EXHIBIT 4.3(a)
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FIVE-YEAR
REVOLVING CREDIT AGREEMENT
Dated as of October 6, 2000
among
ANIXTER INC.
and
THE BORROWING SUBSIDIARIES
FROM TIME TO TIME
PARTIES HERETO
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent,
THE BANK OF NOVA SCOTIA,
as Documentation Agent,
CREDIT LYONNAIS CHICAGO BRANCH and
SUNTRUST BANK,
as Managing Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................... 1
1.01 Defined Terms................................................................................. 1
1.02 Other Interpretive Provisions................................................................. 23
1.03 Accounting Terms.............................................................................. 24
1.04 Rounding...................................................................................... 24
1.05 References to Agreements and Laws............................................................. 24
1.06 Euro.......................................................................................... 24
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS..................................................... 25
2.01 Committed Loans............................................................................... 25
2.02 Borrowings, Conversions and Continuations of Committed Loans.................................. 25
2.03 Bid Loans..................................................................................... 26
2.04 Foreign Currency Loan Commitment.............................................................. 29
2.05 Procedure for Foreign Currency Borrowings..................................................... 29
2.06 Participations in Foreign Currency Loans...................................................... 30
2.07 Prepayments................................................................................... 32
2.08 Reduction or Termination of Commitments....................................................... 32
2.09 Repayment of Loans............................................................................ 33
2.10 Interest...................................................................................... 33
2.11 Fees.......................................................................................... 33
2.12 Computation of Interest and Fees.............................................................. 34
2.13 Evidence of Debt.............................................................................. 34
2.14 Payments Generally............................................................................ 35
2.15 Sharing of Payments........................................................................... 37
2.16 Borrowing Subsidiaries........................................................................ 37
2.17 Currency Exchange Fluctuations................................................................ 38
2.18 Participation Obligations Unconditional....................................................... 38
ARTICLE III YIELD PROTECTION AND ILLEGALITY........................................................... 39
3.01 Taxes......................................................................................... 39
3.02 Illegality.................................................................................... 40
3.03 Inability to Determine Rates.................................................................. 40
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3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans...... 41
3.05 Funding Losses................................................................................ 42
3.06 Matters Applicable to all Requests for Compensation........................................... 42
3.07 Survival...................................................................................... 43
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................................................. 43
4.01 Conditions of Initial Credit Extension........................................................ 43
4.02 Conditions to all Credit Extensions........................................................... 44
ARTICLE V .REPRESENTATIONS AND WARRANTIES........................................................... 45
5.01 Organization; Corporate Powers................................................................ 45
5.02 Authority..................................................................................... 45
5.03 Subsidiaries.................................................................................. 46
5.04 No Conflict................................................................................... 46
5.05 Governmental Consents......................................................................... 46
5.06 Governmental Regulation....................................................................... 46
5.07 Financial Position............................................................................ 46
5.08 Litigation; Adverse Effects................................................................... 47
5.09 No Material Adverse Change.................................................................... 47
5.10 Payment of Taxes.............................................................................. 47
5.11 Performance................................................................................... 47
5.12 Securities Activities......................................................................... 48
5.13 Disclosure.................................................................................... 48
5.14 Requirements of Law........................................................................... 48
5.15 Patents, Trademarks, Permits, Etc............................................................. 48
5.16 Environmental Matters......................................................................... 48
5.17 Employee Benefit Matters...................................................................... 49
5.18 Solvency...................................................................................... 49
5.19 Assets and Properties......................................................................... 49
5.20 Joint Venture; Partnership.................................................................... 49
5.21 No Default.................................................................................... 49
5.22 Restricted Payments........................................................................... 49
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5.23 Subsequent Funding Representations and Warranties............................................. 49
ARTICLE VI AFFIRMATIVE COVENANTS..................................................................... 50
6.01 Financial Statements.......................................................................... 50
6.02 Environmental Notices......................................................................... 53
6.03 Corporate Existence, Etc...................................................................... 53
6.04 Corporate Powers, Etc......................................................................... 53
6.05 Compliance with Laws.......................................................................... 53
6.06 Payment of Taxes and Claims................................................................... 53
6.07 Maintenance of Properties; Insurance.......................................................... 54
6.08 Inspection of Property; Books and Records; Discussions........................................ 54
6.09 Maintenance of Permits........................................................................ 54
6.10 Employee Benefit Matters...................................................................... 54
6.11 Additional Guarantors......................................................................... 55
6.12 Use of Proceeds............................................................................... 55
ARTICLE VII NEGATIVE COVENANTS........................................................................ 55
7.01 Indebtedness.................................................................................. 55
7.02 Sales of Assets; Liens........................................................................ 56
7.03 Investments................................................................................... 57
7.04 Accommodation Obligations..................................................................... 58
7.05 Restricted Payments........................................................................... 59
7.06 Conduct of Business........................................................................... 60
7.07 Transactions with Affiliates.................................................................. 60
7.08 Restriction on Fundamental Changes............................................................ 60
7.09 Employee Benefit Matters...................................................................... 60
7.10 Environmental Liabilities..................................................................... 61
7.11 Margin Regulations............................................................................ 61
7.12 Change of Fiscal Year......................................................................... 61
7.13 Modification of the Subordinated LYONs Note, the Revolving Subordinated
Note or Senior Note Indenture; Issuance of Additional Senior Notes............................ 61
7.14 Hedging Contracts............................................................................. 62
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7.15 Receivables Securitization Transactions....................................................... 62
7.16 Minimum Consolidated Net Worth................................................................ 62
7.17 Maximum Leverage Ratio........................................................................ 62
7.18 Minimum Consolidated Fixed Charge Coverage Ratio.............................................. 62
7.19 Capital Expenditures.......................................................................... 62
7.20 Calculation of Financial Covenants............................................................ 63
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES............................................................ 63
8.01 Events of Default............................................................................. 63
8.02 Remedies Upon Event of Default................................................................ 65
ARTICLE IX ADMINISTRATIVE AGENT...................................................................... 66
9.01 Appointment and Authorization of Administrative Agent......................................... 66
9.02 Delegation of Duties.......................................................................... 66
9.03 Liability of Administrative Agent............................................................. 66
9.04 Reliance by Administrative Agent.............................................................. 67
9.05 Notice of Default............................................................................. 67
9.06 Credit Decision; Disclosure of Information by Administrative Agent............................ 67
9.07 Indemnification of Administrative Agent....................................................... 68
9.08 Administrative Agent in its Individual Capacity............................................... 68
9.09 Successor Administrative Agent................................................................ 69
9.10 Other Agents.................................................................................. 69
ARTICLE X MISCELLANEOUS............................................................................. 69
10.01 Amendments, Etc............................................................................... 69
10.02 Notices and Other Communications; Facsimile Copies............................................ 70
10.03 No Waiver; Cumulative Remedies................................................................ 71
10.04 Attorney Costs, Expenses and Taxes............................................................ 72
10.05 Indemnification by the Borrowers.............................................................. 72
10.06 Payments Set Aside............................................................................ 73
10.07 Successors and Assigns........................................................................ 73
10.08 Confidentiality............................................................................... 75
10.09 Set-off....................................................................................... 76
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10.10 Interest Rate Limitation...................................................................... 76
10.11 Counterparts.................................................................................. 77
10.12 Integration................................................................................... 77
10.13 Survival of Representations and Warranties.................................................... 77
10.14 Severability.................................................................................. 77
10.15 Foreign Lenders............................................................................... 77
10.16 Removal and Replacement of Lenders............................................................ 78
10.17 Judgment Currency............................................................................. 79
10.18 Economic and Monetary Union in the European Community......................................... 79
10.19 Borrowers' Agent.............................................................................. 80
10.20 Governing Law................................................................................. 80
10.21 Waiver of Right to Trial by Jury.............................................................. 81
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SCHEDULES
1.01 Associated Costs
5.03 Existing Subsidiaries
5.04 Conflicts
5.08 Litigation
5.16 Environmental Matters
5.20 Joint Ventures and Partnerships
6.07 Insurance
7.01(ii) Existing Indebtedness
7.02(b) Existing Liens
7.03 Existing Investments
10.02 Eurocurrency and Domestic Lending Offices, Addresses for Notices
EXHIBITS
A-1 Form of Committed Loan Notice
A-2 Form of Foreign Currency Loan Notice
B-1 Form of Bid Request
B-2 Form of Competitive Bid
C-1 Form of Borrowing Subsidiary Agreement
C-2 Form of Borrowing Subsidiary Termination
D-1 Form of Committed Loan Note
D-2 Form of Bid Loan Note
D-3 Form of Foreign Currency Loan Note
E Form of Compliance Certificate
F Form of Assignment and Acceptance
G Form of Guaranty
H Form of Opinion of Counsel
I Form of Allocation Notice
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FIVE-YEAR
REVOLVING CREDIT AGREEMENT
This FIVE-YEAR REVOLVING CREDIT AGREEMENT ("Agreement") is entered into
as of October 6, 2000, among ANIXTER INC., a Delaware corporation ("Anixter"),
the BORROWING SUBSIDIARIES (as defined herein), each lender from time to time
party hereto (collectively, the "Lenders" and individually, a "Lender"), BANK
ONE, NA, as Syndication Agent, THE BANK OF NOVA SCOTIA, as Documentation Agent,
and BANK OF AMERICA, N.A., as Administrative Agent.
The Borrowers have requested that the Lenders provide a revolving
credit facility, and the Lenders are willing to do so on the terms and
conditions set forth herein. In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples
of 1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate.
"Accommodation Obligation", as applied to any Person, means any
contractual obligation, contingent or otherwise, of that Person with respect to
any Indebtedness or other obligation or liability of another, including, without
limitation, any such Indebtedness, obligation or liability directly or
indirectly guaranteed, supported by letter of credit, endorsed (otherwise than
for collection or deposit in the ordinary course of business), co-made or
discounted or sold with recourse by that Person, or in respect of which that
Person is otherwise directly or indirectly liable, including Contractual
Obligations (contingent or otherwise) arising through any agreement to purchase,
repurchase, or otherwise acquire such Indebtedness, obligation or liability or
any security therefor, or to provide funds for the payment or discharge thereof
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received. For
purposes of interpreting any provision of this Agreement which refers to the
amount of Accommodation Obligations of any Person, such provision shall be
deemed to mean the maximum amount of such Accommodation Obligations or, in the
case of an Accommodation Obligation to maintain solvency, assets, level of
income or other financial condition, the amount of Indebtedness to which such
Accommodation Obligation relates, or if less, the stated maximum, if any, in the
documents evidencing such Accommodation Obligation. Notwithstanding anything to
the contrary contained herein, the term "Accommodation Obligation" shall not be
interpreted to include any letter of credit Obligations or any other Obligations
hereunder guaranteed by Anixter or any other Guarantor.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to Anixter and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 20% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners; or (b)
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agent/Arranger Fee Letter" has the meaning specified in Section
2.11(b).
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Aggregate Commitments" means US$390,000,000, as such amount may be
reduced or adjusted from time to time in accordance with this Agreement.
"Aggregate Foreign Currency Commitments" means $75,000,000, as such
amount may be reduced or adjusted from time to time in accordance with this
Agreement.
"Agreement" means this Five-Year Revolving Credit Agreement.
"Agreement Accounting Principles" means GAAP as of the date of this
Agreement together with any changes in GAAP after the date hereof which are not
"Material Accounting Changes" (as defined below). If any changes in GAAP are
hereafter required or permitted and are adopted by AXE or Anixter with the
agreement of its independent certified public accountants and such changes
result in a material change in the method of calculation of any of the financial
covenants, restrictions or standards herein or in the related definitions or
terms used therein ("Material Accounting Changes"), the parties hereto agree to
enter into negotiations, in good faith, in order to amend such provisions in a
credit neutral manner so as to reflect equitably such changes with the desired
result that the criteria for evaluating Anixter's consolidated financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, that no Material Accounting Change shall be given
effect in such calculations until such provisions are amended in a manner
reasonably satisfactory to the Required Lenders. If such amendment is entered
into, all references in this Agreement to Agreement Accounting Principles shall
mean GAAP as of the date of such amendment together with any changes in GAAP
after the date of such amendment which are not Material Accounting Changes.
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"Allocation Notice" means a written notice from the Arranger and
Anixter to a Lender substantially in the form of Exhibit I setting forth such
Lender's Commitment.
"Anixter" has the meaning assigned to that term in the preamble hereto.
"Anixter Distribution Stock Plan" means the Anixter Distribution Stock
Option Plan dated as of January 1, 1993.
"Applicable Currency" means, with respect to any Loan, the currency in
which such Loan is denominated.
"Applicable Margin" means the following percentages per annum, based
upon the Debt Rating:
APPLICABLE MARGIN
DEBT RATINGS
PRICING S&P/MOODY'S/ EUROCURRENCY BASE RATE
LEVEL FITCH FACILITY FEE RATE + +
----- ----- ------------ ------------- ----------
1 (Chi)A-/A3 0.175% 0.575% zero
2 BBB+/Baa1 0.20% 0.675% zero
3 BBB/Baa2 0.225% 0.775% zero
4 BBB-/Baa3 0.25% 0.875% zero
5 BB+/Ba1 0.275% 1.100% zero
6 <BB+/Ba1 0.325% 1.300% zero
"Debt Rating" means, as of any date of determination, the
rating as determined by either S&P, Moody's or Fitch (provided that
Anixter shall have at least two such ratings and at least one of such
ratings shall be from S&P or Moody's) (collectively, the "Debt
Ratings") of Anixter's non-credit-enhanced, senior unsecured long-term
debt; provided that if the existing Debt Ratings are not the same
level, then (i) if there are two Debt Ratings, the higher of such Debt
Ratings shall apply (with Pricing Level 1 being the highest and Pricing
Level 6 being the lowest), (ii) if there are three Debt Ratings and no
two Debt Ratings are at the same level, the intermediate Debt Rating
shall apply, or (iii) if there are three Debt Ratings and two Debt
Ratings are at the same level, then the level with the two Debt Ratings
shall apply.
Initially, the Applicable Margin shall be determined based upon the
Debt Rating specified in the certificate delivered pursuant to Section
4.01(a)(vii). Thereafter, each change in the Applicable Margin resulting from a
publicly announced change in the Debt Rating shall be effective, in the case of
an upgrade, during the period commencing on the date of delivery by Anixter to
the Administrative Agent of notice thereof pursuant to Section 6.01(k) and
ending on
3
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.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Consolidated Group for the fiscal year ended December 31, 1999, and
the related consolidated statements of income and cash flows for such fiscal
year of the Consolidated Group.
"Available Foreign Currency" means (i) British Pounds Sterling, (ii)
Euros and (iii) any other freely available currency which is freely transferable
and freely convertible into US Dollars and in which dealings in deposits are
carried on in the London interbank market, which shall be requested by Anixter
and approved by each Lender.
"AXE" means Anixter International Inc., a Delaware corporation.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Benefit Plan" shall mean a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which Anixter or
any ERISA Affiliate is, or
4
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid Loans
of the same Type from each of the Lenders whose offer to make one or more Bid
Loans as part of such borrowing has been accepted under the auction bidding
procedures described in Section 2.03.
"Bid Loan" has the meaning specified in Section 2.03(a).
"Bid Loan Note" means a promissory note made by Anixter in favor of a
Lender evidencing Bid Loans made by such Lender, substantially in the form of
Exhibit D-2.
"Bid Request" means a written request for one or more Bid Loans
substantially in the form of Exhibit B-1.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Anixter and each Borrowing Subsidiary.
"Borrowing" means a Committed Borrowing, a Bid Borrowing or a Foreign
Currency Borrowing, as the context may require.
"Borrowing Subsidiary" means any Foreign Subsidiary of Anixter named as
such on the signature pages hereto or designated as a Borrowing Subsidiary by
Anixter pursuant to Section 2.16.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary Agreement
substantially in the form of Exhibit C-1.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit C-2.
"British Pounds Sterling" means the lawful currency of the United
Kingdom of Great Britain and Northern Ireland.
"Business Day" means any day other than a Saturday or Sunday or a day
on which commercial banking institutions located in Charlotte, Chicago, New York
or San Francisco are authorized or required by law or other governmental action
to close and with respect to all notices, determinations, fundings and payments
in connection with any Eurocurrency Rate Loan, any day that is also a day for
trading by and between banks in the Applicable Currency in the applicable
interbank eurocurrency market.
"Capital Lease" as applied to any Person, means any lease of any
property (whether real, personal, or mixed) by that Person as lessee which, in
conformity with Agreement Accounting Principles, is or should be accounted for
as a capital lease on the balance sheet of that Person.
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"Cash Equivalents" shall mean (i) marketable direct obligations issued
or unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within ninety (90) days after the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America maturing within ninety (90) days after the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's (or, if at any time
neither S&P nor Moody's shall be rating such obligations, then from such other
nationally recognized rating services acceptable to the Administrative Agent)
and not listed in Credit Watch published by S&P (or a similar publication of S&P
or another nationally recognized rating service); (iii) commercial paper (other
than commercial paper issued by AXE, Anixter or any Subsidiary of Anixter or any
of their Affiliates), domestic and Eurodollar certificates of deposit, time
deposits or bankers' acceptances, in any such case maturing no more than ninety
(90) days after the date of acquisition thereof and, at the time of the
acquisition thereof, the issuer's rating on its commercial paper is at least A-1
or P-1 from either S&P or Moody's (or, if at any time neither S&P nor Moody's
shall be rating such obligations, then the highest rating from other nationally
recognized rating services acceptable to the Administrative Agent); and (iv)
commercial paper (other than commercial paper issued by AXE, Anixter or any
Subsidiary of Anixter or any of their Affiliates), domestic and Eurodollar
certificates of deposit, time deposits or bankers' acceptances, in any such case
maturing no more than ninety (90) days after the date of acquisition thereof
and, at the time of the acquisition thereof, the issuer is a Lender and has a
rating on its commercial paper of at least A-2 or P-2 from either S&P or Moody's
(or, if at any time neither S&P nor Moody's shall be rating such obligations,
then the equivalent rating from other nationally recognized rating services
acceptable to the Administrative Agent), provided the amount of Cash Equivalents
under this clause (iv) shall not at any time exceed US$5,000,000.
"Change of Control" shall occur if any "person," as such term is
defined in Section 13(d)(3) of the Securities Exchange Act, other than the
Samuel Zell Group, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act), directly or indirectly, of 20% or more
of the combined voting power of AXE's or Anixter's outstanding securities
ordinarily having the right to vote at elections of directors, and such person
at such time owns more of such combined voting power than the Samuel Zell Group.
"Class" means the character of certain Loans as Committed Loans, Bid
Loans or Foreign Currency Loans.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Commission" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to Anixter pursuant to Section 2.01 or (b) purchase
participations in Foreign Currency Loans
6
Obligations, and in an aggregate principal amount at any one time outstanding
not to exceed the amount of such Commitment set forth in the Allocation Notice
sent to such Lender.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Note" means a promissory note made by Anixter in favor
of a Lender evidencing Committed Loans made by such Lender, substantially in the
form of Exhibit D-1.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Committed Loans as the same Type, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A-1.
"Competitive Bid" means a written offer by a Lender to make one or more
Bid Loans, substantially in the form of Exhibit B-2, duly completed and signed
by such Lender.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
"Computation Date" means the last Business Day of each calendar month,
each date on which a Borrower borrows, converts or continues any Loan hereunder
and each date on which the Dollar Equivalent principal amount of a Loan is
required to be determined under this Agreement.
"Consolidated EBITDA" shall mean, for any period, for the Consolidated
Group calculated in accordance with Agreement Accounting Principles, (i)
Consolidated Net Income for such period taken as a single accounting period,
plus (ii) the provision for depreciation and amortization expense of the
Consolidated Group for such period, plus (iii) income taxes of the Consolidated
Group for such period, and plus (iv) net interest expense of the Consolidated
Group for such period; provided that there shall be excluded from Consolidated
EBITDA any non-cash, non-operating gains or losses (including, without
limitation, extraordinary or unusual gains or losses, gains or losses arising
from the sale of capital assets or the sale of owned buildings and properties
and other non-recurring gains or losses) during such period.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period,
the ratio of (a) the sum of Consolidated EBITDA and Rental Expense for such
period to (b) the amount of Consolidated Fixed Charge Expense of the
Consolidated Group for such period.
