATION SYSTEMS CORPORATION
ANIXTER FINANCIAL INC.
as Guarantors
- and -
THE LENDERS LISTED ON SCHEDULE E
TO THIS AGREEMENT FROM TIME TO TIME
AS LENDERS
- and -
THE BANK OF NOVA SCOTIA,
in its capacity as Administrative Agent
RECITALS:
A. The Bank of Nova Scotia and the Borrower have entered into a Commitment
Letter and Term Sheet dated 5 October 2005 and accepted on 10 October 2005, as
amended, under which The Bank of Nova Scotia has agreed to establish a credit
facility in favour of the Borrower.
B. The parties are entering into this Agreement to provide for the terms of such
credit facility.
FOR VALUE RECEIVED, and intending to be legally bound by this Agreement, the
parties agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 DEFINED TERMS
In this Agreement, unless something in the subject matter or context is
inconsistent therewith:
-2-
1.1.1 "ACCOMMODATION OBLIGATION" has the meaning defined in the U.S. Credit
Agreement, as such definition may be amended from time to time in
accordance with a Scotia Approved Amendment.
1.1.2 "ADMINISTRATIVE QUESTIONNAIRE" has the meaning defined in the Provisions.
1.1.3 "ADVANCE" means an availment of the Credit by the Borrower by way of a
Prime Rate Advance, BA Equivalent Loan, Base Rate Advance, LIBOR Advance,
acceptance of a Banker's Acceptance or issuance by the Issuing Bank of an
L/C, including overdrafts under the Swingline Availability and other deemed
Advances and conversions, renewals and rollovers of existing Advances, and
any reference relating to the amount of Advances shall mean the sum of all
outstanding Prime Rate Advances, Base Rate Advances and LIBOR Advances,
plus the face amount of all outstanding Banker's Acceptances, BA Equivalent
Loans and L/Cs.
1.1.4 "AFFILIATE" has the meaning defined in the Provisions.
1.1.5 "AGENT" or "ADMINISTRATIVE AGENT" means Scotia Capital in its capacity as
administrative agent for the Lenders, and any successor administrative
agent appointed in accordance with this Agreement.
1.1.6 "AGREEMENT", "HEREOF", "HEREIN", "HERETO", "HEREUNDER" or similar
expressions mean this Agreement, the Recitals hereto and any Schedules
hereto, including the Provisions, as amended, supplemented, restated and
replaced from time to time in accordance with the provisions hereof, and
not any particular Article, Section or other portion hereof.
1.1.7 "APPLICABLE LAW" has the meaning defined in the Provisions.
1.1.8 "APPLICABLE PERCENTAGE" has the meaning defined in the Provisions. The
Applicable Percentage of each Lender as of the date of this Agreement is
the percentage calculated based on the amounts set out in Schedule E to
this Agreement, which shall be amended and distributed to all parties by
the Administrative Agent from time to time as Applicable Percentages change
in accordance with this Agreement.
1.1.9 "APPROVED FUND" has the meaning defined in the Provisions.
1.1.10 "ARMS' LENGTH" has the meaning given to that term for the purposes of the
Income Tax Act (Canada).
1.1.11 "ARTICLE" means the designated article of this Agreement.
1.1.12 "ASSIGNMENT AND ASSUMPTION" has the meaning defined in the Provisions.
1.1.13 "BA DISCOUNT PROCEEDS" means, in respect of any Banker's Acceptance, an
amount calculated on the applicable Drawdown Date which is (rounded to the
nearest full cent, with one-half of one cent being rounded up) equal to the
face amount of such Banker's Acceptance multiplied by the price, where the
price is calculated by dividing
-3-
one by the sum of one plus the product of (a) the BA Discount Rate
applicable thereto expressed as a decimal fraction multiplied by (b) a
fraction, the numerator of which is the term of such Banker's Acceptance
and the denominator of which is 365, rounded to the nearest multiple of
0.001%.
1.1.14 "BA DISCOUNT RATE" means, (a) with respect to any Banker's Acceptance
accepted by a Lender named on Schedule I to the Bank Act (Canada), the rate
determined by the Agent as being the arithmetic average (rounded upward to
the nearest multiple of 0.01%) of the discount rates, calculated on the
basis of a year of 365 days and determined in accordance with normal market
practice at or about 10:00 a.m. (Toronto time) on the applicable Drawdown
Date, for banker's acceptances of the Schedule I Reference Lenders having a
comparable face amount and identical maturity date to the face amount and
maturity date of such Banker's Acceptance, and (b) with respect to any
Banker's Acceptance accepted by any other Lender, the rate determined by
the Agent as being the arithmetic average (rounded upward to the nearest
multiple of 0.01%) of the discount rates, calculated on the basis of a year
of 365 days and determined in accordance with normal market practice at or
about 10:00 a.m. (Toronto time) on the applicable Drawdown Date, for
banker's acceptances of the Other Reference Lenders having a comparable
face amount and identical maturity date to the face amount and maturity
date of such Banker's Acceptance.
1.1.15 "BA EQUIVALENT LOAN" has the meaning defined in Section 5.11(5).
1.1.16 "BANKER'S ACCEPTANCE" means a depository xxxx as defined in the
Depository Bills and Notes Act (Canada) in Canadian Dollars that is in the
form of an order signed by the Borrower and accepted by a Lender pursuant
to this Agreement or, for Lenders not participating in clearing services
contemplated in that Act, a draft or xxxx of exchange in Canadian Dollars
that is drawn by the Borrower and accepted by a Lender pursuant to this
Agreement. Orders or drafts that become depository bills, drafts and bills
of exchange are sometimes collectively referred to in this Agreement as
"ORDERS". References in the Provisions to "BANKERS' ACCEPTANCES" shall be
interpreted as referring to Banker's Acceptances.
1.1.17 "BANKER'S ACCEPTANCE FEE" means, with respect to any Banker's Acceptance,
the amount calculated by multiplying the face amount of the Banker's
Acceptance by the applicable rate for the Banker's Acceptance Fee specified
in Section 2.6, and then multiplying the result by a fraction, the
numerator of which is the duration of its term on the basis of the
applicable actual number of days to elapse from and including the date of
acceptance of the Banker's Acceptance by the Lender up to but excluding the
maturity date of the Banker's Acceptance and the denominator of which is
the number of days in the calendar year in question.
1.1.18 "BASE RATE" means, on any day, the greater of:
(a) the average of the annual rates of interest (expressed as a percentage
per annum on the basis of a 360 day year) offered by the Agent on that
day as its reference rate for commercial loans made by it in Canada in
U.S. Dollars; and
-4-
(b) the Federal Funds Effective Rate plus 0.63% per annum.
1.1.19 "BASE RATE ADVANCE" or "BASE RATE LOAN" means an advance in U.S. Dollars
bearing interest based on the Base Rate and includes any deemed Base Rate
Advance provided for in this Agreement.
1.1.20 "BORROWER" means Anixter Canada Inc., a corporation incorporated under
the laws of Canada, its successors and permitted assigns.
1.1.21 "BRANCH OF ACCOUNT" means (a) for the purpose of obtaining and repaying
Advances under the Swingline Availability, the branch of the Agent located
at West Metro Commercial Banking Centre, 2 Xxxxxx Xxxxx Parkway, 4th Floor,
Mississauga, ON L4Z 1H8, and (b) for all other Advances, WBO-Loan
Administration & Agency Operations of the Agent located at 000 Xxxx Xxxxxx
West, 4th Floor, Wholesale Banking Operations, Xxxxxxx, Xxxxxxx, X0X 0X0,
or such other branch or branches as may be designated by the Agent from
time to time.
1.1.22 "BUSINESS DAY" means a day of the year, other than Saturday or Sunday, on
which (a) in respect of notices, determinations, payments or Advances
relating to Base Rate Advances, the Agent is open for normal banking
business at its executive offices in Xxxxxxx, Xxxxxxx, the Branch of
Account and its principal office in New York, New York, (b) in respect of
notices, determinations, payments or Advances relating to LIBOR Advances,
the Agent is open for normal banking business at its executive offices in
Xxxxxxx, Xxxxxxx, the Branch of Account and its principal offices in New
York, New York and London, England, and (c) for all other purposes, the
Agent is open for normal banking business at its executive offices in
Toronto, Ontario and the Branch of Account.
1.1.23 "CANADIAN DOLLARS", "CDN. DOLLARS", "CDN. $" and "$" mean the lawful
money of Canada.
1.1.24 "CAPITAL STOCK" means, with respect to any Person from time to time, any
and all shares, units, trust units, partnership, membership or other
interests, participations or other equivalent rights in the Person's equity
or capital from time to time, however designated and whether voting or
non-voting.
1.1.25 "CDOR RATE" means, on any date, with respect to any Banker's Acceptance,
the simple average of the rates shown on the display referred to as the
"CDOR PAGE" (or any display substituted therefor) on Reuters Domestic Money
Service (or any successor source from time to time) with respect to the
banks and other financial institutions named in such display at or about
10:00 a.m. (Toronto time) on such date for banker's acceptances having an
identical maturity date to the maturity date of such Banker's Acceptance,
as determined by the Agent, or if such day is not a Business Day, then on
the immediately preceding Business Day; provided, however, that if such
rates are not available, then the CDOR Rate for any day shall be calculated
as the average of the bid rates (rounded upwards to the nearest 1/16th of
1%) quoted by each of the Schedule I Reference Lenders for its own banker's
acceptances for the
-5-
applicable period as of 10:00 a.m. (Toronto time) on such day, as
determined by the Agent, or if such day is not a Business Day, then on the
immediately preceding Business Day.
1.1.26 "CHANGE IN LAW" has the meaning defined in the Provisions.
1.1.27 "CLOSING DATE" means 18 November 2005 or such other day as may be agreed
to by the parties which is not later than 30 November 2005.
1.1.28 "COLLATERAL" means cash, a bank draft or a letter of credit issued by a
Canadian chartered bank, all in a form satisfactory to the Agent, acting
reasonably.
1.1.29 "COMMITMENT" means in respect of each Lender from time to time, the
covenant to make Advances to the Borrower in the Lender's Applicable
Percentage of the maximum amount of the Credit and, where the context
requires, the maximum amount of Advances which the Lender has covenanted to
make.
1.1.30 "COMPLIANCE CERTIFICATE" means a certificate in the form of Schedule B or
Schedule C signed by a senior officer of, as applicable, the Borrower or
Anixter Inc.
1.1.31 "CONSTATING DOCUMENTS" means, with respect to any Person, its articles or
certificate of incorporation, amendment, amalgamation, continuance or
association, memorandum of association, by-laws, declaration of trust,
trust indenture, partnership agreement, limited liability company agreement
or other similar document, as applicable, and all unanimous shareholder
agreements, other shareholder agreements, voting trust agreements and
similar arrangements applicable to the Person's Capital Stock, all as
amended, supplemented, restated or replaced from time to time.
1.1.32 "CONTRACT" means any agreement, contract, indenture, lease, deed of
trust, licence, option, undertaking, promise or any other commitment or
obligation, whether oral or written, express or implied, other than a
Permit.
1.1.33 "CONTRIBUTING LENDER" shall have the meaning defined in Section 5.22.
1.1.34 "CONTROL" means, with respect to any Person, (a) the possession another
Person, directly or indirectly, of vote 33% or more (or, in the case of an
Affiliate of a Lender, 20% or more) of the Capital Stock of the first
Person (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or (b) that the other
Person has the power to direct or cause the direction of the management and
policies of such first Person whether by contract or otherwise and
"Controlling" and "Controlled" have corresponding meanings.
1.1.35 "CREDIT" means the credit facility of up to Cdn. $40,000,000 or the
Equivalent Amount in U.S. Dollars established by the Lenders in favour of
the Borrower pursuant to Article 2 of this Agreement.
1.1.36 "CREDIT LIMIT" has the meaning defined in Section 2.1(1).
-6-
1.1.37 "CURRENCY AGREEMENTS" means (a) any contract for the sale, purchase or
exchange or whether for the spot or for future delivery of foreign currency
(whether or not the subject currency is to be delivered or exchanged) and
whether or not subject to any ISDA Master Agreement, (b) any currency swap
agreements, option contracts, futures contracts, options on futures
contracts, spot or forward contracts or other agreements to purchase or
sell currency or any other similar arrangements related to movements in the
rates of exchange of currencies, or (c) other similar derivatives
transactions or any other contract or arrangement having the same economic
effect as the foregoing, whether at, above or below current market prices.
1.1.38 "DEBT" means, with respect to any Person, without duplication and, except
as provided in item (b) below, without regard to any interest component
thereof (whether actual or imputed) that is not due and payable, the
aggregate of the following amounts, each calculated in accordance with GAAP
unless the context otherwise requires:
(a) all obligations (including, without limitation, by way of overdraft
and drafts or orders accepted representing extensions of credit) that
would be considered to be indebtedness for borrowed money, and all
obligations (whether or not with respect to the borrowing of money)
that are evidenced by bonds, debentures, notes or other similar
instruments;
(b) the face amount of all bankers' acceptances, if any, and similar
instruments;
(c) all liabilities upon which interest charges are customarily paid by
that Person;
(d) any capital stock of that person (or of any Subsidiary of that Person)
which capital stock, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in
whole or in part, prior to the maturity date of the Credit, for cash
or securities constituting Debt;
(e) all capital lease obligations, synthetic lease obligations,
obligations under sale and leaseback transactions and indebtedness
under arrangements relating to purchase money encumbrances;
(f) the amount of the contingent liability under any guarantee (other than
by endorsement of negotiable instruments for collection or deposit in
the ordinary course of business) in any manner of any part or all of
an obligation of another person of the type included in items (a)
through (e) above, including the amount of all contingent liabilities
in respect of letters of credit and letters of guarantee and similar
instruments; and
(g) the amount of all contingent liabilities in respect of performance
bonds and surety bonds, and any other guarantee or other contingent
liability of any part or all of an obligation of a person other than
an Obligor, in each case only to the extent that the guarantee or
other contingent liability is required by GAAP
-7-
to be treated as a liability on a balance sheet of the guarantor or
person contingently liable;
provided that trade payables, accrued liabilities that are current
liabilities incurred in the ordinary course of business do not constitute
Debt.
1.1.39 "DEFAULT" has the meaning defined in the Provisions and, without limiting
the Provisions, Default includes an Event of Default and a Pending Event of
Default.
1.1.40 "DEFAULTING LENDER" has the meaning defined in Section 5.22.
1.1.41 "DEMAND" has the meaning defined in Section 5.20(3).
1.1.42 "DESIGNATED ACCOUNT" means, in respect of any Advance, the account or
accounts maintained by the Borrower at a branch of the Agent in Toronto,
Ontario that the Borrower designates in its notice requesting an Advance.
1.1.43 "DRAWDOWN DATE" means the date, which shall be a Business Day, of any
Advance.
1.1.44 "EBITDA" means the net income of a Person calculated on a consolidated
basis in accordance with GAAP for its last four completed fiscal quarters:
(a) plus, the provision for depreciation and amortization expense of such
Person for such period;
(b) plus, income taxes of such Person for such period; and
(c) plus, net interest expense of such Person for such period;
provided that there shall be excluded from EBITDA any non-cash,
non-operating gains or loses (including, without limitation, extraordinary
or unusual gains or losses, gains or losses arising from the sale of
capital assets or the sale of owned buildings and properties and other
non-recurring gains or losses) during such period.
1.1.45 "ELIGIBLE ASSIGNEE" has the meaning defined in the Provisions.
1.1.46 "ENCUMBRANCE" means:
(a) with respect to any Property, any mortgage, deed of trust, lien,
pledge, hypothec, hypothecation, encumbrance, charge, assignment,
consignment, security interest, royalty interest, adverse claim or
defect of title in, on or of the Property;
(b) the interest of a vendor or lessor under any conditional sale
agreement, capital lease or title retention agreement relating to an
asset;
(c) any purchase option, call or similar right of a third party in respect
of any Property;
-8-
(d) any netting arrangement or set-off arrangement (other than netting or
set-off arising by operation of law in the ordinary course of
business), defeasance arrangement or other similar arrangement; and
(e) any other agreement, trust or arrangement having the effect of
security for the payment or performance of any debt, liability or
obligation,
and "ENCUMBRANCES", "ENCUMBRANCER", "ENCUMBER" and "ENCUMBERED" shall have
corresponding meanings.
1.1.47 "ENVIRONMENTAL LAWS" means all Applicable Laws or any parts thereof
pertaining to the environment, Hazardous Material or health and safety.
1.1.48 "ENVIRONMENTAL LIEN" has the meaning defined in the U.S. Credit
Agreement, as such definition may be amended from time to time in
accordance with a Scotia Approved Amendment.
1.1.49 "EQUITY" means, in respect of any Person, Capital Stock of such Person,
warrants, options or other rights to acquire Capital Stock of the Person
and securities convertible into or exchangeable for Capital Stock of such
Person.
1.1.50 "EQUIVALENT AMOUNT" means, on any date, the equivalent amount in Canadian
Dollars or U.S. Dollars, as the case may be, after giving effect to a
conversion of a specified amount of U.S. Dollars to Canadian Dollars or
Canadian Dollars to U.S. Dollars, as the case may be, at the Exchange Rate.
1.1.51 "EVENT OF DEFAULT" means any of the events or circumstances described in
Section 8.1.
1.1.52 "EXCHANGE RATE" means on any day, for the purpose of calculations under
this Agreement, the amount of Canadian Dollars into which U.S. Dollars may
be converted, or vice versa, using the Bank of Canada noon spot rate for
converting the one currency into the other on that day or if that day is
not a Business Day, the preceding Business Day, or if such rate is not so
published by the Bank of Canada for any such day, then at the mid rate
(i.e. the average of the Agent's spot buying and selling rates) quoted by
the Agent at the Branch of Account at approximately noon (Toronto time) on
that day in accordance with its normal practice for the applicable currency
conversion in the wholesale market, or if that day is not a Business Day,
the preceding Business Day.
1.1.53 "EXCLUDED TAXES" has the meaning defined in the Provisions.
1.1.54 "EXISTING CREDIT AGREEMENT" means the revolving term credit agreement
dated as of 15 January 1997 between Anixter Canada Inc., as borrower, and
The Bank of Nova Scotia, as lender, as amended to date.
1.1.55 "FEDERAL FUNDS EFFECTIVE RATE" means for any period, a fluctuating
interest rate per annum equal, for each day during such period, to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System
-9-
arranged by Federal Funds brokers as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, for any day on which that rate is not
published for that day by the Federal Reserve Bank of New York, the average
of the quotations for that day for such transactions received by the Agent
from three Federal Funds brokers of recognized standing.
1.1.56 "FEE LETTER" means the confidential fee letter agreement dated 5 October
2005 made by The Bank of Nova Scotia addressed to the Borrower providing
for the payment of certain fees in relation to the Credit, accepted and
agreed to by the Borrower on 10 October 2005.
1.1.57 "FITCH" means Fitch Ratings and its successors.
1.1.58 "FOREIGN LENDER" has the meaning defined in the Provisions.
1.1.59 "FRONTING FEE" means the fee payable to the Issuing Bank upon the
issuance or renewal of an L/C calculated in accordance with Section 2.6.
1.1.60 "FUND" has the meaning defined in the Provisions.
1.1.61 "GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession, that are applicable to the circumstances as of the date of
determination, consistently applied.
1.1.62 "GOVERNMENTAL AUTHORITY" has the meaning defined in the Provisions.
1.1.63 "GUARANTOR OBLIGATIONS" means the obligations of the Guarantors under the
Loan Documents.
1.1.64 "GUARANTORS" means each of Anixter Inc., Anixter International Inc.,
Anixter-Real Estate Inc., Anixter Information Systems Corporation and
Anixter Financial Inc. and each other Person which delivers a guarantee
hereunder, and becomes a party hereto, from time to time.
1.1.65 "HAZARDOUS MATERIALS" means any substance, product, waste, residue,
pollutant, material, chemical, contaminant, dangerous good, constituent or
other material which is or becomes listed, regulated, defined or addressed
under or subject to any Environmental Law or any applicable Permit issued
under any Environmental Law, including asbestos, petroleum, tailings,
mining residue and polychlorinated biphenyls.
1.1.66 "INDEBTEDNESS" has the meaning defined in the U.S. Credit Agreement, as
such definition may be amended from time to time in accordance with a
Scotia Approved Amendment.
-10-
1.1.67 "INDEMNIFIED TAXES" has the meaning defined in the Provisions.
1.1.68 "INTELLECTUAL PROPERTY" means patents, trademarks, service marks, trade
names, copyrights, trade secrets, industrial designs and other similar
rights.
1.1.69 "INTERBANK REFERENCE RATE" means, in respect of any currency, the
interest rate expressed as a percentage per annum which is customarily used
by the Agent when calculating interest due by it or owing to it arising
from correction of errors in transactions in that currency between it and
other chartered banks.
1.1.70 "INTEREST PAYMENT DATE" means the 21st day of each calendar month.
1.1.71 "INTEREST PERIOD" has the same meaning as LIBOR Period.
1.1.72 "INTEREST RATE AGREEMENTS" means any interest rate swap, option contract,
futures contract, option on futures contract, cap, floor, collar, or any
other similar arrangement relating to movements in interest rates or that
is designed to protect against fluctuations in interest rates or to obtain
the benefits of floating or fixed interest rates;, whether at, above or
below current market prices.
1.1.73 "INVESTMENT" means (a) any investment in or purchase of or other
acquisition of any Equity of any Person, (b) any purchase or other
acquisition of a business or undertaking or division of any Person,
including Property comprising the business, undertaking or division, or (c)
any investment in or purchase of or other acquisition of any assets of any
other Person, or (d) any loan or advance or guarantee or the provision of
any other financial assistance of any kind to, or otherwise becoming liable
for any debts, liabilities or obligations of, any Person.
1.1.74 "ISSUING BANK" has the meaning defined in the Provisions, which for the
time being, is Scotia Capital and includes other Lenders designated by the
Agent from time to time after consultation with the Borrower to be Issuing
Banks.
1.1.75 "L/C" or "LETTER OF CREDIT" means a standby letter of credit, letter of
guarantee or commercial letter of credit denominated in Canadian Dollars or
U.S. Dollars in a form satisfactory to the Issuing Bank and issued by the
Issuing Bank under the Credit at the request of the Borrower. The letters
of credit issued (or deemed to have been issued) by Scotia Capital under
the Existing Credit Agreement listed in Schedule I hereto that remain
outstanding as of the date of the initial Advance under the Credit
("EXISTING SCOTIA L/CS"), and all extensions, replacements and renewals
thereof, shall be deemed to have been issued by the Issuing Bank and to be
L/Cs outstanding under the Credit.
1.1.76 "LENDERS" means each of the Persons listed on Schedule E and other
lenders that agree from time to time to become Lenders in accordance with
the terms of this Agreement and includes, where the context requires, the
Issuing Bank, and "LENDER" means any one of the Lenders.
1.1.77 "LENDING OFFICE" means, as to any Lender, the office or offices from
which it makes Advances and receives payments pursuant to this Agreement
from time to time.
-11-
1.1.78 "LIBO RATE" means for any LIBOR Period and LIBOR Advance, a rate
expressed as a percentage per annum on the basis of a 360 day year equal:
(a) to the rate for deposits in U.S. Dollars in the London interbank
market for a period equal to the LIBOR Period and in an amount
approximately equal to the amount of the LIBOR Advance, that appears
on the Reuters Telerate Page 3750 (or any successor source from time
to time) as of 11:00 a.m. London time two Business Days before the
first day of the LIBOR Period or,
(b) if no such rate appears as contemplated in item (a) above, to the rate
at which deposits in U.S. Dollars are offered by the principal lending
office of Scotia Capital in London, England to leading banks in the
London interbank market at 11:00 a.m. London time two Business Days
before the first day of the LIBOR Period for a period equal to the
LIBOR Period and in an amount approximately equal to the amount of the
LIBOR Advance.
1.1.79 "LIBOR ADVANCE" or "LIBO RATE LOAN" means an advance in U.S. Dollars
bearing interest based on the LIBO Rate.
1.1.80 "LIBOR PERIOD" means the period selected by the Borrower for a LIBOR
Advance or the period applicable to the LIBOR Advance under the terms of
this Agreement.
1.1.81 "LOAN" has the meaning defined in the Provisions.
1.1.82 "LOAN DOCUMENTS" means this Agreement, all Security, the Fee Letter and
all other documents from time to time relating to the Credit.
1.1.83 "MATERIAL ADVERSE EFFECT" means any material adverse change in or
material adverse effect on (a) the business, affairs, prospects, assets or
financial condition of the Obligors taken as a whole, (b) the ability of
Obligors taken as a whole to observe, perform or comply with their material
obligations under any of the Loan Documents, or (c) the rights and remedies
of, as applicable, the Agent or any of the Lenders under any of the Loan
Documents, in each case, as determined by the Required Lenders, acting
reasonably.
1.1.84 "MATERIAL CONTRACTS" means any Contract (other than any Loan Document) to
which an Obligor is or becomes a party at any time that, if terminated, has
or could reasonably be expected to have a Material Adverse Effect.
1.1.85 "MATERIAL PERMIT" means any Permit issued at any time to an Obligor that,
if terminated, has or could reasonably be expected to have a Material
Adverse Effect.
1.1.86 "MATURITY DATE" means 18 June 2009.
1.1.87 "MOODY'S" means Xxxxx'x Investor Services, Inc. and its successors.
1.1.88 "NON BA LENDER" has the meaning defined in Section 5.11(5).
-12-
1.1.89 "OBLIGATIONS" means all obligations of the Borrower to the Agent and
Lenders under or in connection with this Agreement, including but not
limited to all debts and liabilities, present or future, direct or
indirect, absolute or contingent, matured or not, at any time owing by the
Borrower to the Agent and Lenders in any currency or remaining unpaid by
the Borrower to the Agent and Lenders in any currency under or in
connection with this Agreement, whether arising from dealings between the
Agent and Lenders and the Borrower or from any other dealings or
proceedings by which the Agent and Lenders may be or become in any manner
whatever creditors of the Borrower under or in connection with this
Agreement, and wherever incurred, and whether incurred by the Borrower
alone or with another or others and whether as principal or surety, and all
interest, fees, legal and other costs, charges and expenses; provided,
however, that "Obligations" shall not include "Other Secured Obligations".
In this definition, "the Agent and Lenders" shall be interpreted as "the
Agent and Lenders, or any of them".
1.1.90 "OBLIGORS" has the meaning defined in the Provisions. Without limiting
the Provisions, "Obligors" includes the Borrower and each of the
Guarantors, and "Obligor" means any of them.