"Consolidated Fixed Charge Expense" shall mean, for any period, the
cash interest expense (including the interest component of capital leases, the
interest component of Synthetic Lease Obligations, facility fees, and fees for
standby letters of credit, but excluding the interest accretion relating to the
Subordinated LYONs Note) plus consolidated yield or discount accrued on the
outstanding aggregate investment or principal amount of claims held by
purchasers, assignees or other transferees of (or of interests in) receivables
of Anixter and its Subsidiaries in connection with any Receivables
Securitization Transaction (regardless of the accounting
7
treatment of such Receivables Securitization Transaction) and Rental Expense of
the Consolidated Group for such period calculated in accordance with Agreement
Accounting Principles.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Consolidated Group on a consolidated basis, the sum of
(a) the outstanding principal amount of all obligations and liabilities, whether
current or long-term, for borrowed money (including Obligations hereunder but
excluding the Subordinated LYONs Note), (b) that portion of obligations with
respect to capital leases that are capitalized in the consolidated balance sheet
of the Consolidated Group, (c) the principal portion of Synthetic Lease
Obligations, (d) the outstanding aggregate investment or principal amount of
claims held by purchasers, assignees or transferees of (or of interests in)
receivables under Receivables Securitization Transactions, and (e) without
duplication, all Accommodation Obligations with respect to Indebtedness of the
type specified in subsections (a), (b), (c) and (d) above of Persons other than
any Borrower or any Subsidiary.
"Consolidated Group" shall mean Anixter and each of its Subsidiaries.
"Consolidated Net Income" means, for any period, for the Consolidated
Group on a consolidated basis, the net income of the Consolidated Group for that
period, determined in accordance with Agreement Accounting Principles.
"Consolidated Net Worth" means, at a particular date, all amounts which
would be included under shareholders' equity for the Consolidated Group
determined in accordance with Agreement Accounting Principles.
"Contaminant" means any pollutant, hazardous substance, hazardous
chemical, toxic substance, hazardous waste or special waste, as those terms are
defined in federal, state or local laws and regulations, radioactive material,
petroleum, including crude oil or any petroleum-derived substance, or breakdown
or decomposition product thereof, or any constituent of any such substance or
waste, including but not limited to polychlorinated biphenyls and asbestos.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: a Committed Borrowing,
Bid Borrowing or Foreign Currency Borrowing.
"Customary Permitted Liens" means:
(A) Liens (other than Environmental Liens, Liens imposed
under ERISA or Enforceable Judgments) for claims, taxes, assessments or
charges of any Governmental Authority not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained in accordance with GAAP;
8
(B) statutory Liens of landlords, bankers, carriers,
warehousemen, mechanics, materialmen and other Liens (other than
Environmental Liens, Liens imposed under ERISA or Enforceable
Judgments) imposed by law, arising in the ordinary course of business
and for amounts which (A) are not yet due, (B) are not more than thirty
(30) days past due as long as no notice of default has been given or
other action taken to enforce such Liens, or (C) (1) are not more than
thirty (30) days past due and a notice of default has been given or
other action taken to enforce such Liens, or (2) are more than thirty
(30) days past due, and, in the case of clause (1) or (2), are being
contested in good faith by appropriate proceedings which are sufficient
to prevent imminent foreclosure of such Liens and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP;
(C) Liens (other than Environmental Liens, Liens imposed
under ERISA or Enforceable Judgments) incurred or deposits made in the
ordinary course of business (including, without limitation, surety
bonds and appeal bonds) in connection with workers' compensation,
unemployment insurance and other types of employment benefits or to
secure the performance of tenders, bids, leases, contracts (other than
for the repayment of Indebtedness), statutory obligations and other
similar obligations or arising as a result of progress payments under
government contracts;
(D) easements (including, without limitation, reciprocal
easement agreements and utility agreements) rights-of-way, covenants,
consents, rights of landlords, reservations, encroachments, variations
and other restrictions, charges or encumbrances (whether or not
recorded) affecting the use of real property, which do not materially
interfere with the ordinary conduct of the business of Anixter or any
Subsidiary of Anixter;
(E) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; and
(F) precautionary filings of financing statements in
connection with assets that are not owned by Anixter or its
Subsidiaries (including in connection with Operating Leases entered
into in the ordinary course of business).
"Debt Rating" has the meaning set forth in the definition of
"Applicable Margin."
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Margin, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that (i) with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the
9
interest rate (including any Applicable Margin) otherwise applicable to such
Loan plus 2% per annum, in each case to the fullest extent permitted by
applicable Laws, and (ii) with respect to a Foreign Currency Loan following the
end of the relevant Interest Period therefor, the Default Rate shall be an
interest rate equal to (a) the Foreign Overnight Rate plus (b) 2% per annum.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar Equivalent" means, with respect to a specified amount of any
currency, the amount of US Dollars into which such amount of such currency would
be converted, based on the applicable Spot Rate of Exchange.
"Domestic Subsidiaries" means Anixter-Real Estate, Inc., an Illinois
corporation, Anixter Information Systems Corporation, an Illinois corporation,
and Anixter Financial Inc., a Delaware corporation.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"Enforceable Judgment" means a judgment or order as to which (a)
Anixter has not demonstrated to the reasonable satisfaction of the Required
Lenders that the Borrowers are covered by third-party insurance (other than
retro-premium insurance) therefor and (b) the period, if any, during which the
enforcement of such judgment or order is stayed shall have expired, it being
understood that a judgment or order which is under appeal or as to which the
time in which to perfect an appeal has not expired shall not be deemed an
"Enforceable Judgment" so long as enforcement thereof is effectively stayed
pending the outcome of such appeal or the expiration of such period, as the case
may be; provided that if enforcement of a judgment or order has been stayed on
condition that a bond or collateral equal to or greater than US$20,000,000 be
posted or provided, such judgment or order shall immediately be an "Enforceable
Judgment."
"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for (i) any liability of Anixter or any Subsidiary of Anixter under
federal or state environmental laws or regulations, or (ii) damages from, or
costs incurred by such Governmental Authority in response to, a Release or
threatened Release of a Contaminant into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto.
"ERISA Affiliate" means any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Code) as Anixter or any of its Subsidiaries, (ii) partnership or other trade
or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Code) with Anixter or any of its Subsidiaries,
and (iii) member of the same affiliated service group (within the meaning of
10
Section 414(m) of the Code) as Anixter or any of its Subsidiaries, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder (other than an event for
which the 30-day notice period is waived), with respect to a Plan; (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by Anixter or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) any Termination Event; or (f) the receipt by
Anixter or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Anixter or any ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.
"Euro" has the meaning set forth in Section 10.18.
"Eurocurrency Bid Margin" means the margin above or below the
Eurocurrency Rate to be added to or subtracted from the Eurocurrency Rate, which
margin shall be expressed in multiples of 1/100th of one basis point.
"Eurocurrency Rate" means, for any Eurocurrency Rate Loan for any
Interest Period,
(a) in the case of a Foreign Currency Loan in British Pounds
Sterling, (i) the rate per annum which appears on the Reuters Screen LIBO Page
as the London interbank offered rate for deposits in British Pounds Sterling at
approximately 11:00 a.m. (London, England time) on the first day of such
Interest Period for a term comparable to such Interest Period; provided that if
more than one rate is specified on the Reuters Screen LIBO Page, the rate shall
be the arithmetic mean of all such rates; or (ii) if for any reason the rate
described in clause (i) is not available, the rate per annum (carried to five
decimal places) determined by the Administrative Agent as the rate at which
deposits in British Pounds Sterling in the approximate amount of such Foreign
Currency Loan, and having a maturity comparable to such Interest Period, are
offered by the Administrative Agent to major banks in the interbank market at
approximately 11:00 a.m. (London, England time) on the first day of such
Interest Period; and
(b) in the case of any other Eurocurrency Rate Loan, the rate per
annum determined by the Administrative Agent as (i) the rate which appears on
Telerate Page 3750 or the other appropriate Telerate Page (or any successor
page) as the London interbank offered rate for deposits in the Applicable
Currency at approximately 11:00 a.m. (London, England time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; or (ii) if for any reason the rate described in clause (i) is
not available, the rate per annum which appears on the Reuters Screen LIBO Page
as the London interbank offered rate for deposits in the Applicable Currency at
approximately 11:00 a.m. (London, England time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided that if more than one rate is specified on the Reuters Screen LIBO
Page, the rate shall be the arithmetic mean of all such rates (carried to five
decimal places).
11
"Eurocurrency Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Eurocurrency Rate Committed Loan, a
Eurocurrency Rate Margin Bid Loan or Foreign Currency Loan bearing interest at a
rate based on the Eurocurrency Rate.
"Eurocurrency Rate Margin Bid Loan" means a Bid Loan that bears
interest a rate based upon the Eurocurrency Rate.
"Event of Default" means any of the events or circumstances specified
in Article VIII.
"Existing Credit Facility" means that certain Second Amended and
Restated Credit Agreement dated as of September 6, 1996, as amended, among the
Borrowers, the Guarantors, The Chase Manhattan Bank, as administrative agent,
and a syndicate of lenders.
"Existing Indebtedness" means the Indebtedness of Anixter and any of
its Subsidiaries reflected on Schedule 7.01(ii), but in any event excluding the
Indebtedness evidenced by the Revolving Subordinated Notes.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Financial Officer" means, with respect to any Person, any of the chief
financial officer, controller or treasurer of such Person and, with respect to
Anixter shall include its Vice President-Finance.
"Financial Statement Delivery Date" means the 90th day following the
end of the fourth Fiscal Quarter and the 45th day following the end of each
other Fiscal Quarter, in each Fiscal Year.
"Fiscal Quarter" means a 13-week accounting period of the Borrowers
ending on or about March 31, June 30, September 30 or December 31 of any Fiscal
Year.
"Fiscal Year" means the fiscal year of the Borrowers, which shall be
the annual accounting period of the Borrowers ending on the Friday closest to
December 31 of each year.
"Fitch" means Fitch IBCA, Inc.
12
"Foreign Currency Borrowing" means a borrowing consisting of
simultaneous Foreign Currency Loans of the same Available Foreign Currency from
the Foreign Currency Lenders pursuant to Section 2.04.
"Foreign Currency Commitment" means, as to each Foreign Currency
Lender, its obligation to make Foreign Currency Loans to the Borrowing
Subsidiaries pursuant to Section 2.04, in an aggregate principal Dollar
Equivalent amount at any one time outstanding not to exceed the amount of such
Lender's Foreign Currency Commitment set forth in the Allocation Notice sent to
such Foreign Currency Lender.
"Foreign Currency Lender" means each of Bank of America, Bank One, NA
and The Bank of Nova Scotia.
"Foreign Currency Loan" means has the meaning specified in Section
2.04.
"Foreign Currency Loan Note" means a promissory note made by a
Borrowing Subsidiary in favor of a Foreign Currency Lender evidencing Foreign
Currency Loans made by such Foreign Currency Lender, substantially in the form
of Exhibit D-3.
"Foreign Currency Loan Notice" means a notice of (a) a Foreign Currency
Borrowing, or (b) a continuation of Foreign Currency Loans for a new Interest
Period, pursuant to Section 2.05, which, if in writing, shall be substantially
in the form of Exhibit A-2.
"Foreign Currency Participation Funding Notice" means a written notice
from a Foreign Currency Lender informing the Administrative Agent that an Event
of Default has occurred and is continuing and directing the Administrative Agent
to notify all Lenders to fund their participations in the Foreign Currency Loans
as provided in Section 2.06.
"Foreign Currency Pro Rata Share" means, with respect to each Foreign
Currency Lender, the percentage (carried out to the ninth decimal place) of the
Aggregate Foreign Currency Commitments set forth on such Lender's Allocation
Notice, as such share may be adjusted as contemplated herein.
"Foreign Employee Benefit Plan" means any plan, program, policy,
agreement or contract maintained or contributed to or for the benefit of
employees or Anixter, any of its Subsidiaries or any ERISA Affiliate which is
governed by the laws of a jurisdiction outside the United States of America.
"Foreign Lender" has the meaning specified in Section 10.15.
"Foreign Overnight Rate" means, for any day with respect to any amount
in any currency (other than US Dollars), the rate of interest per annum at which
overnight deposits in such currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day to major banks in the London or other applicable offshore interbank
market by Bank of America's London Branch.
"Foreign Pension Plan" means any pension plan or other deferred
compensation plan, program or arrangement maintained or contributed to or for
the benefit of employees of Anixter,
13
any of its Subsidiaries or any ERISA Affiliate, which, under the applicable
local law, is required to be funded through a trust or other funding vehicle and
which is governed by the laws of a jurisdiction outside the United States of
America.
"Foreign Subsidiaries" means Anixter Puerto Rico, Inc., Anixter
Venezuela Inc., Anixter Thailand Inc., Anixter Philippines Inc. and any of
Anixter's Subsidiaries which are incorporated in any jurisdiction outside of the
United States, and their respective successors and assigns.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means (a) Anixter, AXE, and each Domestic Subsidiary, and
(b) each Subsidiary that becomes a Guarantor as provided in Section 6.11.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent on behalf of the Lenders, substantially in the form of
Exhibit G (other than the Receivables Securitization SPV).
"Hedging Contracts" means interest rate, foreign currency or commodity
exchange, swap, collar, cap, option, forward, futures or similar agreements
entered into by Anixter or any of its Subsidiaries pursuant to which Anixter or
such Subsidiary has hedged its interest rate, foreign currency or commodity
exposure.
"Indebtedness" means, as to any Person at a particular time, all of the
following (without duplication):
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments;
(b) any direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
banker's acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations under any Hedging Contract in an
amount equal to (i) if such Hedging Contract has been closed out, the
termination value thereof, or (ii) if such Hedging Contract has not
been closed out, the mark-to-market value thereof determined
14
on the basis of readily available quotations provided by any recognized
dealer in such Hedging Contract;
(d) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay the
deferred purchase price of property or services, and indebtedness
(excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether
or not such indebtedness shall have been assumed by such Person or is
limited in recourse;
(e) Capital Leases and Synthetic Lease Obligations;
(f) the outstanding aggregate investment or principal
amount of claims held by purchasers, assignees or transferees of (or of
interests in) receivables of such Person in connection with any
Receivables Securitization Transaction; and
(g) all Accommodation Obligations of such Person in
respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person except for customary exceptions acceptable to the
Required Lenders. The amount of any Capital Lease or Synthetic Lease Obligation
as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, however, that if any Interest Period for a Eurocurrency Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan, the last Business Day of each March, June,
September and December and the Maturity Date.
"Interest Period" means (a) as to each Eurocurrency Rate Loan, the
period commencing on the date such Eurocurrency Rate Loan is disbursed or (in
the case of any Eurocurrency Rate Committed Loan) converted to or continued as a
Eurocurrency Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the related Borrower in its Committed Loan Notice,
Bid Request or Foreign Currency Loan Notice, as the case may be; and (b) as to
each Absolute Rate Loan, a period of not less than 14 days and not more than 180
days as selected by Anixter in its Bid Request; provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless, in the case
15
of a Eurocurrency Rate Loan, such Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(ii) any Interest Period pertaining to a Eurocurrency Rate
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"Investment" has the meaning assigned to that term in Section 7.03.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph
hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Anixter and the Administrative Agent.
"Leverage Ratio" means, as of any date of determination, for Anixter
and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
the four Fiscal Quarters ending on such date, provided that, for purposes of
calculating the Leverage Ratio, Consolidated EBITDA shall be calculated on a pro
forma basis (in accordance with Article 11 of Regulation S-X of the Securities
and Exchange Commission) to the extent necessary to give effect to (a) any
acquisition made by Anixter or any Subsidiary during such period (without giving
effect to any increase in Consolidated EBITDA reflecting projected synergies
resulting from such acquisition) so long as, and to the extent that, (i) Anixter
delivers to the Administrative Agent (which shall promptly deliver to each
Lender) a summary in reasonable detail of the assumptions underlying, and the
calculations made, in computing Consolidated EBITDA on a pro forma basis and
(ii) the Required Lenders do not object to such assumptions and/or calculations
within 10 Business Days after receipt thereof; and (b) any divestiture of a
Subsidiary, division or other operating unit made during such period.
"Liabilities and Costs" means all liabilities, claims, obligations,
responsibilities, losses, damages, punitive damages, consequential damages,
treble damages, charges, costs and expenses (including, without limitation,
attorneys', experts' and consulting fees and costs of investigation and
feasibility studies), fines, penalties and monetary sanctions, interest, direct
or indirect, known or unknown, absolute or contingent, past, present or future.
16
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), Environmental Lien,
Enforceable Judgment, charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable Laws of any
jurisdiction), including the interest of a purchaser of accounts receivable.
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan, Bid Loan or Foreign Currency Loan.
"Loan Documents" means this Agreement, each Note, the Guaranty, the
Agent/Arranger Fee Letter, each Request for Credit Extension and each Compliance
Certificate.
"Loan Parties" means, collectively, the Borrowers and the Guarantors.
"Margin Stock" has the meaning assigned to such term in Regulation G
and Regulation U.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, assets, liabilities (actual or
contingent), business, properties, financial condition or prospects of AXE,
Anixter and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Loan Parties (taken as a whole) to perform the obligations of all
Loan Parties under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party or the rights
and remedies of the Lenders under the Loan Documents.
"Material Transaction" means any sale, assignment, transfer, conveyance
or other disposition of (i) assets of any member of the Consolidated Group or
(ii) capital stock of any member of the Consolidated Group which, when combined
with all such other sales, assignments, transfers, conveyances or other
dispositions in the immediately preceding twelve-month period represents the
disposition of an amount which is greater than ten percent (10.0%) of the
Consolidated Group's (x) assets or (y) revenues.
"Maturity Date" means (a) October 6, 2005, (b) such earlier date upon
which the Commitments may be terminated in accordance with the terms hereof, or
(c) such earlier date on or before which Anixter shall have repaid in cash
US$50,000,000 or more in the aggregate of the principal amount of the
Subordinated LYONs Note.
"Minimum Tranche" means (a) in the case of US Dollars, US$5,000,000 or
a higher integral multiple of US$1,000,000; and (b) in the case of any Available
Foreign Currency, an amount equal to US$5,000,000 or a higher integral multiple
of 1,000,000 units of such currency.
"Moody's" means Moody's Investors Service, Inc.
17
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by Anixter or any ERISA Affiliate.
"Notes" means, collectively, the Committed Loan Notes, the Bid Loan
Notes and the Foreign Currency Loan Notes.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Officers' Certificate" means, as to any corporation, a certificate
executed on behalf of such corporation by a Financial Officer of such
corporation.
"Operating Lease" means, as applied to any Person, any lease of any
Property by that Person as lessee which is not a Capital Lease.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Outstanding Amount" means with respect to Committed Loans, Bid Loans
and Foreign Currency Loans on any date, the aggregate outstanding principal
Dollar Equivalent amount thereof after giving effect to any borrowings and
prepayments or repayments of Committed Loans, Bid Loans and Foreign Currency
Loans, as the case may be, occurring on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Anixter or any
ERISA Affiliate or to which Anixter or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"Permits" means any permit, approval, consent, authorization, license,
variance, or permission required from a Governmental Authority under an
applicable Requirement of Law.
18
"Permitted Existing Liens" means the Liens on any property of Anixter
or any Subsidiary of Anixter, in each case reflected on Schedule 7.02(b).
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which either Anixter or any ERISA Affiliate is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) that such Lender's Commitment comprises
of the Aggregate Commitments, as such share may be adjusted as contemplated
herein.
"Property" means with respect to any Person, any real or personal
property, plant, building, facility, structure, equipment or unit, or other
asset (tangible or intangible) owned, leased or operated by such Person.
"Put Event" means a "Put Event" under and as defined in Section 1010 of
the Senior Note Indenture.
"Receivables Securitization SPV" means a special purpose entity that is
a Subsidiary established for a Receivables Securitization Transaction.
"Receivables Securitization Transaction" means any sale, assignment or
other transfer by Anixter or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to Anixter or such Subsidiary or
any interest in any of the foregoing, together in each case with any collections
and other proceeds thereof, any collection or deposit accounts related thereto,
and any collateral, guaranties or other property or claims in favor of Anixter
or such Subsidiary supporting or securing payment by the obligor thereon of, or
otherwise related to, any such receivables.
"Register" has the meaning set forth in Section 10.07(c).
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration from
any Property into the indoor or outdoor environment, including the movement of
Contaminants through or in the air, soil, surface water, groundwater or
Property.
"Remedial Action" means any action required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent a Release or threat of Release or minimize the further
Release of Contaminants so they do not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment; or (iii)
perform pre-remedial studies and investigations or post-remedial monitoring and
care.
19
"Rental Expense" means, for any period, the total rental expense for
Operating Leases of the Consolidated Group on a consolidated basis, as
determined in accordance with Agreement Accounting Principles.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to a Bid Loan, a Bid Request and (c) with respect to a Borrowing or
continuation of Foreign Currency Loans, a Foreign Currency Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
whose Voting Percentages aggregate more than 50%.
"Requirements of Law" means, as to any Person, the Organization
Documents or other organizational or governing documents of such Person, and any
law, rule or regulation, Permit, or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its property is
subject, including, without limitation, the Securities Act, the Securities
Exchange Act, Regulation T, Regulation U and Regulation X, and any certificate
of occupancy, zoning ordinance, building, environmental or land use, law, rule,
regulation, ordinance or Permit or occupational safety or health law, rule or
regulation.
"Responsible Officer" means the president, chief financial officer,
treasurer or assistant treasurer of a Loan Party or such other person designated
as such by any of the foregoing officers of such Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of capital stock of
Anixter or any of its Subsidiaries, except a distribution of stock as part of a
stock split and except a dividend payable solely in shares of that class of
stock or in any junior class of stock to the holders of that class, provided
that the issuance of such stock or junior class of stock is not an incurrence of
Indebtedness, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of capital stock of Anixter or any of its Subsidiaries now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of capital stock of Anixter or any of its subsidiaries now
or hereafter outstanding, (iv) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase or sale
of any shares of the capital stock of Anixter or any of its Subsidiaries or of a
claim for reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission, (v) any payment of
tax-sharing payments, allocated corporate overhead (other than expenses paid to
third parties by AXE on behalf of Anixter), guaranty fees or management fees to
AXE or any of its Affiliates, and (vi) any payment in the nature of a loan from
Anixter or any of its Subsidiaries to AXE or any of AXE's Subsidiaries (other
than
20
intercompany loans between Anixter or any of Anixter's Subsidiaries with each
other as expressly permitted pursuant to this Agreement); provided, however,
Restricted Payment shall not include (x) any payment of dividends by any
Subsidiary of Anixter to Anixter or any other Subsidiary of Anixter, or (y) any
redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any shares of capital stock of Anixter issued to its employees
under and pursuant to the provisions of the Anixter Distribution Stock Plan
pursuant to Section 7.03(iv)(b).
"Revolving Subordinated Note" means the demand promissory note from
Anixter to AXE dated October 6, 2000, as the same may be amended, modified or
supplemented.
"Same Day Funds" means (i) with respect to disbursements and payments
in US Dollars, immediately available funds, and (ii) with respect to
disbursements and payments in any other currency, same day or other funds as may
be determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in such currency.
"Samuel Zell Group" means Samuel Zell or any of his affiliates (as such
term is defined in Rule 12b-2 of the Securities Exchange Act) or associates (as
such term is defined in Rule 12b-2 of the Securities Exchange Act), and his
heirs and beneficiaries.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"Securities Act" means the Securities Act of 1933.
"Securities Exchange Act" means the Securities Exchange Act of 1934.
"Senior Note Indenture" means that certain Indenture dated as of
September 9, 1996 among Anixter, AXE and The Bank of New York, as Trustee.
"Senior Notes" shall mean Anixter's Senior Notes due 2003, issued
pursuant to the Senior Note Indenture in an amount not to exceed US$100,000,000.
"Solvent" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation
and at present fair saleable value) is equal to or in excess of the
total amount of its liabilities, including, without limitation,
contingent liabilities; and
(ii) it is then able and expected to be able to pay its
debts as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can reasonably be expected to become an actual or
matured liability.
21
"Spot Rate of Exchange" means for any amount denominated in any
currency other than US Dollars, an amount of US Dollars into which the
Administrative Agent could convert such currency by using the applicable quoted
spot rate as reported on the appropriate page of the Reuters Screen at 11:00
a.m. (London, England time) two Business Days preceding the day such
determination is requested to be made.
"Subordinated LYONs Note" means the zero-coupon, convertible
subordinated note dated October 6, 2000 of Anixter payable to AXE in the
original principal amount of US$200,035,440.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person. Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of Anixter.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Tax Allocation Agreement" means that certain Tax Allocation Agreement
between AXE and Anixter dated as of January 1, 1987 as initially supplemented by
that certain Tax Allocation Agreement Supplement dated as of May 6, 1987, which
Supplement has been superseded by that certain Tax Allocation Agreement
Supplement dated as of May 20, 1992, as the same may be amended, restated,
supplemented or otherwise modified from time to time (i) in any respect which
does not (a) require Anixter to make any greater payments thereunder either in
absolute amounts or percentage terms or (b) does not reduce either in absolute
amounts or percentage terms the benefits to Anixter, without consent of all of
the Lenders or (ii) otherwise with the consent of the Required Lenders.
"Termination Event" means a (i) Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of Anixter of any ERISA Affiliate from a
Benefit Plan during a plan year in which Anixter or such ERISA Affiliate was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA; (iii) the
imposition of an obligation of Anixter or any ERISA Affiliate under Section 4041
of ERISA to provide affected parties written notice of intent to terminate a
Benefit Plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the institution by the PBGC or any similar foreign governmental authority
of proceedings to terminate a Benefit Plan or a Foreign Pension Plan, (v) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; (vi) a foreign governmental authority shall appoint or institute
proceedings to appoint a trustee to administer any Foreign Pension Plan; or
(vii) the partial or complete withdrawal of Anixter of any ERISA Affiliate from
a Multiemployer Plan or a Foreign Pension Plan.
22
"364-Day Credit Agreement" means the 364-Day Revolving Credit Agreement
dated as of the date hereof among the Borrowers, the lenders party thereto and
Bank of America, as administrative agent.
"Total Outstandings" means at any time the aggregate principal amount
(or Dollar Equivalent principal amount, as applicable) of all Loans.
"Transaction Costs" means the reasonable fees, costs and expenses
payable by Anixter or any of its Subsidiaries pursuant hereto or in connection
herewith or in respect hereof or of the other Loan Documents.
"Transaction Documents" means the Loan Documents, the Tax Allocation
Agreement, the Revolving Subordinated Note and the Subordinated LYONs Note.
"Type" means (a) with respect to a Committed Loan, its character as a
Base Rate Loan or a Eurocurrency Rate Loan, (b) with respect to a Bid Loan, its
character as an Absolute Rate Loan or a Eurocurrency Rate Margin Bid Loan and
(c) with respect to a Foreign Currency Loan, its character as a Loan in a
particular currency bearing interest at a rate based on the Eurocurrency Rate or
on the Foreign Overnight Rate.
"US Dollar Eurocurrency Rate Loans" means Committed Loans which are
Eurocurrency Rate Loans and are denominated in US Dollars.
"US Dollars" or "US$" means dollars constituting legal tender for the
payment of public and private debts in the United States of America.
"Voting Percentage" means, as to any Lender, (a) at any time when the
Commitments are in effect, such Lender's Pro Rata Share and (b) at any time
after the termination of the Commitments, the percentage (carried out to the
ninth decimal place) which (i) the sum of (A) the Outstanding Amount of such
Lender's Committed Loans and Bid Loans, plus (B) such Lender's Pro Rata Share of
the Outstanding Amount of Foreign Currency Loans, then constitutes of (ii) the
Total Outstandings; provided, however, that if any Lender has failed to fund any
portion of the Committed Loans, or participations in Foreign Currency Loans
required to be funded by it hereunder, such Lender's Voting Percentage shall be
deemed to be -0-, and the respective Pro Rata Shares and Voting Percentages of
the other Lenders shall be recomputed for purposes of this definition and the
definition of "Required Lenders" without regard to such Lender's Commitment or
the outstanding amount of its Committed Loans, as the case may be.
1.02 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of
similar import when used in any Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof.
23
(ii) Unless otherwise specified herein, Article, Section,
Exhibit and Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced.
(c) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means "to
and including."
(d) Section headings herein and the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. ALL ACCOUNTING TERMS NOT SPECIFICALLY OR
COMPLETELY DEFINED HEREIN SHALL BE CONSTRUED IN CONFORMITY WITH, AND ALL
FINANCIAL DATA REQUIRED TO BE SUBMITTED PURSUANT TO THIS AGREEMENT SHALL BE
PREPARED IN CONFORMITY WITH, GAAP APPLIED ON A CONSISTENT BASIS, AS IN EFFECT
FROM TIME TO TIME, APPLIED IN A MANNER CONSISTENT WITH THAT USED IN PREPARING
THE AUDITED FINANCIAL STATEMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PRESCRIBED
HEREIN.
1.04 ROUNDING. Any financial ratios required to be maintained by
the Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 EURO. In the event that pursuant to Section 10.18 hereof any
amount is borrowed and repaid in the Euro rather than any particular Applicable
Currency, then references to such Applicable Currency and all definitions
related to or derived from a reference to such Applicable Currency shall be
deemed to be, or be related to or derived from, references to the Euro, in the
sole discretion of the applicable Lender, and shall be deemed modified to the
extent necessary to effect the intent of this Agreement with respect to
borrowings in such Applicable Currency.
24
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Committed Loan") to Anixter
from time to time on any Business Day during the period from the Closing Date to
the Maturity Date, in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's Commitment; provided, however, that after giving
effect to any Committed Borrowing, (i) the aggregate Outstanding Amount of all
Loans shall not exceed the Aggregate Commitments and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all Foreign Currency Loans, shall not
exceed such Lender's Commitment. Within the limits of each Lender's Commitment,
and subject to the other terms and conditions hereof, Anixter may borrow under
this Section 2.01, prepay under Section 2.07, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans
from one Type to the other, and each continuation of Committed Loans as the same
Type shall be made upon Anixter's irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m., New York time, (i) three
Business Days prior to the requested date of any Committed Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans or of any conversion of
Eurocurrency Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Committed Borrowing of Base Rate Loans. Each such telephonic notice must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of Anixter. Each Committed Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans shall be in a principal amount of US$5,000,000 or a
whole multiple of US$1,000,000 in excess thereof. Each Committed Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of US$500,000 or a
whole multiple of US$100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether Anixter is requesting
a Committed Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of Committed Loans as the same Type, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If Anixter
fails to specify a Type of Committed Loan in a Committed Loan Notice or if
Anixter fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made or continued as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurocurrency Rate Loans. If Anixter requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate
25
Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of its Pro Rata Share of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by Anixter the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans described
in the preceding subsection. In the case of a Committed Borrowing, each Lender
shall make the amount of its Committed Loan available to the Administrative
Agent in immediately available funds at the Administrative Agent's Office not
later than 1:00 p.m., New York time, on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to Anixter in like funds as received by the Administrative
Agent either by (i) crediting the account of Anixter on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to the Administrative Agent
by Anixter.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan
may be continued or converted only on the last day of the Interest Period for
such Eurocurrency Rate Loan. During the existence of a Default or Event of
Default, no Committed Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans be converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify Anixter and the
Lenders of the interest rate applicable to any Eurocurrency Rate Committed Loan
upon determination of such interest rate. The determination of the Eurocurrency
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify Anixter and the Lenders of any
change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than ten Interest
Periods in effect with respect to Committed Loans.
2.03 BID LOANS.
(a) General. Subject to the terms and conditions set forth herein,
each Lender agrees that Anixter may from time to time request the Lenders to
submit offers to make loans (each such loan, a "Bid Loan") to Anixter prior to
the Maturity Date pursuant to this Section 2.03; provided, however, that after
giving effect to any Bid Borrowing, the aggregate Outstanding Amount of all
Loans (including Bid Loans) shall not exceed the Aggregate Commitments. There
shall not be more than ten different Interest Periods in effect with respect to
Bid Loans at any time.
26
(b) Requesting Competitive Bids. Anixter may request the
submission of Competitive Bids by delivering a Bid Request to the Administrative
Agent not later than 12:00 noon, New York time, (i) one Business Day prior to
the requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, or (ii) four Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurocurrency Rate Margin Bid Loans. Each Bid
Request shall specify (i) the requested date of the Bid Borrowing (which shall
be a Business Day), (ii) the aggregate principal amount of Bid Loans requested
(which must be US$10,000,000 or a whole multiple of US$1,000,000 in excess
thereof), (iii) the Type of Bid Loans requested, and (iv) the duration of the
Interest Period with respect thereto, and shall be signed by a Responsible
Officer of Anixter. No Bid Request shall contain a request for (i) more than one
Type of Bid Loan or (ii) Bid Loans having more than three different Interest
Periods. Unless the Administrative Agent otherwise agrees in its sole and
absolute discretion, Anixter may not submit a Bid Request if it has submitted
another Bid Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each
Lender of each Bid Request received by it from Anixter and the contents
of such Bid Request.
(ii) Each Lender may (but shall have no obligation to)
submit a Competitive Bid containing an offer to make one or more Bid
Loans in response to such Bid Request. Such Competitive Bid must be
delivered to the Administrative Agent not later than 9:30 a.m., New
York time, (A) on the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans, and (B) three Business Days prior to
the requested date of any Bid Borrowing that is to consist of
Eurocurrency Rate Margin Bid Loans; provided, however, that any
Competitive Bid submitted by Bank of America in its capacity as a
Lender in response to any Bid Request must be submitted to the
Administrative Agent not later than 9:15 a.m., New York time, on the
date on which Competitive Bids are required to be delivered by the
other Lenders in response to such Bid Request. Each Competitive Bid
shall specify (A) the proposed date of the Bid Borrowing; (B) the
principal amount of each Bid Loan for which such Competitive Bid is
being made, which principal amount (x) may be equal to, greater than or
less than the Commitment of the bidding Lender, (y) must be
US$5,000,000 or in a whole multiple of US$1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for which
Competitive Bids were requested; (C) if the proposed Bid Borrowing is
to consist of Absolute Rate Bid Loans, the Absolute Rate offered for
each such Bid Loan and the Interest Period applicable thereto; (D) if
the proposed Bid Borrowing is to consist of Eurocurrency Rate Margin
Bid Loans, the Eurocurrency Bid Margin with respect to each such
Eurocurrency Rate Margin Bid Loan and the Interest Period applicable
thereto; and (E) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above, (B)
is not substantially in the form of a Competitive Bid as specified
herein, (C) contains qualifying, conditional or similar language, (D)
proposes terms other than or in addition to those set forth in the
applicable Bid Request, or (E) is otherwise not responsive to such Bid
Request. Any Lender may correct a Competitive Bid containing a manifest
error by submitting a corrected
27
Competitive Bid (identified as such) not later than the applicable time
required for submission of Competitive Bids. Any such submission of a
corrected Competitive Bid shall constitute a revocation of the
Competitive Bid that contained the manifest error. The Administrative
Agent may, but shall not be required to, notify any Lender of any
manifest error it detects in a Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03
and 4.02 and clause (iii) above, each Competitive Bid shall be
irrevocable.
(d) Notice to Anixter of Competitive Bids. Not later than 10:00
a.m., New York time, (i) on the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans, or (ii) three Business Days prior to the
requested date of any Bid Borrowing that is to consist of Eurocurrency Rate
Margin Bid Loans, the Administrative Agent shall notify Anixter of the identity
of each Lender that has submitted a Competitive Bid that complies with Section
2.03(c) and of the terms of the offers contained in each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 10:30 a.m., New
York time, (i) on the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, and (ii) three Business Days prior to the requested date of
any Bid Borrowing that is to consist of Eurocurrency Rate Margin Bid Loans,
Anixter shall notify the Administrative Agent of its acceptance or rejection of
the offers notified to it pursuant to Section 2.03(d). Anixter shall be under no
obligation to accept any Competitive Bid and may choose to reject all
Competitive Bids. In the case of acceptance, such notice shall specify the
aggregate principal amount of Competitive Bids for each Interest Period that is
accepted. Anixter may accept any Competitive Bid in whole or in part; provided
that:
(i) the aggregate principal amount of each Bid Borrowing
may not exceed the applicable amount set forth in the related Bid
Request;
(ii) the principal amount of each Bid Loan must be
US$10,000,000 or in a whole multiple of US$1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the
basis of ascending Absolute Rates or Eurocurrency Bid Margins within
each Interest Period; and
(iv) Anixter may not accept any offer that is described in
Section 2.03(c)(iii) or that otherwise fails to comply with the
requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have
submitted Competitive Bids at the same Absolute Rate or Eurocurrency Bid Margin,
as the case may be, for the same Interest Period, and the result of accepting
all of such Competitive Bids in whole (together with any other Competitive Bids
at lower Absolute Rates or Eurocurrency Bid Margins, as the case may be,
accepted for such Interest Period in conformity with the requirements of Section
2.03(e)(iii)) would be to cause the aggregate outstanding principal amount of
the applicable Bid Borrowing to exceed the amount specified therefor in the
related Bid Request, then, unless otherwise agreed by Anixter, the
Administrative Agent and such Lenders, such Competitive Bids shall be accepted
as nearly as possible in proportion to the amount offered by
28
each such Lender in respect of such Interest Period, at such Absolute Rate or
Eurocurrency Bid Margin, without regard to the requirements of Section
2.03(e)(ii).
(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Bid Loan or Bid Loans to be made by it on
the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof
that is not accepted by Anixter by the applicable time specified in Section
2.03(e) shall be deemed rejected.
(h) Notice of Eurocurrency Rate. If any Bid Borrowing is to
consist of Eurocurrency Margin Loans, the Administrative Agent shall determine
the Eurocurrency Rate for the relevant Interest Period, and promptly after
making such determination, shall notify Anixter and the Lenders that will be
participating in such Bid Borrowing of such Eurocurrency Rate.
(i) Funding of Bid Loans. Each Lender that has received notice
pursuant to Section 2.03(g) that all or a portion of its Competitive Bid has
been accepted by Anixter shall make the amount of its Bid Loan(s) available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m., New York time, on the date of the
requested Bid Borrowing. Upon satisfaction of the applicable conditions set
forth in Section 4.02, the Administrative Agent shall make all funds so received
available to Anixter in like funds as received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction
pursuant to this Section 2.03, the Administrative Agent shall notify each Lender
that submitted a Competitive Bid in such auction of the ranges of bids submitted
(without the bidder's name) and accepted for each Bid Loan and the aggregate
amount of each Bid Borrowing.
2.04 FOREIGN CURRENCY LOAN COMMITMENT. Subject to the terms and
conditions of this Agreement, each Foreign Currency Lender agrees to make loans
(each a "Foreign Currency Loan" and collectively the "Foreign Currency Loans")
in Available Foreign Currencies to the Borrowing Subsidiaries during the period
from the Closing Date to the Maturity Date in a Dollar Equivalent amount at any
time outstanding not to exceed the Aggregate Foreign Currency Commitments;
provided that (i) the Total Outstandings shall not at any time exceed the
Aggregate Commitments and (ii) the aggregate Outstanding Amount of all Foreign
Currency Loans of any Foreign Currency Lender shall not at any time exceed the
Foreign Currency Commitment of such Foreign Currency Lender. Subject to the
terms and conditions hereof, each Borrowing Subsidiary may borrow under this
Section 2.03, prepay under Section 2.07 and reborrow under this Section 2.03
from time to time.