1.1.91 "OTHER REFERENCE LENDERS" means two Lenders, one selected by the Agent
and one selected by the Borrower, which are banks chartered under and
referred to in either of Schedule II or Schedule III of the Bank Act
(Canada).
1.1.92 "OTHER SECURED AGREEMENTS" means all agreements or arrangements
(including guarantees) entered into or made from time to time by any
Obligor (unless otherwise specified) in connection with: (a) Swap
Transactions between an Obligor and Scotia Capital or an Affiliate of
Scotia Capital; and (b) cash consolidation, cash management and electronic
funds transfer arrangements between an Obligor and Scotia Capital or an
Affiliate of Scotia Capital and, for greater certainty, all such agreements
and arrangements entered into or made by any Obligor with or in favour of
Scotia Capital or an Affiliate of Scotia Capital, as the case may be, shall
not cease to be an Other Secured Agreement if Scotia Capital ceases to be
the Agent or a Lender or have an Affiliate which is the Agent or a Lender.
1.1.93 "OTHER SECURED OBLIGATIONS" means all obligations of the Obligors to the
Other Secured Parties under or in connection with the Other Secured
Agreements, including but not limited to all debts and liabilities, present
or future, direct or indirect, absolute or contingent, matured or not, at
any time owing by the Obligors to the Other Secured Parties in any currency
or remaining unpaid by the Obligors to the Other Secured Parties in any
currency under or in connection with the Other Secured Agreements, whether
arising from dealings between the Other Secured Parties and the Obligors or
from any other dealings or proceedings by which the Other Secured Parties
may be or become in any manner whatever creditors of the Obligors under or
in connection with the Other Secured Agreements, and wherever incurred, and
whether incurred by an Obligor alone or with another or others and whether
as principal or surety, and all interest, fees, legal and other costs,
charges and expenses; provided, however, that "Other Secured Obligations"
shall not include "Obligations". In this definition, "the
-13-
Other Secured Parties" shall be interpreted as "the Other Secured Parties,
or any of them," and "Obligors" shall be interpreted as "Obligors, and each
of them".
1.1.94 "OTHER SECURED PARTY" means, at any time Scotia Capital or an Affiliate
of Scotia Capital which at such time is a creditor under or in connection
with an Other Secured Agreement.
1.1.95 "OTHER TAXES" has the meaning defined in the Provisions.
1.1.96 "PARTICIPANT" has the meaning defined in the Provisions.
1.1.97 "PENDING EVENT OF DEFAULT" means an event which would constitute an Event
of Default hereunder, except for satisfaction of any requirement for giving
of notice, lapse of time, or both, or other condition subsequent.
1.1.98 "PENSION PLAN" means (a) a "pension plan" or "plan" which is a
"registered pension plan" as defined in the Income Tax Act (Canada) or
pension benefits standards legislation in any jurisdiction of Canada and is
applicable to employees resident in Canada of the Borrower, and (b) any
other defined benefit, supplemental pension benefit plan or similar
arrangement applicable to any employee of the Borrower.
1.1.99 "PERMITS" means licences, certificates, authorizations, consents,
registrations, exemptions, permits, attestations, approvals,
characterization or restoration plans, depollution programmes and any other
approvals required by or issued pursuant to any Applicable Law, in each
case, against a Person or its Property which are made, issued or approved
by a Governmental Authority.
1.1.100 "PERMITTED ENCUMBRANCES" means, with respect to any Person, the
following:
(a) liens for taxes, assessments or governmental charges or levies which
are not yet due, or for which instalments have been paid based on
reasonable estimates pending final assessments, or the validity of
which is being contested in good faith by appropriate proceedings and
for which the Person has recorded the liability in accordance with
GAAP and which do not have, and will not reasonably be expected to
have, a Material Adverse Effect;
(b) inchoate or statutory liens of contractors, subcontractors, mechanics,
workers, suppliers, material men, carriers and others in respect of
construction, maintenance, repair or operation of assets of the
Person, in respect of which adequate holdbacks are being maintained as
required by Applicable Laws and (i) which have not at such time been
filed or exercised and of which none of the Lenders have been given
notice, or (ii) which relate to obligations not due or payable or if
due, the validity of which is being contested in good faith by
appropriate proceedings and for which such Person has recorded the
liability in accordance with GAAP and which do not materially reduce
the value of the affected asset or materially interfere with the use
of such asset in the operation of the business of the Person and do
not have, and will not reasonably be expected to have, a Material
Adverse Effect;
-14-
(c) easements, rights-of-way, licences, servitudes, restrictions,
restrictive covenants, and similar rights in real property comprised
in the assets of the Person or interests therein (including in respect
of sewers, drains, gas and water mains or electric light and power or
telephone and telegraph conduits, poles, wires and cables) which do
not materially reduce the value of the affected asset or materially
interfere with the use of such asset in the operation of the business
of the Person and do not have, and will not reasonably be expected to
have, a Material Adverse Effect;
(d) title defects or irregularities which are of a minor nature and which
do not materially reduce the value of the affected asset or materially
interfere with the use of such asset in the operation of the business
of the Person and do not have, and will not reasonably be expected to
have, a Material Adverse Effect;
(e) the Encumbrance resulting from the deposit of cash or securities in
connection with contracts, tenders or expropriation proceedings, or to
secure workers' compensation, employment insurance, surety or appeal
bonds, costs of litigation when required by Applicable Laws and other
similar obligations, in each case in the ordinary course of business;
(f) the Encumbrance created by a judgment of a court of competent
jurisdiction; provided, however, that the Encumbrance is in existence
for less than 20 days after its creation or the execution or other
enforcement of the Encumbrance is effectively stayed or the claims so
secured are being actively contested in good faith and by proper legal
proceedings and do not result in the occurrence of an Event of
Default;
(g) the reservations, limitations, provisos and conditions, if any,
expressed in any original grant from the Crown of any real property or
any interest therein which do not materially reduce the value of the
affected asset or materially interfere with the use of such asset in
the operation of the business of the Person and do not have, and will
not reasonably be expected to have, a Material Adverse Effect;
(h) Encumbrances given to a public utility or any municipality or
governmental or other public authority when required by such utility
or other authority in connection with the operation of the business or
the ownership of the assets of the Person which do not materially
reduce the value of the affected asset or materially interfere with
the use of such asset in the operation of the business of the Person
and do not have, and will not reasonably be expected to have, a
Material Adverse Effect;
(i) servicing agreements, development agreements, site plan agreements,
and other agreements with Governmental Authorities pertaining to the
use or development of any of the assets of the Person, provided same
are complied with and do not materially reduce the value of the
affected asset or materially interfere with the use of such asset in
the operation of the business of the
-15-
Person and do not have, and will not reasonably be expected to have, a
Material Adverse Effect;
(j) the right reserved to or vested in any Governmental Authority by any
statutory provision or by the terms of any lease, licence, franchise,
grant or permit of the Person, to terminate any such lease, licence,
franchise, grant or permit, or to require annual or other payments as
a condition to the continuance thereof;
(k) Encumbrances in favour of the Agent created by the Security, if any,
including Encumbrances over Collateral;
(l) landlords' rights of distraint and similar rights of a landlord
(including in Quebec a landlord's hypothec) on tangible personal or
moveable Property of the Person located solely on the premises leased
by the landlord to the Person and securing only the obligations of the
Person under the applicable lease of the premises, so long as the
exercise of such rights do not result in the occurrence of an Event of
Default; and
(m) Liens (as such term is defined in the U.S. Credit Agreement, as such
definition is amended by any Scotia Approved Amendment) which are
permitted under Section 7.02(b) of the U.S. Credit Agreement, as such
Section is amended by any Scotia Approved Amendment.
1.1.101 "PERMITTED OBLIGATIONS" means the following:
(a) the Obligations;
(b) the Other Secured Obligations;
(c) debts, liabilities and obligations of the Obligors which under the
U.S. Credit Agreement are Indebtedness which are permitted under
Section 7.01 of the U.S. Credit Agreement, as such Section is amended
by any Scotia Approved Amendment; or
(d) other debts, liabilities and obligations secured by Permitted
Encumbrances;
(e) current accounts payable, accrued expenses and other similar debts,
liabilities and obligations incurred in the ordinary course of
business which are not for borrowed money;
(f) current and deferred taxes;
(g) obligations and liabilities incurred in the ordinary course of
business which do not constitute Debt; and
(h) other debts, liabilities and obligations expressly permitted under
this Agreement or expressly consented to by the Required Lenders in
writing.
-16-
1.1.102 "PERSON" has the meaning defined in the Provisions and "PERSON" has the
same meaning.
1.1.103 "PRIME RATE" means, on any day, the greater of:
(a) the average of the annual rates of interest expressed as a percentage
per annum on the basis of a 365 or 366 day year, as the case may be,
announced by each Schedule I Reference Lender on that day as its
reference rate for commercial loans made by it in Canada in Canadian
Dollars; and
(b) the CDOR Rate for one month Canadian Dollar banker's acceptances on
that day plus 0.75% per annum.
1.1.104 "PRIME RATE ADVANCE" means an Advance in Canadian Dollars bearing
interest based on the Prime Rate and includes any deemed Prime Rate Advance
provided for in this Agreement.
1.1.105 "PROPERTY" means, with respect to any Person, any or all of its present
and future undertaking, property and assets.
1.1.106 "PROVISIONS" means the model credit agreement provisions attached as
Schedule D.
1.1.107 "RECEIVABLES SECURITIZATION TRANSACTION" has the meaning defined in the
U.S. Credit Agreement, as such definition may be amended from time to time
in accordance with a Scotia Approved Amendment.
1.1.108 "REGISTER" has the meaning defined in Section 10(c) of the Provisions.
1.1.109 "RELATED PARTY" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
1.1.110 "RELEVANT RATING" means, as of any date of determination, the ratings as
determined by either S&P, Moody's or Fitch (provided that Anixter Inc.
shall have at least two such ratings and at lease one of such ratings shall
be from S&P or Moody's) (collectively, the "RELEVANT RATINGS") of Anixter
Inc.'s non-credit enhanced, senior unsecured long-term debt; provided that
if the existing Relevant Ratings are not the same level, then (a) if there
are two Relevant Ratings, the higher of such Relevant Ratings shall apply,
(b) if there are three Relevant Ratings and no two debt ratings are at the
same level, the intermediate Relevant Rating shall apply, or (c) if there
are three Relevant Ratings and two Relevant Ratings are at the same level,
then the level with the two Relevant Ratings shall apply.
1.1.111 "REQUIRED LENDERS" means a Lender or Lenders holding, in the aggregate,
a minimum of 50.1% of the amount of the Commitments (or the outstanding
Advances if the Commitments have terminated including after the occurrence
of any Default).
-17-
1.1.112 "RESTRICTED PAYMENT" has the meaning defined in the U.S. Credit
Agreement, as such definition may be amended from time to time in
accordance with a Scotia Approved Amendment.
1.1.113 "S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., or any of its successors.
1.1.114 "SCHEDULE" means the designated Schedule of this Agreement.
1.1.115 "SCHEDULE I REFERENCE LENDERS" means the Agent and such other
institutions as may be agreed upon by the Borrower and the Agent from time
to time, and "Schedule I Reference Lender" means any one of them.
1.1.116 "SCOTIA APPROVED AMENDMENT" means a proposed amendment to the U.S.
Credit Agreement or a provision thereof:
(a) which is made at a time when Scotia Capital is a lender under the U.S.
Credit Agreement;
(b) in respect of which Scotia Capital, in its capacity as a lender under
the U.S. Credit Agreement, has voted to approve;
(c) has been approved by the Lenders under the U.S. Credit Agreement; and
(d) which is made at a time when Scotia Capital is the Agent under this
Agreement;
it being understood and agreed that any such Scotia Approved Amendment, to
the extent incorporated by reference or referred to in this Agreement, will
apply only to the Guarantors and not to the Borrower, to which the
provisions of the U.S. Credit Agreement as at the date of this Agreement,
to the extent incorporated by reference or referred to in this Agreement,
will continue to apply.
1.1.117 "SCOTIA CAPITAL" means The Bank of Nova Scotia, a bank to which the Bank
Act (Canada) applies.
1.1.118 "SECTION" means the designated section of this Agreement.
1.1.119 "SECURED OBLIGATIONS" means the Obligations and Other Secured
Obligations.
1.1.120 "SECURED PARTIES" means, at any time, the Lenders and the Agent in
respect of the Obligations and Guarantor Obligations and the Other Secured
Parties at such time in respect of the Other Secured Obligations.
1.1.121 "SECURITY" means the guarantees held from time to time by or on behalf
of the Secured Parties (including guarantees held by the Agent), supporting
or intended to support, inter alia, repayment of any of the Secured
Obligations, including, without limitation, the guarantees described in
Section 3.1 from time to time.
-18-
1.1.122 "STANDBY FEE" has the meaning defined in Section 2.7.
1.1.123 "SUBSIDIARY" means, with respect to a Person, a subsidiary of such
Person as defined in the Canada Business Corporations Act as of the date of
this Agreement (determined as if each such Person was a body corporate),
and any other Person in which the Person or any Subsidiary of the Person
has the right, directly or indirectly, through one or more intermediaries,
to make or Control management decisions.
1.1.124 "SWAP TRANSACTION" means any interest rate swap, basis swap, forward
rate transaction, currency hedging or swap transaction, cap transaction,
floor transaction, collar transaction or other similar transaction, whether
with respect to interest rates, currencies, commodities or otherwise, or
any option with respect to such a transaction or combination of any such
transactions, and includes Currency Agreements and Interest Rate
Agreements.
1.1.125 "SWINGLINE AVAILABILITY" has the meaning defined in Section 2.1(3).
1.1.126 "TAXES" has the meaning defined in the Provisions.
1.1.127 "TOTAL DEBT" means, at any time, the aggregate, without duplication, of
all Debt of the Borrower on a consolidated basis at that time.
1.1.128 "TOTAL LEVERAGE RATIO" means, at any time, the ratio calculated by
dividing (a) Total Debt at that time by (b) EBITDA for the Borrower's four
most recently completed fiscal quarters, provided that, for purposes of
calculating the Total Leverage Ratio, EBITDA shall be calculated on a pro
forma basis (in accordance with Article 11 of Regulation S-X of the
Securities and Exchange Commission) to the extent necessary to give effect
to (i) any acquisition made by the Borrower during such period (without
giving effect to any increase in EBITDA reflecting projected synergies
resulting from such acquisition) so long as, and to the extent that, (X)
the Borrower delivers to the Agent (which shall promptly deliver to each
Lender) a summary in reasonable detail of the assumptions underlying, and
the calculations made, in computing EBITDA on a pro forma basis, and (Y)
the Required Lenders do not object to such assumptions and/or calculations
within 10 Business Days after receipt thereof, and (ii) any divestiture of
a Subsidiary, division or other operating unit made during such period.
1.1.129 "U.S. CREDIT AGREEMENT" means the five-year revolving credit facility
agreement dated as of 18 June 2004 among Anixter Inc. and various
subsidiaries of Anixter Inc., as borrowers, Bank of America, N.A., as
administrative agent, swing line lender and L/C issuer, Wachovia Bank,
N.A., as syndication agent, Bank One, NA, The Bank of Nova Scotia and Xxxxx
Fargo Bank, N.A., as co documentation agents, and the lenders party thereto
from time to time, as amended by the First Amendment dated as of 10
November 2005.
1.1.130 "U.S. DOLLARS" and "U.S. $" means lawful monies of the United States of
America.
1.1.131 "WELFARE PLAN" means any life, medical, health, dental, hospitalization,
disability, travel, accident, accidental health and dismemberment insurance
or other employee
-19-
benefit or welfare plan, agreement or arrangement, other than a Pension
Plan, applicable to any employee of any Obligor, whether or not insured and
whether or not subject to any Applicable Laws, but excludes any statutory
plans with which any Obligor is required to comply, including the Canada
Pension Plan or plans administered pursuant to applicable provincial
health, workers' compensation and employment insurance legislation.
1.2 CONSTRUCTION
This Agreement has been negotiated by each party with the benefit of legal
representation and any rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not apply to the
construction or interpretation of this Agreement.
1.3 REFERENCES TO U.S. CREDIT AGREEMENT
The provisions of the U.S. Credit Agreement that are incorporated by
reference or referred to in this Agreement shall continue to apply mutatis
mutandis to the Credit notwithstanding the termination of the U.S. Credit
Agreement for any reason.
1.4 CERTAIN RULES OF INTERPRETATION
In this Agreement:
(a) the division into sections and other subdivisions thereof and the
insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement; and
(b) unless specified otherwise or the context otherwise requires:
(i) references to any Section or Schedule are references to the
Section of, or Schedule to, this Agreement;
(ii) "including" or "includes" means "including (or includes) but not
limited to" and shall not be construed to limit any general
statement preceding it to the specific or similar items or
matters immediately following it;
(iii) references to contracts, agreements or instruments, unless
otherwise specified, are deemed to include all present and future
amendments, supplements, restatements or replacements to or of
such contracts, agreements or instruments, provided that such
amendments, supplements, restatements or replacements to or of
such contracts, agreements or instruments have been, if
applicable, approved or consented to and otherwise made in
accordance with the provisions of this Agreement;
(iv) references to any legislation, statutory instrument or regulation
or a section or other provision thereof, unless otherwise
specified, is a
-20-
reference to the legislation, statutory instrument, regulation,
section or other provision as amended, restated or re-enacted
from time to time;
(v) references to any thing includes the whole or any part of that
thing and a reference to a group of things or Persons includes
each thing or Person in that group;
(vi) references to a Person includes that Person's successors and
assigns;
(vii) all references to specific times are references to Toronto time;
and
(viii) words in the singular include the plural and vice-versa and
words in one gender include all genders.
ARTICLE 2
CREDIT
2.1 AMOUNT AND AVAILMENT OPTIONS
(1) Upon and subject to the terms and conditions of this Agreement, the Lenders
severally agree to provide to the Borrower a credit facility for the use of
the Borrower in the amount of up to Cdn. $40,000,000 (as reduced from time
to time, the "CREDIT LIMIT") or the Equivalent Amount in U.S. Dollars
(provided that each Lender's obligation hereunder shall be limited to its
respective Applicable Percentage of the Credit).
(2) At the option of the Borrower, the Credit may be utilized by the Borrower
by requesting that Prime Rate Advances, Base Rate Advances, or LIBOR
Advances be made by the Lenders, by presenting orders to a Lender for
acceptance as Banker's Acceptances or by requesting that L/Cs in Canadian
Dollars or in U.S. Dollars be issued by the Issuing Bank. The aggregate
face amount of L/Cs outstanding under the Credit at any time shall not
exceed Cdn. $2,000,000 or the Equivalent Amount in U.S. Dollars.
(3) At the option of the Borrower, up to Cdn. $10,000,000 or the Equivalent
Amount in U.S. Dollars of the undrawn available portion of the Credit may
be utilized (the "SWINGLINE AVAILABILITY") by the Borrower by incurring
overdrafts in its Canadian Dollar and U.S. Dollar accounts with Scotia
Capital, which shall be deemed to be, as applicable, Prime Rate Advances or
Base Rate Advances. Subject to Section 5.25, Advances under the Swingline
Availability will be made solely by Scotia Capital and the Swingline
Availability may be availed by the Borrower only through Scotia Capital.
Advances under the Swingline Availability will reduce, to the extent of the
Advances thereunder, the amounts available to be drawn under the Credit.
2.2 REVOLVING CREDIT
The Credit is a revolving credit. The principal amount of any Advance under
the Credit which is repaid from time to time may, subject to the terms of this
Agreement, be reborrowed.
-21-
2.3 USE OF THE CREDIT
The Credit shall be used (a) to repay amounts owing under the Existing
Credit Agreement, (b) for general corporate purposes, (c) for working capital,
(d) for capital expenditures, (e) for acquisitions, and (f) to finance, in part,
the payment of a dividend to be paid, ultimately, to Anixter Inc.
2.4 TERM AND REPAYMENT
All Obligations under the Credit shall be repaid in full, and the Credit
shall be cancelled, on the Maturity Date.
2.5 VOLUNTARY PREPAYMENTS
The Borrower may prepay Prime Rate Advances and Base Rate Advances under
the Credit upon prior written notice given in accordance with Section 5.3 and,
subject to Section 5.4, may prepay LIBOR Advances under the Credit upon three
Business Days prior written notice, without premium or penalty in minimum
amounts of Cdn. $5,000,000 and integral multiples of Cdn. $1,000,000, in the
case of Prime Rate Advances, and in minimum amounts of U.S. $5,000,000 and
integral multiples of U.S. $1,000,000, in the case of Base Rate Advances or
LIBOR Advances, except that no Banker's Acceptance or BA Equivalent Loan may be
paid prior to its maturity date and any prepayments of LIBOR Advances shall
include payment of all breakage costs. The Borrower may cash collateralize
outstanding Banker's Acceptances and BA Equivalent Loans.
2.6 APPLICABLE MARGIN FOR INTEREST RATES, FEES AND COMMISSIONS
(1) The Applicable Margin relating to interest rates, Banker's Acceptance Fees,
L/C commissions and Standby Fees will vary and be calculated based on the
Relevant Rating as follows:
BANKER'S ACCEPTANCE STANDBY FEE
APPLICABLE MARGIN FOR FEES, L/C COMMISSIONS (% PER ANNUM)
PRIME RATE ADVANCES AND AND APPLICABLE MARGIN -------------------------
BASE RATE ADVANCES FOR LIBOR ADVANCES = OR >50% <50%
RELEVANT RATING (% PER ANNUM) (% PER ANNUM) utilization utilization
--------------- ----------------------- --------------------- ----------- -----------
Greater than A-/A3 0.100% 0.550% 0.100% 0.300%
BBB+/Baa1 0.150% 0.750% 0.150% 0.350%
BBB/Baa2 0.175% 0.875% 0.175% 0.375%
BBB-/Baa3 0.225% 1.000% 0.225% 0.425%
BB+/Ba1 0.275% 1.250% 0.275% 0.475%
Lower than BB+/Ba1 0.350% 1.500% 0.350% 0.550%
-22-
(2) Any increase or decrease in the Applicable Margin relating to interest
rates, Banker's Acceptance Fees, L/C commissions and Standby Fees resulting
from a publicly announced change in the Relevant Rating shall be effective,
in the case of an upgrade, during the period commencing on the date of
delivery by the Borrower to the Agent of notice thereof and ending on the
date immediately preceding the effective date of the next such change and,
in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding
the effective date of the next such change. Notwithstanding the foregoing,
Banker's Acceptance Fees for Banker's Acceptances accepted or commissions
related to L/Cs issued, in either case, before the effective date of an
increase or decrease under this Section 2.6(2), will not be adjusted.
(3) All interest rates (including Applicable Margins), Banker's Acceptance
Fees, L/C commissions and Standby Fees set forth in Section 2.6(1) are
rates per annum. Interest on Prime Rate Advances and Base Rate Advances
shall, as applicable, be the Prime Rate or Base Rate, as the case may be,
plus the relevant rate shown in the column of the table in Section 2.6(1)
headed "Applicable Margin for Prime Rate Advances and Base Rate Advances".
The rate for Banker's Acceptance Fees shall be the relevant rate shown in
the column of the table in Section 2.6(1) headed "Banker's Acceptance Fees,
L/C Commissions and Applicable Margin for LIBOR Advances". The commission
for L/Cs shall be the relevant rate shown in the column of the table in
Section 2.6(1) headed "Banker's Acceptance Fees, L/C Commissions and
Applicable Margin for LIBOR Advances". Interest on LIBOR Advances shall be
the LIBO Rate for the applicable LIBOR Period plus the relevant rate shown
in the column of the table in Section 2.6(1) headed "Banker's Acceptance
Fees, L/C Commissions and Applicable Margin for LIBOR Advances". Interest
on Prime Rate Advances, Base Rate Advances and LIBOR Advances and Banker's
Acceptances Fees, L/C commissions and Standby Fees received by the Agent
shall be promptly distributed by the Agent to the Lenders in accordance
with their respective Applicable Percentages.
(4) In addition to the foregoing L/C commission, the Borrower shall pay a
fronting fee to the Issuing Bank for its own account as issuer of L/Cs, in
an amount equal to 0.15% per annum on the face amount of each L/C, payable
on issuance. As well, customary administrative, issuance, amendment,
payment and negotiation fees shall be payable to the Issuing Bank for its
account as issuer of each L/C.
2.7 STANDBY FEE
The Borrower shall pay a standby fee ("STANDBY FEE") on the daily
unadvanced portion of the Credit at a rate per annum which shall vary and be
calculated based on the Relevant Rating as set out in the column of the table in
Section 2.6(1) headed "Standby Fee". In addition the Standby Fee will vary in
accordance with the utilization of the Credit such that at any time that the
aggregate of Advances outstanding is less than the Equivalent Amount of one-half
of the Credit Limit then applicable, the rates in the column of the table in
Section 2.6(1)
-23-
headed "<50% utilization" shall apply and at any time that the aggregate of
Advances outstanding is equal to or greater than the Equivalent Amount of
one-half of the Credit Limit then applicable, the rates in the column of the
table in Section 2.6(1) headed "=>50% utilization" shall apply. The Standby Fee
shall be calculated daily beginning on the Closing Date and shall be payable
quarterly in arrears on the last Business Day of each fiscal quarter of the
Borrower. Upon final payment of the Obligations relating to the Credit, the
Borrower shall also pay any accrued but unpaid Standby Fees on the Credit.
2.8 ASSIGNMENT AND OTHER FEES
The Borrower shall pay to the Agent, inter alia, the annual agency fee
provided for in the Fee Letter. The processing and recordation fee payable to
the Agent by a Lender as contemplated in Section 10(b)(vi) of the Provisions is
Cdn. $3,500.
2.9 EXCHANGE RATE FLUCTUATIONS
If at any time fluctuations in rates of exchange in effect between U.S.
Dollars and Cdn. Dollars cause the aggregate amount of Advances (expressed in
Cdn. Dollars using the Exchange Rate) outstanding under the Credit to exceed the
maximum amount of the Credit permitted herein by more than Cdn. $100,000 (or the
equivalent thereof in any other currency), the Borrower shall pay to the Lenders
within one Business Day after demand given to it by the Agent such amount as is
necessary to repay the excess. If the Borrower is unable to immediately pay that
amount because LIBOR Periods have not ended or Banker's Acceptances have not
matured, the Borrower shall, within one Business Day following demand, cause to
be deposited with the Agent Collateral in the amount of the excess, which shall
be held by the Agent until the amount of the excess is paid in full. The
Borrower shall be entitled to receive interest on cash held by the Agent as
Collateral in accordance with Section 10.10. If, on the date of any Advance
under the Credit (whether by rollover, conversion or otherwise), the aggregate
amount of Advances (expressed in Cdn. Dollars using the Exchange Rate) under the
Credit exceeds the maximum amount of the Credit permitted herein because of
fluctuations in rates of exchange, the Borrower shall immediately pay the
Lenders the excess and shall not be entitled to any Advance that would result in
the amount of the Credit being exceeded.