2.05 PROCEDURE FOR FOREIGN CURRENCY BORROWINGS.
(a) Each Foreign Currency Borrowing and each continuation of
Foreign Currency Loans for a new Interest Period shall be made upon the
applicable Borrowing Subsidiary's irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m., New York time, four Business
Days prior to the requested date of any Foreign Currency Borrowing of, or
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continuation of Foreign Currency Loans. Each such telephonic notice must be
confirmed promptly by delivery to the Administrative Agent of a written Foreign
Currency Loan Notice, appropriately completed and signed by a Responsible
Officer of such Borrowing Subsidiary. Each Foreign Currency Borrowing of, or
continuation of Foreign Currency Loans shall be in a principal amount of the
applicable Minimum Tranche. Each Foreign Currency Loan Notice (whether
telephonic or written) shall specify (i) whether such Borrowing Subsidiary is
requesting a Foreign Currency Borrowing or a continuation of Foreign Currency
Loans for a new Interest Period, (ii) the requested date of the Borrowing or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount and Available Foreign Currency of Foreign Currency Loans to be
borrowed or continued, and (iv) the duration of the Interest Period with respect
thereto. If such Borrowing Subsidiary fails to specify a new Interest Period in
a Committed Loan Notice, then the applicable Foreign Currency Loans shall be
continued for a new Interest Period of one month's duration.
(b) Following receipt of a Foreign Currency Loan Notice, the
Administrative Agent shall promptly notify each Foreign Currency Lender of its
Foreign Currency Pro Rata Share of the applicable Foreign Currency Loans. In the
case of a Foreign Currency Borrowing, each Foreign Currency Lender shall make
the amount of its Foreign Currency Loan available to the Administrative Agent in
immediately available funds at the applicable office of the Administrative Agent
specified for such Foreign Currency on Schedule 10.02 not later than 1:00 p.m.,
local time of such office, on the Business Day specified in the applicable
Foreign Currency Loan Notice. Upon satisfaction of the applicable conditions set
forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension,
Section 4.01), the Administrative Agent shall make all funds so received
available to the applicable Borrowing Subsidiary in like funds as received by
the Administrative Agent either by (i) crediting the account of such Borrowing
Subsidiary on the books of Bank of America with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to the Administrative Agent by such Borrowing Subsidiary.
(c) During the existence of a Default or Event of Default, the
Required Lenders may demand that any or all of the then outstanding Foreign
Currency Loans be converted immediately to Loans bearing interest at the
applicable Foreign Overnight Rate.
(d) The Administrative Agent shall promptly notify Anixter and the
Lenders of the interest rate applicable to any Foreign Currency Loan upon
determination of such interest rate. The determination of the Eurocurrency Rate
and Foreign Overnight Rate by the Administrative Agent shall be conclusive in
the absence of manifest error.
(e) After giving effect to all Foreign Currency Borrowings, and
all continuations of Foreign Currency Loans as the same Type, there shall not be
more than ten Interest Periods in effect with respect to Foreign Currency Loans.
2.06 PARTICIPATIONS IN FOREIGN CURRENCY LOANS.
(a) Each Lender agrees that it shall at all times have
participation in, and acknowledges that it is irrevocably and unconditionally
obligated, upon receipt of notice that the Administrative Agent has received a
Foreign Currency Participation Funding Notice, to fund (or
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to cause an Affiliate to fund) its participation in, each outstanding Foreign
Currency Loan in an amount equal to its Pro Rata Share of the amount of such
Foreign Currency Loan.
(b) The Administrative Agent shall promptly notify each Lender of
its receipt of a Foreign Currency Participation Funding Notice. Promptly (and in
any event within three Business Days) upon receipt of such Notice, each Lender
shall (or shall cause an Affiliate to) make available to the Administrative
Agent for the account of the Foreign Currency Lenders an amount in the
applicable currencies and in Same Day Funds equal to its Pro Rata Share of all
outstanding Foreign Currency Loans. If any Lender so notified fails to make
available to the Administrative Agent for the account of the Foreign Currency
Lenders the full amount of such Lender's participations in all Foreign Currency
Loans by the date which is three Business Days after its receipt of such notice
from the Administrative Agent, then interest shall accrue on such Lender's
obligations to fund such participations, from such date to the date such Lender
pays such obligations in full, at a rate per annum equal to the Foreign
Overnight Rate in effect from time to time during such period.
(c) From and after the date on which a Foreign Currency Lender has
delivered to the Administrative Agent a Foreign Currency Participation Funding
Notice, all funds received by the Foreign Currency Lenders in payment of the
Foreign Currency Loans, interest accrued thereon and other amounts payable in
respect thereof shall be delivered by each Foreign Currency Lender to the
Administrative Agent, in the same funds as those received by such Foreign
Currency Lender, to be distributed to all Lenders in accordance with their Pro
Rata Shares (i.e., giving effect to the funding of participations pursuant to
this Section 2.06), except that (i) the Pro Rata Share of such funds of any
Lender that has not funded its participations as provided herein shall be
retained by such Foreign Currency Lender, and (ii) interest accrued on any
portion of any Foreign Currency Loan prior to the Lenders' funding of their
respective participations therein shall be retained by such Foreign Currency
Lender.
(d) If the Administrative Agent or any Foreign Currency Lender is
required at any time to return to a Borrower, or to a trustee, receiver,
liquidator or custodian, or any official in any bankruptcy or insolvency
proceeding, any portion of any payment made by such Borrower to the
Administrative Agent or such Foreign Currency Lender in respect of any Foreign
Currency Loan or any interest or fee thereon, each Lender shall, on demand of
the Administrative Agent, forthwith return to the Administrative Agent for the
account of such Foreign Currency Lender the amount of its Pro Rata Share of the
amount so returned by the Administrative Agent or such Foreign Currency Lender
plus interest thereon from the date such demand is made to the date such amount
is returned by such Lender to the Administrative Agent, at a rate per annum
equal to the Foreign Overnight Rate from time to time in effect.
(e) The Required Lenders, the Foreign Currency Lenders and the
Administrative Agent may agree on any other reasonable method (such as making
assignments of Foreign Currency Loans) for sharing the risks of Foreign Currency
Loans ratably among all Lenders according to their Pro Rata Shares so long as
such method does not materially disadvantage any Lender.
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2.07 PREPAYMENTS.
(a) Anixter may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m., New York time, (A) three
Business Days prior to any date of prepayment of Eurocurrency Rate Committed
Loans, and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurocurrency Rate Committed Loans shall be in a principal amount
of US$5,000,000 or a whole multiple of US$1,000,000 in excess thereof; and (iii)
any prepayment of Base Rate Committed Loans shall be in a principal amount of
US$1,000,000 or a whole multiple of US$500,000 in excess thereof. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of such Lender's Pro Rata
Share of such prepayment. If such notice is given by Anixter, Anixter shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurocurrency Rate
Loan shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Committed Loans of the Lenders in accordance with their
respective Pro Rata Shares.
(b) No Bid Loan may be prepaid without the prior consent of the
applicable Lender. The Borrowing Subsidiaries may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay
Foreign Currency Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not later than
11:00 a.m., New York time, four Business Days prior to any date of prepayment of
Foreign Currency Loans; and (ii) any prepayment of Foreign Currency Loans shall
be in a principal amount of the applicable Minimum Tranche. Each such notice
shall specify the date and amount of such prepayment and the Foreign Currency
Loans to be prepaid. The Administrative Agent will promptly notify each Foreign
Currency Lender of its receipt of each such notice, and of such Foreign Currency
Lender's Foreign Currency Pro Rata Share of such prepayment. If such notice is
given by a Borrowing Subsidiary, such Borrowing Subsidiary shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Foreign Currency Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Foreign Currency Loans of the Foreign Currency Lenders in
accordance with their respective Foreign Currency Pro Rata Shares.
(c) If for any reason the Outstanding Amount of all Loans at any
time exceeds the Aggregate Commitments then in effect, the Borrowers shall
immediately prepay Loans in an aggregate amount equal to such excess.
2.08 REDUCTION OR TERMINATION OF COMMITMENTS. Anixter may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or
permanently reduce the Aggregate Commitments to an amount not less than the then
Outstanding Amount of all Loans; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m., five Business
Days prior to the date of termination or reduction, and (ii) any such partial
reduction shall be in an aggregate amount of US$1,000,000 or any whole multiple
of
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US$500,000 in excess thereof. The Administrative Agent shall promptly notify the
Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Pro Rata Share. All facility fees
accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination.
2.09 REPAYMENT OF LOANS.
(a) Anixter shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b) Anixter shall repay each Bid Loan on the last day of the
Interest Period in respect thereof. Each Borrowing Subsidiary shall repay to the
Foreign Currency Lenders on the Maturity Date the aggregate principal amount of
Foreign Currency Loans of such Borrower outstanding on such date.
2.10 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Margin; (ii)
each Base Rate Committed Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Margin; (iii) each Bid Loan shall bear
interest on the outstanding principal amount thereof for each Interest Period at
a rate per annum equal to the Eurocurrency Rate for such Interest Period plus
(or minus) the Eurocurrency Bid Margin, or at the Absolute Rate for such
Interest Period, as the case may be; and (iv) each Foreign Currency Loan shall
bear interest on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the sum of (A) the Eurocurrency Rate for
such Interest Period plus (B) the Applicable Margin.
(b) While any Event of Default exists or after acceleration, the
Borrowers shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.11 FEES.
(a) Facility Fee. Anixter shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a facility
fee equal to the Applicable Margin
33
times the actual daily amount of the Aggregate Commitments, regardless of usage.
The facility fee shall accrue at all times from the Closing Date until the
Maturity Date and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the Maturity Date. The
facility fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Margin during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Margin separately for each
period during such quarter that such Applicable Margin was in effect. The
facility fee shall accrue at all times, including at any time during which one
or more of the conditions in Article IV is not met.
(b) Arrangement and Agency Fees. (i) Anixter shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee to the Administrative Agent for the Administrative Agent's own
account, in the amounts and at the times specified in the letter agreement,
dated July 26, 2000 (the "Agent/Arranger Fee Letter"), among Anixter, the
Arranger and the Administrative Agent. Such fees shall be fully earned when paid
and shall be nonrefundable for any reason whatsoever.
(ii) In addition, Anixter shall pay to the Administrative
Agent for its own account an administration fee of US$3,000 for each
Bid Request submitted to the Administrative Agent (whether or not any
bids are submitted or accepted), which fee shall be due and payable on
the date such Bid Request is submitted.
(c) Upfront Fee. Anixter shall pay to the Administrative Agent for
the account of each Lender on the Closing Date an upfront fee equal to the
amount provided for such Lender in its Allocation Notice. Such fee shall be
fully earned when paid and shall be nonrefundable for any reason whatsoever.
2.12 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate Loans computed based on Bank of America's "prime rate" shall be
calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed. Computation of interest on Foreign Currency
Loans in British Pounds Sterling shall be calculated on the basis of a year of
365 days, and the actual number of days elapsed. Computation of all other types
of interest and all fees shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed, which results in a higher yield to the
payee thereof than a method based on a year of 365 or 366 days. Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall bear interest for one day.
2.13 EVIDENCE OF DEBT. The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments thereon. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Loans. In the event of any conflict between the accounts and
records maintained by any
34
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of such Lender shall control. Upon the
request of any Lender made through the Administrative Agent, such Lender's Loans
may be evidenced by a Committed Loan Note and/or a Competitive Bid Note, as
applicable, in addition to such accounts or records. Each Lender may attach
schedules to its Note(s) and endorse thereon the date, Type (if applicable),
amount and maturity of the applicable Loans and payments with respect thereto.
2.14 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon,
New York time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent after 12:00 noon, New York time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the definition of "Interest Period," if any payment
to be made by a Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward repayment of principal then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(d) Unless any Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that such Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that such Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if such Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in immediately available funds, together with interest thereon in
respect of each day from the date such amount was made
35
available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available
funds, at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by
the Administrative Agent to the applicable Borrower to the date such
amount is recovered by the Administrative Agent (the "Compensation
Period") at a rate per annum equal to the Federal Funds Rate from time
to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's
Committed Loan, Bid Loan or Foreign Currency Loan, as the case may be,
included in the applicable Borrowing. If such Lender does not pay such
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon such Borrower, and
such Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or any Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
Upon any Lender failing to make such payment required to be made by
such Lender under this Agreement, Anixter may remove or replace such Lender in
accordance with Section 10.16.
(e) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall promptly return such funds (in
like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed
Loans and to fund participations in Foreign Currency Loans are several and not
joint. The failure of any Lender to make any Committed Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan or
purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
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2.15 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans of any Class
made by it, any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) in excess of its ratable share (or other
share contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Loans of such Class made by them as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such Class of Loan or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.16 BORROWING SUBSIDIARIES. (a) Anixter may designate any Foreign
Subsidiary as a Borrowing Subsidiary with the consent of the Administrative
Agent. Upon the receipt and execution by the Administrative Agent of a Borrowing
Subsidiary Agreement in the form of Exhibit C-1 executed by such Subsidiary and
Anixter, such Subsidiary shall be a Borrowing Subsidiary and a party to this
Agreement.
(b) The obligation of each Foreign Currency Lender to make a
Foreign Currency Loan on the occasion of the first Borrowing by each Borrowing
Subsidiary is subject to the satisfaction of the condition that the
Administrative Agent shall have received the following:
(i) a Foreign Currency Loan Note payable to each Foreign
Currency Lender signed by such Borrowing Subsidiary;
(ii) all documents as shall reasonably demonstrate the
existence of such Borrowing Subsidiary, the corporate power and
authority of such Borrowing Subsidiary to enter into and the validity
with respect to such Borrowing Subsidiary of this Agreement and the
other Loan Documents and any other matters relevant hereto (including
an opinion of counsel), all in form and substance satisfactory to the
Administrative Agent; and
37
(iii) any governmental and third party approvals necessary
or advisable in connection with the execution, delivery and performance
of this Agreement by such Borrowing Subsidiary.
(c) Any Subsidiary shall cease to be a Borrowing Subsidiary
hereunder at such time as no Loans shall be outstanding to such Subsidiary and
such Subsidiary and Anixter shall have executed and delivered to the
Administrative Agent a Borrowing Subsidiary Termination in the form of Exhibit
C-2. Upon a Borrowing Subsidiary's liquidation, dissolution or disposal of to a
person other than Anixter or any Subsidiary, all Loans outstanding to any
Borrowing Subsidiary shall be due and payable and such Subsidiary shall no
longer be entitled to obtain any extensions of credit hereunder.
2.17 CURRENCY EXCHANGE FLUCTUATIONS. If on any Computation Date the
Administrative Agent shall have determined that the then outstanding Dollar
Equivalent principal amount of the Total Outstandings exceeds the Aggregate
Commitments due to a change in applicable rates of exchange between US Dollars,
on the one hand, and any Applicable Currency, on the other hand by an amount
equal to or in excess of US$1,000,000, then the Administrative Agent shall give
notice to Anixter that a prepayment is required under this Section, and the
Borrowers agree thereupon to make prepayments of Loans such that, after giving
effect to such prepayment, the Total Outstandings will not exceed the Aggregate
Commitments.
2.18 PARTICIPATION OBLIGATIONS UNCONDITIONAL.
(a) Each Lender's obligation to purchase participation interests
in Foreign Currency Loans pursuant to Section 2.06 shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including (a) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against any other Lender, any Borrower or any other
Person for any reason whatsoever; (b) the occurrence or continuance of an Event
of Default, a Default or a Material Adverse Effect; (c) any breach of this
Agreement by any Borrower or any other Lender; (d) any inability of any Borrower
to satisfy the conditions precedent to borrowing set forth in this Agreement on
the date upon which any Foreign Currency Loan is to be refunded or any
participation interest in any Loan is to be purchased; or (e) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(b) Notwithstanding the provisions of subsection (a) above, no
Lender shall be required to purchase a participation interest in a Foreign
Currency Loan pursuant to Section 2.06 if, at least two Business Days prior to
the making of such Foreign Currency Loan, the Administrative Agent and the
Foreign Lenders received written notice from such Lender specifying that such
Lender believed in good faith that one or more of the conditions precedent to
the making of such Loan were not satisfied (and detailing its basis for such
good faith belief) and, in fact, such conditions precedent to the making of such
Loan were not satisfied at the time of the making of such Loan; provided that
the obligation of such Lender to make such Loan and/or to purchase such
participation interest shall be reinstated upon the earlier of (i) the date on
which such Lender notifies the Administrative Agent that its prior notice has
been withdrawn or (ii) the date on which all conditions precedent to the making
of such Foreign Currency Loan have been satisfied (or waived by the Required
Lenders or all Lenders, as applicable).
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ARTICLE III
YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by any Borrower to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If any Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), the Administrative Agent and such Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions, (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, such Borrower shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, each Borrower agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under any
Loan Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If any Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, such Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies as
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) Each Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Payment under this
subsection (d) shall be made within 30
39
days after the date the Lender or the Administrative Agent makes a demand
therefor. With respect to such deduction or withholding for or on account of
Taxes and to confirm that all such Taxes have been paid to the appropriate
Governmental Authorities, each Borrower shall promptly (and in any event not
later than 30 days after receipt) furnish to each Lender and the Administrative
Agent such certificates, receipts and other documents as may be required (in the
judgment of such Lender or the Agent) to establish any tax credit to which such
Lender or the Administrative Agent may be entitled. If a Lender or the
Administrative Agent shall become aware that it is entitled to receive a refund
in respect of Taxes or Other Taxes as to which it has been indemnified by any
Borrower pursuant to this Section 3.01, it shall promptly notify Anixter of such
refund and shall, within 30 days after receipt of a request by Anixter (or
promptly upon receipt, if Anixter has requested application for such refund
pursuant hereto), repay such refund to the applicable Borrower (to the extent of
amounts that have been paid by such Borrower under this Section 3.01 with
respect to such refund and to the extent such refund has been received by such
Lender or the Administrative Agent), net of all out-of-pocket expenses of such
Lender and without interest (except to the extent such refund includes any
interest); provided that the applicable Borrower, upon the request of such
Lender or the Agent, agrees to return such refund (plus penalties, interest or
other charges) to such Lender or the Administrative Agent if such Lender or the
Administrative Agent is required to repay such refund. Nothing contained in this
clause (d) shall require any Lender or the Administrative Agent to make
available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential).
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, US Dollars in the applicable offshore
US Dollar market, or to determine or charge interest rates based upon the
Eurocurrency Rate, then, on notice thereof by such Lender to Anixter through the
Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans or to convert Base Rate Committed Loans to Eurocurrency
Rate Committed Loans shall be suspended until such Lender notifies the
Administrative Agent and Anixter that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrowers shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurocurrency Rate Loans of such Lender to Base
Rate Loans, either on the last day of the Interest Period thereof, if such
Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrowers
shall also pay interest on the amount so prepaid or converted. Each Lender
agrees to designate a different Lending Office if such designation will avoid
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent
determines (or in the case of clause (c) below, the Required Lenders determine)
in connection with any request for a Eurocurrency Rate Loan or a conversion to
or continuation thereof that (a) US Dollar deposits are not being offered to
banks in the applicable offshore US Dollar market for the applicable amount and
Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for such Eurocurrency
Rate Loan, or (c) the
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Eurocurrency Rate for such Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to the Required Lenders of funding such Eurocurrency Rate Loan,
the Administrative Agent will promptly notify Anixter and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, any Borrower may revoke any pending request for a
Committed Borrowing, conversion or continuation of Eurocurrency Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON EUROCURRENCY RATE LOANS.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any material increase in the cost to such
Lender of agreeing to make or making, funding or maintaining applicable Loans,
or a material reduction in the amount received or receivable by such Lender in
connection with any of the foregoing (excluding for purposes of this subsection
(a) any such increased costs or reduction in amount resulting from (i) Taxes or
Other Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis
of taxation of overall net income or overall gross income by the United States
or any foreign jurisdiction or any political subdivision of either thereof under
the Laws of which such Lender is organized or has its Lending Office, and (iii)
reserve requirements), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the applicable Borrowers shall
pay to such Lender such additional amounts as will compensate such Lender for
such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of materially reducing the rate of return on the capital of such Lender
or any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the applicable Borrowers shall
pay to such Lender such additional amounts as will compensate such Lender for
such reduction.
(c) Each Borrower shall pay to each Lender, as long as such Lender
shall be required under regulations of the Board to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional costs on
the unpaid principal amount of each Eurocurrency Rate Loan to such Borrower
equal to the actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided such Borrower shall have received at least 15
days' prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.
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(d) Concurrently with each payment of interest on any Eurocurrency
Rate Loan, the applicable Borrower shall pay each Lender the Associated Costs
referred to in Schedule 1.01, as applicable.
3.05 FUNDING LOSSES. Upon written demand of any Lender (with a copy
to the Administrative Agent) from time to time, each Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan of such Borrower other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by such Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by
such Borrower; or
(c) any assignment of a Eurocurrency Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by such
Borrower pursuant to Section 10.16.
Such compensation shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, refinanced or not borrowed (which in the case of a
Eurocurency Rate Loan will be assumed to be the Eurocurrency Rate applicable
thereto) for the period from the date of such payment, prepayment, refinancing
or failure to borrow or refinance to the last day of the Interest Period for
such Loan (or, in the case of a failure to borrow or refinance, the Interest
Period for such Loan which would have commenced on the date of such failure)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would be realized by such Lender in reemploying the funds so paid, prepaid or
not borrowed or refinanced for such period or Interest Period, as the case may
be. The Borrowers shall pay each Lender the amount shown as due on any
certificate delivered by such Lender claiming such compensation within ten (10)
Business Days after the Borrowers' receipt of the same. Such Borrower shall also
pay any customary administrative fees charged by such Lender in connection with
the foregoing.
For purposes of calculating amounts payable by any Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency
Rate Committed Loan made by it at the Eurocurrency Rate for such Loan by a
matching deposit or other borrowing in the applicable offshore US Dollar
interbank market for a comparable amount and for a comparable period, whether or
not such Eurocurrency Rate Committed Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender
claiming compensation under this Article III and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. Such certificate shall provide in reasonable detail the
amount payable and the calculations used to determine such amount. In
determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.
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(b) Upon any Lender's making a claim for compensation under
Section 3.01 or Section 3.04, Anixter may remove or replace such Lender in
accordance with Section 10.16.
(c) Any Lender claiming any additional amounts payable pursuant to
Section 3.01 or Section 3.04, or exercising its rights under Section 3.02, shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
file any certificate or document reasonably requested by Anixter or to change
the jurisdiction of its Lending Office if the making of such a filing or change
would avoid the need for or reduce the amount of any such additional amounts
which may thereafter accrue or avoid the circumstances giving rise to such
exercise and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.
(d) If any Lender fails to notify Anixter and the Administrative
Agent within 120 days of its actual knowledge of any such additional amount
payable by a Borrower pursuant to Section 3.01 or 3.04(a) or (b) (the "Notice
Date"), the Borrowers shall not be obligated to pay such additional amounts
accruing during the period from the Notice Date until the date of delivery of
such notice, provided, further, that the failure to give such notice shall not
affect any Borrower's obligation to pay such additional amounts accrued prior to
the Notice Date or after delivery of such notice.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article
III shall survive termination of the Commitments and payment in full of all the
other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) Unless waived by all the Lenders, the Administrative Agent's
receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance satisfactory
to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient
in number for distribution to the Administrative Agent, each Lender and
the Borrowers;
(ii) Committed Loan Notes executed by the Borrowers in
favor of each Lender requesting such a Note, each in a principal amount
equal to such Lender's Commitment;
(iii) Bid Loan Notes executed by Anixter in favor of each
Lender requesting such a Note, each in the principal amount of the
Aggregate Commitments;
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(iv) Foreign Currency Loan Notes executed by the Borrowers
in favor of each Foreign Currency Lender requesting such a Note, each
in the principal amount of the Aggregate Foreign Currency Commitments;
(v) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require to
establish the identities of and verify the authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with the Loan Documents to which such Loan Party
is a party and authorizing the execution, delivery and performance by
such Loan Party of the Loan Documents to which such Loan Party is a
party;
(vi) such evidence as the Administrative Agent may
reasonably require to verify that each Loan Party is duly organized or
formed, validly existing and in good standing under the laws of its
jurisdiction of formation (to the extent applicable in such
jurisdiction), including certified copies of each Loan Party's
Organization Documents and certificate of good standing (if applicable)
and tax clearance certificates;
(vii) a certificate signed by a Responsible Officer of each
Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there has been no event
or circumstance since the date of the Audited Financial Statements
which has or could be reasonably expected to have a Material Adverse
Effect; and (C) the current Debt Ratings;
(viii) an opinion of counsel to each Loan Party
substantially in the form of Exhibit H;
(ix) evidence that the Existing Credit Agreement has been
or concurrently with the Closing Date is being terminated and all
outstanding obligations thereunder have been paid or are being paid in
full; and
(x) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Committed Loans as the same Type) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrowers contained
in Article V, or which are contained in any document furnished at any time under
or in connection herewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.
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(b) No Default or Event of Default shall exist, or would result
from such proposed Credit Extension.
(c) The Administrative Agent shall have received a Request for
Credit Extension in accordance with the requirements hereof.
(d) The Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as the Administrative Agent or the Required
Lenders reasonably may require.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Committed Loans as the same Type) submitted by a Borrower shall
be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 ORGANIZATION; CORPORATE POWERS. AXE, Anixter and each
Subsidiary of Anixter (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (ii) is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which it owns or leases real property or
in which the nature of its business requires it to be so qualified, except those
jurisdictions where the failure to be in good standing or to so qualify has not
had or could not reasonably be expected to have a Material Adverse Effect, and
(iii) has all requisite corporate power and authority to own, operate and
encumber its property and assets and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by the Transaction Documents.
5.02 AUTHORITY.
(a) AXE, Anixter and each Subsidiary of Anixter party to any of
the Transaction Documents has the requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents executed by it, or to be executed by it.
(b) The execution, delivery and performance (or filing or
recording, as the case may be) of each of the Transaction Documents to which its
party and the consummation of the transactions contemplated thereby, have been
duly authorized by all necessary corporate action on the part of AXE, Anixter
and each Subsidiary of Anixter party thereto and no other corporate proceedings
on the part of any such Person are necessary to consummate such transactions.
(c) Each of the Transaction Documents to which it is a party has
been duly executed and delivered (or filed or recorded, as the case may be) by
AXE, Anixter and each Subsidiary of Anixter party thereto, constitutes its
legal, valid and binding obligations, enforceable against it in accordance with
its terms (except as enforceabiltiy may be limited by applicable bankruptcy,
45
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles), and is in
full force and effect (unless terminated in accordance with the terms thereof).
5.03 SUBSIDIARIES. Anixter has no Subsidiaries other than those
described in Schedule 5.03 and those, if any, which are permitted by Section
7.03 to be created after the Closing Date.
5.04 NO CONFLICT. The execution, delivery and performance of each
Transaction Document to which it is party by AXE, Anixter and each Subsidiary of
Anixter and each of the transactions contemplated thereby, do not and will not
(i) conflict with any Contractual Obligation of any such Person, any liability
resulting from which would have or could be reasonably expected to have a
Material Adverse Effect, or (ii) conflict with or violate such Person's
certificate or articles of incorporation or by-laws or similar charter and
constituting documents, or (iii) except as set forth on Schedule 5.04, conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law or Contractual Obligation
of any such Person, or require termination of any Contractual Obligation of any
such Person, or (iv) result in or require the creation or imposition of any Lien
whatsoever upon any of the properties or assets of any such Person (other than
Liens permitted pursuant to Section 7.02(b)), or (v) require any approval of
stockholders of any such Person, unless such approval has been obtained.
5.05 GOVERNMENTAL CONSENTS. The execution, delivery and performance
of each Transaction Document to which it is a party by AXE, Anixter and each
Subsidiary of Anixter, and the transactions contemplated thereby do not and will
not require any registration with, consent or approval of, or notice to, or
other action with or by, any Governmental Authority, except filings, consents or
notices which have been made, obtained or given and are in full force and
effect.
5.06 GOVERNMENTAL REGULATION. Neither AXE nor Anixter nor any of
Anixter's Subsidiaries is subject to regulation under the Public Utility
Holdings Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, the Investment Company Act of 1940 or any other statute or regulation of
any Governmental Authority such that its ability to incur indebtedness is
limited or its ability to consummate the transactions contemplated hereby or by
the other Transaction Documents is materially impaired.
5.07 FINANCIAL POSITION.
(a) As of the Closing Date, all quarterly and annual financial
statements of Anixter or of Anixter and any of its Subsidiaries delivered to the
Administrative Agent and the Lenders (including the Audited Financial
Statements) were prepared in conformity with GAAP (except as otherwise noted
therein) and fairly present the financial position of Anixter or the
consolidated financial position of Anixter and such Subsidiaries, as the case
may be, as at the respective dates thereof and the results of operations and
changes in cash flows for each of the periods covered thereby, subject, in the
case of any unaudited interim financial statements to changes resulting from
audit and normal year-end adjustments.
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(b) All quarterly and annual financial statements of Anixter or of
Anixter and any of its Subsidiaries delivered to the Administrative Agent on or
prior to the date this representation is made or deemed made were prepared in
conformity with GAAP (except as otherwise noted there) and fairly present the
financial position of Anixter or the consolidated financial position of Anixter
and such Subsidiaries, as the case may be as at the respective dates thereof and
the results of operations and changes in cash flows for each of the periods
covered thereby, subject, in the case of any unaudited interim financial
statements, to changes resulting from audit and normal year-end adjustments.
5.08 LITIGATION; ADVERSE EFFECTS.
(a) Except as set forth in Schedule 5.08 there is no action, suit,
proceeding, investigation of any Governmental Authority or arbitration at law or
in equity, or before or by any Governmental Authority, pending, or, to the best
knowledge of such Borrower, threatened against AXE, Anixter or any Subsidiary of
Anixter or any Property of any of them, which could be reasonably expected to
result in any Material Adverse Effect.
(b) Neither AXE nor Anixter nor any Subsidiary of Anixter is (A)
in violation of any applicable law which violation has or could reasonably be
expected to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, decree, order, rule or
regulation of any court or Governmental Authority which has or could reasonably
be expected to have a Material Adverse Effect. There is no action, suit,
proceeding or investigation pending or, to the knowledge of such Borrower,
threatened against or affecting AXE, Anixter or any Subsidiary of Anixter which
challenges the validity or the enforceability of any of the Transaction
Documents.
5.09 NO MATERIAL ADVERSE CHANGE. With respect to each of AXE,
Anixter and Anixter and its Subsidiaries taken as a whole, there has occurred no
event since December 31, 1999 which has or could reasonably be expected to have
a Material Adverse Effect.
5.10 PAYMENT OF TAXES. All United States Federal income and other
material tax returns and reports of each Borrower and each Borrower's
Subsidiaries required to be filed (including extensions) have been timely filed
and all taxes, assessments, fees and other charges of Governmental Authorities
thereupon and upon their respective properties, assets, income and franchises
which are shown on such returns as being due and payable, have been paid when
due and payable, except (i) taxes being contested in good faith by appropriate
proceedings and that are reserved against in accordance with GAAP, (ii) taxes
which are not yet delinquent, (iii) taxes which are payable in installments so
long as paid before any penalty accrues with respect thereto and (iv) other
taxes, assessments, fees and other charges or Governmental Authorities which do
not exceed US$250,000 in the aggregate. Except as set forth in clauses (i)
through (iv) above, such Borrower has no knowledge of any proposed tax
assessment against Anixter or any of Anixter's Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.11 PERFORMANCE. Neither AXE nor Anixter nor any Subsidiary of
Anixter is in default in the performance, observance or fulfilment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it the effect of which could reasonably be expected to have a
Material Adverse Effect, and no condition exists which, with
47
the giving of notice or the lapse of time or both, would constitute a default
under such Contractual Obligation, except where the consequences, direct or
indirect, of such default or defaults, if any, would not have and could not
reasonably be expected to have a Material Adverse Effect.
5.12 SECURITIES ACTIVITIES. Neither AXE nor Anixter nor any of
Anixter's Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock and none will use, directly
or indirectly, the proceeds of any Loan to purchase or carry Margin Stock.
5.13 DISCLOSURE. Subject to changes in facts or conditions which
are required or permitted under this Agreement, the representations and
warranties of AXE, each Borrower and each Subsidiary of each Borrower contained
in the Transaction Documents, and all certificates and other documents delivered
to the Administrative Agent in connection therewith, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading.
5.14 REQUIREMENTS OF LAW. Each of AXE, Anixter and each Subsidiary
of Anixter is in compliance with all Requirements of Law (including, without
limitation, the Securities Act and the Securities Exchange Act, the applicable
rules and regulations thereunder, and state securities laws) applicable to it
and its business, where the failure to so comply would have or could be
reasonably expected to have a Material Adverse Effect.
5.15 PATENTS, TRADEMARKS, PERMITS, ETC. Anixter and each Subsidiary
of Anixter owns, is licensed or otherwise has the lawful right to use, or has
all permits and other approvals of Governmental Authorities, patents,
trademarks, service marks, trade names, copyrights, technology, know-how and
processes used in or necessary for the conduct of its business as currently
conducted which are material to its financial condition, business, operations,
assets and prospects, individually or taken as a whole. The use of such permits
and other approvals of Governmental Authorities, patents, trademarks, service
marks, trade names, copyrights, technology, know-how and processes by each
Borrower or any such Subsidiary does not infringe on the rights of any Person,
subject to such claims and infringements the existence of which do not have or
could not reasonably be expected to have a Material Adverse Effect. The
consummation of the transactions contemplated by the Transaction Documents will
not impair the ownership of or rights under (or the license or other right to
use, as the case may be) any permits and governmental approvals, patents,
trademarks, service marks, trade names, copyrights, technology, know-how or
processes by Anixter or any such Subsidiary in any manner which has or could
reasonably be expected to have a Material Adverse Effect.
5.16 ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 5.16
and except to the extent that a failure of any of the following representations
to be true could not be reasonably expected to have a Material Adverse Effect,
(i) each of the operations of AXE, Anixter and its Subsidiaries comply in all
respects with all applicable environmental, health and safety Requirements of
Law; (ii) each of AXE, Anixter and its Subsidiaries has obtained all
environmental, health and safety Permits necessary for its operations, all such
Permits are in good standing and AXE, Anixter and its Subsidiaries are in
compliance with all terms and
48
conditions of such Permits; and (iii) (A) neither AXE, Anixter nor any
Subsidiary of Anixter, nor any of their present Property or operations and (B)
none of AXE's, Anixter's or its Subsidiaries' previously-owned Property or past
operations is subject to any Remedial Action or other Liabilities and Costs
arising from the Release or threatened Release of a Contaminant into the
environment.
5.17 EMPLOYEE BENEFIT MATTERS. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. As of the Closing Date, the
present value of all accumulated benefit obligations under all Pension Plans
(based on the assumptions used by the Plans to determine benefit obligations on
an ongoing basis) does not exceed the fair market value of all assets of such
Plans. As of each date that this representation is made or deemed made, the
present value of all accumulated benefit obligations of all underfunded Pension
Plans (based on the assumptions used by the Plans to determine benefit
obligations on an ongoing basis) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than US$5,000,000
the fair market value of all of the assets of all such underfunded Plans.
5.18 SOLVENCY. Each Loan Party is Solvent after giving effect to
the transactions contemplated by this Agreement and the other Transaction
Documents and the payment and accrual of all Transaction Costs with respect to
any of the foregoing.
5.19 ASSETS AND PROPERTIES. AXE, Anixter and each Subsidiary of
Anixter has good title to all of the assets (tangible and intangible) owned by
it, except for imperfections of title (including Liens to the extent permitted
under Section 7.02(b)) which in the aggregate could not reasonably be expected
to have a Material Adverse Effect, and all such assets are free and clear of all
Liens, except as otherwise specifically permitted by the terms and provisions of
this Agreement and the other Loan Documents. Substantially all of the assets and
properties owned by, leased to or used by each Borrower or any Domestic
Subsidiary of Anixter are in good repair, working order and condition, excepting
ordinary wear and tear and are free and clear of any known defects except such
defects as do not substantially interfere with the continued use thereof in the
conduct of normal operations.
5.20 JOINT VENTURE; PARTNERSHIP. Except as set forth in Schedule
5.20 or as otherwise permitted in this Agreement, neither AXE nor Anixter nor
any Subsidiary of Anixter is engaged in any partnership or material joint
venture with any other Person.
5.21 NO DEFAULT. No Default or Event of Default exists.
5.22 RESTRICTED PAYMENTS. On or after the Closing Date, neither
Anixter nor any Subsidiary of Anixter has directly or indirectly declared,
ordered, paid or made or set apart any sum or property for any Restricted
Payment or agreed to do so, except to the extent permitted pursuant to Section
7.05.
5.23 SUBSEQUENT FUNDING REPRESENTATIONS AND WARRANTIES. To induce
each Lender and the Administrative Agent to enter into this Agreement and to
make the Loans, each Borrower represents and warrants to each Lender and the
Administrative Agent that the
49
statements set forth in the preceding Sections of this Article V (except to the
extent that such statements expressly are made only as of the Closing Date), are
true, correct and complete in all material respects on and as of the date of
each Borrowing after the Closing Date, except that the representations and
warranties need not be true and correct to the extent that changes in the facts
and conditions on which such representations and warranties are based are
expressly required or permitted under this Agreement.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan
or other Obligation shall remain unpaid or unsatisfied,
6.01 FINANCIAL STATEMENTS. Each Borrower shall, and shall cause
each of its material Subsidiaries to, maintain or cause to be maintained a
system of accounting established and administered in accordance with sound
business practices and consistent with past practice to permit preparation of
financial statements in conformity with GAAP and, if required by the terms of
this Agreement, in conformity with Agreement Accounting Principles, and each of
the financial statements described below shall be prepared from such system and
records. Anixter shall deliver or cause to be delivered to the Administrative
Agent and each Lender:
(a) Quarterly Reports. As soon as practicable, and in any event
within forty-five (45) days after the end of each of Anixter's Fiscal Quarters,
on a consolidated basis for the Consolidated Group, each of the following:
(i) a balance sheet as of the end of such Fiscal Quarter
and as of the end of the previous Fiscal Year; and
(ii) an income statement and a cash flow statement of such
Fiscal Quarter and for the period from the beginning of the current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each
case in comparative form and in reasonable detail the figures for the
corresponding periods of the previous Fiscal Year;
all prepared by Anixter, together with a certification by one of Anixter's
Financial Officers that they fairly represent the financial condition of the
Persons covered thereby as at the dates indicated in accordance with GAAP,
subject to changes resulting from audit and normal year-end adjustments and the
absence of footnotes.
(b) Annual Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each Fiscal Year on a consolidated
basis for the Consolidated Group, annual financial statements consisting of a
balance sheet, income statement and cash flow statement, setting forth in
comparative form in each case the consolidated figures for the previous Fiscal
Year all in reasonable detail, and accompanied by an opinion (unqualified as to
scope or going concern and which is not adverse) thereon of Ernst & Young LLP or
other firm of independent certified public accountants of recognized national
standing regularly retained by Anixter and acceptable to the Administrative
Agent, which report shall state that such financial statements present fairly
the financial position of the Persons covered thereby as at the dates indicated
and the results of their operations and cash flow for the periods indicated in
conformity with GAAP
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applied on a basis consistent with prior years (or, in the event of a change in
accounting principles, such accountants' concurrence with such change) and that
such firm's audit has been conducted in accordance with generally accepted
auditing standards.