ARTICLE 3
SECURITY
3.1 SECURITY
The Security shall comprise the unconditional guarantees of the Obligations
and the Other Secured Obligations by each of the Guarantors in favour of the
Agent, which guarantees shall be unlimited except for limits provided by
Applicable Laws which are satisfactory to the Lenders, all in form and substance
satisfactory to the Lenders.
3.2 OBLIGATIONS SECURED BY THE SECURITY
(1) The documents constituting the Security shall secure or support the
following obligations which obligations, except as otherwise agreed by the
Lenders among themselves, shall rank pari passu with each other:
-24-
(a) the Obligations and Guarantor Obligations;
(b) the Other Secured Obligations; and
(c) all other indebtedness, liabilities and obligations of the Obligors
under the Loan Documents.
(2) As of the date of this Agreement, the Other Secured Obligations are those
listed in Schedule G. The Agent from time to time shall prepare and provide
the Lenders and the Borrower with a revision of Schedule G to reflect
changes in the Other Secured Obligations to the extent notified in writing
by the Borrower to the Agent, but any failure to do so shall not affect the
security for any Other Secured Obligations in favour of any Other Secured
Parties. Other Secured Obligations in favour of the Other Secured Parties
listed on Schedule G from time to time shall be conclusively deemed to be
secured by the Security (in the absence of manifest error) and shall not
cease to be secured without the prior written consent of the respective
Secured Parties to whom the Other Secured Obligations are owed. If the
Obligations have been indefeasibly paid and performed in full in cash and
the Commitments have been terminated, the Secured Parties (in their
respective capacities as Secured Parties and without prejudice to the
retention of any interest in the Security in their capacities, if any, as
Persons to whom are owed other obligations secured under or pursuant to the
Security (other than Other Secured Obligations)) will release their
interest in the Security upon receiving Collateral to secure the Other
Secured Obligations, in an amount satisfactory to the Secured Parties to
whom Other Secured Obligations are owed, acting reasonably. Each Other
Secured Party, by its acceptance of the benefit of any Security, shall be
deemed to have accepted and be bound by the provisions of this Agreement
applicable to Other Secured Parties and regarding the terms upon which the
Other Secured Obligations are secured by the Security, and authorizes and
directs the Agent to act accordingly.
(3) Notwithstanding the rights of Other Secured Parties to benefit from the
Security in respect of the Other Secured Obligations, all decisions
concerning the Security and the enforcement thereof shall be made by the
Lenders or the Required Lenders in accordance with this Agreement. No Other
Secured Party holding Other Secured Obligations from time to time shall
have any additional right to influence the Security or the enforcement
thereof as a result of holding Other Secured Obligations as long as this
Agreement remains in force. No such Other Secured Party shall be able to
enforce or realize on the Security unless the Lenders pursuant to the terms
of this Agreement are at the same time enforcing or realizing on the
Security for the Obligations and Guarantor Obligations. However, the Other
Secured Obligations shall continue to be secured by the Security
notwithstanding the termination of this Agreement by reason of payment of
the Credit, or for any other reason and all Other Secured Obligations owed
to any Other Secured Party shall continue to be secured by the Security
after such Other Secured Party ceases to be the Agent or a Lender or have
an Affiliate which is the Agent or a Lender. After the termination of this
Agreement, decisions concerning the Security shall be made by the holders
of Other Secured Obligations as they may determine among themselves.
-25-
ARTICLE 4
DISBURSEMENT CONDITIONS
4.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE
The following conditions precedent must be satisfied at or before the time
of the initial Advance under this Agreement, unless waived by the Lenders. Where
delivery of documents is referred to, the documents shall be delivered to the
Agent for and on behalf of the Lenders and shall be in full force and effect and
in form and substance satisfactory to the Lenders.
(1) OTHER DEBT AND ENCUMBRANCES - The Lenders shall:
(a) be satisfied that all obligations under the Existing Credit Agreement
have been or will be paid and performed in full and cancelled or
otherwise satisfied concurrently with, or prior to, the initial
Advance (other than Existing Scotia L/Cs which shall be deemed to be
L/Cs outstanding under the Credit);
(b) shall have a received a true copy of the U.S. Credit Agreement
together with all amendments thereto up to the date of this Agreement,
certified to be a true copy by an officer of Anixter Inc;
(c) be satisfied that all other Debt the Obligors not forming part of
Permitted Obligations has been or will be paid and performed in full
and cancelled concurrently with, or prior to, the initial Advance such
that the only Debt of the Obligors that is outstanding forms part of
the Permitted Obligations;
(d) shall have received releases and discharges (in registrable form where
appropriate) covering all Encumbrances affecting the Property of the
Obligors which are not Permitted Encumbrances in all applicable
jurisdictions, and all statements and acknowledgments that are
reasonably required in respect of other security interests affecting
the Property of any Obligor to confirm that they are Permitted
Encumbrances; and
(e) be satisfied that no Permitted Obligation, other than Receivable
Securitization Transactions, ranks senior to, as applicable, the
Obligations, the Guarantor Obligations and the Other Secured
Obligations.
(2) DOCUMENTATION AND ANCILLARY INFORMATION - The Agent:
(a) shall have received duly executed copies of this Agreement, the
Security and the other Loan Documents, accompanied by all consents,
acknowledgments and ancillary agreements as may be reasonably required
by the Agent, all in form and substance satisfactory to the Agent and
the Lenders;
(b) shall have received a certificate from each of the Obligors with
copies of its Constating Documents, a list of its officers, directors,
trustees and/or partners, as the case may be, who are executing Loan
Documents on its behalf with specimens of the signatures of those who
are executing Loan Documents on its
-26-
behalf, and copies of the corporate proceedings taken to authorize it
to execute, deliver and perform its obligations under the Loan
Documents and the Lenders shall be satisfied that all internal
approvals and authorizations of each of the Obligors to permit each to
enter into and to perform its obligations in relation thereto have
been obtained; and
(c) shall have received evidence that the delivery of the Loan Documents
will not contravene Applicable Laws governing financial assistance or
other similar Applicable Laws which affect the Loan Documents.
(3) OPINIONS - The Agent shall have received the following favourable legal
opinions, each in form and substance satisfactory to it:
(a) the opinion of Xxxxxx Xxxxxx Gervais LLP, counsel to the Lenders,
addressed to the Agent and the Lenders in relation to the Loan
Documents which are governed by Ontario law; and
(b) the opinion of in-house, counsel to the Guarantors, addressed to the
Agent, the Lenders and Xxxxxx Xxxxxx Xxxxxxx LLP in relation to, among
other things, the Guarantors and the Loan Documents and such other
matters as the Agent may reasonably require including, without
limitation, that the Obligations, the Guarantor Obligations and the
Other Secured Obligations are Indebtedness which is permitted under
the U.S. Credit Agreement and is permitted under all public Debt of
Anixter International Inc.
(4) OTHER MATTERS - The following conditions must also be satisfied:
(a) the Lenders shall be satisfied at the Closing Date that there is no
material litigation affecting any Obligor;
(b) the Lenders shall be satisfied at the Closing Date that there has not
occurred and does not exist any event or circumstance which has, or
would have, a Material Adverse Effect;
(c) all fees and expenses payable under the Loan Documents and the Fee
Letter (including upfront fees, agency fees, and reasonable legal fees
and expenses of the Lenders' counsel invoiced prior to the Closing
Date) shall have been paid;
(d) the conditions precedent in this Section 4.1 shall be satisfied no
later than 30 November 2005; and
(e) the Agent shall have received such other documents as the Lenders may
reasonably require.
4.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Lenders to make any Advance (including the initial
Advance) is subject to the conditions precedent that:
-27-
(a) no Default has occurred and is continuing on the Drawdown Date, or
would result from making the Advance;
(b) the Agent has received timely notice as required under Section 5.3;
(c) the representations and warranties set out in Section 6.1, other than
those expressly stated to be made as of a specific date or otherwise
expressly modified in accordance with Section 6.2, are true and
correct in all material respects on the date of the Advance as if made
on and as of the date of the Advance; and
(d) all other terms and conditions of this Agreement upon which an Advance
may be obtained are fulfilled.
ARTICLE 5
ADVANCES
5.1 EVIDENCE OF INDEBTEDNESS
The Agent will maintain records of the Obligations resulting from Prime
Rate Advances, Base Rate Advances and LIBOR Advances made by the Lenders and
each Lender will maintain records concerning those Advances it has made. The
Agent shall also maintain records of the Obligations resulting from Advances by
way of Banker's Acceptances, BA Equivalent Loans and L/Cs, and each Lender shall
also maintain records relating to Banker's Acceptances that it has accepted and
BA Equivalent Loans it has made and the Issuing Bank shall maintain records
relating to L/Cs it has issued. The records maintained by the Agent shall
constitute, in the absence of manifest error, prima facie evidence of the
Obligations and all details relating thereto. After a request by the Borrower,
the Agent or the Lender to whom the request is made will promptly advise the
Borrower of the entries in such records. The failure of the Agent or any Lender
to correctly record any such amount or date shall not, however, adversely affect
the obligation of the Borrower to pay the Obligations in accordance with this
Agreement. The Agent shall, upon the reasonable request of a Lender or the
Borrower, provide any information contained in its records of Advances to such
Lender or the Borrower and the Agent, each Lender and the Borrower shall
cooperate in providing all information reasonably required to keep all accounts
accurate and up-to-date.
5.2 CONVERSIONS
Subject to the other terms of this Agreement, the Borrower may from time to
time convert all or any part of the outstanding amount of any Advance into
another form of Advance.
5.3 NOTICE OF ADVANCES AND PAYMENTS
(1) The Borrower shall give the Agent irrevocable written notice, in the form
of Schedule A, of any request for any Advance to it under the Credit (other
than for any Advance under the Swingline Availability). The Borrower shall
also give the Agent irrevocable written notice in the same form of any
payment by it (whether resulting from a repayment, prepayment, rollover or
conversion of any Advance under the
-28-
Credit and each such payment shall be for an amount no less than, as
applicable, Cdn. $1,000,000 or U.S. $1,000,000 or the aggregate amount of
the Advances outstanding, whichever is less.
(2) Notice in respect of a LIBOR Advance or payment thereof shall be given on
the third Business Day prior to the date of any LIBOR Advance or payment,
notice shall be given in respect of an Advance by way of L/C at such time
prior to the date of any Advance by way of L/C as the Issuing Bank may
reasonably require (but not less than three Business Days) so that it has
sufficient time to review the proposed form of L/C and notice in respect of
a Prime Rate Advance, Base Rate Advance or Advance by way of Banker's
Acceptance or payment thereof may be given on the Business Day before any
such Advance or payment. Any permanent reduction of the Credit shall only
be effective on three Business Days notice as required by Section 5.4.
(3) Notices shall be given not later than 11:00 a.m. (Toronto time) on the date
for notice. Payments (other than those being made solely from the proceeds
of rollovers and conversions) must be made prior to 11:00 a.m. (Toronto
time) on the date for payment. If a notice or payment is not given or made
by those times, it shall be deemed to have been given or made on the next
Business Day, unless all Lenders affected by the late notice or payment
agree, in their sole discretion, to accept a notice or payment at a later
time as being effective on the date it is given or made.
5.4 PREPAYMENTS AND REDUCTIONS
(1) Subject to giving notice required by Section 5.3, the Borrower may from
time to time repay Advances outstanding under the Credit without premium or
penalty, except that (a) Banker's Acceptances and BA Equivalent Loans may
not be paid prior to their respective maturity dates, and (b) LIBOR
Advances may not be paid prior to the end of the applicable LIBOR Period
unless the Borrower indemnifies the Lenders for any loss or expense that
the Lenders incur as a result, including any breakage costs.
(2) The Borrower may from time to time, by giving not less than three Business
Days express written notice to the Agent, irrevocably notify the Agent of
the cancellation of the Credit or of the permanent reduction of the
committed amount of the Credit by an amount which shall be a minimum of
Cdn. $1,000,000 and a whole multiple of Cdn. $1,000,000. The Borrower shall
have no right to any increase in the committed amount of the Credit
thereafter.
5.5 PRIME RATE, BASE RATE AND LIBOR ADVANCES
(1) Upon timely fulfilment of all applicable conditions as set forth in this
Agreement, the Agent, in accordance with the procedures set forth in
Section 5.7, will make the requested amount of a Prime Rate Advance, Base
Rate Advance or LIBOR Advance available to the Borrower on the Drawdown
Date requested by the Borrower by crediting the Designated Account with
such amount. Each Prime Rate Advance, Base Rate Advance or LIBOR Advance
(other than an Advance under the Swingline Availability) shall be in an
aggregate minimum amount of, as applicable,
-29-
Cdn. $1,000,000 or U.S. $1,000,000 and in a whole multiple of, as
applicable, Cdn. $1,000,000 or U.S. $1,000,000. Notwithstanding the
foregoing, if the aggregate minimum amount of any such Advance would cause
the Borrower to exceed the maximum amount of the Credit, the Borrower shall
be permitted to request an aggregate amount for such an Advance that is
equal to the difference or the Equivalent Amount in U.S. Dollars of the
difference between the maximum amount of the Credit and the aggregate
amount of all Advances outstanding under the Credit at the time of such
request. The Borrower shall pay interest to the Agent for the account of
the Lenders at the Branch of Account on any such Advances outstanding from
time to time hereunder at the applicable rate of interest specified in
Section 2.6.
(2) Interest on Prime Rate Advances and Base Rate Advances shall be calculated
and payable monthly on each Interest Payment Date. Interest on LIBOR
Advances shall be payable on the last day of the applicable LIBOR Period
and, if the LIBOR Period is longer than 3 months, every 3 months after the
date of the relevant LIBOR Advance. All interest shall accrue from day to
day and shall be payable in arrears for the actual number of days elapsed
from and including the date of Advance or the previous date on which
interest was payable, as the case may be, to but excluding the date on
which interest is payable, both before and after maturity, default and
judgment, with interest on overdue interest at the same rate payable on
demand. Overdue interest with respect to a LIBOR Advance shall, upon the
expiry of the LIBOR Period applicable to such LIBOR Advance, bear interest,
payable on demand calculated at the rate applicable to Base Rate Advances.
(3) Interest calculated with reference to the Prime Rate shall be calculated on
the basis of a calendar year. Interest calculated with reference to the
Base Rate or LIBO Rate shall be calculated on the basis of a year of 360
days. Each rate of interest which is calculated with reference to a period
(the "DEEMED INTEREST PERIOD") that is less than the actual number of days
in the calendar year of calculation is, for the purposes of the Interest
Act (Canada), equivalent to a rate based on a calendar year calculated by
multiplying such rate of interest by the actual number of days in the
calendar year of calculation and dividing by the number of days in the
deemed interest period. Interest shall be calculated using the nominal rate
of calculation, and will not be calculated using the effective rate method
of calculation or any other basis that gives effect to the principle of
deemed reinvestment of interest.
5.6 LIBOR PERIODS
The Borrower may select, by irrevocable notice to the Agent, LIBOR Periods
of 1, 2, 3 or 6 months to apply to any particular LIBOR Advance. LIBOR Periods
of other lengths shall also be available at the discretion of the Lenders from
time to time, but there shall not at any time be LIBOR Advances outstanding with
more than 6 different maturity dates. No LIBOR Period may end on a date which is
not a Business Day or after the Maturity Date. The Borrower shall from time to
time select and give notice to the Agent of the LIBOR Period for a LIBOR Advance
which shall commence upon the making of the LIBOR Advance or on the date of the
expiry of any outstanding LIBOR Period applicable to a LIBOR Advance that is
being rolled over. If the Borrower fails to select and give the Agent notice of
a LIBOR Period for a LIBOR Advance in
-30-
accordance with Section 5.3, the Lenders shall be deemed to have made a Base
Rate Advance to the Borrower to replace the maturing LIBOR Advance, unless such
LIBOR Advance is repaid by the Borrower at the end of the applicable LIBOR
Period.
5.7 CO-ORDINATION OF PRIME RATE ADVANCES, BASE RATE ADVANCES AND LIBOR ADVANCES
Each Lender shall advance its Applicable Percentage of each Prime Rate
Advance, Base Rate Advance and LIBOR Advance in accordance with the following
provisions:
(a) the Agent shall advise each Lender of its receipt of a notice from the
Borrower pursuant to Section 5.3 on the day such notice is received
and shall, as soon as possible, advise each Lender of such Lender's
Applicable Percentage of any Advance requested by the notice;
(b) each Lender shall deliver its Applicable Percentage of the Advance to
the Agent not later than 11:00 a.m. (Toronto time) on the Drawdown
Date; and
(c) unless a Lender notifies the Agent that a condition precedent to an
Advance specified in this Agreement has not been met, the Agent shall
advance to the Borrower the amount delivered by each Lender by
crediting the Designated Account prior to 2:00 p.m. (Toronto time) on
the Drawdown Date, but if the conditions precedent to the Advance are
not met by 2:00 p.m. (Toronto time) on the Drawdown Date, the Agent
shall return the funds to the Lenders or invest them in an overnight
investment as orally instructed by each Lender until such time as the
Advance is made.
5.8 EXECUTION OF BANKER'S ACCEPTANCES
(1) To facilitate the acceptance of Banker's Acceptances hereunder, the
Borrower hereby appoints each Lender as its attorney to sign and endorse on
its behalf, as and when considered necessary by the Lender, an appropriate
number of orders in the form prescribed by that Lender.
(2) Each Lender may, at its option, execute any order in handwriting or by the
facsimile or mechanical signature of any of its authorized officers, and
the Lenders are hereby authorized to accept or pay, as the case may be, any
order of the Borrower which purports to bear such a signature
notwithstanding that any such individual has ceased to be an authorized
officer of the Lender. Any such order or Banker's Acceptance shall be as
valid as if he or she were an authorized officer at the date of issue of
the order or Banker's Acceptance.
(3) Any order or Banker's Acceptance signed by a Lender as attorney for the
Borrower, whether signed in handwriting or by the facsimile or mechanical
signature of an authorized officer of a Lender, may be dealt with by the
Agent or any Lender to all intents and purposes and shall bind the Borrower
as if duly signed and issued by the Borrower.
-31-
(4) The receipt by the Agent of a request for an Advance by way of Banker's
Acceptances shall be each Lender's sufficient authority to execute, and
each Lender shall, subject to the terms and conditions of this Agreement,
execute orders in accordance with such request and the advice of the Agent
given pursuant to Section 5.11, and the orders so executed shall thereupon
be deemed to have been presented for acceptance.
5.9 SALE OF BANKER'S ACCEPTANCES
(1) It shall be the responsibility of each Lender to arrange, in accordance
with normal market practice, for the sale on each Drawdown Date of the
Banker's Acceptances to be accepted by that Lender, failing which the
Lender shall purchase its Banker's Acceptances.
(2) In accordance with the procedures set forth in Section 5.11, the Agent will
make the net proceeds of the requested Advance by way of Banker's
Acceptances received by it from the Lenders available to the Borrower on
the Drawdown Date by crediting the Designated Account with such amount.
(3) Notwithstanding the foregoing, if in the determination of the Required
Lenders, acting reasonably, a market for Banker's Acceptances does not
exist at any time, or the Lenders cannot for other reasons, after
reasonable efforts, readily sell Banker's Acceptances or perform their
other obligations under this Agreement with respect to Banker's
Acceptances, then upon at least one Business Day's written notice by the
Agent to the Borrower, the Borrower's right to request Advances by way of
Banker's Acceptances shall be and remain suspended until the Agent notifies
the Borrower that any condition causing such determination no longer exists
(and the Agent shall be obligated to so notify the Borrower promptly
following such occurrence).
5.10 SIZE AND MATURITY OF BANKER'S ACCEPTANCES AND ROLLOVERS
Each Advance of Banker's Acceptances shall be in a minimum amount of Cdn.
$5,000,000 and integral multiples of Cdn. $1,000,000 and the maximum number of
maturities of Banker's Acceptances outstanding at any time shall not exceed
fifteen. Each Banker's Acceptance shall have a term of 1, 2, 3 or 6 months after
the date of acceptance of the order by a Lender, but no Banker's Acceptance may
mature on a date which is not a Business Day or after the Maturity Date. Subject
to the terms and conditions of this Agreement, the face amount at maturity of a
Banker's Acceptance may be renewed as a Banker's Acceptance (by repayment and
reissue) or converted (by repayment) into another form of Advance. If, before
the due date for delivery of a Compliance Certificate, the Borrower has
knowledge that the fees payable by the Borrower in connection with an Advance by
way of Banker's Acceptance will increase after the delivery of such Compliance
Certificate, then the Borrower shall not request or renew an Advance by way of
Banker's Acceptance for a term that exceeds 1 month. After such Compliance
Certificate has been delivered and the fees payable by the Borrower in
connection with an Advance by way of Banker's Acceptance have increased as set
forth herein, the Borrower may then request or renew Advances by way of Banker's
Acceptance for terms otherwise permitted by this Section.
-32-
5.11 CO-ORDINATION OF BA ADVANCES
Each Lender shall advance its Applicable Percentage of each Advance by way
of Banker's Acceptances in accordance with the provisions set forth below.
(1) The Agent, promptly following receipt of a notice from the Borrower
pursuant to Section 5.3 requesting an Advance by way of Banker's
Acceptances, shall advise each Lender of the aggregate face amount and
term(s) of the Banker's Acceptances to be accepted by it, which term(s)
shall be identical for all Lenders. The aggregate face amount of Banker's
Acceptances to be accepted by a Lender shall be determined by the Agent by
reference to the respective Commitments of the Lenders, except that, if the
face amount of a Banker's Acceptance would not be Cdn. $1,000 or a whole
multiple thereof, the face amount shall be increased or reduced by the
Agent in its sole discretion to the nearest whole multiple of Cdn. $1,000.
(2) Each Lender shall transfer to the Agent at the Branch of Account for value
not later than 11:00 a.m. (Toronto time) on each Drawdown Date immediately
available Cdn. Dollars in an aggregate amount equal to the BA Discount
Proceeds of all Banker's Acceptances accepted and sold or purchased by the
Lender on such Drawdown Date net of the applicable Banker's Acceptance Fee
and net of the amount required to pay any of its previously accepted
Banker's Acceptances that are maturing on the Drawdown Date or any of its
other Advances that are being converted to Banker's Acceptances on the
Drawdown Date.
(3) Unless a Lender notifies the Agent that a condition precedent to an Advance
specified in this Agreement has not been met, the Agent shall advance to
the Borrower the amount delivered by each Lender by crediting the
Designated Account prior to 2:00 p.m. (Toronto time) on the Drawdown Date,
but if the conditions precedent to the Advance are not met by 2:00 p.m.
(Toronto time) on the Drawdown Date, the Agent shall return the funds to
the Lenders or invest them in an overnight investment as orally instructed
by each Lender until such time as the Advance is made.
(4) Notwithstanding any other provision hereof, for the purpose of determining
the amount to be transferred by a Lender to the Agent for the account of
the Borrower in respect of the sale of any Banker's Acceptance accepted by
such Lender and sold or purchased by it, the proceeds of sale thereof shall
be deemed to be an amount equal to the BA Discount Proceeds calculated with
respect thereto. Accordingly, in respect of any particular Banker's
Acceptance accepted by it, a Lender in addition to its entitlement to
retain the applicable Banker's Acceptance Fee for its own account (a) shall
be entitled to retain for its own account the amount, if any, by which the
actual proceeds of sale thereof exceed the BA Discount Proceeds calculated
with respect thereto; and (b) shall be required to pay out of its own funds
the amount, if any, by which the actual proceeds of sale thereof are less
than the BA Discount Proceeds calculated with respect thereto.
(5) Whenever the Borrower requests an Advance that includes Banker's
Acceptances, each Lender that is not permitted by Applicable Law or by
customary market practice
-33-
to accept a Banker's Acceptance (a "NON BA LENDER") shall, in lieu of
accepting its pro rata amount of such Banker's Acceptances, make available
to the Borrower on the Drawdown Date a non-interest bearing loan (a "BA
EQUIVALENT LOAN") in Canadian Dollars and in an amount equal to the BA
Discount Proceeds of its pro rata amount of the Banker's Acceptances that
the Non BA Lender would have been required to accept on the Drawdown Date
if it were able to accept Banker's Acceptances. The BA Discount Proceeds
shall be calculated based on the BA Discount Rate provided by the Other
Reference Lenders. Each Non BA Lender shall also be entitled to deduct from
the BA Equivalent Loan an amount equal to the Banker's Acceptance Fee that
would have been applicable had it been able to accept Banker's Acceptances.
The BA Equivalent Loan shall have a term equal to the term of the Banker's
Acceptances that the Non BA Lender would otherwise have accepted and the
Borrower shall, at the end of that term, be obligated to pay the Non BA
Lender an amount equal to the aggregate face amount of the Banker's
Acceptances that it would otherwise have accepted. All provisions of this
Agreement applicable to Banker's Acceptances and Lenders that accept
Banker's Acceptances shall apply mutatis mutandis to BA Equivalent Loans
and Non BA Lenders and, without limiting the foregoing, Advances shall
include BA Equivalent Loans.
5.12 PAYMENT OF BANKER'S ACCEPTANCES
(1) The Borrower shall provide for the payment to the Agent at the Branch of
Account for the account of the applicable Lenders of the full face amount
of each Banker's Acceptance accepted for its account on the earlier of (a)
the date of maturity of a Banker's Acceptance; and (b) the date on which
any Obligations become due and payable pursuant to Section 8.2. The Lenders
shall be entitled to recover interest from the Borrower at a rate of
interest per annum equal to the rate applicable to Prime Rate Advances
under the Credit under which the Banker's Acceptance was issued, compounded
monthly, upon any amount payment of which has not been provided for by the
Borrower in accordance with this Section. Interest shall be calculated from
and including the date of maturity of each such Banker's Acceptance up to
but excluding the date such payment, and all interest thereon, is provided
for by the Borrower, both before and after demand, default and judgment.
(2) If the Borrower provides cash in response to any Obligations becoming due
and payable under Section 8.2, it shall be entitled to receive interest on
the cash provided in accordance with Section 10.10 as long as the cash is
held as Collateral.
5.13 DEEMED ADVANCE - BANKER'S ACCEPTANCES
Except for amounts which are paid from the proceeds of a rollover of a
Banker's Acceptance or for which payment has otherwise been funded by the
Borrower, any amount which a Lender pays to any third party on or after the date
of maturity of a Banker's Acceptance in satisfaction thereof or which is owing
to the Lender in respect of such a Banker's Acceptance on or after the date of
maturity of such a Banker's Acceptance, shall be deemed to be a Prime Rate
Advance to the Borrower under this Agreement. Each Lender shall forthwith give
notice of the making of such a Prime Rate Advance to the Borrower and the Agent
(which shall promptly
-34-
give similar notice to the other Lenders). Interest shall be payable on such
Prime Rate Advances in accordance with the terms applicable to Prime Rate
Advances.
5.14 WAIVER
The Borrower shall not claim from a Lender any days of grace for the
payment at maturity of any Banker's Acceptances presented and accepted by the
Lender pursuant to this Agreement. The Borrower waives any defence to payment
which might otherwise exist if for any reason a Banker's Acceptance shall be
held by a Lender in its own right at the maturity thereof, and the doctrine of
merger shall not apply to any Banker's Acceptance that is at any time held by a
Lender in its own right.
5.15 DEGREE OF CARE
Any executed orders to be used as Banker's Acceptances shall be held in
safekeeping with the same degree of care as if they were the Lender's own
property, and shall be kept at the place at which such orders are ordinarily
held by such Lender.
5.16 OBLIGATIONS ABSOLUTE
The obligations of the Borrower with respect to Banker's Acceptances under
this Agreement shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following circumstances:
(a) any lack of validity or enforceability of any order accepted by a
Lender as a Banker's Acceptance; or
(b) the existence of any claim, set-off, defence or other right which the
Borrower may have at any time against the holder of a Banker's
Acceptance, a Lender or any other Person, whether in connection with
this Agreement or otherwise.
5.17 SHORTFALL ON DRAWDOWNS, ROLLOVERS AND CONVERSIONS
The Borrower agrees that:
(a) the difference between the amount of an Advance requested by the
Borrower by way of Banker's Acceptances and the actual proceeds of the
Banker's Acceptances;
(b) the difference between the actual proceeds of a Banker's Acceptance
and the amount required to pay a maturing Banker's Acceptance, if a
Banker's Acceptance is being rolled over; and
(c) the difference between the actual proceeds of a Banker's Acceptance
and the amount required to repay any Advance which is being converted
to a Banker's Acceptance;
-35-
shall be funded and paid by the Borrower from its own resources, by 11:00 a.m.
on the day of the Advance or may be advanced as a Prime Rate Advance under the
Credit if the Borrower is otherwise entitled to an Advance under the Credit.
5.18 ISSUANCE AND MATURITY OF L/CS
(1) All L/Cs shall be issued by the Issuing Bank in accordance with its
customary practice including standard cancellation terms and, if requested
by the Borrower, an evergreen renewal feature, in form and substance
satisfactory to the Issuing Bank, and the Borrower shall execute all such
indemnity and/or reimbursement agreements in connection therewith as the
Issuing Bank customarily requires, in form and substance satisfactory to
the Issuing Bank.
(2) A request for an Advance by way of L/C shall be made by the Borrower in
accordance with Section 5.3. A request shall include the details of the L/C
to be issued. The Issuing Bank shall promptly notify the Borrower of any
comment concerning the form of the L/C requested by the Borrower and shall,
if the Borrower is otherwise entitled to an Advance, issue the L/C to the
Borrower on the Drawdown Date or as soon thereafter as the Issuing Bank is
satisfied with the form of L/C to be issued.
(3) Each L/C issued under this Agreement shall have a term which is not more
than, as applicable, 365 or 366 days after its issuance date or renewal
date (provided that any such L/C may provide an automatic renewal thereof
for any stated period or periods of up to one year in duration in the
absence of timely notice of termination by the issuer of such L/C), except
that the maturity date of an L/C may not exceed the Maturity Date unless
the Borrower shall have posted Collateral with the Issuing Bank in
connection therewith. An L/C may be renewed by the Borrower subject to
complying with the terms of this Agreement applicable to an Advance by way
of L/C.
5.19 PAYMENT OF L/C COMMISSIONS AND FRONTING FEES
(1) Payment of L/C commissions shall be made to Issuing Bank at the branch
where the L/C is issued. L/C commissions shall be calculated at the rate
specified in Section 2.6 on the face amount of each L/C for the duration of
its term on the basis of the actual number of days to elapse from and
including the date of issuance or renewal by the Issuing Bank to but not
including the expiry date of the L/C. L/C commissions shall be calculated
on the basis of a 365 or 366 day year, as the case may be. L/C commissions
shall be payable in full on the date of issuance of each L/C.
(2) Payment of Fronting Fees shall be made to the Issuing Bank at the branch
where an applicable L/C is issued. The Fronting Fee in relation to any L/C
shall be calculated on the basis of the actual number of days to elapse
from and including the date of issuance or renewal, as applicable, of the
L/C to but excluding its expiry date calculated on the basis of a year of
365 or 366 days, as applicable, and shall be paid to the Issuing Bank on
the date of issuance or renewal of such L/C and shall be non-refundable in
whole or in part.
-36-
5.20 PAYMENT OF L/CS AND PARTICIPATION BY LENDERS IN L/CS
(1) Each Lender shall be deemed to have purchased, without recourse, a
participation from the Issuing Bank in each L/C issued by the Issuing Bank,
in each case in an amount equal to such Lender's Applicable Percentage of
each such L/C. Without limiting the scope and nature of each Lender's
participation in each L/C issued by the Issuing Bank, to the extent that
the Issuing Bank has not been reimbursed by the Borrower for any amount
required to be disbursed by the Issuing Bank under or in connection with an
L/C, each Lender shall pay to the Issuing Bank its Applicable Percentage of
such unreimbursed amount. In the event that the Issuing Bank is required to
disburse an amount under an L/C, the Issuing Bank shall notify the Agent
who shall in turn, as soon as possible, notify the Lenders and each Lender
shall forthwith deliver its Applicable Percentage of the amount of the
payment by the Issuing Bank to the Agent who will forthwith deliver all
such amounts received from the Lenders to the Issuing Bank. The obligation
of each Lender to so reimburse the Issuing Bank shall be absolute and
unconditional as a primary obligor and not as a surety and shall not be
affected by the occurrence of a Default, an order or judgment restricting
payment by the Issuing Bank in accordance with the L/C or extending the
Issuing Bank's liability under an L/C beyond the expiration date stated
therein or any other occurrence or event of any nature or kind. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Bank for all amounts arising under or in
connection with any L/C, together with interest as provided for in this
Agreement. Each Lender that has reimbursed the Issuing Bank pursuant to
this Section for its Applicable Percentage of any payment made by the
Issuing Bank under an L/C shall thereupon acquire a participation, to the
extent of such reimbursement, in the claim of the Issuing Bank against the
Borrower in respect of amounts owing under or in connection with such L/C.
In the event that a Lender fails to reimburse the Issuing Bank under the
terms provided in this Section, the Issuing Bank shall also be entitled to
recover from such Lender interest on such amount, from and including the
date on which such Lender was required to provide payment to but excluding
the date such payment is provided for by such Lender at the rate of
interest per annum which would otherwise be applicable at such time to
Prime Rate Advances (in the case of Canadian Dollar L/Cs) or Base Rate
Advances (in the case of U.S. Dollar L/Cs), compounded monthly, and all
interest thereon, both before and after demand, default and judgment.
(2) The Borrower shall provide for the payment to the Agent, on behalf of the
Issuing Bank, of the full face amount of each L/C (or the amount actually
paid in the case of a partial payment) on the earlier of (a) the date on
which the Issuing Bank makes a payment to the beneficiary of an L/C, (b)
the date on which any Obligations become due and payable pursuant to
Section 8.2, and (c) the Maturity Date. The Agent on behalf of the Issuing
Bank shall be entitled to recover interest from the Borrower at a rate of
interest per annum equal to the rate applicable to Prime Rate Advances (in
the case of Canadian Dollar L/Cs) or Base Rate Advances (in the case of
U.S. Dollar L/Cs), compounded monthly, upon any amount payment of which has
not been provided for by the Borrower in accordance with this Section.
Interest shall be calculated from and including the date on which the
Issuing Bank makes a payment to
-37-
the beneficiary of an L/C, up to but excluding the date such payment, and
all interest thereon, is provided for by the Borrower, both before and
after demand, default and judgment.
(3) The obligation of the Borrower to reimburse the Agent, on behalf of the
Issuing Bank, for a payment to a beneficiary of an L/C shall be absolute
and unconditional (without prejudice to the Borrower's right, after
reimbursing the Agent (on behalf of the Issuing Bank), to claim damages
from the Issuing Bank for matters arising from the Issuing Bank's wilful
misconduct or gross negligence), and shall not be reduced or limited by any
demand or other request for payment of an L/C (a "DEMAND") paid or acted
upon in good faith and in conformity with laws, regulations or customs
applicable thereto being invalid, insufficient, fraudulent or forged, nor
shall the Borrower's obligation be subject to any defence or be affected by
any right of set-off, counter-claim or recoupment which the Borrower may
now or hereafter have against the beneficiary, the Agent, the Issuing Bank,
any other Lender or any other Person for any reason whatsoever, including
the fact that the Issuing Bank paid a Demand or Demands (if applicable)
aggregating up to the amount of the L/C notwithstanding any contrary
instructions from the Borrower to the Agent or the Issuing Bank or the
occurrence of any event including, but not limited to, the commencement of
legal proceedings to prohibit payment by the Issuing Bank of a Demand. Any
action, inaction or omission taken or suffered by the Agent or the Issuing
Bank under or in connection with an L/C or any Demand, if in good faith and
in conformity with laws, regulations or customs applicable thereto, shall
be binding on the Borrower and shall not place the Agent or the Issuing
Bank under any resulting liability to the Borrower. Without limiting the
generality of the foregoing, the Issuing Bank may receive, accept, or pay
as complying with the terms of the L/C, any Demand otherwise in order which
may be signed by, or issued to, any administrator, executor, trustee in
bankruptcy, receiver or other Person or entity acting as the representative
or in place of, the beneficiary.
(4) If the Borrower provides cash in response to any Obligations becoming due
and payable under Section 8.2, it shall be entitled to receive interest on
the cash provided in accordance with Section 10.10 as long as the cash is
held as Collateral.
5.21 DEEMED ADVANCE - L/CS
Except for amounts which have been funded by the Borrower, any amount which
the Issuing Bank or the Agent on behalf of the Lenders pays to any third party
in respect of an L/C in satisfaction or partial satisfaction thereof shall also
be deemed to be a Prime Rate Advance (in the case of Canadian Dollar L/Cs) or
Base Rate Advances (in the case of U.S. Dollar L/Cs). The Issuing Bank shall
forthwith give notice of the making of such an Advance to the Agent and the
Borrower. Interest shall be payable on such Advances in accordance with the
terms applicable to such Advances.
5.22 FAILURE OF LENDER TO FUND
Notwithstanding the provisions of Section 6(a) of the Provisions, if any
Lender fails to make available to the Agent its Applicable Percentage of any
Advance (such Lender being herein
-38-
called the "DEFAULTING LENDER"), the Administrative Agent shall forthwith give
notice of such failure by the Defaulting Lender to the Borrower and the other
Lenders. The Agent shall then forthwith give notice to the other Lenders that
any Lender may make available to the Agent all or any portion of the Defaulting
Lender's Applicable Percentage of such Advance (but in no way shall any other
Lender or the Agent be obliged to do so) in the place of the Defaulting Lender.
If more than one Lender gives notice that it is prepared to make funds available
in the place of a Defaulting Lender in such circumstances and the aggregate of
the funds which such Lenders (herein collectively called the "CONTRIBUTING
LENDERS" and individually called the "CONTRIBUTING LENDER") are prepared to make
available exceeds the amount of the Advance which the Defaulting Lender failed
to make, then each Contributing Lender shall be deemed to have given notice that
it is prepared to make available its Applicable Percentage of such Advance based
on the Contributing Lenders' relative commitments to advance in such
circumstances. If any Contributing Lender makes funds available in the place of
a Defaulting Lender in such circumstances, then the Defaulting Lender shall pay
to any Contributing Lender making the funds available in its place, forthwith on
demand, any amount advanced on its behalf together with interest thereon at the
rate applicable to such Advance from the date of advance to the date of payment,
against payment by the Contributing Lender making the funds available of all
interest received in respect of the Advance from the Borrower. The failure of
any Lender to make available to the Agent its Applicable Percentage of any
Advance as required herein shall not relieve any other Lender of its obligations
to make available to the Agent its Applicable Percentage of any Advance as
required herein.
5.23 PAYMENT BY THE BORROWER
(1) Except as otherwise provided herein, all payments made by or on behalf of
the Borrower pursuant to this Agreement shall be made to and received by
the Agent and shall be distributed by the Agent to the Lenders as soon as
possible upon receipt by the Agent. Except as otherwise provided in this
Agreement (including Sections 5.22 and 5.24), the Agent shall distribute:
(a) payments of interest in accordance with each Lender's Applicable
Percentage of the Credit;
(b) repayments of principal in accordance with each Lender's Applicable
Percentage of the Credit; or
(c) all other payments received by the Agent including amounts received
upon the realization of Security, in accordance with each Lender's
Applicable Percentage of the Credit provided, however, that with
respect to proceeds of realization, no Lender shall receive an amount
in excess of the amounts owing to it in respect of the Obligations.
(2) All payments made by or on behalf of the Borrower pursuant to this
Agreement with respect to an L/C shall be made to and received by the
Agent. Subject to Section 5.22, the Agent shall distribute all payments
received by it with respect to any L/C as follows:
-39-
(a) if the amount received by the Agent is an amount reimbursing the
Issuing Bank for amounts paid by the Issuing Bank, payment shall be
made to the Issuing Bank, to the extent that the Issuing Bank has not
been previously reimbursed by the Borrower or the Lenders or otherwise
as provided for herein, and to the extent that the Issuing Bank has
been previously reimbursed by the Lenders, to such Lenders; and
(b) if the amount received by the Agent is an amount in respect of an L/C
commission or the Fronting Fee:
(i) payment shall be made firstly to the Issuing Bank of an amount in
respect of the Fronting Fee to the extent not already received,
and
(ii) payment shall be made thereafter to each Lender of its Applicable
Percentage of the amount of the L/C commission received.
(3) If the Agent does not distribute a Lender's share of a payment made by the
Borrower to that Lender for value on the day that payment is made or deemed
to have been made to the Agent, the Agent shall pay to the Lender on demand
an amount equal to the product of (i) the Interbank Reference Rate per
annum multiplied by (ii) the Lender's share of the amount received by the
Agent from the Borrower and not so distributed, multiplied by (iii) a
fraction, the numerator of which is the number of days that have elapsed
from and including the date of receipt of the payment by the Agent to but
excluding the date on which the payment is made by the Agent to such Lender
and the denominator of which is 365. The Agent shall be entitled to
withhold any Tax applicable to any such payment as required by Applicable
Laws.
5.24 PAYMENT BY AGENT
For greater certainty, the following provisions shall apply to any and all
payments made by the Agent to the Lenders hereunder:
(1) the Agent shall be under no obligation to make any payment (whether in
respect of principal, interest, fees or otherwise) to any Lender until an
amount in respect of such payment has been received by the Agent from the
Borrower;
(2) if the Agent receives less than the full amount of any payment of
principal, interest, fees or other amount owing by the Borrower under this
Agreement, the Agent shall have no obligation to remit to each Lender any
amount other than such Lender's Applicable Percentage of that amount which
is the amount actually received by the Agent;
(3) if any Lender advances more or less than its Applicable Percentage of the
Credit, such Lender's entitlement to such payment shall be increased or
reduced, as the case may be, in proportion to the amount actually advanced
by such Lender;
(4) if a Lender's Applicable Percentage of an Advance has been advanced, or a
Lender's Commitment has been outstanding, for less than the full period to
which any payment
-40-
(other than a payment of principal) by a Borrower relates, such Lender's
entitlement to such payment shall be reduced in proportion to the length of
time such Lender's Applicable Percentage of the Credit or such Lender's
Commitment, as the case may be, has actually been outstanding;
(5) the Agent acting reasonably and in good faith shall, after consultation
with the Lenders in the case of any dispute, determine in all cases the
amount of all payments to which each Lender is entitled and such
determination shall, in the absence of manifest error, be binding and
conclusive; and
(6) upon request, the Agent shall deliver a statement detailing any of the
payments to the Lenders referred to herein.
5.25 PROVISIONS RELATING TO SWINGLINE AVAILABILITY
(1) While Scotia Capital is the sole Lender making Advances under the Swingline
Availability, its participation in Advances under the Credit which are not
made under the Swingline Availability ("NON SWINGLINE ADVANCES") shall be
reduced, and the participations of the other Lenders in such Non Swingline
Advances shall be increased, and such participations may be adjusted from
time to time, as determined by the Agent, so that each Lender's overall
Applicable Percentage of the aggregate of all Advances under the Credit is,
to the greatest extent practicable, as provided in Schedule E to this
Agreement. For greater certainty, the aggregate of Advances outstanding
under the Swingline Availability and Non Swingline Advances made by Scotia
Capital shall not at any time exceed Scotia Capital's Commitment in respect
of the Credit, and if it does, the Borrower shall repay Advances
outstanding under the Swingline Availability in an amount to eliminate such
excess as soon as possible and, in any event, immediately following notice
thereof by the Agent.
(2) Notwithstanding that Advances under the Swingline Availability are from
time to time made by Scotia Capital and Scotia Capital's participation in
Non Swingline Advances is reduced, and the participation of the other
Lenders in Non Swingline Advances is increased in accordance with Section
5.25(1), it is the intention of the parties that the ultimate credit risk
and exposure of each Lender in respect of the Credit be in accordance with
its Applicable Percentage of the entire amount of the Credit. Accordingly,
upon the Obligations becoming due and payable under Section 8.2, each
Lender shall (and hereby absolutely, unconditionally and irrevocably agrees
to) do all such things, including delivery of indemnity agreements and
assignments to other Lenders of Advances made by Scotia Capital under the
Swingline Availability or assignments to Scotia Capital of Non Swingline
Advances made by other Lenders as shall be required to ensure that result.
Any such action on the part of the Lenders shall be binding on the
Obligors. If any Lender fails to take the actions required by this Section,
the Agent may, without prejudice to the other rights of the Lenders, make
such adjustments to the payments to the defaulting Lender under this
Agreement as are necessary to compensate the other Lenders for the
defaulting Lender's failure.
-41-
(3) Subject to the provisions of Section 5.25(2) regarding the assignment of
interests in Advances under the Swingline Availability in the event of
acceleration of payment of the Obligations, the provisions of this
Agreement do not apply to Advances under the Swingline Availability to the
extent that the provisions contemplate the participation by any Lender
other than Scotia Capital in making Advances and receiving payments in
respect of Advances under the Swingline Availability. All Advances under
the Swingline Availability shall be made solely by Scotia Capital and
records concerning such Advances shall be maintained solely by Scotia
Capital. All payments of principal, interest, fees and other amounts
relating to Advances under the Swingline Availability shall be made solely
to Scotia Capital. Any notices by the Borrower in connection with the
Swingline Availability shall be made to Scotia Capital. The parties hereto
agree that notice and minimum amount requirements in respect of Advances
shall not apply to Advances by way of overdraft under the Swingline
Availability. Similarly, subject to any assignment of interests in Advances
under the Swingline Availability in the event of acceleration of payment of
the Obligations as contemplated in Section 5.25(2), references in this
Agreement to the Lenders shall, in the context of the Swingline
Availability, be interpreted as referring only to Scotia Capital. No Lender
other than Scotia Capital shall have any right to receive payments in
respect of Advances under the Swingline Availability or any obligations to
make Advances under the Swingline Availability.
(4) Advances under the Swingline Availability are available by way of overdraft
only. Upon presentation to Scotia Capital for payment of any cheque or
other item drawn by the Borrower on any of its Canadian Dollar or U.S.
Dollar current accounts at the Branch of Account which, when charged
against the applicable account, creates or increases an overdraft in that
account, Scotia Capital shall pay the cheque or other item provided that,
after doing so, the aggregate amount of the overdrafts outstanding in such
accounts of the Borrower do not exceed Cdn. $10,000,000 (which overdrafts
shall, in the case of the Borrower's Canadian Dollar accounts, be deemed to
be Prime Rate Advances, and, in the case of the Borrower's U.S. Dollar
accounts, be deemed to be Base Rate Advances). The Borrower hereby requests
and authorizes Scotia Capital to make such Prime Rate Advances and Base
Rate Advances to cover such overdrafts, subject to the terms of this
Agreement, and this standing authorization to the Agent shall be deemed for
the purposes of this Agreement to constitute a request for an Advance in
the form of Schedule A on each date such Advances are made by Scotia
Capital to cover any such overdraft. All of the provisions applicable to
Prime Rate Advances and Base Rate Advances under this Agreement shall apply
to Advances under the Swingline Availability, respectively, other than
minimum notice or minimum amount requirements.
5.26 PROHIBITED RATES OF INTEREST
It is the intention of the parties to comply with applicable usury laws now
or hereafter enacted. Accordingly, notwithstanding any other provisions of this
Agreement or any other Loan Document, in no event shall any Loan Document
require the payment or permit the collection of interest or other amounts in an
amount or at a rate in excess of the amount or rate that is permitted by law or
in an amount or at a rate that would result in the receipt by the
-42-
Lenders or the Agent of interest at a criminal rate, as the terms "interest" and
"criminal rate" are defined under the Criminal Code (Canada). Where more than
one such law is applicable to any Obligor, such Obligor shall not be obliged to
make payment in an amount or at a rate higher than the lowest amount or rate
permitted by such laws. If from any circumstances whatever, fulfilment of any
provision of any Loan Document shall involve transcending the limit of validity
prescribed by any Applicable Law for the collection or charging of interest, the
obligation to be fulfilled shall be reduced to the limit of such validity, and
if from any such circumstances the Agent or the Lenders shall ever receive
anything of value as interest or deemed interest under any Loan Document in an
amount that would exceed the highest lawful rate of interest permitted by any
Applicable Law, such amount that would be excessive interest shall be applied to
the reduction of the principal amount of the Credit, and not to the payment of
interest, or if such excessive interest exceeds the unpaid principal balance of
the Credit, the amount exceeding the unpaid balance shall be refunded to the
Borrower. In determining whether or not the interest paid or payable under any
specified contingency exceeds the highest lawful rate, the Obligors, the Agent
and the Lenders shall, to the maximum extent permitted by Applicable Laws (a)
characterize any non-principal payment as an expense, fee or premium rather than
as interest, (b) exclude voluntary prepayments and the effects thereof, (c)
amortize, prorate, allocate and spread the total amount of interest throughout
the term of such indebtedness so that interest thereon does not exceed the
maximum amount permitted by Applicable Laws, or (d) allocate interest between
portions of such indebtedness to the end that no such portion shall bear
interest at a rate greater than that permitted by Applicable Laws. For the
purposes of the application of the Criminal Code (Canada), the effective annual
rate of interest shall be determined in accordance with generally accepted
actuarial practices and principles and in the event of any dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries appointed by the
Agent shall be conclusive for the purpose of such determination.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
Each of the Obligors represents and warrants, with respect to itself and
each other Obligor, to the Lenders as follows:
(1) CORPORATE MATTERS
(a) It is a duly incorporated, amalgamated or continued and validly
existing corporation under its jurisdiction of incorporation and has
the corporate power and authority to enter into and perform its
obligations under each Loan Document to which it is or will be a
party, to own or lease its Property and to carry on its business as
conducted.
(b) It is qualified to carry on business in all jurisdictions in which the
Property owned or leased by it or the nature of the activities carried
on by it makes such qualification necessary, except to the extent that
the non-qualification would not and could not reasonably be expected
to have a Material Adverse Effect.
-43-
(c) It has all Permits required to own its Property and to carry on the
business in which it is engaged and all such Permits are in good
standing, except to the extent that the absence of Permits or lack of
good standing of Permits would not and could not reasonably be
expected to have a Material Adverse Effect.
(d) The entering into and the performance by it of the Loan Documents to
which it is or will be a party (i) have been duly authorized by all
necessary corporate or other action on its part, (ii) do not and will
not violate its Constating Documents or any Applicable Law, (iii) do
not and will not result in a breach of or constitute (with the giving
of notice, the lapse of time or both) a default under or require a
consent under any Material Permit or any Material Contract to which it
is a party or by which it or its Property is bound, and (iv) do not
and will not result in the creation of any Encumbrance on any of its
Property and will not require it to create any Encumbrance on any of
its Property and will not result in the forfeiture of any of its
Property.
(e) Its Constating Documents do not restrict the power of its directors,
trustees or partners, as the case may be, to borrow money, to give
financial assistance by way of loan, guarantee or otherwise, or to
encumber any or all of its present and future Property to secure the
Secured Obligations, except for restrictions under any Constating
Document which have been complied with in connection with the Loan
Documents, the Other Secured Agreements and all other Permitted
Obligations.
(f) It is not in violation of any term of its Constating Documents and is
not in violation of any Applicable Law, Material Contract or Material
Permit, the violation of which would or could reasonably be expected
to have a Material Adverse Effect.
(2) LOAN DOCUMENTS, ETC.
(a) The Loan Documents to which it is or will be a party have been or will
be duly executed and delivered by it (or on its behalf) and, when
executed and delivered, will constitute legal, valid and binding
obligations enforceable against it in accordance with their respective
terms, subject to the availability of equitable remedies and the
effect of bankruptcy, insolvency and other laws of general application
limiting the enforceability of creditors' rights generally and to the
fact that equitable remedies, including specific performance and
injunctive relief, are discretionary and may not be ordered in respect
of certain defaults.
(b) No Default has occurred and is continuing.
(3) LITIGATION, FINANCIAL STATEMENTS AND OTHER MATTERS
(a) There are no actions, suits, arbitration or administrative proceedings
or industrial or labour disputes outstanding or, to its knowledge
after having made
-44-
reasonable inquiry, pending or threatened, against it which, in any
such case, would or could reasonably be expected to have a Material
Adverse Effect.
(b) All of its historical financial statements which have been furnished
to the Agent and the Lenders, or any of them, in connection with this
Agreement are complete and fairly present the financial position of
the applicable Person as of the dates referred to therein and have
been prepared in accordance with GAAP on a consistent basis except
that, in the case of quarterly financial statements, notes to the
statements and normal year-end audit adjustments required by GAAP are
not included.
(c) As of the Closing Date it has no liabilities (contingent or other) or
other obligations of the type required to be included in the
consolidated financial statements of Anixter Inc. in accordance with
GAAP which are not fully included in the audited financial statements
of Anixter Inc. for its fiscal year ending December 2004 or in Anixter
Inc.'s quarterly consolidated financial statements for its fiscal
quarter ended 30 September 2005, other than liabilities and
obligations incurred since the date of such statements in the ordinary
course of business, none of which has a Material Adverse Effect, and
the Obligations.