(c) Budget and Business Plan. Promptly upon completion, but in any
event not later than seventy-five (75) days after the end of each Fiscal Year,
on a consolidated basis for the Consolidated Group, a copy of the operating
budget and projections by Anixter of the income statement, balance sheet and
cash flow of the Consolidated Group, taken as a whole, for the next succeeding
Fiscal Year of Anixter, all in form customarily prepared by Anixter's
management, such operating budget and projected financial statements to be
accompanied by a certificate of one of Anixter's Financial Officers to the
effect that such operating budget and projected financial statements have been
prepared on the basis believed by Anixter to be reasonable.
(d) Compliance Certificate; MD&A. Together with each delivery of
the financial statements pursuant to subsections (a) and (b) above, (i) an
Officers' Certificate of Anixter stating that the signers have reviewed the
terms of this Agreement and the Loan Documents, and have made, or caused to be
made under their supervision, a review in reasonable detail of the transactions
and condition of Anixter and its Subsidiaries, during the accounting period
covered by such financial statements, and that such review has not disclosed the
existence during or at the end of such accounting period, and that the signers
do not have knowledge of the existence, as at the date of the Officers'
Certificate, of any condition or event which constitutes an Event of Default or
Default, or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action Anixter has taken, is
taking and proposes to take with respect thereto; (ii) a Compliance Certificate
(A) demonstrating in reasonable detail compliance during and at the end of such
accounting periods with the provisions set forth in Sections 7.05, and 7.15
through 7.19 and (B) reporting the Debt Ratings and based upon its calculations
the Applicable Margin; and (iii) a written discussion and analysis by the
management of Anixter of such financial statements.
(e) Accountant's Compliance Certificate. Simultaneously with the
delivery of the financial statements referred to in subsection (b) above, a
statement of the firm of independent certified public accountants which reported
on such financial statements whether anything has come to their attention to
cause them to believe that there existed on the date of such statements any
Event of Default or Default.
(f) Report of Material Events. Promptly upon Anixter obtaining
knowledge (A) of any condition or event which constitutes an Event of Default or
Default, (B) of any condition or event which constitutes an event of default or
which, with the giving of notice or lapse of time or both, would constitute an
event of default under the Subordinated LYONs Note, the Senior Notes, the Senior
Note Indenture or the Subordination Agreement, (C) of any condition or event
which is required to be disclosed in a current report filed by Anixter with the
Commission on Form 8-K, or (D) of any condition or event which has or could
reasonably be expected to have a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of any such condition
or event and what action Anixter has taken, is taking and proposes to take with
respect thereto.
51
(g) Notice of Claims and Proceedings. (i) Promptly after learning
thereof, notice of the institution of, or threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting
Anixter or any Subsidiary of Anixter involving claims in excess of US$10,000,000
except where the same is fully covered (other than any applicable co-insurance
or deductible) by insurance (other than insurance in the nature of retro-premium
insurance or other self insurance programs); and (ii) promptly upon learning
thereof, notice of any investigation or proceeding before or by any Governmental
Authority, the effect of which might limit, prohibit or restrict materially the
manner in which Anixter or any Subsidiary of Anixter currently conducts its
business or to declare any substance contained in the products manufactured or
distributed by it to be dangerous, if such investigation or proceeding has or
could reasonably be expected to have a Material Adverse Effect.
(h) ERISA Matters. Prompt written notice of the occurrence of any
ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to have a Material Adverse Effect, such
written notice to describe such ERISA Event or Events and the action, if any,
which Anixter or such ERISA Affiliate has taken, is taking and proposes to take
with respect thereto.
(i) Publicly Distributed Information. On a timely basis, copies of
all financial statements, reports and notices, if any, sent or made available
generally by AXE or Anixter to the holders of its publicly-held securities, if
any, or filed with the Commission, and of all press releases made available
generally by AXE or Anixter to the public, if any, concerning material
developments in the business of AXE, Anixter or any of Anixter's Subsidiaries.
(j) Notices regarding the Senior Note Indenture. (i) A copy of
each notice or other written communication delivered by or on behalf of Anixter
to any holder of Senior Notes or to the trustee under the Senior Note Indenture,
such delivery to be made at the same time and by the same means as such notice
or other written communication is delivered to such Person, (ii) a copy of each
notice or other written communication is received by Anixter from the holders of
or trustee for the Senior Notes, such delivery to be made promptly after such
notice or other written communication is received by Anixter and (iii) notice of
any material amendment or modification of, or supplement to, the Senior Note
Indenture, including, without limitation, any supplement governing the issuance
of any additional notes under the Senior Note Indenture.
(k) Debt Ratings. Promptly after learning thereof, (i) notice of
the initial establishment of any of the Debt Ratings for Anixter and thereafter
any change therein and (ii) a copy of each notice or other written communication
received by Anixter from S&P, Moody's, Fitch or any other nationally recognized
rating agency relating to any of the Debt Ratings.
(l) Other Information. Such other information respecting the
financial condition of Anixter or any Subsidiary of Anixter, or their respective
business, operations, assets, performance or prospects, as the Administrative
Agent or any Lender through the Administrative Agent may from time to time
reasonably request, including, without limitation, financial projections,
business plans and any information such Person's accountants may have prepared
with respect to such Person's financial condition, its business, operations,
assets, performance and prospects. The Administrative Agent and the Lenders
shall treat any non-public information so obtained as confidential in accordance
with Section 10.08 hereof.
52
6.02 ENVIRONMENTAL NOTICES. Anixter shall notify the Administrative
Agent and each Lender in writing, promptly upon Anixter's learning thereof, of
any of the following which, in each case or together, could reasonably be
expected to result in a Material Adverse Effect:
(a) notice that any Property of Anixter or any Subsidiary of
Anixter is subject to an Environmental Lien; or
(b) notice to Anixter or any Subsidiary of Anixter or awareness by
Anixter or any Subsidiary of Anixter of a condition which could reasonably be
expected to result in (1) a notice of violation of any environmental health or
safety Requirement of Law or (2) any Liabilities and Costs with respect to any
Release or threatened Release of any Contaminant into the environment.
6.03 CORPORATE EXISTENCE, ETC. Each Borrower shall, and Anixter
shall cause each of its Subsidiaries to, at all times, maintain its corporate
existence and preserve and keep in full force and effect its rights and
franchises, except as otherwise expressly permitted in Section 7.08 and except
with respect to any Subsidiary which has no material assets or liabilities.
Anixter shall promptly provide the Administrative Agent and each of the Lenders
with a complete list of its Subsidiaries upon the occurrence of any change in
the list set forth on Schedule 5.03 hereto with respect to Subsidiaries having
assets in excess of US$1,000,000 individually or US$5,000,000 in the aggregate.
6.04 CORPORATE POWERS, ETC. Each Borrower shall, and Anixter shall
cause each of its Subsidiaries to, qualify and remain qualified to do business
in each jurisdiction in which the nature of its business requires it to be so
qualified, except in those jurisdictions where the failure to so qualify does
not have or could not reasonably be expected to have a Material Adverse Effect.
6.05 COMPLIANCE WITH LAWS. Each Borrower shall, and Anixter shall
cause each of its Subsidiaries to, comply with all Requirements of Law, and all
material contractual obligations affecting it or its business, properties,
assets or operations, except where the failure so to comply does not have or
could not reasonably be expected to have a Material Adverse Effect.
6.06 PAYMENT OF TAXES AND CLAIMS. Each Borrower shall, and Anixter
shall cause each of its Subsidiaries to, pay (a) all material taxes, assessments
and other governmental charges imposed upon it or on any of its properties or
assets or in respect of any of its franchises, business, income or property
before any penalty or interest accrues thereon, and (b) all material claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien (other than a Customary Permitted Lien) upon any of its
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided that no such taxes, assessments and
governmental charges referred to in clause (a) above or claims referred to in
clause (b) above need to be paid if being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor.
53
6.07 MAINTENANCE OF PROPERTIES; INSURANCE. Each Borrower shall, and
Anixter shall cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition, excepting ordinary wear
and tear and damage, due to casualty or condemnation, all Property material to
its operations and will make or cause to be made all appropriate repairs,
renewals and replacements thereof. Each Borrower shall, and Anixter shall cause
each of its Subsidiaries to, maintain with financially sound insurance
companies, the insurance policies and programs, including, self-insurance
retention levels, listed on Schedule 6.07 hereto (or substantially similar
programs or policies and amounts or other programs, policies and amounts
acceptable to the Required Lenders) insuring all Property and other assets
material to the operations of Anixter and its Subsidiaries against loss or
damage by fire, theft, burglary, pilferage and loss in transit and business
interruption, together with such other hazards as are reasonably consistent with
prudent industry practice, and maintain product and other liability insurance
consistent with prudent industry practice with financially sound insurance
companies licensed to do business in the states where such Property is located.
Not later than sixty (60) days after the renewal, replacement or material
modification of any policy or program, Anixter shall deliver or cause to be
delivered to the Administrative Agent (in sufficient quantity for each of the
Lenders, which the Administrative Agent shall promptly distribute to each
Lender) a detailed schedule setting forth for each such policy or program: (a)
the amount of such policy, (b) the risks insured against by such policy, (c) the
name of the insurer and each insured party under such policy, and (d) the policy
number of such policy.
6.08 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Each
Borrower shall permit, and Anixter shall cause each of its Subsidiaries to
permit, any authorized representative(s) designated by any Lender or the
Administrative Agent to visit and inspect any of its properties, including
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its affairs, finances and accounts with its officers,
employees, representatives, agents or independent certified public accountants,
all upon reasonable notice and at such reasonable time and as often as may be
reasonably requested. Each such visitation and inspection made by or on behalf
of the Administrative Agent shall be at the Borrowers' expense. Any visitation
and inspection made by or on behalf any Lender shall be at such Lender's
expense.
6.09 MAINTENANCE OF PERMITS. Each Borrower shall obtain and
maintain, and Anixter shall cause each of its Subsidiaries to obtain and
maintain, in full force and effect all licenses, franchises, Permits or other
rights necessary for the operation of its business, except where the failure to
obtain or maintain such licenses, franchises, Permits or rights does not have
and could not reasonably be expected to have a Material Adverse Effect.
6.10 EMPLOYEE BENEFIT MATTERS. Each Borrower shall establish,
maintain and operate, and Anixter shall cause each of its Subsidiaries to
establish, maintain and operate, all Plans in all material respects in
compliance with the applicable provisions of ERISA, the Code and all other
applicable laws, and the regulations and interpretations thereunder, and the
respective requirements of the governing documents for such Plans. Each Borrower
shall, and Anixter shall cause each of its Subsidiaries and other ERISA
Affiliates to, establish, maintain and operate all Foreign Employee Benefit
Plans to comply in all material respects with all laws, regulations and rules
applicable thereto and the respective requirements of the governing documents
for such Foreign Employee Benefit Plans.
54
6.11 ADDITIONAL GUARANTORS. Upon the request of the Administrative
Agent and/or the Required Lenders, Anixter will promptly cause each material
Subsidiary that shall not then be a Guarantor under the Guaranty (other than (a)
any Foreign Subsidiary (except as provided below), (b) any Receivables
Securitization SPV or (c) any Subsidiary with no significant assets or
operations) to execute and deliver to the Administrative Agent: an instrument
satisfactory in form and substance to the Administrative Agent under which it
shall undertake the obligations of a Guarantor, together with such evidence as
the Administrative Agent may reasonably request as to the corporate power and
authority of such Subsidiary to execute the foregoing instrument and perform its
obligations thereunder. Notwithstanding the foregoing, if at any time the
Administrative Agent, in its reasonable judgment, determines that the assets or
operations of Anixter Puerto Rico, Inc., Anixter Philippines Inc., Anixter
Thailand Inc. or Anixter Venezuela Inc. have become material, such Subsidiary
shall execute and deliver the aforementioned documents to the Administrative
Agent.
6.12 USE OF PROCEEDS. The proceeds of the Loans may be used for
working capital, capital expenditures and other corporate purposes and to
refinance Indebtedness under the Existing Credit Facility.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied:
7.01 INDEBTEDNESS. No Borrower shall, and Anixter shall not permit
any member of the Consolidated Group to, directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness, except:
(i) the Obligations and the "Obligations" as defined in
the 364-Day Credit Agreement;
(ii) the Existing Indebtedness;
(iii) the Senior Notes in an aggregate principal amount not
to exceed US$100,000,000;
(iv) Indebtedness in respect of Accommodation Obligations
permitted by Section 7.04;
(v) Indebtedness of any Subsidiary to Anixter or any
other Subsidiary;
(vi) Indebtedness of Anixter to any Subsidiary;
(vii) other unsecured Indebtedness of Anixter and its
Subsidiaries, including without limitation subordinated indebtedness,
which does not exceed in the aggregate US$375,000,000 at any one time
outstanding.
(viii) the Subordinated LYONs Note;
55
(ix) Indebtedness arising under Receivables Securitization
Transactions in an aggregate amount not exceeding US$350,000,000; and
(x) Indebtedness under Hedging Contracts permitted under
Section 7.14;
provided that the aggregate principal amount of Indebtedness of all Subsidiaries
owing to Persons other than to Anixter or another Subsidiary at any time (other
than Indebtedness (i) in respect of the Obligations and the "Obligations" as
defined in the 364-Day Credit Agreement and (ii) arising under Receivables
Securitization Transactions) shall not exceed US$100,000,000.
7.02 SALES OF ASSETS; LIENS.
(a) Limitation on Sales. No Borrower shall, and Anixter shall not
permit any Subsidiary of Anixter to, directly or indirectly sell, assign,
transfer, lease, convey or otherwise dispose of any properties or assets,
including, without limitation, any capital stock of any Subsidiary, whether now
owned or hereafter acquired, or any income or profits therefrom, except for:
(i) sales of inventory in the ordinary course of
business;
(ii) the disposition of obsolete equipment in the ordinary
course of business;
(iii) sales by Anixter of stock of a Subsidiary held by it,
in any transaction or series of related transactions not constituting a
Material Transaction, individually or taken together;
(iv) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets, other than the stock of any
Subsidiary, for cash consideration and for not less than fair market
value which do not constitute a Material Transaction individually or in
the aggregate (together with all sales of stock of any Subsidiary under
clause (iii) above);
(v) sales, assignments, transfers, leases, conveyances or
other dispositions of assets to Anixter or a Subsidiary;
(vi) transfers of assets to any Affiliate for less than
fair market value to the extent such transfer constitutes a permitted
Investment pursuant to Section 7.03; and
(vii) Receivables Securitization Transactions as to which
the outstanding aggregate investment or principal amount of claims held
at any time by all purchasers, assignees or other transferees of (or of
interests in) receivables and other rights to payment in all
Receivables Securitization Transactions shall not at any time exceed in
the aggregate US$350,000,000.
(b) Liens. No Borrower shall, and Anixter shall not permit any
Subsidiary of Anixter to, directly or indirectly create, incur, assume or permit
to exist any Lien on or with respect to any of its Property (including all
capital stock of any Subsidiary of Anixter) except:
56
(i) Customary Permitted Liens;
(ii) Permitted Existing Liens;
(iii) Liens on assets of any joint venture described in
Section 7.03(vi);
(iv) (A) Liens on Property existing at the time of
acquisition thereof by Anixter or any of its Subsidiaries and not
created in contemplation of such acquisition; and (B) Liens securing
purchase money Indebtedness for Property to the extent the aggregate
outstanding principal amount of such Indebtedness does not exceed
US$20,000,000, is permitted under Section 7.01 and the value of the
Property securing such Indebtedness approximates the amount of such
Indebtedness;
(v) Liens with respect to judgments or attachments which
do not result in an Event of Default or Default hereunder;
(vi) Liens on the assets of Foreign Subsidiaries which are
not Borrowers; provided, the aggregate amount of Indebtedness secured
by such Liens shall not exceed the Dollar Equivalent of US$50,000,000;
and
(vii) Liens arising in connection with Receivables
Securitization Transactions; provided that the outstanding aggregate
investment or principal amount of claims held at any time by all
purchasers, assignees or other transferees of (or of interests in)
receivables and other rights to payment in all Receivables
Securitization Transactions shall not at any time exceed in the
aggregate US$350,000,000.
7.03 INVESTMENTS. No Borrower shall, and Anixter shall not permit
any of its Subsidiaries to, directly or indirectly make or commit to make any
advance, loan, extension of credit or capital contribution, or purchase of any
stock, bonds, notes, debentures or other securities or evidences of indebtedness
of, or make any other investment in, any Person, including, without limitation,
any Affiliate of Anixter (all such transactions being referred to as
"Investments") except:
(i) Investments by Anixter or any of its Subsidiaries in
Cash Equivalents;
(ii) Investments made prior to the date hereof and set
forth on Schedule 7.03;
(iii) Investments arising from sales in the ordinary course
of business on customary trade terms;
(iv) Investments constituting (a) loans by Anixter or any
Subsidiary of Anixter to its employees in each case in the ordinary
course of business not in excess of an aggregate amount of
US$10,000,000 outstanding at any one time and (b) in addition to the
loans permitted pursuant to clause (a), loans by Anixter to its
employees concurrent with the exercise of an option for the purchase of
capital stock of Anixter pursuant to the Anixter Distribution Stock
Plan, which loans shall: (1) be in an amount not to exceed the lesser
of (A) US$15,000,000 in the aggregate and (B) the sum of (i) the
exercise price with respect to the stock being purchased plus (ii) the
amount of tax withheld on the
57
difference between the exercise price with respect to such stock and
the fair market value of such stock on the date of exercise of such
option; and (2) be secured by a pledge in favor of Anixter of the
capital stock so purchased;
(v) Investments in connection with the acquisition by
Anixter or any Subsidiary of substantially all of the assets or all of
the capital stock of any Person not in excess of an individual amount
of US$75,000,000 or an aggregate amount of US$150,000,000 over the term
of this Agreement (in each case, exclusive of the value of any capital
stock of Anixter or AXE given in connection with any such acquisition);
(vi) Investments in any joint ventures and Investments in
connection with the purchase of any other Person's interest in any such
joint ventures, which do not exceed US$25,000,000 in the aggregate
outstanding at any one time;
(vii) Investments (other than those set forth on Schedule
7.03) in notes receivable received in connection with transactions
permitted pursuant to Section 7.02(a)(vii); provided, the aggregate
amount of such Investments at any one time outstanding shall not exceed
US$275,000,000;
(viii) Investments by Anixter in any Subsidiary of Anixter;
(ix) Investments by any Subsidiary of Anixter in Anixter
or in any other Subsidiary of Anixter;
(x) Investments constituting loans permitted by Section
7.01(vi) or Accommodation Obligations permitted under Section 7.04; and
(xi) other Investments not to exceed US$10,000,000 in the
aggregate outstanding at any time.
Notwithstanding anything to the contrary contained in this Section
7.03, neither Anixter nor any Subsidiary of Anixter shall acquire more than
twenty percent (20%) of the capital stock of any Person in a transaction that
has not been approved by such Person's board of directors.
7.04 ACCOMMODATION OBLIGATIONS. No Borrower shall, and Anixter
shall not permit any Subsidiary of Anixter to, directly or indirectly, create or
become or be liable with respect to any Accommodation Obligation involving
Indebtedness of AXE or any Affiliate of AXE which is not a Subsidiary of
Anixter. In addition, no Borrower shall, and Anixter shall not permit any
Subsidiary to, directly or indirectly, create or become or be liable with
respect to any Accommodation Obligation except:
(i) guaranties resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(ii) Accommodation Obligations arising in connection with
the Transaction Documents;
58
(iii) Accommodation Obligations of Anixter arising in
connection with the issuance of Canadian rate reset bonds by a Canadian
Subsidiary of Anixter in an aggregate principal amount not to exceed
the Dollar Equivalent of US$5,000,000;
(iv) Accommodation Obligations by Anixter with respect to
lessees' obligations to third-party lessors under leases of Property
purchased from Anixter and its Subsidiaries, in an aggregate amount not
to exceed US$5,000,000;
(v) Accommodation Obligations of Anixter and its
Subsidiaries arising in connection with Hedging Contracts entered into
with any of the Lenders; and
(vi) other Accommodation Obligations by Anixter and its
Subsidiaries in an aggregate amount outstanding at any time not to
exceed the Dollar Equivalent of Seventy Five Million Dollars
(US$75,000,000); provided, however, that no such Accommodation
Obligations shall be entered into or incurred after the occurrence and
during the continuance of an Event of Default or Default.