(d) It is not in default under any of the Permitted Encumbrances to an
extent that such defaults, individually or in the aggregate, would or
could reasonably be expected to have a Material Adverse Effect.
(e) From and after 30 September 2005, no event has occurred and no fact
has become known to it that has or could reasonably be expected to
have a Material Adverse Effect.
(f) It has no Debt that is not a Permitted Obligation.
(g) The Obligations, the Guarantor Obligations and the Other Secured
Obligations are Indebtedness which is permitted under the U.S. Credit
Agreement and all public Debt of Anixter International Inc.
(4) BUSINESS, PROPERTY, CAPITAL STOCK, MATERIAL CONTRACTS AND MATERIAL PERMITS
(a) Schedule F fully and fairly describes, as of the Closing Date, the
ownership of all of the issued and outstanding Capital Stock of the
Borrower and of Capital Stock that is owned by the Borrower in other
Persons, the locations of the Borrower's head office (and chief
executive office, if different). Except as set out in Schedule F, the
Borrower does not have any Subsidiaries, direct or indirect, is not a
partner in any partnership (general or limited) and is not a
co-venturer in any joint venture, as of the date hereof.
(b) It owns or is licensed or otherwise has the right to use all
Intellectual Property that is necessary for the operation of its
business, to its knowledge without conflict with the rights of any
other Person.
-45-
(c) It maintains appropriate insurance coverage, including, business
interruption insurance, that satisfies the covenants and conditions of
the U.S. Credit Agreement concerning insurance coverage.
(d) Each Material Contract to which any Obligor is a party is in full
force and effect and no material breach by any party thereto of any of
the terms or conditions thereof has occurred and is continuing, there
have been no events that are continuing which, but for giving notice,
lapse of time or any other condition subsequent, would constitute a
default of a material obligation thereunder or would allow the
termination of such Material Contract or the imposition of any
material sanction on any party to such Material Contract of which it
is aware and no party to such Material Contract has any set-off or
counterclaim against it relating to or affecting such Material
Contract of which it is aware.
(e) No Material Contract is the subject of any Encumbrances other than
Permitted Encumbrances.
(f) It has good title to all personal or moveable Property and good and
marketable title to all real or immoveable Property or leasehold
interests therein owned or leased by it, free and clear from any
Encumbrance, other than any Permitted Encumbrances, and no Person has
any agreement with it or right to acquire an interest in any such
Property.
(g) Each Material Permit to which any Obligor is party or of which any
Obligor has the benefit is in full force and effect, without further
amendment thereto, and no further or other Permit is required for any
Obligor to carry on its business as conducted, except to the extent
that a failure to maintain, comply with, or to have, the same would
not or could not reasonably be expected to have a Material Adverse
Effect.
(h) None of the Obligors is a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of
1935; nor is any of them a "registered investment company", or an
"affiliated company" or a "principal underwriter" of a "registered
investment company", as such terms are defined in the Investment
Company Act of 1940.
(i) The complete and accurate organizational structure of the Obligors is
set forth on Schedule H.
(5) ENVIRONMENTAL MATTERS
(a) (i) It and all of its respective Property and operations are in full
compliance in all respects with all Environmental Laws, (ii) it is not
aware of, nor has it received notice of, any past, present or future
conditions, events, activities, practices or incidents which may
interfere with or prevent the compliance or continued compliance of it
in all respects with all Environmental Laws, and
-46-
(iii) it has obtained all Permits which are currently required under
all Environmental Laws and is in full compliance with the provisions
of such Permits, in each case except to the extent that the
non-compliance would not or could not reasonably be expected to have a
Material Adverse Effect.
(b) None of the Obligors is aware that any Hazardous Materials exist on,
about or within or have been used, generated, stored, transported,
disposed of on, or released from any of the properties or assets
forming any part of its respective Property other than in material
accordance and compliance with all Environmental Laws, except to the
extent that the non-compliance would not or could not reasonably be
expected to have a Material Adverse Effect.
(c) The use which each Obligor has made and intends to make of its
Property will not result in the use, generation, storage,
transportation, accumulation, disposal, or release of any Hazardous
Materials on, in or from any such properties except in material
accordance and compliance with all Environmental Laws, except to the
extent that the non-compliance would not or could not reasonably be
expected to have a Material Adverse Effect.
(d) There is no action, suit or proceeding, or, to its knowledge,
investigation, or inquiry, before any Governmental Authority pending
or, to its knowledge, threatened against any Obligor relating in any
way to any Environmental Law that would or could reasonably be
expected to have a Material Adverse Effect.
(e) No Obligor has (i) incurred any current and outstanding liability for
any clean-up or remedial action under any Environmental Law in respect
to both current and past operations, events, activities, practices,
incidents or the condition or use of any properties or assets owned
currently or in the past, (ii) received any outstanding written
request for information (other than information to be provided in the
normal course in connection with applications for Permits) by any
Person under any Environmental Law with respect to the condition, use
or operation of its respective Property, or (iii) received any
outstanding written notice or claim under any Environmental Law or
relating to the presence of Hazardous Material on or originating from
its respective Property and operations or from other Persons with
respect to any material violation of or liability under any
Environmental Law or relating to the presence of Hazardous Material on
or originating from its respective Property and operations; that, in
any such case, would or could reasonably be expected to have a
Material Adverse Effect.
(6) TAXES AND WITHHOLDINGS
(a) It has duly filed on a timely basis all tax returns, elections and
reports required by Applicable Law to be filed by it (if the failure
to do so would have a Material Adverse Effect) and has paid, collected
and remitted all material Taxes due and payable, collectible or
remittable by it, unless being contested in
-47-
good faith by appropriate proceedings and for which it has recorded
the liability in accordance with GAAP.
(b) It has (i) withheld from each payment made to any of its past or
present employees, officers, directors, trustees, agents and/or
beneficiaries, as the case may be, and to any non-resident of the
country in which it is resident, the amount of all material Taxes and
other deductions required by Applicable Law to be withheld therefrom
and has paid the same to the proper tax or other receiving officers
within the time required under any Applicable Law, unless being
contested in good faith by appropriate proceedings, and (ii) collected
and remitted to the appropriate tax authority when required by
Applicable Law to do so all material amounts collectible and
remittable in respect of goods and services tax and similar Taxes, and
has paid all such material amounts payable by it on account of sales
Taxes including goods and services and value-added taxes (it being
agreed that, for purposes of this paragraph, the amount of a Tax is
material if it equals or exceeds Cdn. $1,000,000 or the equivalent
thereof in another currency).
(7) PENSION AND WELFARE PLANS
(a) During the twelve consecutive month period before the date of this
Agreement and before the date of any Advance hereunder (i) no steps
have been taken to terminate or wind-up any Pension Plan (wholly or in
part), which could reasonably be expected to result in the Borrower
making contributions (including special payments) to the Pension Plan
in any twelve month period in excess of 115% of the contributions that
were scheduled to be made in the prior twelve consecutive month
period, (ii) no failure to remit a contribution in accordance with the
terms of any Pension Plan or pension benefits legislation has occurred
with respect to any Pension Plan sufficient to give rise to a deemed
trust, lien or charge under any pension benefits legislation of any
jurisdiction that, individually or in the aggregate would or could
reasonably be expected to have a Material Adverse Effect, (iii) no
condition exists and no event or transaction has occurred with respect
to any Pension Plan which could reasonably be expected to result in
the incurrence by the Borrower of any fines or penalties which would
or could reasonably be expected to have a Material Adverse Effect, and
(iv) except as disclosed in the financial statements required to be
provided pursuant to this Agreement or as otherwise disclosed in
writing from time to time to the Agent, the Borrower has no contingent
liability with respect to any post-retirement benefit under a Welfare
Plan that, individually or in the aggregate would or could reasonably
be expected to have a Material Adverse Effect.
(b) Each Pension Plan is and has been established, registered, funded,
invested and administered in compliance with its terms and all
Applicable Laws and (i) all contributions or premiums (including
employee contributions or premiums made by authorized payroll
deductions or other withholdings) required to be made to the
appropriate funding agent in accordance with all Applicable Laws
-48-
and the terms of each Pension Plan or Welfare Plan have been made in
accordance with all Applicable Laws and the terms of each Pension Plan
or Welfare Plan, (ii) there have, to its knowledge after having made
reasonable inquiry, been no withdrawals, applications, payments or
transfers of assets from any Pension Plan or Welfare Plan or the
trusts or other funding media relating thereto which have not been
made or done in accordance with all Applicable Laws, (iii) as at the
date of the most recent actuarial report filed with respect to the
Pension Plan, all liabilities under each Pension Plan that is a
registered pension plan were fully funded in accordance with
Applicable Law, on a going concern and solvency basis, in accordance
with the terms of the respective Pension Plans, the requirements of
all Applicable Laws and applicable regulatory authorities using the
methods and assumptions set out in such report, and (iv) to its
knowledge, no event has occurred and no condition exists with respect
to any Pension Plan that has resulted or could reasonably be expected
to result in any Pension Plan having its registration revoked or
refused for the purposes of any Applicable Law or being placed under
the administration of any relevant pension benefits regulatory
authority or the Borrower being required to pay any taxes or penalties
under any Applicable Law, except for any exceptions to clauses (i)
through (iv) above that, individually or in the aggregate, would not
and could not reasonably be expected to have a Material Adverse
Effect.
(8) CUMULATIVE MATERIAL ADVERSE EFFECT
There has not been any one or more breaches, defaults or instances of
non-compliance with the foregoing representations and warranties (assuming none
of such representations and warranties were qualified by "materiality" or the
concept of Material Adverse Effect) such that the cumulative effect of all such
breaches, defaults, or non-compliance would or could reasonably be expected to
have a Material Adverse Effect.
6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties made in this Agreement shall survive the
execution of this Agreement and all other Loan Documents, and unless expressly
stated to be made as of a specific date, shall be deemed to be repeated and made
as of the date of each Advance (including any deemed Advance) and as of the date
of delivery of each Compliance Certificate with the same force and effect as if
made on and as of each such date, subject to modifications communicated by the
Borrower to the Lenders in writing and accepted by the Required Lenders. The
Lenders shall be deemed to have relied upon such representations and warranties
at each such time as a condition of making an Advance hereunder or continuing to
extend the Credit hereunder.
-49-
ARTICLE 7
COVENANTS
7.1 FINANCIAL COVENANTS OF THE BORROWER
The Borrower shall at all times maintain a Total Leverage Ratio of not
greater than 3.50 to 1.00. The Total Leverage Ratio shall be calculated on a
rolling four quarter basis, based on the most recently completed four fiscal
quarters of the Borrower.
7.2 POSITIVE COVENANTS
During the term of this Agreement, each Obligor shall perform the covenants
specified below:
(1) PAYMENTS AND OPERATION OF BUSINESS
(a) It shall duly and punctually pay and perform its indebtedness,
liabilities and obligations hereunder and under the other Loan
Documents at the times and places and in the manner required by the
terms hereof and thereof.
(b) It shall (i) maintain its corporate existence as at the date of this
Agreement, and (ii) operate and carry on and conduct its business and
affairs in compliance in all material respects with all applicable
Material Contracts and Material Permits, except to the extent that a
failure to do so would not, or could not reasonably be expected to,
have a Material Adverse Effect.
(c) It shall operate its business in a prudent manner and in compliance in
all material respects with all Applicable Laws except to the extent
that a failure to do so would not, or could not reasonably be expected
to, have a Material Adverse Effect.
(d) It shall maintain in good standing and shall obtain, as and when
required, all Permits and Contracts which may be necessary to permit
it to acquire, own, operate and maintain its business and Property,
observe and perform all the obligations imposed upon it under or in
connection therewith, take any and all commercially reasonable actions
necessary to preserve its rights thereunder except to the extent that
a failure to do so would not and could not reasonably be expected to
have a Material Adverse Effect.
(e) It shall maintain in good standing in all material respects all
Material Contracts and Material Permits (other than any Material
Permit or Material Permit, the loss of which would not, individually
or in the aggregate, have a Material Adverse Effect), observe and
perform in all material respects all the obligations imposed upon it
under or in connection therewith, take any and all commercially
reasonable actions necessary to preserve in all material respects its
rights thereunder and cooperate with the Agent to the fullest extent
possible in pursuing any claim it may have under or in respect
thereof.
-50-
(2) INSPECTION
It shall upon reasonable notice and at reasonable times, permit
representatives of or consultants to the Agent, during regular business
hours, to inspect any of its Property, conduct environmental site
assessments and/or compliance audits, examine and report on all insurance
maintained by or on behalf of each Obligor and to examine and take extracts
from its financial books, accounts and records, including but not limited
to accounts and records stored in computer data banks and computer software
systems, and to discuss its financial condition with its senior officers
and (in the presence of such of its representatives as it may designate)
its auditors. Each such visitation and inspection made by or on behalf to
the Agent shall be at the Borrower's expense. Any visitation and inspection
made by any Lender shall be at such Lender's own expense.
(3) INSURANCE
Each Obligor shall maintain or cause to be maintained insurance on its
Property that satisfies the covenants and conditions of the U.S. Credit
Agreement concerning insurance coverage from time to time. Whenever
reasonably requested in writing by the Agent, it shall cause certificates
evidencing such policies of insurance, and such other material which is
required to be provided under the U.S. Credit Agreement from time to time
relating thereto, to be made available to the Agent.
(4) TAXES AND WITHHOLDINGS
(a) It shall pay all Taxes as they become due and payable unless they are
being contested in good faith by appropriate proceedings.
(b) It shall withhold from each payment made to any of its past or present
employees, officers, directors, partners and trustees, and to any
non-resident of Canada, the amount of all Taxes and other deductions
required by Applicable Laws to be withheld therefrom and pay the same
to the proper tax or other receiving officers within the time required
under any Applicable Law.
(c) It shall collect from all Persons the amount of all Taxes required by
any Applicable Law to be collected from them and remit the same to the
proper tax or other receiving officers within the time required under
any Applicable Law.
(5) OTHER MATTERS
Without limiting any other provision of this Agreement, it shall remove,
clean up or otherwise remedy all matters which are the subject of any
written order or notice of inquiry, investigation, complaint, allegation or
claim pertaining to or under Environmental Laws or Permits to the extent
required under applicable Environmental Laws which, if not remediated,
would or could reasonably be expected to have a Material Adverse Effect.
-51-
7.3 REPORTING AND NOTICE REQUIREMENTS
During the term of this Agreement, the Borrower shall deliver or cause the
delivery of the periodic reports specified below and shall give notices in the
circumstances specified below, or cause notices to be given. All financial
statements and other reports shall be in a form satisfactory to the Lenders
acting reasonably and all financial statements shall be prepared in accordance
with GAAP applied on a consistent basis.
(1) PERIODIC FINANCIAL REPORTS
(a) The Borrower shall, as soon as practicable and in any event within 45
days of the end of each of its fiscal quarters (excluding the fourth
fiscal quarter), cause to be prepared and delivered to the Agent (with
sufficient copies for each of the Lenders), its interim unaudited
consolidated financial statements as at the end of such quarter.
(b) The Borrower shall, as soon as practicable and in any event within 120
days after the end of each of its fiscal years, prepare and deliver to
the Agent (with sufficient copies for each of the Lenders) its
unaudited consolidated annual financial statements.
(c) The Borrower shall, concurrently with the delivery of its quarterly
financial statements and annual financial statements, provide the
Agent (with sufficient copies for each of the Lenders) with a
Compliance Certificate.
(d) Anixter Inc. shall, as soon as practicable and in any event within 45
days of the end of each of its fiscal quarters (excluding the fourth
fiscal quarter), cause to be prepared and delivered to the Agent (with
sufficient copies for each of the Lenders), its interim unaudited
consolidated financial statements as at the end of such quarter.
(e) Anixter Inc. shall, as soon as practicable and in any event within 120
days after the end of each of its fiscal years, prepare and deliver to
the Agent (with sufficient copies for each of the Lenders) its
unaudited consolidated annual financial statements.
(f) Anixter Inc. shall, concurrently with the delivery of its quarterly
financial statements and annual financial statements, provide the
Agent (with sufficient copies for each of the Lenders) with a
Compliance Certificate.
(g) Anixter Inc. shall, on a timely basis, provide the Agent (with
sufficient copies for each of the Lenders), copies of all financial
statements, reports and notices, if any, sent or made available
generally by any Obligor to the holders of its publicly-held
securities, if any, or filed with the Securities and Exchange
Commission concerning developments in the business of any Obligor that
individually or in the aggregate could reasonably be expected to have
a Material Adverse Effect.
-52-
(h) The Obligors shall promptly provide the Agent with all other
information, reports and certificates reasonably requested by the
Lenders from time to time concerning the business, financial condition
and Property of the Borrower and each other Obligor, it being
understood and agreed that the Agent and the Lenders shall treat all
non-public information as confidential.
(2) REQUIREMENTS FOR NOTICE
(a) Each Obligor shall promptly after it becomes aware thereof, notify the
Agent of any Default, or of any material breach of any material
obligation or material default (whether it is its own default or a
default by any other party) under any Material Contract to which it is
a party or Material Permit, or of any termination or cancellation of a
Material Contract (other than at the expiry of its term), or of any
event which, with or without the giving of notice, lapse of time or
any other condition subsequent, would be a material default under or
would otherwise allow the termination of any Material Contract or
Material Permit or the imposition of any material sanction on any
party to a Material Contract or Material Permit, and shall from time
to time provide the Lenders with all information reasonably requested
by any of the Lenders concerning the status thereof.
(b) Each Obligor shall promptly notify the Agent on becoming aware of the
occurrence of any action, suit, dispute, arbitration, proceeding,
labour or industrial dispute or other circumstance affecting it, the
result of which if determined adversely would or could reasonably be
expected to have a Material Adverse Effect, and shall from time to
time provide the Agent with all reasonable information requested by
any of the Lenders concerning the status thereof.
(c) Each Obligor shall promptly notify the Agent in writing upon the
occurrence of any of the following events which, in each case or
together, could reasonably be expected to result in a Material Adverse
Effect:
(i) knowledge that any of Property of Anixter Inc. or of any
Subsidiary of Anixter Inc. is subject to an Environmental Lien;
or
(ii) knowledge that Anixter Inc. or any Subsidiary of Anixter Inc. is
subject to a condition which could reasonably be expected to
result in (A) a notice of violation of any Environmental Law, or
(B) any liabilities or costs with respect to any Release or
threatened Release of any Hazardous Materials into the
environment.
(d) The Borrower shall provide notice to the Agent and copies of all
relevant documentation promptly upon becoming aware of (i) the
institution of any steps by the Borrower or any applicable regulatory
authority to terminate or wind-up any Pension Plan (wholly or in part)
which could reasonably be expected to result in the Borrower making
contributions (including special
-53-
payments) to the Pension Plan in any twelve month period in excess of
115% of the contributions that were scheduled to be made in the prior
twelve consecutive month period, (ii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give
rise to a deemed trust, lien or charge under any pension benefits
legislation of any jurisdiction that, individually or in the
aggregate, would or could reasonably be expected to have a Material
Adverse Effect, (iii) the taking of any action with respect to a
Pension Plan which could reasonably be expected to result in the
requirement that the Borrower furnish a bond or other security to such
Pension Plan or any applicable regulatory authority that, individually
or in the aggregate, would or could reasonably be expected to have a
Material Adverse Effect, (iv) the occurrence of any event with respect
to any Pension Plan which could reasonably be expected to result in
the incurrence by the Borrower of any fines or penalties which could
reasonably be expected to have a Material Adverse Effect, (v) the
occurrence of any breach of any statutory fiduciary obligation with
respect to the administration of any Pension Plan, Welfare Plan or any
related funding medium which has or could reasonably be expected to
have a Material Adverse Effect, (vi) the occurrence of any event which
results or could reasonably be expected to result in any qualification
for special tax status for any Pension Plan or Welfare Plan under any
Applicable Law being revoked or refused, or (vii) any annual increase
in the contingent liability of the Borrower with respect to any
post-retirement Welfare Plan benefit as at December 31 of a calendar
year in excess of 115% of the contingent liability for the preceding
December 31.
7.4 NEGATIVE COVENANTS
During the term of this Agreement, none of the Obligors shall, or shall
cause or permit any other Obligor, to do any of the things specified in this
Section without the prior written consent of the Required Lenders or the
Lenders, as the case may be.
(1) DEBT AND ENCUMBRANCES
None of the Obligors shall:
(a) create, incur, assume or suffer to exist or cause or permit any
Encumbrance upon or in respect of any of its Property other than
Permitted Encumbrances;
(b) create, incur, assume or permit any debts, liabilities or obligations
of any kind (including contingent liabilities) to remain outstanding,
other than Permitted Obligations; or
(c) create, incur, assume or permit the existence of any Permitted
Obligations which rank senior to the Obligations, the Other Secured
Obligations or the Guarantor Obligations, except to the extent
permitted under the U.S. Credit Agreement, as U.S. Credit Agreement
may be amended from time to time in
-54-
accordance with a Scotia Approved Amendment (which, for greater
certainty, includes Receivable Securitization Transactions).
(2) FINANCIAL ASSISTANCE AND OTHER FINANCIAL TRANSACTIONS
None of the Obligors shall:
(a) create or become or be liable with respect to any Accommodation
Obligation except to the extent permitted under the U.S. Credit
Agreement, as the U.S. Credit Agreement is amended by any Scotia
Approved Amendment;
(b) enter into or cause to be entered into Swap Transactions (including
Currency Agreements and Interest Rate Agreements) except to the extent
permitted under the U.S. Credit Agreement, as the U.S. Credit
Agreement is amended by any Scotia Approved Amendment;
(c) make any Restricted Payment except to the extent that it may do so in
compliance with the U.S. Credit Agreement, as amended by any Scotia
Approved Amendment;
(d) other than transactions between or among the Obligors, enter into any
transaction of any kind with any Affiliate or Related Party, or Person
in respect of which it is a Related Party, except (i) on a
commercially reasonable basis as if it were dealing with such Person
on the Arm's Length basis, or (ii) if otherwise permitted under the
U.S. Credit Agreement, as the U.S. Credit Agreement is amended by any
Scotia Approved Amendment; or
(e) use the proceeds of any Advance in any way that will violate
Regulations U or X of the Board of Governors of the Federal Reserve
System.
(3) BUSINESS AND PROPERTY
None of the Obligors shall:
(a) effect any change in, or carry on, any business other than the
business carried on by it at the date of this Agreement;
(b) make any Investments except to the extent that it may do so in
compliance with Section 7.03 of the U.S. Credit Agreement, as such
Section is as amended from time to time in relation to the Guarantors,
and as such Section exists at the date of this Agreement in relation
to the Borrower; or
(c) permit any sale, lease or other disposition of the whole or any part
of its Property or any rights or interest therein (including any sale
and lease-back arrangement) other than a sale or other disposition
which is permitted under Section 7.02 of the U.S. Credit Agreement, as
such Section is amended by any Scotia Approved Amendment.
-55-
(4) CORPORATE MATTERS
None of the Obligors shall
(a) except to the extent it may do so in compliance with the U.S. Credit
Agreement, as any relevant provision of the U.S. Credit Agreement is
amended by any Scotia Approved Amendment, consolidate, amalgamate or
merge with any other Person, enter into any corporate reorganization
or other transaction intended to effect or otherwise permit a change
in its existing Constating Documents or its capital structure,
liquidate, wind up or dissolve itself, or permit any liquidation,
winding up or dissolution (collectively, "FUNDAMENTAL CHANGES") except
for fundamental changes involving solely two or more Obligors if prior
notice has been given to the Agent and each Obligor has taken all
steps reasonably required by the Lenders to ensure that the Lenders'
rights and interests (including under all Security) are not adversely
affected by any such fundamental change including delivery of other
security documents granting Encumbrances on the Property of the
Obligors if necessary to ensure that the interests of the Secured
Parties are not structurally subordinated; or
(b) change its fiscal year end.
ARTICLE 8
DEFAULT
8.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute
an Event of Default under this Agreement:
(a) the Borrower fails to pay, whether by acceleration or otherwise, any
amount of principal (including any amount relating to a Banker's
Acceptance or L/C) when due; or
(b) the Borrower fails to pay any amount of interest, fees, commissions or
other Obligations (other than amounts on account of principal) when
due, and such failure continues for three Business Days after the date
of such default; or
(c) there occurs a breach of the financial covenant in Section 7.1; or
(d) there occurs a breach of any of the negative covenants in Section
7.4,; or
(e) any Obligor makes any representation or warranty in any Loan Document,
or in any written statement or certificate made or delivered pursuant
to this Agreement which is incorrect, incomplete or misleading in any
material respect when made or deemed to be made; or
(f) Anixter Inc., Anixter International Inc. or the Borrower ceases or
threatens to cease to carry on its business; or
-56-
(g) any Obligor defaults under one or more agreements or instruments
relating to its Debt or any Swap Transactions or permits any other
event to occur and to continue without being waived or cured after any
applicable grace period specified in such agreements or instruments,
if the effect of one or more of such events is to accelerate, or to
permit the acceleration of, the date on which Debt (or Swap
Transactions) in an aggregate amount of U.S. $25,000,000 (or the
equivalent thereof in any other currency) or more becomes due (whether
or not such acceleration actually occurs) or a Obligor fails to pay
any Debt in an aggregate principal amount of U.S. $25,000,000 (or the
equivalent thereof in any other currency) when due; or
(h) any Obligor having assets in excess of U.S. $25,000,000 (or the
equivalent thereof in any other currency) (i) admits its inability to
pay its debts generally, is, or is deemed for the purposes of any law
to be, unable to pay its debts as they fall due, fails to pay its
debts generally, acknowledges its insolvency in writing or becomes a
bankrupt (voluntarily or involuntarily), or (ii) becomes subject to
any proceeding seeking court protection, examinership, administration,
reorganization by way of scheme of arrangement or otherwise,
liquidation, dissolution, arrangement, winding-up, relief of debtors
or from creditors or the appointment of a receiver or trustee over any
material part of its Property or analogous proceeding in any
jurisdiction or becomes subject to any judgment or order which has or
could reasonably be expected to have a Material Adverse Effect or a
material adverse effect on any material part of its Property, and such
proceeding, if instituted against any such Person or Persons, or such
judgment or order, is not contested diligently, in good faith and on a
timely basis and vacated, dismissed, withdrawn or stayed within 20
days of its commencement or issuance; or
(i) any Obligor denies, to any extent, its obligations under any Loan
Document or claims any Loan Document to be invalid or withdrawn in
whole or in part; or
(j) this Agreement, any of the Security, the Fee Letter or any other
material Loan Document is invalidated in any material respect by any
act, regulation or governmental action or is determined to be invalid
in any material respect by a court or other judicial entity and such
determination has not been stayed pending appeal and such
circumstances remain unremedied for a period of ten Business Days
following notice thereof by the Agent, on behalf of the Secured
Parties, to the Borrower; or
(k) one or more final judgments, writs of execution, garnishments or
attachments or similar processes representing claims in an aggregate
of U.S. $25,000,000 (or the equivalent thereof in any other currency)
or more for all of the Obligors at any time are issued or levied
against any of their Property and are not released, bonded, satisfied,
discharged, vacated, stayed or accepted for payment by an insurer
within 20 days after their entry, commencement or levy; or
-57-
(l) one or more Encumbrancer and/or landlord exercising distraint or
similar rights in relation to the Debt or other obligations in an
amount which, in the aggregate exceeds U.S. $25,000,000 (or the
equivalent thereof in any other currency), takes possession of all or,
in the aggregate, a material portion of the Property of the Obligors
taken as a whole by appointment of a receiver or receiver and manager,
by seizure, repossession or distraint, or otherwise; or
(m) there is a breach of any covenant, condition or other provision of any
Loan Document (other than a breach which is specifically dealt with
elsewhere in this Section 8.1), by any party thereto other than the
Agent or the Secured Parties, and such breach, if capable of being
remedied, is not corrected or otherwise remedied within 15 days after
the Agent, for and on behalf of the Secured Parties, gives written
notice thereof to the Borrower; or
(n) the Borrower ceases to be directly or indirectly wholly-owned by
Anixter Inc.; or
(o) the occurrence of any Event of Default (as such term is defined in the
U.S. Credit Agreement as amended from time to time in accordance with
a Scotia Approved Amendment).