7.05 RESTRICTED PAYMENTS. No Borrower shall, and Anixter shall not
permit any Subsidiary of Anixter to, directly or indirectly declare or make any
Restricted Payment, except:
(i) payments of dividends by Anixter to AXE or
redemption, retirement, purchase or other acquisition for value, direct
or indirect, of any shares of capital stock of Anixter issued to AXE or
prepayments, redemption or defeasance of subordinated debt, provided:
(a) at the time thereof and after taking into account the payment
thereof, no Event of Default or Default exists or is pending, whether
or not such Event of Default or Default has been reported to the
Administrative Agent; and (b) the aggregate amount of such dividends,
redemptions, retirements, purchases or other acquisitions, prepayments,
redemptions and defeasance does not exceed US$100,000,000 plus fifty
percent (50%) of the Consolidated Net Income for the period from
September 30, 2000 to the date of such calculation; and
(ii) payments by Anixter to AXE under the Tax Allocation
Agreement provided: (a) no such payments shall be made at any time with
respect to the income (whether trade or business income or passive
income) of Anixter's Foreign Subsidiaries unless Anixter has received a
like amount from such Foreign Subsidiaries, (b) no such payments shall
be made at any time to the extent such payments are not in an amount
substantially the same as the amount of federal and state taxes which
would be due and payable by Anixter and the corporations (with Anixter,
collectively the "Borrower Group") which would be members of the
"affiliated group" (as defined in Section 1504 of the Code) of which
Anixter would be the common parent if Anixter were not a member of the
AXE affiliated group (as so defined) (the "AXE Group") if the Borrower
Group filed a separate consolidated federal income tax return and
separate consolidated or combined state income tax returns, (c) no such
payments shall be made at any time an Event of Default or Default
exists or is pending, whether or not such Event of Default or Default
has been reported to the Administrative Agent, to the extent such
payments exceed the lesser of (1) the amount of federal and state taxes
which would be due and payable by the Borrower Group, if the Borrower
Group filed a separate consolidated
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federal income tax return and separate consolidated or combined state
income tax returns and (2) the amount of the tax liability actually
incurred and paid by the AXE Group; and (d) no such payment shall be
made after the occurrence of an Event of Default under Section 8.01(f)
or 8.01(g).
7.06 CONDUCT OF BUSINESS. No Borrower shall, and Anixter shall not
permit any of its Subsidiaries to, directly or indirectly engage in any business
other than the business engaged in by Anixter and all of its Subsidiaries on the
date hereof and any business activities substantially similar or related
thereto. No Borrower shall, and Anixter shall not permit any of its Subsidiaries
to, enter into any interest rate, commodity, or foreign currency exchange, swap,
collar, cap, option, forward, futures or similar agreements other than Hedging
Contracts.
7.07 TRANSACTIONS WITH AFFILIATES. No Borrower shall, and Anixter
shall not permit any other Subsidiary to, directly or indirectly enter into or
permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any of its Affiliates that are not Subsidiaries of Anixter on terms that are
less favorable to it than those fair and reasonable terms that might be obtained
in a comparable arms-length transaction at the time (other than payments to AXE
in respect of directors' fees and reasonable allocated expenses not to exceed
US$3,000,000 per year in the aggregate).
7.08 RESTRICTION ON FUNDAMENTAL CHANGES.
(a) No Borrower shall, and Anixter shall not permit any of its
Subsidiaries to, directly or indirectly enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or otherwise dispose
of, in one transaction or series of transactions, all or any substantial part of
its business or Property, whether now or hereafter acquired, except:
(i) as otherwise permitted under Section 7.02(a); and
(ii) any Subsidiary may merge into or convey, sell, lease
or transfer all or substantially all of its assets to Anixter or any
other Subsidiary of Anixter.
(b) No Borrower shall, and Anixter shall not permit its
Subsidiaries to, acquire by purchase or otherwise any property or assets of, or
stock or other evidence of beneficial ownership of, any Person, except in the
ordinary course of its business or to the extent permitted pursuant to Section
7.03.
7.09 EMPLOYEE BENEFIT MATTERS. No Borrower shall, and Anixter shall
not permit any of its ERISA Affiliates to do any of the following which,
individually, or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect:
(i) Engage in any prohibited transaction described in
Section 406 of ERISA or 4975 of the Code for which a statutory or class
exemption is not available or a private exemption has not been
previously obtained from the DOL;
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(ii) permit to exist any accumulated funding deficiency
(as defined in Sections 302 of ERISA and 412 of the Code), whether or
not waived;
(iii) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(iv) terminate any Benefit Plan in a distress termination
under Section 4041(c) of ERISA which would result in any liability to
Anixter or any ERISA Affiliate;
(v) fail to make any contribution or payment to any
Multiemployer Plan which Anixter or any ERISA Affiliate may be required
to make under any agreement relating to such Multiemployer Plan, or any
law pertaining thereto;
(vi) fail to pay any required installment or any other
payment required under Section 412 of the Code on or before the due
date for such installment or other payment;
(vii) amend a Plan resulting in an increase in current
liability for the plan year such that Anixter or any ERISA Affiliate is
required to provide security to such Plan under Section 401(a)(29) of
the Code;
(viii) permit any unfunded liabilities with respect to any
Foreign Pension Plan to exist; or
(ix) fail to pay any required contribution or payment to a
Foreign Pension Plan on or before the date for such required
installment or payment.
7.10 ENVIRONMENTAL LIABILITIES. No Borrower shall, and Anixter
shall not permit any of its Subsidiaries to, become subject to any Liabilities
and Costs which could reasonably be expected to have a Material Adverse Effect
and which arise out of or are related to (a) the Release or threatened Release
at any location of any Contaminant into the environment, or any Remedial Action
in response thereto, or (b) any violation of any environmental, health and
safety Requirements of Law.
7.11 MARGIN REGULATIONS. No portion of the proceeds of any credit
extended under this Agreement shall be used in any manner which might cause the
extension of credit or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X or any other regulation of the Federal Reserve
Board or to violate the Securities Exchange Act or the Securities Act, in each
case as in effect on the date or dates of such Borrowing and the use of such
proceeds.
7.12 CHANGE OF FISCAL YEAR. No member of the Consolidated Group
shall change its fiscal year, except that any Subsidiary of Anixter may conform
its fiscal year to Anixter's Fiscal Year.
7.13 MODIFICATION OF THE SUBORDINATED LYONS NOTE, THE REVOLVING
SUBORDINATED NOTE OR SENIOR NOTE INDENTURE; ISSUANCE OF ADDITIONAL SENIOR NOTES.
Anixter shall not amend, modify or supplement the Subordinated LYONs Note, the
Revolving Subordinated Note or the Senior Note Indenture without five Business
Days' prior written notice to the
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Administrative Agent or in any manner materially adverse to the Lenders, or
issue additional senior notes pursuant to the Senior Note Indenture which have
covenants or other undertakings by Anixter that are materially less favorable to
Anixter than the covenants and undertakings set forth in the Senior Note
Indenture.
7.14 HEDGING CONTRACTS. No Borrower shall, and Anixter shall not
permit any of its Subsidiaries to, enter into any Hedging Contract other than in
the ordinary course of its business to hedge actual interest rate, foreign
currency or commodity exposure.
7.15 RECEIVABLES SECURITIZATION TRANSACTIONS. No Borrower shall,
and Anixter shall not permit any Subsidiary to, permit the outstanding aggregate
investment or principal amount of claims held by purchasers, assignees or
transferees of (or of interests in) receivables of Anixter and its Subsidiaries
in connection with Receivables Securitization Transactions to exceed a Dollar
Equivalent amount of US$350,000,000.
7.16 MINIMUM CONSOLIDATED NET WORTH. No Borrower shall permit
Consolidated Net Worth at any time to be less than (i) US$375,000,000 plus (ii)
fifty percent (50%) of Consolidated Net Income of the Consolidated Group in each
Fiscal Quarter ending after September 30, 2000 (with no deduction for a net loss
in any such Fiscal Quarter).
7.17 MAXIMUM LEVERAGE RATIO. No Borrower shall permit the Leverage
Ratio as of the end of any Fiscal Quarter set forth below to be greater than the
ratio set forth below opposite such Fiscal Quarter:
FISCAL QUARTERS ENDING MAXIMUM LEVERAGE RATIO
---------------------- ----------------------
Closing Date through Sept. 30, 2001 3.50:1
December 31, 2001 through March 31, 2003 3.25:1
June 30, 2003 and each Fiscal Quarter thereafter 3.00:1
7.18 MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO. No Borrower
shall permit the Consolidated Fixed Charge Coverage Ratio calculated at the end
of each Fiscal Quarter for the period of the immediately preceding four Fiscal
Quarters to be less than (a) 2.00 to 1 for any period ending prior to December
31, 2001, (b) 2.50 to 1 for any period ending on or after December 31, 2001 but
prior to June 30, 2003, and (c) 3.0 to 1 for any period ending on or after June
30, 2003.
7.19 CAPITAL EXPENDITURES. No Borrower shall and Anixter shall not
permit any of its Subsidiaries to, in any Fiscal Year, purchase, invest in or
otherwise acquire, including by Capital Leases, additional Property, plant and
equipment or other fixed assets which capital expenditures, net of dispositions
of fixed assets during such Fiscal Year (determined based upon the lesser of the
book value of such disposed assets or the net cash proceeds received), exceed
the sum of US$50,000,000 in the aggregate plus the difference, if positive,
between (1) the maximum aggregate amount of such capital expenditures permitted
pursuant to this Section 7.19
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for the immediately preceding Fiscal Year and (2) the aggregate amount of actual
capital expenditures for such preceding Fiscal Year.
7.20 CALCULATION OF FINANCIAL COVENANTS. All financial covenants in
this Article VII shall be calculated after the elimination of the minority
interest in any Subsidiaries which are not wholly-owned Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Failure to Make Payments When Due. Any Borrower shall fail (i)
to pay when due any principal of any Obligation, or (ii) to pay when due any
interest on any Obligation, or any fee or other amount payable under this
Agreement or any of the other Loan Documents and such failure under this clause
(ii) shall continue for three (3) calendar days.
(b) Breach of Certain Covenants. Any Borrower or any Subsidiary of
any Borrower shall fail duly and punctually to perform or observe any agreement,
covenant or obligation under Sections 6.01 (other than clauses (c), (e), (h),
and (i) thereof), 6.03, 6.07, 6.12 or under Article VII (other than Section 7.09
thereof).
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by any Borrower or any Guarantor to the
Administrative Agent or any Lender herein or by Anixter or any Subsidiary of
Anixter in any of the other Loan Documents or in any written statement or
certificate at any time given by Anixter or any Subsidiary of Anixter pursuant
to any of the Loan Documents shall be false or misleading in any material
respect on the date as of which made or deemed made.
(d) Other Defaults. Anixter or any Subsidiary of Anixter shall
fail duly and punctually to perform or observe any agreement, covenant or
obligation arising under this Agreement (except those described in Sections
8.01(a), (b) and (c)) or under any of the other Loan Documents, and such failure
shall continue for fifteen (15) days (or, in the case of Loan Documents other
than this Agreement, any longer period of grace expressly set forth therein).
(e) Default as to Other Indebtedness. AXE, Anixter or any
Subsidiary of Anixter shall fail to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) on
any Indebtedness of such Person, other than any of the Obligations, if the
aggregate outstanding amount of all such Indebtedness owed by all such parties
(without duplication) is US$25,000,000 or more, or any breach, default or event
of default shall occur, or any other event shall occur or condition shall exist,
under any instrument, agreement or indenture pertaining thereto, if the effect
thereof is to accelerate, or permit the holder(s) of such Indebtedness to
accelerate, the maturity of any such Indebtedness, or any such Indebtedness
shall be declared to be due and payable or required to be prepaid or mandatorily
redeemed (other than by a regularly scheduled required prepayment prior to the
stated maturity thereof); or the holder of any Lien, in any amount, shall
commence foreclosure of such Lien upon property of AXE, Anixter or any
Subsidiary of Anixter having a book or fair market value in excess of
US$25,000,000 in the aggregate.
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(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) An
involuntary case shall be commenced against AXE, Anixter or any Borrowing
Subsidiary, or against any Subsidiary of Anixter with assets in excess of
US$5,000,000, and the petition shall not be dismissed within sixty (60) days
after commencement of the case, or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of AXE, Anixter, any
Borrowing Subsidiary or any Subsidiary of Anixter with assets in excess of
US$5,000,000 in an involuntary case, under any applicable bankruptcy, insolvency
or other similar law now or hereinafter in effect, or any other similar relief
shall be granted under any applicable federal, state or foreign law.
(i) A decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers
over any of AXE, Anixter, any Borrowing Subsidiary or any Subsidiary of
Anixter with assets in excess of US$5,000,000, or over all or a
substantial part of the property of any such Person, shall be entered,
or an interim receiver, trustee or other custodian of AXE, Anixter, any
Borrowing Subsidiary or any Subsidiary of Anixter with assets in excess
of US$5,000,000, or of all or a substantial part of any such Person's
Property, shall be appointed or a warrant of attachment, execution or
similar process against any substantial part of the Property of AXE,
Anixter, any Borrowing Subsidiary or any Subsidiary of Anixter with
assets in excess of US$5,000,000, shall be issued and any such event
shall not be stayed, vacated, dismissed, bonded or discharged within
sixty (60) days of entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. AXE,
Anixter, any Borrowing Subsidiary or any Subsidiary of Anixter with assets in
excess of US$5,000,000 shall have an order for relief entered with respect to it
or commence a voluntary case under any applicable bankruptcy, insolvency, or
other similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or taking of possession by a receiver, trustee or other
custodian for all or a substantial part of its property. AXE, Anixter, any
Borrowing Subsidiary or any Subsidiary of Anixter with assets in excess of
US$5,000,000 shall make any assignment for the benefit of creditors or shall be
unable or generally fail, or admit in writing its inability, to pay its debts as
such debts become due, or the Board of Directors (or any committee thereof) of
AXE, Anixter, any Borrowing Subsidiary or any Subsidiary of Anixter with assets
in excess if US$1,000,000 shall adopt any resolution to authorize or approve any
of the foregoing.
(h) Judgments. (i) An Enforceable Judgment (other than an
Enforceable Judgment described in the proviso contained in the definition of
Enforceable Judgment) for the payment of money in excess of US$25,000,000 shall
be rendered against Anixter or any Subsidiary of Anixter and such Enforceable
Judgment shall continue unsatisfied or unstayed for a period of thirty (30) days
or action shall have been commenced to foreclose on such Enforceable Judgment,
or (ii) an Enforceable Judgment described in the proviso contained in the
definition of Enforceable Judgment shall be rendered against any Borrower.
(i) Dissolution. Any order, judgment or decree shall be entered
against AXE, Anixter or any Subsidiary of Anixter with assets in excess if
US$5,000,000 decreeing its
64
involuntary dissolution or split-up and such order shall remain undischarged and
unstayed for a period in excess of thirty (30) days, or AXE, Anixter or any
Subsidiary of Anixter with assets in excess if US$5,000,000 shall otherwise
dissolve or cease to exist, in each case except as expressly permitted pursuant
to Section 7.08.
(j) Change of Control. (i) Any Change of Control occurs, or any
Put Event occurs and holders of Senior Notes notify Anixter of their election to
require Anixter to purchase Senior Notes having an aggregate outstanding
principal balance of US$10,000,000 or more; (ii) Anixter shall cease to own
directly or indirectly all of the capital stock of the Borrowing Subsidiaries,
(other than director's qualifying shares); (iii) except as permitted in Section
7.02(a), Anixter shall cease to own at least 51% of each class of the capital
stock of each Subsidiary of Anixter; or (iv) AXE shall cease to own at least 51%
of each class of the capital stock of Anixter.
(k) Employee Benefit Related Liabilities. (i) Any one or more
Termination Events occur which could reasonably be expected to subject Anixter
or an ERISA Affiliate to a liability to pay more than US$10,000,000 in the
aggregate, (ii) the plan administrator of any Plan applies under Section 412(d)
of the Code for a waiver of the minimum funding standards of Section 412(a) of
the Code and the substantial business hardship upon which the application for
the waiver is based could reasonably be expected to subject either Anixter or
any ERISA Affiliate to a liability of more than US$10,000,000 in the aggregate.
(l) Subordination Default. Any breach or other violation by any
holder of the Subordinated LYONs Note or Revolving Subordinated Note of the
subordination or enforcement restrictions shall occur.
(m) Guaranty Default. Any party to the Guaranty, or any Person on
behalf of such party, shall terminate or revoke any of its obligations
thereunder or breach any of the terms thereof, or the Guaranty shall otherwise
become unenforceable for any reason.
For purposes of this Agreement and each of the other Loan Documents, an
Event of Default shall be deemed "continuing" until cured or waived in writing
in accordance with Section 10.01.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Borrower;
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
65
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 8.01, the obligation of each Lender to make Loans shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, in each case without further act of the Administrative Agent or any
Lender or notice of any kind, all of which are hereby expressly waived.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. Each
Lender hereby irrevocably (subject to Section 9.09) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant
66
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from
a Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and
67
acceptance of any assignment or review of the affairs of any Loan Party or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their possession.
Each Lender represents to the Administrative Agent that it has, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers and the other Loan Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrowers
and the other Loan Parties. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall severally
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of any Loan Party and without limiting the obligation of any Loan
Party to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Loan Parties and their respective Affiliates as
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though Bank of America were not the Administrative Agent hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding any Loan Party or its Affiliates (including information that may be
subject to confidentiality obligations in favor of such Loan Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
Administrative Agent and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may,
and at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders which successor administrative
agent shall be consented to by Anixter at all times other than during the
existence of an Event of Default (which consent of Anixter shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and Anixter, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.13 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
9.10 OTHER AGENTS. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "syndication agent" or
"documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
any Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the
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applicable Borrowers or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall,
unless in writing and signed by each of the Lenders directly affected thereby
and by the applicable Borrowers, and acknowledged by the Administrative Agent,
do any of the following:
(a) extend or increase the commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02);
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan, or (subject to clause (ii) of the proviso below) any fees
or other amounts payable hereunder or under any other Loan Document; provided,
however, that only the consent of the Required Lenders shall be necessary to
amend the definition of "Default Rate" or to waive any obligation of a Borrower
to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder;
(e) change the definition of "Required Lenders" or the Pro Rata
Share or Voting Percentage (or the definitions used therein) of any Lender or
amend Section 2.14(c) or 2.15;
(f) amend this Section or any provision herein providing for
consent or other action by all the Lenders; or
(g) release any material Guarantor from the Guaranty;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; and
(ii) the Agent/Arranger Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, any Lender that has failed to
fund any portion of the Loans required to be funded by it hereunder shall not
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Pro Rata Share of such Lender may not be increased
without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to subsection (c) below) electronic mail
address specified for notices on Schedule 10.02; or, in the
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case of the Borrowers or the Administrative Agent, to such other address as
shall be designated by such party in a notice to the other parties, and in the
case of any other party, to such other address as shall be designated by such
party in a notice to Anixter and the Administrative Agent. All such notices and
other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the intended recipient and (ii) (A) if delivered
by hand or by courier, when signed for by the intended recipient; (B) if
delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed
by telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (c) below), when delivered; provided,
however, that notices and other communications to the Administrative Agent
pursuant to Article II shall not be effective until actually received by such
Person. Any notice or other communication permitted to be given, made or
confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified on Schedule
10.02, it being understood and agreed that a voicemail message shall in no event
be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information, and to distribute Loan
Documents for execution by the parties thereto, and may not be used for any
other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices) purportedly given by or on
behalf of any Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Each Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of such Borrower. All telephonic notices to
and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein or therein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
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10.04 ATTORNEY COSTS, EXPENSES AND TAXES. Anixter agrees (a) to pay
or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all reasonable costs and
expenses incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other reasonable out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. The
agreements in this Section shall survive the termination of the Commitments and
repayment of all the other Obligations.