8.2 ACCELERATION AND TERMINATION OF RIGHTS, PRE-ACCELERATION RIGHTS
(1) If any Event of Default occurs, no Lender shall be under any further
obligation to make Advances and the Required Lenders may instruct the Agent
to give notice to the Borrower (a) declaring the Lenders' obligations to
make Advances to be terminated, whereupon the same shall forthwith
terminate, (b) declaring the Obligations or any of them to be forthwith due
and payable, whereupon they shall become and be forthwith due and payable
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower, and/or (c) demanding
that the Borrower deposit forthwith with the Agent for the Lenders' benefit
Collateral equal to the full face amount at maturity of all L/Cs and
Banker's Acceptances then outstanding for its account.
(2) Notwithstanding the preceding paragraph, if any Obligor having assets in
excess of U.S. $25,000,000 (or the equivalent thereof in any other
currency) becomes a bankrupt (voluntarily or involuntarily), or institutes
any proceeding seeking liquidation, dissolution, arrangement, winding-up,
relief of debtors or from creditors or the appointment of a receiver or
trustee over any material part of its Property or analogous proceeding in
any jurisdiction, then without prejudice to the other rights of the Lenders
as a result of any such event, without any notice or action of any kind by
the Agent or any Lender, and without presentment, demand or protest, the
Lenders' obligation to make Advances shall immediately terminate, the
Obligations shall immediately become due and payable and the Borrower shall
be obligated to deposit forthwith with the Agent for the Lenders' benefit
Collateral equal to the full face amount at maturity of all L/Cs and
Banker's Acceptances then outstanding for its account
-58-
8.3 PAYMENT OF L/CS, ETC.
(1) Immediately upon any Obligations becoming due and payable under Section
8.2, the Borrower shall, without necessity of further act or evidence, be
and become thereby unconditionally obligated to deposit forthwith with the
Agent for the benefit of, as applicable, the Issuing Bank and each other
applicable Lender Collateral equal to the full face amount at maturity of
all L/Cs and Banker's Acceptances then outstanding for its account and the
Borrower hereby unconditionally promises and agrees to deposit with the
Agent immediately upon such demand Collateral in the amount so demanded.
The Borrower authorizes the Lenders, or any of them, to debit its accounts
with the amount required to pay such L/Cs and to pay such Banker's
Acceptances, notwithstanding that such Banker's Acceptances may be held by
the Lenders, or any of them, in their own right at maturity. Amounts paid
to the Agent pursuant to such a demand in respect of Banker's Acceptances
and L/Cs shall be applied against, and shall reduce, pro rata among the
Lenders, to the extent of the amounts paid to the Agent in respect of
Banker's Acceptances and L/Cs, respectively, the obligations of the
Borrower to pay amounts then or thereafter payable under Banker's
Acceptances and L/Cs, respectively, at the times amounts become payable
thereunder.
(2) The Borrower shall be entitled to receive interest on cash held by the
Agent as Collateral in accordance with Section 10.10.
8.4 REMEDIES
Upon the occurrence of any event by which any of the Obligations become due
and payable under Section 8.2, the Security shall become immediately enforceable
and the Required Lenders may instruct the Agent to take such action or
proceedings on behalf of the Lenders and in compliance with Applicable Laws as
the Required Lenders in their sole discretion deem expedient to enforce the
same, all without any additional notice, presentment, demand, protest or other
formality, all of which are hereby expressly waived by the Obligors.
8.5 SAVING
Neither the Agent nor any Lender shall be under any obligation to any
Obligor or any other Person to realize any collateral or enforce the Security or
any part thereof or to allow any of the collateral to be sold, dealt with or
otherwise disposed of. None of the Agent or any Lender shall be responsible or
liable to any Obligor or any other Person for any loss or damage upon the
realization or enforcement of, the failure to realize or enforce the collateral
or any part thereof or the failure to allow any of the collateral to be sold,
dealt with or otherwise disposed of or for any act or omission on their
respective parts or on the part of any director, officer, agent, servant or
adviser in connection with any of the foregoing, except that the Agent and each
Lender may be responsible or liable for any loss or damage arising from its
wilful misconduct or gross negligence.
8.6 PERFORM OBLIGATIONS
If an Event of Default has occurred and is continuing and any Obligor has
failed to perform any of its covenants or agreements in the Loan Documents, the
Required Lenders, may,
-59-
but shall be under no obligation to, instruct the Agent on behalf of the Lenders
to perform any such covenants or agreements in any manner deemed fit by the
Required Lenders without thereby waiving any rights to enforce the Loan
Documents. The reasonable expenses (including any legal costs) paid by the Agent
and/or the Lenders in respect of the foregoing shall be secured by the Security.
8.7 THIRD PARTIES
No Person dealing with the Lenders or any agent of the Lenders shall be
concerned to inquire whether the Security has become enforceable, or whether the
powers which the Lenders are purporting to exercise have become exercisable, or
whether any Obligations remain outstanding upon the security thereof, or as to
the necessity or expediency of the stipulations and conditions subject to which
any sale shall be made, or otherwise as to the propriety or regularity of any
sale or other disposition or any other dealing with the collateral charged by
such Security or any part thereof.
8.8 REMEDIES CUMULATIVE
The rights and remedies of the Lenders under the Loan Documents are
cumulative and are in addition to and not in substitution for any rights or
remedies provided by Applicable Laws. Any single or partial exercise by the
Lenders of any right or remedy for a default or breach of any term, covenant,
condition or agreement herein contained shall not be deemed to be a waiver of or
to alter, affect, or prejudice any other right or remedy or other rights or
remedies to which the Lenders may be lawfully entitled for the same default or
breach. Any waiver by the Lenders of the strict observance, performance or
compliance with any term, covenant, condition or agreement herein contained, and
any indulgence granted by the Lenders shall be deemed not to be a waiver of any
subsequent default.
ARTICLE 9
THE AGENT AND THE LENDERS
9.1 AUTHORIZATION OF AGENT
(1) Without limiting Section 7.1 of the Provisions, each Secured Party
irrevocably designates and appoints the Agent for the purpose of holding
and realizing on the Security in accordance with and subject to the terms
hereof and the terms of the other Loan Documents, and authorizes the Agent
to take such action and to exercise such rights, powers and discretions as
are expressly granted to it under this Agreement and the other Loan
Documents and on the terms hereof or thereof together with such other
rights, powers and discretions as are reasonably incidental thereto. The
Agent may perform any of its duties hereunder or thereunder by or through
its agents, officers or employees, its Affiliates or its Affiliates'
agents, officers or employees.
(2) Without limiting the foregoing, each of the Secured Parties hereby grants
to the Agent a power of attorney, (a) for the purposes of laws applicable
to the Security from time to time, to sign documents comprising the
Security from time to time (as the party accepting the grant of the
security), and (b) for the right to delegate its authority as attorney
under item (a) above to any other Person, whether or not an officer or
-60-
employee of the Agent. The Agent hereby accepts each such appointment. Each
such appointment may only be terminated as expressly provided in this
Agreement.
9.2 ADMINISTRATION OF THE CREDIT
(1) Unless otherwise specified herein, the Agent shall perform the following
duties under this Agreement:
(a) take delivery of each Lender's Applicable Percentage of an Advance and
make all Advances hereunder in accordance with the procedures set
forth in Sections 5.7 and 5.11;
(b) use reasonable efforts to collect promptly all sums due and payable by
the Borrower pursuant to this Agreement;
(c) make all payments to the Lenders in accordance with the provisions
hereof;
(d) hold the Security on behalf of the Secured Parties;
(e) hold all legal documents relating to the Credit, maintain complete and
accurate records showing all Advances made by the Lenders, all
remittances and payments made by the Borrower to the Agent, all
remittances and payments made by the Agent to the Lenders and all fees
or any other sums received by the Agent and, except for accounts,
records and documents relating to the fees payable by the Borrower to
the Agent in its capacity as Agent or arranger hereunder or under the
Fee Letter, allow each Lender and their respective advisors to examine
such accounts, records and documents at their own expense, and provide
any Lender, upon reasonable notice, with such copies thereof or
information contained therein as such Lender may reasonably require
from time to time at the Lender's expense; and
(f) except as otherwise specifically provided for in this Agreement,
promptly advise each Lender upon receipt of each notice and deliver to
each Lender, promptly upon receipt, all other written communications
furnished by any Obligor to the Agent on behalf of the Lenders
pursuant to this Agreement, including copies of financial reports and
certificates which are to be furnished to the Agent.
(2) The Agent may take the following actions only with the prior consent of the
Required Lenders, unless otherwise specified in this Agreement:
(a) subject to Section 9.2(3), exercise any and all rights of approval
conferred upon the Lenders by this Agreement;
(b) give written notice to any Obligor in respect of any matter in respect
of which notice may be required, permitted, necessary or desirable in
accordance with or pursuant to this Agreement, promptly after
receiving the consent of the Required Lenders, except that the Agent
shall, without direction from the
-61-
Lenders, immediately give the Borrower notice of any payment that is
due or overdue under the terms of this Agreement unless the Agent
considers that it should request the direction of the Required
Lenders, in which case the Agent shall promptly request that
direction;
(c) amend, modify or waive any of the terms of this Agreement, including
waiver of a Default, if such action is not otherwise provided for in
Section 9.2(3);
(d) declare an Event of Default or take, or cause to be taken by the
Agent, action to enforce performance of the Obligations and to realize
upon the Security, including the appointment of a receiver, the
exercise of powers of distress, lease or sale given by the Security or
by law and the taking of foreclosure proceedings and/or the pursuit of
any other legal remedy necessary;
(e) decide to accelerate the amounts outstanding under the Credit; and
(f) pay, or instruct the Agent to pay, insurance premiums, Taxes and any
other sums as may be reasonably required to protect the interests of
the Lenders.
(3) The Agent may take the following actions only if the prior unanimous
consent of the Lenders is obtained, unless otherwise specified herein:
(a) amend, modify, discharge, terminate or waive any of the terms of this
Agreement or the Security if such amendment, modification, discharge,
termination or waiver would increase the amount of the Credit, amend
the purpose of the Credit, reduce the interest rates and similar
charges applicable to the Credit, reduce the fees payable with respect
to the Credit, extend any date fixed for payment of principal,
interest or any other amount relating to the Credit or extend the term
of the Credit;
(b) amend the definition of "Required Lenders" or this Section 9.2(3); and
(c) subject to Section 9.2(4), discharge any Security.
For greater certainty, no Lender's Commitment or Applicable Percentage may
be amended without the consent of that Lender. In addition, no amendment,
modification or waiver affecting the rights or obligations of the Agent or
Issuing Bank may be made without their respective consent.
(4) Notwithstanding Sections 9.2(2) and 9.2(3) the Agent may, without the
consent of the Lenders (but with the consent of the Borrower), make, or
cause to be made, amendments to the Loan Documents that are for the sole
purpose of curing any immaterial or administrative ambiguity, defect or
inconsistency, but shall immediately notify the Lenders of any such action.
The Agent may also discharge, or authorize and direct or otherwise cause to
be discharged, any Security to the extent necessary to allow any Obligor to
complete any sale or other disposition of Property permitted by this
Agreement (including pursuant to any consent, waiver or other decision by,
as applicable, the Lenders or the Required Lenders).
-62-
(5) As between the Obligors, on the one hand, and the Agent and the Lenders, on
the other hand:
(a) all statements, certificates, consents and other documents which the
Agent purports to deliver on behalf of the Lenders or the Required
Lenders shall be binding on each of the Lenders, and none of the
Obligors shall be required to ascertain or confirm the authority of
the Agent in delivering such documents;
(b) all certificates, statements, notices and other documents which are
delivered by any Obligor to the Agent in accordance with this
Agreement shall be deemed to have been duly delivered to each of the
Lenders; and
(c) all payments which are delivered by the Borrower to the Agent in
accordance with this Agreement shall be deemed to have been duly
delivered to each of the Lenders.
(6) Except in its own right as a Lender, the Agent shall not be required to
advance its own funds for any purpose, and in particular, shall not be
required to pay with its own funds insurance premiums, Taxes or public
utility charges or the cost of repairs or maintenance with respect to the
assets which are the subject matter of the Security, nor shall it be
required to pay with its own funds the fees of solicitors, counsel,
auditors, experts or agents engaged by it as permitted hereby.
(7) To the extent that any Obligor or any Affiliate of an Obligor becomes a
Lender, such Lender shall not be permitted to vote on or consent to any
matter under this Agreement on or to which a Lender may vote or consent and
the Commitment of such Lender shall be deemed not to be outstanding for the
purposes of determining whether a specified majority has been achieved.
(8) all actions taken and consents and approvals given by the Agent shall be
valid and binding on all Secured Parties, and will be deemed to be
consented to by the Secured Parties, if taken or given by the Agent in
accordance with the terms (including requisite levels of approval) of this
Agreement, and the Agent shall be fully protected in taking such actions
and granting consents and approvals.
9.3 ACKNOWLEDGEMENTS, REPRESENTATIONS AND COVENANTS OF LENDERS
(1) Each Lender represents and warrants that it has the legal capacity to enter
into this Agreement pursuant to its charter and any Applicable Law and has
not violated its charter, constating documents or any applicable
legislation by so doing.
(2) Each of the Lenders acknowledges and confirms that in the event that the
Agent does not receive payment in accordance with this Agreement, it shall
not be the obligation of the Agent to maintain the Credit in good standing
nor shall any Lender have recourse to the Agent in respect of any amounts
owing to such Lender under this Agreement.
-63-
(3) Each Lender acknowledges and agrees that its obligation to advance its
Applicable Percentage of Advances in accordance with the terms of this
Agreement is independent and in no way related to the obligation of any
other Lender hereunder.
(4) Each Lender hereby acknowledges receipt of a copy of this Agreement and the
Security (to the extent that the Security has been delivered) and
acknowledges that it is satisfied with the form and content of such
documents.
9.4 PROVISIONS OPERATIVE BETWEEN LENDERS AND AGENT ONLY
Except for the provisions of Sections 9.2(5), 9.3(1), 9.3(3) and this
Section 9.4, the provisions of this Article 9 relating to the rights and
obligations of the Lenders or the Secured Parties, as the case may be, and the
Agent inter se shall be operative as between the Lenders or the Secured Parties,
as the case may be, and the Agent only, and no Obligor shall have any rights or
obligations under or be entitled to rely for any purpose upon such provisions.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 ACCOUNTING TERMS
Subject to the last paragraph of Section 7.3(1), wherever in this Agreement
reference is made to GAAP or to a calculation to be made or an action to be
taken in accordance with generally accepted accounting principles, such
reference will be deemed to be to GAAP as at the date on which such calculation
or action is made or taken or required to be made or taken in accordance with
GAAP, in each case applied on a consistent basis.
10.2 DEFINED TERMS
All terms used in any of the Loan Documents (other than this Agreement)
which are defined in this Agreement shall have the meanings defined herein
unless otherwise defined in the other Loan Document.
10.3 SEVERABILITY
Any provision of this Agreement which is or becomes prohibited or
unenforceable in any relevant jurisdiction shall not invalidate or impair the
remaining provisions hereof which shall be deemed severable from such prohibited
or unenforceable provision and any such prohibition or unenforceability in any
such jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Should this Agreement fail to provide for any relevant
matter, the validity, legality or enforceability of this Agreement shall not
thereby be affected.
10.4 AMENDMENT, SUPPLEMENT OR WAIVER
No amendment, supplement or waiver of any provision of the Loan Documents,
nor any consent to any departure by an Obligor therefrom, shall in any event be
effective unless it is in writing, makes express reference to the provision
affected thereby and is signed by the Agent
-64-
for and on behalf of the Lenders or the Required Lenders, as the case may be,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. In addition, any amendment or
supplement shall require the written consent of the other parties to the Loan
Document in question. No waiver or act or omission of the Agent, the Lenders, or
any of them, shall extend to or be taken in any manner whatsoever to affect any
subsequent Event of Default or breach by an Obligor of any provision of the Loan
Documents or the rights resulting therefrom.
10.5 GOVERNING LAW
The Province referred to in Sections 11(a) and (b) of the Provisions is the
Province of Ontario. The law governing this Agreement shall also govern each of
the other Loan Documents, except for those that expressly provide otherwise.
10.6 THIS AGREEMENT TO GOVERN
In the event of any conflict or inconsistency between the terms of this
Agreement and the terms of any other Loan Document, the provisions of this
Agreement shall govern to the extent necessary to remove the conflict or
inconsistency.
10.7 PERMITTED ENCUMBRANCES
The designation of an Encumbrance as a Permitted Encumbrance is not, and
shall not be deemed to be, an acknowledgment by the Agent or the Lenders that
the Encumbrance shall have priority over the Security.
10.8 CURRENCY
(1) All payments made hereunder shall be made in the currency in respect of
which the obligation requiring such payment arose. Unless the context
otherwise requires, all amounts expressed in this Agreement in terms of
money shall refer to Canadian Dollars.
(2) Except as otherwise expressly provided in this Agreement, wherever this
Agreement contemplates or requires the calculation of the equivalent in one
currency of an amount expressed in another currency, the calculation shall
be made on the basis of the Exchange Rate, at the effective date of the
calculation.
10.9 LIABILITY OF LENDERS
The liability of the Lenders in respect of all matters relating to this
Agreement and the other Loan Documents is several and not joint or joint and
several. Without limiting that statement, the obligations of the Lenders to make
Advances is limited to their respective Applicable Percentages of any Advance
that is requested, and, in the aggregate, to their respective Applicable
Percentages of the total amounts of the Credit.
-65-
10.10 INTEREST ON MISCELLANEOUS AMOUNTS
(1) If the Borrower fails to pay any amount payable hereunder on the due date
(including principal, interest thereon, interest upon interest or any other
amount on which interest is payable as otherwise provided in this
Agreement), the Borrower shall, on demand, pay interest on such overdue
amount to the Agent from and including such due date up to but excluding
the date of actual payment, both before and after demand, default or
judgment, at a rate of interest per annum equal to, in the case of amounts
payable in Cdn. Dollars, the sum of the Prime Rate plus 2.0% per annum,
and, in the case of amounts payable in U.S. Dollars, the sum of the Base
Rate plus 2% per annum, in each case compounded monthly.
(2) If the Borrower deposits cash as Collateral pursuant to a requirement under
this Agreement, the Agent, Lender or Lenders, as applicable, holding the
cash shall pay the Borrower interest on the cash while it continues to be
held as Collateral at the rate offered by the relevant Lender or Agent from
time to time for deposits in the relevant currency of comparable size and
term.
10.11 JUDGMENT CURRENCY
In the event of a judgment or order being rendered by any court or tribunal
for the payment of any amounts owing to the Lenders or any of them under this
Agreement or for the payment of damages in respect of any breach of this
Agreement or under or in respect of a judgment or order of another court or
tribunal for the payment of such amounts or damages, such judgment or order
being expressed in a currency (the "JUDGMENT CURRENCY") other than the currency
payable hereunder or thereunder (the "AGREED CURRENCY"), the party against whom
the judgment or order is made shall indemnify and hold the Lenders harmless
against any deficiency in terms of the Agreed Currency in the amounts received
by the Lenders arising or resulting from any variation as between (a) the
exchange rate at which the Agreed Currency is converted into the Judgment
Currency for the purposes of such judgment or order, and (b) the exchange rate
at which each Lender is able to purchase the Agreed Currency with the amount of
the Judgment Currency actually received by the Lender on the date of such
receipt. The indemnity in this Section shall constitute a separate and
independent obligation from the other obligations of the Obligors hereunder,
shall apply irrespective of any indulgence granted by the Lenders, and shall be
secured by the Security.
10.12 ADDRESS FOR NOTICE
As of the date of this Agreement, the addresses and telecopier numbers of
the Borrower and the Lenders contemplated in Section 8(a) of the Provisions are
as specified beside their respective signatures to this Agreement. Notices to
the other Obligors shall be sent in care of the Borrower.
10.13 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
-66-
10.14 FURTHER ASSURANCES
Each Obligor shall, at its expense, at the request of the Agent acting on
the instructions of the Required Lenders, do all such further acts and execute
and deliver all such further documents, agreements, certificates and instruments
as may, in the reasonable opinion of the Required Lenders, be necessary or
desirable in order to fully perform and carry out the purpose and intent of the
Loan Documents.
10.15 TERM OF AGREEMENT
Except as otherwise provided herein, this Agreement shall remain in full
force and effect until the indefeasible payment and performance in full in cash
of all of the Obligations and Guarantor Obligations and the termination of the
Commitments. The obligations of the Obligors in Sections 3.1, 3.2 and 9 of the
Provisions and of the Lenders in Section 7.5 of the Provisions shall continue
for the benefit of those to whom the obligations are owed notwithstanding the
termination of this Agreement or the termination of any particular Person's role
as Obligor, Administrative Agent or Lender.
10.16 PAYMENTS ON BUSINESS DAY
Whenever any payment or performance under the Loan Documents would
otherwise be due on a day other than a Business Day, such payment shall be made
on the following Business Day, unless the following Business Day is in a
different calendar month, in which case the payment shall be made on the
preceding Business Day.
10.17 WHOLE AGREEMENT
Except in relation to matters contemplated by the other Loan Documents,
this Agreement constitutes the whole and entire agreement between the parties
hereto concerning the matters addressed in this Agreement, and cancels and
supersedes any prior agreements, undertakings, declarations, commitments or
representations, written or verbal, in respect thereof.
10.18 ENGLISH LANGUAGE
The Loan Documents have been negotiated in English and will be or have been
executed in the English language. Les soussigne ont expressement demande que ce
document soit redige en langue anglaise. All paper writings given or delivered
pursuant to this Agreement and the other Loan Documents shall, if requested by
the Agent, be in the English language or, if not, shall be accompanied by a
certified English translation thereof. The English language version of any
document shall, absent manifest error, control the meaning and interpretation of
the matters set forth therein.
10.19 SENIOR INDEBTEDNESS
The obligations of the Obligors under the Loan Documents constitute "senior
indebtedness" for all purposes.
-67-
10.20 DATE OF AGREEMENT
This Agreement may be referred to as being dated 18 November 2005 or as of
18 November 2005, notwithstanding the actual date of execution.
* * * *
[SIGNATURE PAGES FOLLOW]
-S1-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE THE BANK OF NOVA SCOTIA, as Agent
THE BANK OF NOVA SCOTIA, as Agent
Scotia Capital By:
Corporate Banking - Loan Syndications ------------------------------------
62nd Floor E. W. Read
Scotia Plaza Director
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
By:
ATTENTION: UNIT HEAD ------------------------------------
A. Kotsidis
Facsimile: (000) 000-0000 Associate Director
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S2-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE ANIXTER CANADA INC.
ANIXTER CANADA INC.
c/o Anixter Inc. By:
0000 Xxxxxxx Xxxxxxxxx ------------------------------------
Xxxxxxxx, XX 00000 Name:
----------------------------------
ATTENTION: XX. XXX XXXXXXXXX Title:
---------------------------------
Facsimile: (000) 000-0000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S3-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE ANIXTER INC.
ANIXTER INC.
0000 Xxxxxxx Xxxxxxxxx By:
Xxxxxxxx, XX 00000 ------------------------------------
Name:
ATTENTION: XX. XXX XXXXXXXXX ----------------------------------
Title:
Facsimile: (000) 000-0000 ---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S4-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE ANIXTER INTERNATIONAL INC.
ANIXTER INTERNATIONAL INC.
c/o Anixter Inc. By:
0000 Xxxxxxx Xxxxxxxxx ------------------------------------
Xxxxxxxx, XX 00000 Name:
----------------------------------
ATTENTION: XX. XXX XXXXXXXXX Title:
---------------------------------
Facsimile: (000) 000-0000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S5-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE ANIXTER-REAL ESTATE INC.
ANIXTER-REAL ESTATE INC.
c/o Anixter Inc. By:
0000 Xxxxxxx Xxxxxxxxx ------------------------------------
Xxxxxxxx, XX 00000 Name:
----------------------------------
ATTENTION: XX. XXX XXXXXXXXX Title:
---------------------------------
Facsimile: (000) 000-0000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S6-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE ANIXTER INFORMATION SYSTEMS CORPORATION
ANIXTER INFORMATION SYSTEMS
CORPORATION By:
c/o Anixter Inc. ------------------------------------
0000 Xxxxxxx Xxxxxxxxx Name:
Xxxxxxxx, XX 00000 ----------------------------------
Title:
ATTENTION: XX. XXX XXXXXXXXX ---------------------------------
Facsimile: (000) 000-0000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S7-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE ANIXTER FINANCIAL INC.
ANIXTER FINANCIAL INC.
c/o Anixter Inc. By:
0000 Xxxxxxx Xxxxxxxxx ------------------------------------
Xxxxxxxx, XX 00000 Name:
----------------------------------
ATTENTION: XX. XXX XXXXXXXXX Title:
---------------------------------
Facsimile: (000) 000-0000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
-S8-
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ADDRESS FOR NOTICE THE BANK OF NOVA SCOTIA, as Lender
THE BANK OF NOVA SCOTIA, as Lender
Scotia Capital By:
Corporate Banking - Industrial Products ----------------------------------
62nd Floor E. W. Read
Scotia Plaza Director
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
By:
ATTENTION: UNIT HEAD ----------------------------------
A. Kotsidis
Facsimile: (000) 000-0000 Associate Director
[signature page for Credit Agreement relating to Anixter Canada Inc. et al.]
SCHEDULE A
FORM OF NOTICE OF ADVANCE OR PAYMENT
[see reference in Section 5.3]
TO: THE BANK OF NOVA SCOTIA c.c. THE BANK OF NOVA SCOTIA
Scotia Capital Scotia Capital
WBO - Loan Administration & Corporate Banking - Industrial Products
Agency Operations 00xx Xxxxx, Xxxxxx Plaza
000 Xxxx Xxxxxx Xxxx 00 Xxxx Xxxxxx Xxxx
0xx Xxxxx Xxxxxxx, XX X0X 0X0
Wholesale Banking Operations
Xxxxxxx, XX X0X 0X0
Attention: Managing Director Attention: Unit Head
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
We refer to the credit agreement dated as of 18 November 2005 between
Anixter Canada Inc., as Borrower, others, as Guarantors, The Bank of Nova
Scotia, as Administrative Agent and the Lenders named therein, as amended,
supplemented, restated or replaced from time to time (the "CREDIT AGREEMENT").
All terms used in this certificate and that are defined in the Credit Agreement
will have the meanings defined in the Credit Agreement.
1. Request for Advance
Notice is hereby given pursuant to Section 5.3 of the Credit Agreement that
the undersigned hereby irrevocably requests as follows:
(a) that an Advance be made under the Credit;
(b) the requested Advance represents the following [CHECK ONE OR MORE]:
initial Advance under the Credit [ ]
increase in an Advance under the Credit [ ]
rollover of an existing Advance under the Credit [ ]
conversion of an existing Advance to another type of Advance [ ]
(c) the Drawdown Date shall be ___________.
(d) the Advance shall be in the form of [CHECK ONE OR MORE AND COMPLETE
DETAILS]:
Prime Rate Advance [ ]
Amount: $__________
Base Rate Advance [ ]
Amount: $__________
-A2-
Banker's Acceptances [ ]
Face Amount: $__________
Term: __________________
L/C [ ]
Nominal amount and currency: $__________
Type: __________________________________
Issue Date: ____________________________
Expiry date: ___________________________
Name and Address of
Beneficiary: ___________________________
___________________________
Purpose: _______________________________
[NOTE: ATTACH PROPOSED FORM OR DETAILS]
LIBOR Advance [ ]
Amount: $__________
LIBOR Period: _________
(e) the proceeds of the Advance shall be deposited in [SPECIFY DESIGNATED
ACCOUNT]
2. The undersigned hereby confirms as follows:
(a) the representations and warranties made in Section 6.1 of the Credit
Agreement, other than those expressly stated to be made as of a
specific date or otherwise expressly modified pursuant to the
provisions of Section 6.2 of the Credit Agreement, are true and
correct on and as of the date hereof with the same force and effect as
if such representations and warranties had been made on and as of the
date hereof, but subject to the same qualifications as are contained
in Section 6.2 of the Credit Agreement;
(b) no Default has occurred and is continuing on the date hereof or will
result from the Advance(s) requested herein;
(c) after due inquiry, there is no reasonable expectation that the
Borrower will not be in compliance with all covenants contained in
Section 7.1 of the Credit Agreement at the end of its current fiscal
quarter and was not in compliance with those covenants at the end of
its immediately preceding fiscal quarter if it has not yet delivered
its Compliance Certificate for that quarter;
(d) the undersigned will immediately notify you if it becomes aware of the
occurrence of any event which would mean that the statements in the
immediately preceding paragraphs (a), (b) and (c) would not be true if
made on the Drawdown Date; and
(e) all other conditions precedent set out in Section 4.2 [AND SECTION 4.1
AS APPLICABLE] of the Credit Agreement have been fulfilled.
-A3-
3. Notice of Payment
Pursuant to Section 5.3 of the Credit Agreement, the undersigned hereby
irrevocably notifies you of the following:
(a) that a payment will be made under the Credit;
(b) the payment represents the following [CHECK ONE OR MORE]:
reduction in Advances under the Credit [ ]
payment of existing Advances which will be rolled over as
the same type of Advance under the Credit [ ]
payment of existing Advances which will be converted to
another type of Advance under the Credit [ ]
(c) the payment date shall be __________________;
(d) the Advance to be paid shall be in the form of [CHECK ONE OR MORE AND
COMPLETE DETAILS]:
Prime Rate Advance [ ]
Amount: $__________
Base Rate Advance [ ]
Amount: $__________
Banker's Acceptances [ ]
Face Amount: $__________
Maturity Date: $__________
LIBOR Advance [ ]
Amount: $__________
DATED .
-----------------
ANIXTER CANADA INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE B
FORM OF BORROWER COMPLIANCE CERTIFICATE
[see references in Sections 4.2 and 7.3(1)(c)]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE BANK OF NOVA SCOTIA, as Agent
We refer to Sections 4.2 and 7.3(1)(c) of the credit agreement dated as of
18 November 2005 between Anixter Canada Inc., as Borrower, others, as
Guarantors, The Bank of Nova Scotia, as Administrative Agent and the Lenders
named therein, as amended, supplemented, restated or replaced from time to time
(the "CREDIT AGREEMENT"). All terms used in this certificate that are defined in
the Credit Agreement will have the meanings defined in the Credit Agreement.
The undersigned hereby certifies that:
1. The representations and warranties made in Section 6.1 of the Credit
Agreement, other than those expressly stated to be made as of a specific
date or otherwise expressly modified pursuant to the provisions of Section
6.2 of the Credit Agreement, are true and correct on and as of the date
hereof with the same force and effect as if such representations and
warranties had been made on and as of the date hereof, but subject to the
same qualifications as are contained in Section 6.2 of the Credit
Agreement.
2. No Default has occurred and is continuing on the date hereof [OR AS THE
CASE MAY BE].
3. The undersigned hereby certifies that, as of the end of its most recently
completed fiscal quarter, which ended on ____________, the Total Leverage
Ratio was ________: 1.
4. Appendix A attached sets out the calculations of the ratio referred to
above.
5. Appendix B attached is an up-to-date version of Schedule F to the Credit
Agreement. [or There has been no change to the information contained in the
version of Schedule F attached to the Credit Agreement.]
6. Appendix C attached contains details of all Other Secured Obligations as of
the end of the undersigned's most recently completed fiscal quarter that
have not previously been listed on Schedule G to the Credit Agreement.
7. Appendix E attached is an up-to-date version of Schedule H to the Credit
Agreement. [or There has been no change to the information contained in the
version of attached to Schedule H the Credit Agreement.]
8. Appendix F attached is an up-to-date version of Schedule I to the Credit
Agreement. [or There has been no change to the information contained in the
version of Schedule I attached to the Credit Agreement.]
-B2-
DATED .
------------------------------
ANIXTER CANADA INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE C
FORM OF ANIXTER INC. COMPLIANCE CERTIFICATE
[see references in Sections 4.2 and 7.3(1)(c)]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE BANK OF NOVA SCOTIA, as Agent
We refer to Sections 4.2 and 7.3(1)(c) of the credit agreement dated as of
18 November 2005 between Anixter Canada Inc., as Borrower, others, as
Guarantors, The Bank of Nova Scotia, as Administrative Agent and the Lenders
named therein, as amended, supplemented, restated or replaced from time to time
(the "CREDIT AGREEMENT"). All terms used in this certificate that are defined in
the Credit Agreement will have the meanings defined in the Credit Agreement.
The undersigned hereby certifies that:
1. The representations and warranties made in Section 6.1 of the Credit
Agreement, other than those expressly stated to be made as of a specific
date or otherwise expressly modified pursuant to the provisions of Section
6.2 of the Credit Agreement, are true and correct on and as of the date
hereof with the same force and effect as if such representations and
warranties had been made on and as of the date hereof, but subject to the
same qualifications as are contained in Section 6.2 of the Credit
Agreement.
2. No Default has occurred and is continuing on the date hereof [OR AS THE
CASE MAY BE].
3. Attached hereto is the compliance certificate for the fiscal period ending
delivered under ____________ the U.S. Credit Agreement.
DATED .
-------------------
ANIXTER INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE D
MODEL CREDIT AGREEMENT PROVISIONS
[see reference in Section 1.1]
The attached model credit agreement provisions, which have been revised under
the direction of the Canadian Bankers' Association Secondary Loan Market
Specialist Group from provisions prepared by The Loan Syndications and Trading
Association, Inc., form part of this Agreement, except for the footnotes to the
model credit agreement provisions and subject to the following variations:
1. The defined term "Related Parties" in the Provisions is deleted. Such term
shall have the meaning set out in Section 1.1 of the Agreement.
2. The term "Release," which is used in Section 9(b) but not defined in the
Provisions, shall be interpreted as referring to any release, spill,
leakage, emission, deposit, discharge, leaching, migration or disposition.
The term "Environmental Liability" which is used in Section 9(b) but not
defined in the Provisions, shall be interpreted as referring to any
remedial action taken by the Agent or any Lender relating to any Hazardous
Materials or any breach of any Environmental Law.
3. Clause (A) of the defined term "Excluded Taxes" is deleted and replaced
with the following provision:
"(A) is imposed or assessed other than in respect of a Loan that was
made on the premise that an exemption from such withholding tax would
be available where the exemption is subsequently determined, or
alleged by a taxing authority, not to be available and"
4. Section 3.2(a) of the Provisions is amended by adding the following
sentence at the end thereof:
"Notwithstanding the foregoing provisions of this Section 3.2(a), no
Obligor shall be required to pay the additional amounts contemplated
in clause (i) above to any Lender who becomes a Lender by way of
assignment after the occurrence of a Default."
5. The first reference to "the Borrower" in each of Sections 3.3(a) and 3.3(b)
of the Provisions shall be interpreted as referring to "any Obligor" and
the references to "the Borrower" in Section 3.2(b), the first reference to
"the Borrower" in Section 3.2(c) and the reference to "the Borrower" in the
second paragraph of Section 10(d) of the Provisions shall be interpreted as
referring to "each Obligor".
6. Clause 5(iii)(y) of the Provisions is deleted and replaced with the
following:
"any reduction arising from an amount owing to an Obligor upon the
termination of any derivative entered into between the Obligor
-D2-
and such Lender except for a net amount available after the
termination of all derivatives entered into between the Obligors and
such Lender and the setoff of resulting amounts owing by the Obligors
and to the Obligors,"
7. References in the Provisions to participations by Lenders in respect of
Letters of Credit shall be interpreted as referring to the participations
and the obligations of Lenders to indemnify the Issuing Bank in accordance
with Section 5.20 of this Agreement.
8. Clause 10(b)(iii) of the Provisions is deleted and replaced with the
following:
"any assignment of a Commitment relating to a credit under which
Letters of Credit may be issued must be approved by the Issuing Bank
in its sole discretion"
9. Clause 10(b)(v) of the Provisions is deleted and replaced with the
following:
"(v) any assignment must be approved by the Borrower (such approval
not to be unreasonably withheld or delayed) unless the proposed
assignee is itself already a Lender with the same type of Commitment
or a Default has occurred and is continuing and, in the event approval
of the Borrower to any assignment is not required pursuant to this
Clause 10(b)(v), the Borrower shall be provided with notice of such
assignment, which notice shall indicate whether the assignee is a
Foreign Lender or is not a Foreign Lender, but the giving of notice is
not in any way a condition to the effectiveness of any such assignment
and the Administrative Agent's failure to give notice shall not impose
any liability on the Administrative Agent; and"
10. The following is added to the end of the defined term "Other Taxes":
", but, for greater certainty, does not include any Excluded Taxes."
11. The defined term "Control" in the Provisions is deleted. Such term shall
have the meaning set out in Section 1.1 of the Agreement.
MODEL CREDIT AGREEMENT PROVISIONS
1. Definitions
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means the credit agreement of which these Provisions form
part.
"Applicable Law" means (a) any domestic or foreign statute, law
(including common and civil law), treaty, code, ordinance, rule, regulation,
restriction or by-law (zoning or otherwise); (b) any judgement, order, writ,
injunction, decision, ruling, decree or award; (c) any regulatory policy,
practice, guideline or directive; or (d) any franchise, licence, qualification,
authorization, consent, exemption, waiver, right, permit or other approval of
any Governmental Authority, binding on or affecting the Person referred to in
the context in which the term is used or binding on or affecting the property of
such Person, in each case whether or not having the force of law.
"Applicable Percentage" means with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
the percentage of the total outstanding Loans and participations in respect of
Letters of Credit represented by such Lender's outstanding Loans and
participations in respect of Letters of Credit.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee and accepted by the Administrative
Agent, in substantially the form of Exhibit A or any other form approved by the
Administrative Agent.
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
Applicable Law, (b) any change in any Applicable Law or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any Applicable Law by any Governmental Authority.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have corresponding meanings.
"Default" means any event or condition that constitutes an Event of
Default or that would constitute an Event of Default except for satisfaction of
any condition subsequent required to make the event or condition an Event of
Default, including giving of any notice, passage of time, or both.
"Eligible Assignee" means any Person (other than a natural person, any
Obligor or any Affiliate of an Obligor), in respect of which any consent that is
required by Section 10(b) has been obtained.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of an Obligor hereunder, (a) taxes imposed on or
measured by its net income, and franchise taxes imposed on
-2-
it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes or any
similar tax imposed by any jurisdiction in which the Lender is located and (c)
in the case of a Foreign Lender (other than (i) an assignee pursuant to a
request by the Borrower under Section 3.3(b), (ii) an assignee pursuant to an
Assignment and Assumption made when an Event of Default has occurred and is
continuing or (iii) any other assignee to the extent that the Borrower has
expressly agreed that any withholding tax shall be an Indemnified Tax), any
withholding tax that (A) is not imposed or assessed in respect of a Loan that
was made on the premise that an exemption from such withholding tax would be
available where the exemption is subsequently determined, or alleged by a taxing
authority, not to be available and (B) is required by Applicable Law to be
withheld or paid in respect of any amount payable hereunder or under any Loan
Document to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new lending office) or is attributable to such Foreign
Lender's failure or inability (other than as a result of a Change in Law) to
comply with Section 3.2(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from an Obligor with
respect to such withholding tax pursuant to Section 3.2(a). For greater
certainty, for purposes of item (c) above, a withholding tax includes any Tax
that a Foreign Lender is required to pay pursuant to Part XIII of the Income Tax
Act (Canada) or any successor provision thereto.(1)
"Foreign Lender" means any Lender that is not organized under the laws
of the jurisdiction in which the Borrower is resident for tax purposes and that
is not otherwise considered or deemed in respect of any amount payable to it
hereunder or under any Loan Document to be resident for income tax or
withholding tax purposes in the jurisdiction in which the Borrower is resident
for tax purposes by application of the laws of that jurisdiction. For purposes
of this definition Canada and each Province and Territory thereof shall be
deemed to constitute a single jurisdiction and the United States of America,
each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Governmental Authority" means the government of Canada or any other
nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, including any
supra-national bodies such as the European Union or the European Central Bank
and including a Minister of the Crown, Superintendent of Financial Institutions
or other comparable authority or agency.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Issuing Bank" means the Person named elsewhere in this Agreement(2)
as the issuer of Letters of Credit on the basis that it is "fronting" for other
Lenders and not on the basis that it is the attorney of other Lenders to sign
Letters of Credit on their behalf, or any successor issuer of Letters of Credit.
For greater certainty, where the context requires, references to "Lenders" in
these Provisions include the Issuing Bank.
----------
(1) Please note that this definition of "Excluded Taxes" will result in Foreign
Lenders not being grossed up for withholding taxes that exist at the time
of execution and delivery of the Credit Agreement, except in the
circumstances specified. If a loan is intended to be exempt from
withholding tax as a "5/25" structure or otherwise, this premise should be
specified in the Credit Agreement.
(2) Ensure that the Credit Agreement identifies the Issuing Bank or indicates
that there is none.
-3-
"Loan" means any extension of credit by a Lender under this Agreement,
including by way of bankers' acceptance or LIBO Rate Loan, except for any Letter
of Credit or participation in a Letter of Credit.
"Obligors" means, collectively, the Borrower and each of the
guarantors of the Borrower's obligations that are identified elsewhere in this
Agreement.
"Other Taxes" means all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or under any other Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant" has the meaning assigned to such term in Section 10(d).
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Provisions" means these model credit agreement provisions.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
2. Terms Generally
(1) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein (including this Agreement) shall be construed as referring to
such agreement, instrument or other document as from time to time amended,
supplemented, restated or otherwise modified (subject to any restrictions on
such amendments, supplements, restatements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and permitted assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) unless
otherwise expressly stated, all references in these Provisions to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, these Provisions, but all such
references elsewhere in this Agreement shall be construed to refer to this
Agreement apart from these Provisions, (e) any reference to any law or
regulation herein shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time and (f) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(2) If there is any conflict or inconsistency between these Provisions and the
other terms of this Agreement, the other terms of this Agreement shall govern to
the extent necessary to resolve the conflict or inconsistency.
-4-
3. Yield Protection
3.1 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender;
(ii) subject any Lender to any Tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in
a Letter of Credit or any Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof, except for
Indemnified Taxes or Other Taxes covered by Section 3.2 and the
imposition, or any change in the rate, of any Excluded Tax payable by
such Lender; or
(iii) impose on any Lender or any applicable interbank market any
other condition, cost or expense affecting this Agreement or Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Loan (or of maintaining its obligation to
make any such Loan), or to increase the cost to such Lender or the Issuing Bank
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or any other amount),
then upon request of such Lender the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in
Law affecting such Lender or any lending office of such Lender or such Lender's
holding company, if any, regarding capital requirements 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,
the Commitments of such Lender or the Loans made by, or the Letters of Credit
issued or participated in by such Lender, to a level below that which such
Lender or its holding company could have achieved but for such Change in Law
(taking into consideration such Lender's policies and the policies of its
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or its holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section, including reasonable detail of the basis of calculation of the amount
or amounts, and delivered to the Borrower shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation, except that the Borrower shall
not be required to compensate a Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefore, unless the Change in Law giving rise to such increased
costs or reductions is retroactive, in which case the nine-month period referred
to above shall be extended to include the period of retroactive effect thereof.
-5-
3.2 Taxes.
(a) Payments Subject to Taxes. If any Obligor, the Administrative
Agent, or any Lender is required by Applicable Law to deduct or pay any
Indemnified Taxes (including any Other Taxes) in respect of any payment by or on
account of any obligation of an Obligor hereunder or under any other Loan
Document, then (i) the sum payable shall be increased by that Obligor when
payable as necessary so that after making or allowing for all required
deductions and payments (including deductions and payments applicable to
additional sums payable under this Section) the Administrative Agent or Lender,
as the case may be, receives an amount equal to the sum it would have received
had no such deductions or payments been required, (ii) the Obligor shall make
any such deductions required to be made by it under Applicable Law and (iii) the
Obligor shall timely pay the full amount required to be deducted to the relevant
Governmental Authority in accordance with Applicable Law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes
to the relevant Governmental Authority in accordance with Applicable Law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and each Lender, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent or such Lender and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by an Obligor to a Governmental Authority, the
Obligor shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall, at the request of the Borrower, deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
Applicable Law or reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation prescribed by
Applicable Law as will permit such payments to be made without withholding or at
a reduced rate of withholding. In addition, (a) any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to withholding or information
reporting requirements, and (b) any Lender that ceases to be, or to be deemed to
be, resident in Canada for purposes of Part XIII of the Income Tax Act (Canada)
or any successor provision thereto shall within five days thereof notify the
Borrower and the Administrative Agent in writing.
(f) Treatment of Certain Refunds and Tax Reductions. If the
Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which an Obligor has paid
additional amounts pursuant to this Section or that, because of the payment of
such Taxes or Other Taxes, it has benefited from a reduction in Excluded Taxes
otherwise payable by it, it shall pay to the Borrower or Obligor, as applicable,
an amount equal to such refund or reduction (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower or Obligor under this
Section with respect to the Taxes or Other Taxes giving rise to such refund or
reduction), net of all out-of-pocket expenses of the
-6-
Administrative Agent or such Lender, as the case may be, and without interest
(other than any net after-Tax interest paid by the relevant Governmental
Authority with respect to such refund). The Borrower or Obligor as applicable,
upon the request of the Administrative Agent or such Lender, agrees to repay the
amount paid over to the Borrower or Obligor (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender if the Administrative Agent or such Lender
is required to repay such refund or reduction to such Governmental Authority.
This paragraph shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower or any other Person, to
arrange its affairs in any particular manner or to claim any available refund or
reduction.
3.3 Mitigation Obligations: Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.1, or requires the Borrower to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.2, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.1
or 3.2, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders.(3) If any Lender requests compensation
under Section 3.1, if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.2, if any Lender's obligations are suspended pursuant to Section
3.4 or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon 10 days' notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 10), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(i) the Borrower pays the Administrative Agent the assignment fee
specified in Section 10(b)(vi);
(ii) the assigning Lender receives payment of an amount equal to
the outstanding principal of its Loans and participations in
disbursements under Letters of Credit, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under
the other Loan Documents (including any breakage costs and amounts
required to be paid under this Agreement as a result of prepayment to
a Lender) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case
of all other amounts);
(iii) in the case of any such assignment resulting from a claim
for compensation under Section 3.1 or payments required to be made
pursuant to Section 3.2, such assignment will result in a reduction in
such compensation or payments thereafter; and
(iv) such assignment does not conflict with Applicable Law.
----------
(3) Please note that the Breakfunding section in the Credit Agreement should
expressly include any amounts payable as a result of an assignment required
by this Section.
-7-
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
3.4 Illegality.
If any Lender determines that any Applicable Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make or maintain any Loan (or to maintain its
obligation to make any Loan), or to participate in, issue or maintain any Letter
of Credit (or to maintain its obligation to participate in or to issue any
Letter of Credit), or to determine or charge interest rates based upon any
particular rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender with respect to the
activity that is unlawful shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if conversion would avoid the activity that is unlawful, convert any Loans,
or take any necessary steps with respect to any Letter of Credit in order to
avoid the activity that is unlawful. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation
will avoid the need for such notice and will not, in the good faith judgment of
such Lender, otherwise be materially disadvantageous to such Lender.
3.5 Inability to Determine Rates Etc.
If the Required Lenders determine that for any reason a market for bankers'
acceptances does not exist at any time or the Lenders cannot for other reasons,
after reasonable efforts, readily sell bankers' acceptances or perform their
other obligations under this Agreement with respect to bankers' acceptances, the
Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the Borrower's right to request the acceptance of bankers'
acceptances shall be and remain suspended until the Required Lenders determine
and the Agent notifies the Borrower and each Lender that the condition causing
such determination no longer exists. If the Required Lenders determine that for
any reason adequate and reasonable means do not exist for determining the LIBO
Rate for any requested Interest Period with respect to a proposed LIBO Rate
Loan, or that the LIBO Rate for any requested Interest Period with respect to a
proposed LIBO Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Administrative Agent will promptly so notify
the Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain LIBO Rate Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon receipt
of such notice, the Borrower may revoke any pending request for a borrowing,
conversion or continuation of LIBO Rate Loans or, failing that, will be deemed
to have converted such request into a request for a borrowing of Base Rate Loans
in the amount specified therein.
4. Right of Setoff.
If an Event of Default has occurred and is continuing, each of the Lenders and
each of their respective Affiliates is hereby authorized at any time and from
time to time to set off and apply any and all deposits (general or special, time
or demand, provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such Lender or any
such Affiliate to or for the credit or the account of any Obligor against any
and all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender, irrespective of whether or
not such Lender has made any demand under this Agreement or any other Loan
Document and although such obligations of the Obligor may be contingent or
unmatured or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each the Lenders and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff,
consolidation of accounts and bankers' lien) that the Lenders or their
respective Affiliates may have. Each Lender agrees to promptly notify the
Borrower and the Administrative Agent after any such setoff and application, but
the failure to give such notice shall not
-8-
affect the validity of such setoff and application. If any Affiliate of a Lender
exercises any rights under this Section 4, it shall share the benefit received
in accordance with Section 5 as if the benefit had been received by the Lender
of which it is an Affiliate.
5. Sharing of Payments by Lenders.
If any Lender, by exercising any right of setoff or counterclaim or otherwise,
obtains any payment or other reduction that might result in such Lender
receiving payment or other reduction of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other obligations hereunder greater
than its pro rata share thereof as provided herein, then the Lender receiving
such payment or other reduction shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the Loans
and such other obligations of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared
by the Lenders rateably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans and other amounts owing them,
provided that
(i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest,
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by any Obligor pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participations in disbursements
under Letters of Credit to any assignee or participant, other than to
any Obligor or any Affiliate of an Obligor (as to which the provisions
of this Section shall apply); and
(iii) the provisions of this Section shall not be construed to
apply to (w) any payment made while no Event of Default has occurred
and is continuing in respect of obligations of the Borrower to such
Lender that do not arise under or in connection with the Loan
Documents, (x) any payment made in respect of an obligation that is
secured by a Permitted Lien or that is otherwise entitled to priority
over the Borrower's obligations under or in connection with the Loan
Documents, (y) any reduction arising from an amount owing to an
Obligor upon the termination of derivatives entered into between the
Obligor and such Lender(4), or (z) any payment to which such Lender is
entitled as a result of any form of credit protection obtained by such
Lender.
The Obligors consent to the foregoing and agree, to the extent they may
effectively do so under Applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against each
Obligor rights of setoff and counterclaim and similar rights of Lenders with
respect to such participation as fully as if such Lender were a direct creditor
of each Obligor in the amount of such participation.
6. Administrative Agent's Clawback
(a) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any advance of funds that such Lender will not make available
to the Administrative Agent such Lender's share of such
----------
(4) Those preparing Credit Agreements should consider whether this exclusion of
proceeds of derivatives is appropriate in the particular circumstances of
the Credit Agreement. It may be appropriate to provide for sharing of, for
example, any net amount available after the termination of all derivatives
entered into between the Obligors and a Lender and the setoff of resulting
amounts owing by the Obligors and to the Obligors if there is more than one
such derivative.
-9-
advance, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with the provisions of this Agreement
concerning funding by Lenders and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable advance available to the
Administrative Agent, then the applicable Lender shall pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at a
rate determined by the Administrative Agent in accordance with prevailing
banking industry practice on interbank compensation. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such advance. If the Lender does not do so forthwith,
the Borrower shall pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon at the interest rate applicable to
the advance in question. Any payment by the Borrower shall be without prejudice
to any claim the Borrower may have against a Lender that has failed to make such
payment to the Administrative Agent.
(b) Payments by Borrower; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of any Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute the amount due to the Lenders. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at a rate determined by the Administrative Agent in
accordance with prevailing banking industry practice on interbank compensation.
7. Agency.
7.1 Appointment and Authority. Each of the Lenders and the Issuing Bank hereby
irrevocably appoints the Person identified elsewhere in this Agreement as the
Administrative Agent(5) to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the Issuing Bank, and no Obligor shall have rights as a
third party beneficiary of any of such provisions.
7.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent
and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of
business with any Obligor or any Affiliate thereof as if such Person were not
the Administrative Agent and without any duty to account to the Lenders.
----------
(5) Ensure that the Credit Agreement identifies the Administrative Agent for
the purpose of this reference.
-10-
7.3 Exculpatory Provisions.
(1) The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents.(6) Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for in the Loan Documents), but the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or Applicable Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the person serving as the
Administrative Agent or any of its Affiliates in any capacity.
(2) The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as is necessary, or as the
Administrative Agent believes in good faith is necessary, under the provisions
of the Loan Documents) or (ii) in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing the Default is given
to the Administrative Agent by the Borrower or a Lender.
(3) Except as otherwise expressly specified in this Agreement, the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
specified in this Agreement, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
7.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must
be fulfilled to the satisfaction of a Lender or the Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Bank unless the Administrative Agent shall have received
notice to the contrary from such Lender or the Issuing Bank prior to the making
of such Loan or the issuance of such Letter of Credit. The Administrative Agent
may consult with legal counsel (who may be counsel for the Borrower),
independent
----------
(6) It is anticipated that the Credit Agreement will require the Borrower to be
responsible for compliance with all requirements to maintain perfection of
security.
-11-
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
7.5 Indemnification of Administrative Agent. Each Lender agrees to indemnify the
Administrative Agent and hold it harmless (to the extent not reimbursed by the
Borrower), rateably according to its Applicable Percentage (and not jointly or
jointly and severally) from and against any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel, which may be incurred by or asserted against the Administrative
Agent in any way relating to or arising out of the Loan Documents or the
transactions therein contemplated. However, no Lender shall be liable for any
portion of such losses, claims, damages, liabilities and related expenses
resulting from the Administrative Agent's gross negligence or wilful misconduct.
7.6 Delegation of Duties. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent from among the Lenders (including the Person serving as
Administrative Agent) and their respective Affiliates. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The provisions
of this Article and other provisions of this Agreement for the benefit of the
Administrative Agent shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
7.7 Replacement of Administrative Agent.
(1) The Administrative Agent may at any time give notice of its resignation to
the Lenders, the Issuing Bank and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a Lender having a
Commitment to a revolving credit if one or more is established in this Agreement
and having an office in Toronto, Ontario or Montreal, Quebec, or an Affiliate of
any such Lender with an office in Toronto or Montreal. The Administrative Agent
may also be removed at any time by the Required Lenders upon 30 days' notice to
the Administrative Agent and the Borrower as long as the Required Lenders, in
consultation with the Borrower, appoint and obtain the acceptance of a successor
within such 30 days, which shall be a Lender having a Commitment to a revolving
credit if one or more is established in this Agreement and having an office in
Toronto or Montreal, or an Affiliate of any such Lender with an office in
Toronto or Montreal.
(2) If no such successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders, appoint a successor
Administrative Agent meeting the qualifications specified in Section 7.7(1),
provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in the preceding paragraph.
(3) Upon a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the former Administrative Agent, and the former
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided in the preceding paragraph). The fees payable by the Borrower to a
successor Administrative
-12-
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the termination of the
service of the former Administrative Agent, the provisions of this Section 7 and
of Section 9 shall continue in effect for the benefit of such former
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
former Administrative Agent was acting as Administrative Agent.
7.8 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the
Issuing Bank acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
the Issuing Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
7.9 Collective Action of the Lenders. Each of the Lenders hereby acknowledges
that to the extent permitted by Applicable Law, any collateral security and the
remedies provided under the Loan Documents to the Lenders are for the benefit of
the Lenders collectively and acting together and not severally and further
acknowledges that its rights hereunder and under any collateral security are to
be exercised not severally, but by the Administrative Agent upon the decision of
the Required Lenders (or such other number or percentage of the Lenders as shall
be expressly provided for in the Loan Documents). Accordingly, notwithstanding
any of the provisions contained herein or in any collateral security, each of
the Lenders hereby covenants and agrees that it shall not be entitled to take
any action hereunder or thereunder including, without limitation, any
declaration of default hereunder or thereunder but that any such action shall be
taken only by the Administrative Agent with the prior written agreement of the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for in the Loan Documents). Each of the Lenders hereby
further covenants and agrees that upon any such written agreement being given,
it shall co-operate fully with the Administrative Agent to the extent requested
by the Administrative Agent. Notwithstanding the foregoing, in the absence of
instructions from the Lenders and where in the sole opinion of the
Administrative Agent, acting reasonably and in good faith, the exigencies of the
situation warrant such action, the Administrative Agent may without notice to or
consent of the Lenders take such action on behalf of the Lenders as it deems
appropriate or desirable in the interest of the Lenders.
7.10 No Other Duties. etc. Anything herein to the contrary notwithstanding, none
of the Bookrunners, Arrangers or holders of similar titles, if any, specified in
this Agreement shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent or a Lender hereunder.
8. Notices: Effectiveness; Electronic Communication
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except
as-provided in paragraph (b) below), all 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
telecopier to the addresses or telecopier numbers specified elsewhere in this
Agreement(7) or, if to a Lender, to it at its address or telecopier number
specified in the Register or, if to an Obligor other than the Borrower, in care
of the Borrower.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been
----------
(7) Ensure that the Credit Agreement contains the contact information referred
to.
-13-
given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given on a business day between 9:00 a.m.
and 5:00 p.m. local time where the recipient is located, shall be deemed to have
been given at 9:00 a.m. on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in paragraph
(b) below, shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent,(8) provided that
the foregoing shall not apply to notices to any Lender of Loans to be made or
Letters of Credit to be issued if such Lender has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address. Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto.
9. Expenses; Indemnity: Damage Waiver(9)
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
Issuing Bank, including the reasonable fees, charges and disbursements of
counsel, in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the Issuing
Bank, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses,
----------
(8) Administrative Agents may wish to prescribe procedures for electronic
communications and to disseminate those procedures to Lenders.
(9) A reference to this Section should be included in the Survival Section, if
any, of the Credit Agreement
-14-
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by any Obligor arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance or
non-performance by the parties hereto of their respective obligations hereunder
or thereunder or the consummation or non-consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by any Obligor, or
any Environmental Liability related in any way to any Obligor, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by an Obligor and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Obligor against an Indemnitee for breach in
bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Obligor has obtained a final and nonappealable judgment in its
favour on such claim as determined by a court of competent jurisdiction, nor
shall it be available in respect of matters specifically addressed in Sections
3.1, 3.2 and 9(a).
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under paragraph (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the Issuing Bank or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Bank or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Bank in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or Issuing Bank in
connection with such capacity. The obligations of the Lenders under this
paragraph (c) are subject to the other provisions of this Agreement concerning
several liability of the Lenders.
(d) Waiver of Consequential Damages. Etc. To the fullest extent
permitted by Applicable Law, the Obligors shall not assert, and hereby waive,
any claim against any Indemnitee, on any theory of liability, for indirect,
consequential, punitive, aggravated or exemplary damages (as opposed to direct
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby (or
any breach thereof), the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable
promptly after demand therefor. A certificate of the Administrative Agent or a
Lender setting forth the amount or amounts owing to the Administrative Agent,
Lender or a sub-agent or Related Party, as the case may be, as specified in this
Section, including reasonable detail of the basis of calculation of the amount
or amounts, and delivered to the Borrower shall be conclusive absent manifest
error.
10. Successors and Assigns
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns
-15-
permitted hereby, except that no Obligor may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (d)
of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that:
(i) except if an Event of Default has occurred and is continuing
or in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund with respect to a Lender, the aggregate amount of
the Commitment being assigned (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loan of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified
in the Assignment and Assumption, as of the Trade Date) shall not be
less than $5,000,000, in the case of any assignment in respect of a
revolving facility, or $1,000,000, in the case of any assignment in
respect of a term facility, unless each of the Administrative Agent
and, so long as no Default has occurred and is continuing, the
Borrower otherwise consent to a lower amount (each such consent not to
be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit
any Lender from assigning all or a portion of its rights and
obligations among separate credits on a non-pro rata basis;
(iii) any assignment of a Commitment relating to a credit under
which Letters of Credit may be issued must be approved by any Issuing
Bank (such approval not to be unreasonably withheld or delayed) unless
the Person that is the proposed assignee is itself already a Lender
with a Commitment under that credit;
(iv) any assignment must be approved by the Administrative Agent
(such approval not to be unreasonably withheld or delayed) unless:
(x) in the case of an assignment of a Commitment relating to
a revolving credit, the proposed assignee is itself already a
Lender with the same type of Commitment,
(y) no Event of Default has occurred and is continuing, and
the assignment is of a Commitment relating to a non-revolving
credit that is fully advanced, or
-16-
(z) the proposed assignee is a bank whose senior, unsecured,
non-credit enhanced, long term debt is rated at least A3, A- or A
low by at least two of Xxxxx'x Investor Services Inc., Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. and
Dominion Bond Rating Service Limited, respectively;
(v) any assignment must be approved by the Borrower (such
approval not to be unreasonably withheld or delayed) unless the
proposed assignee is itself already a Lender with the same type of
Commitment or a Default has occurred and is continuing; and
(vi) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in an amount specified elsewhere in
this Agreement(10) and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement and the other Loan Documents, including any collateral security,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3 and 9, and shall continue to be liable for any breach
of this Agreement by such Lender, with respect to facts and circumstances
occurring prior to the effective date of such assignment. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (d) of this Section. Any payment by an assignee to an
assigning Lender in connection with an assignment or transfer shall not be or be
deemed to be a repayment by the Borrower or a new Loan to the Borrower.
(c) Register. The Administrative Agent shall maintain at one of its
offices in Toronto, Ontario or Montreal, Quebec a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person, an Obligor or any Affiliate of an
Obligor(11)) (each, a "Participant") in all or a portion of such Lender's rights
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal
----------
(10) Ensure that the Credit Agreement specifies the amount of this fee.
(11) Consideration should be given to the percentage of Lenders required to
permit the sale of a participation to an Obligor or any Affiliate or
Subsidiary of an Obligor.
-17-
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any payment by a Participant to a Lender in
connection with a sale of a participation shall not be or be deemed to be a
repayment by the Borrower or a new Loan to the Borrower.
Subject to paragraph (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Section 3 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 4 as though it
were a Lender, provided such Participant agrees to be subject to Section 5 as
though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.1 and 3.2 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.2 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.2(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, but no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
11. Governing Law: Jurisdiction: Etc.
(a) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Province specified elsewhere in this
Agreement(12) and the laws of Canada applicable in that Province.
(b) Submission to Jurisdiction. Each Obligor irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the Province specified elsewhere in this
Agreement, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or in
any other Loan Document shall affect any right that the Administrative Agent or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Obligor or its properties in
the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor irrevocably and unconditionally
waives, to the fullest extent permitted by Applicable Law, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by Applicable Law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
12. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
----------
(12) Ensure that the Credit Agreement identifies the Province referred to here
and in paragraph (b) immediately below.
-18-
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
13. Counterparts: Integration: Effectiveness: Electronic Execution
(a) Counterparts: Integration: Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in the conditions precedent Section(s) of this
Agreement, this Agreement shall become effective when it has been executed by
the Administrative Agent and when the Administrative Agent has received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy or by sending a scanned copy by electronic
mail shall be effective as delivery of a manually executed counterpart of this
Agreement.
(b) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any Applicable Law, including Parts 2 and 3 of the Personal Information
Protection and Electronic Documents Act (Canada), the Electronic Commerce Act,
2000 (Ontario) and other similar federal or provincial laws based on the Uniform
Electronic Commerce Act of the Uniform Law Conference of Canada or its Uniform
Electronic Evidence Act, as the case may be.
14. Treatment of Certain Information: Confidentiality
(1) Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to it, its Affiliates and its and its Affiliates'
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority), (c) to the extent required by Applicable Laws or
regulations or by any subpoena or similar legal process, (d) to any other party
hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap, derivative, credit-linked note or similar transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent or any Lender on a non-confidential basis from a source
other than an Obligor.
-19-
(2) For purposes of this Section, "Information" means all information received
in connection with this Agreement from any Obligor relating to any Obligor or
any of its Subsidiaries or any of their respective businesses, other than any
such information that is available to the Administrative Agent or any Lender on
a non-confidential basis prior to such receipt. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. In
addition, the Administrative Agent may disclose to any agency or organization
that assigns standard identification numbers to loan facilities such basic
information describing the facilities provided hereunder as is necessary to
assign unique identifiers (and, if requested, supply a copy of this Agreement),
it being understood that the Person to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to make
available to the public only such Information as such person normally makes
available in the course of its business of assigning identification numbers
(3) In addition, and notwithstanding anything herein to the contrary, the
Administrative Agent may provide the information described on Exhibit B
concerning the Borrower and the credit facilities established herein to Loan
Pricing Corporation and/or other recognized trade publishers of information for
general circulation in the loan market.
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the
extent permitted to be assigned under Applicable Law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan-transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ___________________________________________________________
2. Assignee: ___________________________________________________________
[and is an Affiliate/Approved Fund of [identify Lender](1)]
3. Borrower(s): ___________________________________________________________
4. Administrative Agent: _______________, as the administrative agent under
the Credit Agreement
5. Credit Agreement: [The [amount] Credit Agreement dated as of
_________________ among [name of Borrower(s)], the Lenders parties thereto,
[name of Administrative Agent], as Administrative Agent, and the other
agents parties thereto]
----------
(1) Select as applicable.
-2-
6. Assigned Interest:
Aggregate Amount of Amount of
Commitment/Loans for Commitment/Loans Percentage Assigned of
Facility Assigned(2) all Lenders(3) Assigned(3) Commitment/Loans(4) CUSIP Number
-------------------- -------------------- ---------------- ---------------------- ------------
$ $ %
$ $ %
$ $ %
[7. Trade Date: ____________________________________](5)
----------
(2) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Loan Commitment," etc.)
(3) Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
(4) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(5) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
-3-
Effective Date: ___________, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
[Consented to and](6) Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By:
---------------------------------
Title:
------------------------------
[Consented to:](7)
[NAME OF RELEVANT PARTY]
By:
---------------------------------
Title:
------------------------------
----------
(6) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(7) To be added only if the consent of the Borrower and/or other parties (e.g.
Swingline Lender, L/C Issuer) is required by the terms of the Credit
Agreement.
ANNEX 1 to Assignment and Assumption
[_______________________](1)
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document(2), (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section ___ thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender(3),
attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
----------
(1) Describe Credit Agreement at option of Administrative Agent.
(2) The term "Loan Document" should be conformed to the term used in the Credit
Agreement.
(3) The concept of "Foreign Lender" should be conformed to the section in the
Credit Agreement governing withholding taxes and gross-up.
-2-
2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to, on or after the Effective Date. The Assignor and
the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns. This Assignment and Assumption may be executed in any number
of counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by
telecopy or by sending a scanned copy by electronic mail shall be effective as
delivery of a manually executed counterpart of this Assignment and Assumption.
This Assignment and Assumption shall be governed by, and construed in accordance
with, the law governing the Credit Agreement.
EXHIBIT B
LOAN MARKET DATA TEMPLATE
RECOMMENDED DATA FIELDS - AT CLOSE
The items highlighted in bold are those that Loan Pricing Corporation (LPC) deem
essential. The remaining items are those that LPC has seen become more prominent
over time as transparency has increased in the U.S. Loan Market.
COMPANY LEVEL DEAL SPECIFIC FACILITY SPECIFIC
------------- ------------- -----------------
ISSUER NAME CURRENCY/AMOUNT CURRENCY/AMOUNT
LOCATION DATE TYPE
SIC (CDN) PURPOSE PURPOSE
Identification Number(s) SPONSOR TENOR
REVENUE FINANCIAL COVENANTS Term Out Option
EXPIRATION DATE
Target Company FACILITY SIGNING DATE
*MEASUREMENT OF RISK ASSIGNMENT LANGUAGE PRICING
S&P SR. DEBT Law Firms BASE RATE(S)/SPREAD(S)/BAILIBOR
S&P ISSUER MAC Clause INITIAL PRICING LEVEL
XXXXX'X SR. DEBT Springing lien PRICING GRID (TIED TO, LEVELS)
XXXXX'X ISSUER Cash Dominion GRID EFFECTIVE DATE
FITCH SR. DEBT Mandatory Prepays FEES
FITCH ISSUER Restrct'd Payments (Neg Covs) PARTICIPATION FEE (TIERED ALSO)
S&P Implied
(internal assessment) Other Restrictions COMMITMENT FEE
DBRS
Other Ratings ANNUAL FEE
*Industry Classification UTILIZATION FEE
Xxxxx'x Industry LC FEE(S)
S&P Industry BA FEE
Parent Prepayment Fee
Financial Ratios Other Fees to Market
Security
SECURED/UNSECURED
Collateral and Seniority of Claim
Collateral Value
GUARANTORS
LENDERS NAMES/TITLES
LENDER COMMITMENT ($)
Commited/Uncommited
Distribution method
AMORTIZATION SCHEDULE
Borrowing Base/Advance Rates
New Money Amount
COUNTRY OF SYNDICATION
Facility Rating (Loss given default)
S&P BANK LOAN
XXXXX'X BANK LOAN
FITCH BANK LOAN
DBRS
OTHER RATINGS
* These items would be considered useful to capture from an analytical
perspective
SCHEDULE E
APPLICABLE PERCENTAGES OF LENDERS
[see references in Section 1.1]
LENDER COMMITMENT APPLICABLE PERCENTAGE
------ ---------- ---------------------
The Bank of Nova Scotia Cdn. $40,000,000 100%
SCHEDULE F
DETAILS OF CAPITAL STOCK, PROPERTY, ETC.
[see references in Sections 6.1(4)(a)]
ANIXTER CANADA INC.
OWNERSHIP OF ENTITY'S CAPITAL STOCK OWNED BY HEAD OFFICE (AND CHIEF EXECUTIVE
CAPITAL STOCK ENTITY IN OTHER PERSONS OFFICE, IF DIFFERENT)
--------------------- ----------------------- --------------------------------
Anixter Eurofin B.V. WireXpress Ltd. 000 Xxxxxx Xxxxxxxx
(100%) (100%) Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
SCHEDULE G
OTHER SECURED OBLIGATIONS
[see reference in Section 3.2]
1. All future Swap Transactions with the Borrower to which Scotia Capital or
its Affiliate is a party (whether entered into directly or as a result of
an assignment or otherwise), to the extent Scotia Capital was a Lender at
the time the Swap Transaction was entered into by or assigned to Scotia
Capital or Affiliate.
2. Cash consolidation, cash management and electronic funds transfer
arrangements between an Obligor and Scotia Capital or an Affiliate of the
Agent.
SCHEDULE H
ORGANIZATIONAL STRUCTURE
[see references in Sections 1.1 and 6.1(4)(i)]
ATTACHED
ANIXTER INTERNATIONAL INC.
LIST OF SUBSIDIARIES - OCTOBER 2005
JURISDICTION
COMPANY NAME OF INCORPORATION
------------ ----------------
Anixter Inc. Delaware
Accu-Tech Corporation Georgia
Accu-Tech Enterprises, Inc. (formerly Xxxxxxx Electronics, Inc.) Xxxxxxx
Xxxxxxx Australia Pty. Ltd. Australia
ALLNET Technologies Pty. Ltd. Australia
Anixter Cables y Manufacturas, S.A. de C.V. Mexico
Anixter Chile S.A. Chile
Anixter Colombia S.A. Colombia
Anixter Costa Rica X.X. Xxxxx Rica
Anixter de Mexico, S.A. de C.V. Mexico
Anixter Logistica y Servicios (ALS) Mexico
Anixter do Brazil Ltda. Brazil
Anixter Dominicana, S.A. (formerly AIS, S.A.) Dominican Republic
Anixter Financial Inc. Delaware
Anixter Communications (Malaysia) Sdn Bhd Malaysia
Anixter India Private Limited India
Anixter Singapore Pte Ltd. Singapore
Anixter Hong Kong Limited Hong Kong
Anixter International Trading (Qingdao) Company Ltd China
Anixter Trading (Shanghai) Company Limited China
Anixter Thailand Inc. Delaware
Anixter Holdings, Inc. Delaware
Anixter Argentina S.A. Argentina
Anixter AEH Holdings Inc. Delaware
B.E.L. Corporation Delaware
Anixter Eurotwo Holdings B.V. Netherlands
Anixter Austria GmbH Austria
Anixter Czech Republic - Czech Republic
Branch of Anixter
Austria GmbH
Anixter Danmark A.S. Denmark
Anixter Deutschland GmbH Germany
Anixter Hungary Ltd. Hungary
Anixter Iletsim Sistemleri Pazarlama ve Ticaret A.S. Turkey
Anixter Network Systems Greece L.L.C. Greece
Anixter Norge A.N.S. Norway
Anixter Poland Sp.z.o.o. Poland
Anixter Portugal S.A. Portugal
Anixter Sverige AB Sweden
Anixter Eurofin B.V. Netherlands
Anixter Canada Inc. Canada
WireXpress Ltd. Canada
Anixter Eurinvest B.V. Netherlands
Anixter Belgium B.V.B.A. Belgium
Anixter Espana S.L. Spain
Anixter France SARL France
-H2-
JURISDICTION
COMPANY NAME OF INCORPORATION
------------ ----------------
Anixter International B.V.B.A. Belgium
Anixter International Ltd. United Kingdom
Eagerport Limited United Kingdom
Infast Group plc United Kingdom
Xxxxx XxxXxxxxx Inc. Delaware
Nim-Cor Holdings Inc. Delaware
Xxxxx Products Inc. New Hampshire
Infast USA, Inc. (formerly Fabricated Delaware
Components Inc.)
Ducost Ltd. United Kingdom
HMH Pension Trustees Ltd. United Kingdom
ISI GmbH Germany
Plant Construction GmbH Germany
Xxxxx XxxXxxxxx Inv. Ltd. United Kingdom
Xxxxx Spain Spain
Xxxxx Drysys Tech Services Ltd. United Kingdom
Fawndeck Ltd. United Kingdom
Earlydress Limited United Kingdom
Pastspeed Limited United Kingdom
Xxxxxx & McNaught Limited United Kingdom
HMH Fasteners Ltd. United Kingdom
HMH Infast plc United Kingdom
MB Fastener Co. Ltd. United Kingdom
Ohta-Philidas Ltd. United Kingdom
Centrepiece Engineering Ltd. United Kingdom
Centrepiece Distributors Ltd. United Kingdom
AW2 Ltd. United Kingdom
AW (B&N) Ltd. United Kingdom
H Frankish Ltd. United Kingdom
Stainless Fasteners Ltd. United Kingdom
Everbright Fasteners Ltd. United Kingdom
Infast Automotive Ltd. United Kingdom
Automotive Fastener Solutions Ltd. United Kingdom
Industrial Fasteners Ltd. United Kingdom
Infast Manufacturing Ltd. United Kingdom
Budget Fasteners Ltd. United Kingdom
Infast Ltd. (formerly Peterborough United Kingdom
Nuts & Bolts Ltd.)
Infast Subsidiary No. 2 Ltd. United Kingdom
Xxxx Screw Ltd. United Kingdom
Sandiacre Screw Ltd. United Kingdom
Industrial Fastener Supplies Ltd. United Kingdom
IFS Distributors Limited United Kingdom
IFS (Stainless) Limited United Kingdom
Adesco Limited United Kingdom
IP (Pontefract) Ltd. United Kingdom
Fastnaparts Limited United Kingdom
GKS (UK) Limited United Kingdom
GKS Centrepiece Ltd. United Kingdom
Anixter Power & Construction Ltd. United Kingdom
-H3-
JURISDICTION
COMPANY NAME OF INCORPORATION
------------ ----------------
Anixter Holdings Limited United Kingdom
Anixter Limited United Kingdom
Anixter Distribution Ireland Ltd. Ireland
Anixter (U.K.) Ltd. (Dubai UAE Branch) United Kingdom
Heyco Limited United Kingdom
Plastic Screws Limited United Kingdom
Plastic Seals Limited United Kingdom
Xxxx Fasteners Limited United Kingdom
Xxxxxxx Fasteners Limited United Kingdom
Heyco Technologies Limited United Kingdom
NedHex Ltd. United Kingdom
Anixter Italia S.r.l. Italy
Anixter Logistics, Europe B.V.B.A. Belgium
Anixter Nederland B.V. Netherlands
Anixter Switzerland Sarl Switzerland
Anixter Finance Ltd. United Kingdom
Anixter (CIS) L.L.C. (Russia) Russia
Anixter Information Systems Corporation Illinois
Anixter Korea Limited Korea
Anixter New Zealand Limited New Zealand
Anixter Peru, S.A.C. Peru
Anixter Philippines Inc. Delaware
Anixter Procurement Corporation Illinois
Anixter Puerto Rico, Inc. Delaware
Anixter-Real Estate Inc. Illinois
Anixter Receivables Corporation Delaware
Anixter Venezuela Inc. Delaware
GL Holding of Delaware, Inc. Delaware
Itel Corporation Delaware
Itel Container Ventures Inc. Delaware
ICV GP Inc. Delaware
Itel Rail Holdings Corporation Delaware
Fox River Valley Railroad Corporation Wisconsin
Green Bay & Western Railroad Company Wisconsin
Michigan & Western Railroad Company Michigan
Xxx Railways, Inc. New Jersey
Signal Capital Corporation Delaware
Richdale, Ltd. Delaware
Signal Capital Projects, Inc. Delaware
Railcar Services Corporation Delaware
SCHEDULE I
EXISTING SCOTIA L/CS
[see references in Section 1.1.75]
BENEFICIARY APPLICANT L/C NUMBER DATE OF ISSUE FACE AMOUNT EXPIRY DATE
----------- --------- ------------ ------------- ------------ ------------
Revenue Canada Customs Excise Borrower G18572/79787 22 June 1994 Cdn. $60,000 22 June 2006
and Taxation