10.05 INDEMNIFICATION BY THE BORROWERS. Whether or not the
transactions contemplated hereby are consummated, the Borrowers jointly and
severally agree to indemnify, save and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from and
against: (a) any and all claims, demands, actions or causes of action that are
asserted against any Indemnitee by any Person (other than the Administrative
Agent or any Lender) relating directly or indirectly to a claim, demand, action
or cause of action that such Person asserts or may assert against any Loan
Party, any Affiliate of any Loan Party or any of their respective officers or
directors; (b) any and all claims, demands, actions or causes of action that may
at any time (including at any time following repayment of the Obligations and
the resignation or removal of the Administrative Agent or the replacement of any
Lender) be asserted or imposed against any Indemnitee, arising out of or
relating to, the Loan Documents, any predecessor loan documents, the
Commitments, the use or contemplated use of the proceeds of any Credit
Extension, or the relationship of any Loan Party, the Administrative Agent and
the Lenders under this Agreement or any other Loan Document; (c) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action described in
subsection (a) or (b) above; and (d) any and all liabilities (including
liabilities under indemnities), losses, costs or expenses (including Attorney
Costs) that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action, cause of action or proceeding, or as a result
of the preparation of any defense in connection with any foregoing claim,
demand, action, cause of action or proceeding, in all cases, whether or not
arising out of the negligence of an Indemnitee, and whether or not an Indemnitee
is a party to such claim, demand, action, cause of action or proceeding (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that no
Indemnitee shall be entitled to indemnification for any claim caused by its own
gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. The agreements in this Section shall survive the termination
of the Commitments and repayment of all the other Obligations.
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10.06 PAYMENTS SET ASIDE. To the extent that a Borrower makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by a Borrower
without such consent 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
and, to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may 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 in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent, shall not be less
than US$5,000,000, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, Anixter otherwise consents
(each such consent not to be unreasonably withheld or delayed), (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights in respect of outstanding Bid Loans, and (iii) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
US$3,500. Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this
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Agreement (and, in the case of an Assignment and Acceptance 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 3.07, 10.04 and 10.05). Upon request, the Borrowers shall
execute and deliver new or replacement Notes to the assigning Lender and the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount 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, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by any
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, any
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (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 Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification that would (i) postpone any date upon
which any payment of money is scheduled to be paid to such Participant, (ii)
reduce the principal, interest, fees or other amounts payable to such
Participant, or (iii) release all or substantially all the Guarantors from the
Guaranty. Subject to subsection (e) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.15 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Anixter's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless Anixter is
notified of the
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participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 10.15 as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) If the consent of Anixter to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 10.07(b)), Anixter shall be deemed to have
given its consent five Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by Anixter prior to such fifth Business Day.
(h) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of
a Lender; (c) an Approved Fund; and (d) any other Person (other than
a natural Person) approved by the Administrative Agent, in the case
of any assignment of a Committed Loan and, unless (x) such Person is
taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of
Default has occurred and is continuing, Anixter (each such approval
not to be unreasonably withheld or delayed).
"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.
"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.
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (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; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this
75
Agreement or (ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty's or prospective counterparty's
professional advisor) to any credit derivative transaction relating to
obligations of any Borrower; (g) with the consent of any Borrower; (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source other than any Borrower;
or (i) to the National Association of Insurance Commissioners or any other
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's or its Affiliates' investment portfolio
in connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" means all information received
from a Borrower relating to a Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by such Borrower; provided that, in
the case of information received from a Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to any Borrower or any other Loan Party, any such notice being
waived by each Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document. Each Lender agrees promptly to notify Anixter and
the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the applicable Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
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10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied.
10.14 SEVERABILITY. Any provision of this Agreement and the other
Loan Documents to which any Borrower is a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
10.15 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Person
by a Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Person by a Borrower
pursuant to this Agreement) or such other evidence satisfactory to Anixter and
the Administrative Agent that such Person is entitled to an exemption from, or
reduction of, US withholding tax. Thereafter and from time to time, each such
Person shall (a) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Anixter and the
Administrative Agent of any available exemption from or reduction of, United
States withholding taxes in respect of all payments to be made to such Person by
a Borrower pursuant
77
to this Agreement, (b) promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction, and (c)
take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any requirement of
applicable Laws that a Borrower make any deduction or withholding for taxes from
amounts payable to such Person. If such Person fails to deliver the above forms
or other documentation, then the Administrative Agent may withhold from any
interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. If any Governmental Authority asserts that the Administrative Agent
did not properly withhold any tax or other amount from payments made in respect
of such Person, such Person shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on
the amounts payable to the Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the payment of all Obligations and the
resignation or replacement of the Administrative Agent.
10.16 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that
Anixter shall have the right to remove or replace a Lender as a party to this
Agreement, Anixter may, upon notice to such Lender and the Administrative Agent,
(i) remove such Lender by terminating such Lender's Commitment or (ii) replace
such Lender by causing such Lender to assign its Commitment (without payment of
any assignment fee) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by Anixter; provided, however, that if Anixter
elects to exercise such right with respect to any Lender pursuant to Section
3.06(b), it shall be obligated to remove or replace, as the case may be, all
Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04. The Borrowers shall (x) pay in full all principal, interest, fees
and other amounts owing to such Lender through the date of termination or
assignment (including any amounts payable pursuant to Section 3.05) and (y)
release such Lender from its obligations under the Loan Documents. Any Lender
being replaced shall execute and deliver an Assignment and Acceptance with
respect to such Lender's Commitment and outstanding Credit Extensions. The
Arranger shall distribute amended Allocation Notices to reflect changes in the
identities of the Lenders and adjustments of their respective Commitments and/or
Pro Rata Shares resulting from any such removal or replacement.
(b) In order to make all the Lenders' interests in any outstanding
Credit Extensions ratable in accordance with any revised Pro Rata Shares after
giving effect to the removal or replacement of a Lender, the Borrowers shall pay
or prepay, if necessary, on the effective date thereof, all outstanding
Committed Loans of all Lenders, together with any amounts due under Section
3.05. The Borrowers may then request Committed Loans from the Lenders in
accordance with their revised Pro Rata Shares. The Borrowers may net any
payments required hereunder against any funds being provided by any Lender or
Eligible Assignee replacing a terminating Lender. The effect for purposes of
this Agreement shall be the same as if separate transfers of funds had been made
with respect thereto.
(c) This Section shall supersede any provision in Section 10.01 to
the contrary.
78
10.17 JUDGMENT CURRENCY. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from a Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's applicable office on the Business Day preceding that on which final
judgment is given. The obligation of any Borrower in respect of any sum due to
any Lender or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Administrative Agent, as the case may be, of any sum adjudged to be so due in
such other currency, such Lender or the Administrative Agent, as the case may
be, may in accordance with normal banking procedures purchase the specified
currency with such other currency. If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the
applicable Borrower shall, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds the total of (a)
the sum originally due to such Lender or the Administrative Agent, as the case
may be, in the specified currency and (b) any amount shared with other Lenders
as a result of allocations of such excess as a disproportionate payment to such
Lender under Section 2.15, such Lender or the Administrative Agent, as the case
may be, agrees to remit such excess to the applicable Borrower.
10.18 ECONOMIC AND MONETARY UNION IN THE EUROPEAN COMMUNITY.
(a) If, as a result of the implementation of the European economic
and monetary union ("EMU"), (i) any currency available for borrowing under this
Agreement (a "national currency") ceases to be lawful currency of the state
issuing the same and is replaced by a European single or common currency (the
"Euro") or (ii) any national currency and the Euro are at the same time both
recognized by the central bank or comparable Governmental Authority of the state
issuing such currency as lawful currency of such state, then any amount borrowed
hereunder by any Borrower in such national currency shall be payable in such
national currency and any amount borrowed hereunder in the Euro shall be payable
in the Euro. After the European Central Bank and/or the comparable Government
Authority ceases to recognize any national currency, then the amount so payable
shall be determined by redenominating or converting such national currency into
the Euro at the exchange rate officially fixed by the European Central Bank for
the purpose of implementing the EMU. Prior to the occurrence of the event or
events described in clause (i) or (ii) above, each amount payable hereunder in
any such national currency will, except as otherwise provided herein, continue
to be payable only in that national currency.
(b) The applicable Borrower shall from time to time, at the
request of any Lender, pay to such Lender the amount of any losses, damages,
liabilities, claims, reduction in yield, additional expense or increased cost
incurred by, or of any reduction in any amount payable to or in the effective
return on its capital to, or any decrease or delay in the payment of interest or
other return foregone by, such Lender or any of its Affiliates as a result of
any political, tax,
79
liquidity, currency exchange or market risk resulting from the introduction of,
changeover to or operation of the Euro in any applicable nation or eurocurrency
market.
(c) In addition, this Agreement will be amended to the extent
determined by the applicable Lender or Lenders and the Administrative Agent
(acting reasonably and in consultation with Anixter) to be necessary to reflect
such implementation of the EMU and change in currency and to put the Lenders and
the Borrowers in the same position, so far as possible, that they would have
been in if such implementation and change in currency had not occurred. Except
as provided in the foregoing provisions of this Section 10.18, no such
implementation or change in currency nor any economic consequences resulting
therefrom shall (i) give rise to any right to terminate prematurely, contest,
cancel, rescind, alter, modify or renegotiate the provisions of this Agreement
or (ii) discharge, excuse or otherwise affect the performance of any obligation
of any Borrower under this Agreement or any Note.
10.19 BORROWERS' AGENT.
Each Borrower hereby irrevocably appoints and authorizes Anixter to
take such action and deliver and receive notices hereunder as agent on its
behalf and to exercise such powers under this Agreement as delegated to it by
the terms hereof, together with all such powers as are reasonably incidental
thereto. In furtherance of and not in limitation of the foregoing, for
administrative convenience of the parties hereto, the Administrative Agent and
the Lenders shall send all notices and communications to be sent to any Borrower
solely to Anixter and may rely solely upon Anixter to receive all such notices
and other communications for and on behalf of each Borrower. Neither Anixter nor
any of its respective directors, officers, agents or employees shall be liable
to any other Borrower for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of such Borrower or (ii) in the
absence of its own gross negligence or willful misconduct. No Person other than
Anixter (and its authorized officers and employees) may act as agent for the
Borrowers hereunder without the written consent of the Administrative Agent.
10.20 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
SITTING IN COOK COUNTY, ILLINOIS, OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE
80
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
10.21 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ANIXTER INC., AS BORROWER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
ANIXTER INTERNATIONAL N.V./S.A., AS A
BORROWING SUBSIDIARY
By: _____________________________________
Name: ___________________________________
Title:____________________________________
ANIXTER U.K. LTD., AS A BORROWING
SUBSIDIARY
By: _____________________________________
Name: ___________________________________
Title:____________________________________
BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT
By: _____________________________________
Name: ___________________________________
Title:____________________________________
BANK OF AMERICA, N.A., AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-1
BANK ONE, NA, AS SYNDICATION AGENT AND
LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-2
THE BANK OF NOVA SCOTIA, AS
DOCUMENTATION AGENT AND LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-3
SUNTRUST BANK, AS MANAGING AGENT AND AS
A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-4
CREDIT LYONNAIS CHICAGO BRANCH, AS
MANAGING AGENT AND AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-5
BANCA COMMERCIALE ITALIANA CHICAGO
BRANCH, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-6
BANCA NAZIONALE DEL LAVORO S.P.A. -
NEW YORK BRANCH, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-7
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-8
THE BANK OF NEW YORK, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-9
THE DAI-ICHI KANGYO BANK, LTD., AS A
LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-10
FIRSTAR BANK, N.A., AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-11
THE FUJI BANK, LIMITED, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-12
NATIONAL CITY BANK, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-13
NATIONAL WESTMINSTER BANK, PLC
NEW YORK AND/OR NASSAU BRANCHES,
AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-14
THE NORTHERN TRUST COMPANY, AS A
LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-15
PNC BANK, N.A., AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-16
THE SAKURA BANK, LIMITED, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-17
U.S. BANK NATIONAL ASSOCIATION, AS A
LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-18
WACHOVIA BANK, N.A., AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-19
WELLS FARGO BANK, NATIONAL
ASSOCIATION, AS A LENDER
By: _____________________________________
Name: ___________________________________
Title:____________________________________
By: _____________________________________
Name: ___________________________________
Title:____________________________________
S-20
SCHEDULE 1.01
ASSOCIATED COSTS
1. For the purposes of this Agreement, the cost of compliance with
existing requirements of the Bank of England and/or the Financial
Services Authority in respect of Loans will be calculated by the
Administrative Agent in relation to relevant Borrowing on the basis of
rates supplied by the Administrative Agent (or such Lender as it may
from time to time determine) by reference to the circumstances existing
on the first day of each Interest Period in respect of such Borrowing
and, if any such Interest Period exceed three months, at three calendar
monthly intervals from the first day of such Interest Period during its
duration in accordance with the following formula:
a. In relation to Loans denominated in British Pounds Sterling:
AB + C(B - D) + E x 0.01 per cent. per annum
------------------------
100 - (A + C)
b. In relation to Loans denominated in any other currency:
E x 0.01 per cent. per annum
--------
300
Where:
A is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which the Administrative
Agent (or such Lender as it may determine) is from time to
time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio
requirements.
B is the percentage rate per annum at which sterling deposits
are offered by the Administrative Agent (or such Lender as it
may determine), in accordance with its normal practice, for a
period equal to (a) the relevant Interest Period (or, as the
case may be, remainder of such Interest Period) in respect of
the relevant Loan or (b) three months, whichever is the
shorter, to a leading bank in the London interbank market at
or about 11.00 a.m. in a sum approximately equal to the amount
of such Loan.
C is the percentage of eligible liabilities which the
Administrative Agent (or such Lender as it may determine) is
required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Administrative Agent (or such Lender as it may
determine) on interest bearing special deposits.
E is the rate payable by the Administrative Agent (or such
Lender as it may determine) to the Financial Services
Authority pursuant to the Fees Regulations
82
(but, for this purpose, ignoring any minimum fee required pursuant to
the Fees Regulations) and expressed in pounds per (pound)1,000,000 of
the Fee Base of the Administrative Agent (or such LendeR as it may
determine).
2. For the purposes of this Schedule:
i. "eligible liabilities" and "special deposits" shall bear the
meanings ascribed to them from time to time under or pursuant
to the Bank of England Act 1998 or (as may be appropriate) by
the Bank of England;
ii. "Fee Regulations" means the Banking Supervision (Fees)
Regulations 1998 or such other regulation as may be in force
from time to time in respect of the payment of fees for
banking supervision; and
iii. "Fee Base" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
iv. "Associated Costs" means, with respect to any Loan, for any
Interest Period, the cost, as calculated by the Agent in
accordance with Schedule 1.01 imputed to each applicable
Lender, of compliance with the mandatory liquid assets
requirements of the Bank of England and the Financial Services
Authority during that Interest Period, expressed as a
percentage.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C and D will be included in
the formula as figures and not as percentages e.g. if A is 0.5 per
cent. and B is 12 per cent., AB will be calculated as 0.5 x 12 and not
as 0.5 per cent. x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as
zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty-second of one per
cent. per annum.
8. Additional amounts calculated in accordance with this Schedule are
payable on the last day of the Interest Period to which they relate.
9. The determination of the Associated Costs Rate by the Administrative
Agent in relation to any period shall, in the absence of manifest
error, be conclusive and binding on all of the parties hereto.
10. The Administrative Agent may from time to time, after consultation with
Anixter and the Lenders, determine and notify to all parties any
amendments or variations which are
Schedule 1.01-2
required to be made to the formula set out above in order to comply
with any requirements from time to time imposed by the Bank of England
or the Financial Services Authority in relation to Loans denominated in
sterling (including any requirements relating to sterling primary
liquidity) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all the parties hereto.
Schedule 1.01-3
SCHEDULE 5.03
EXISTING SUBSIDIARIES
SCHEDULE 5.04
CONFLICTS
SCHEDULE 5.08
LITIGATION
SCHEDULE 5.16
ENVIRONMENTAL MATTERS
SCHEDULE 5.20
JOINT VENTURES AND PARTNERSHIPS
SCHEDULE 6.07
INSURANCE
SCHEDULE 7.01(ii)
EXISTING INDEBTEDNESS
SCHEDULE 7.02(b)
EXISTING LIENS
SCHEDULE 7.03
EXISTING INVESTMENTS
SCHEDULE 10.02
EUROCURRENCY AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
ANIXTER INC. AND BORROWING SUBSIDIARIES
c/o Anixter Inc.
4711 Golf Rd.
Skokie, IL 60076
Attn: Rod Shoemaker
Telephone: (847) 677-2600
Facsimile: (847) 677-8557
Electronic Mail: rod.shoemaker@anixter.com
BANK OF AMERICA, N.A.
Administrative Agent's Office and Bank of America's Lending Office(for payments
and Requests for Credit Extensions):
Bank of America, N.A.
1850 Gateway Blvd., 5th Floor
CA4-706-05-09
Concord, CA 94520
Attn: Myrna Lara
Tel: (925) 675-8931
Fax: (925) 969-2819
Electronic Mail: myrna.lara@bankofamerica.com
Account No.: 3750836479
Ref: Anixter Inc.
ABA# 111000012
Other Notices as Administrative Agent:
Bank of America, N.A., Agency Management1455 Market Street, 12th Floor
CA5-701-12-09
San Francisco, CA 94103
Attn: Liliana Claar
Tel: (415) 436-2770
Fax: (415) 503-5003
Electonic Mail: liliana.claar@bankofamerica.com
With a copy to:
Bank of America, N.A.
231 South LaSalle St.
9th Floor
IL1-231-09-38
Chicago, IL 60697
Attn: Raju Patel
Vice PresidentTelephone: (312) 828-7225
Facsimile: (312) 987-0303
Electronic Mail: raju.n.patel@bankofamerica.com
BANK ONE, NA, AS DOCUMENTATION AGENT AND A LENDER
Requests for Credit Extensions:
Bank One, NA
1 Bank One Plaza
Suite 0088
Chicago, IL 60670
Attn: Kathy Blomquist
Telephone: (312) 732-2683
Facsimile: (312) 732-2715
Account No. 481152860000
Ref: Anixter
ABA# 071000013
Eurocurrency Lending Office:
Bank One, NA, Frankfurt
BLZ Code 503 304 00
Attn: Loans
Account Name: Bank One, NA,
Account No. 1001701
Ref: Anixter
Schedule 10.02-2
Notices (other than Requests for Credit Extensions):
Bank One, NA
1 Bank One Plaza
Suite 0364
Chicago, IL 60670
Attn: Richard Howard
Vice President
Telephone: (312) 732-3179
Facsimile: (312) 732-1117
THE BANK OF NOVA SCOTIA, AS DOCUMENTATION AGENT AND A LENDER
Requests for Credit Extensions:
The Bank of Nova Scotia
600 Peachtree Street N.E.
Suite 2700
Atlanta, GA 30308
Attn: Allyson Mohan
Telephone: (404) 877-1549
Facsimile: (404) 888-8998
Account No. 0606634
Ref: Atlanta Agency
ABA# 026002532
Notices (other than Requests for Credit Extensions):
The Bank of Nova Scotia
181 West Madison Street
Suite 3700
Chicago, IL 60602
Attn: Keith Rauschenberger
Director
Telephone: (312) 201-4183
Facsimile: (312) 201-4108
Electronic Mail: krauschenberger@scotiabank.com
Schedule 10.02-3
BANCA COMMERCIALE ITALIANA
Requests for Credit Extensions:
Banca Commerciale Italiana
1 William Street
New York, NY 10004
Attn: Jonathan Sahr
Telephone: (212) 607-3814
Facsimile: (212) 607-3897
Account No.
Ref:
ABA#026005319
Notices (other than Requests for Credit Extensions
Banca Commerciale Italiana
1 William Street
New York, 10004
Attn: Frank Maffei
Telephone: (212) 607-3880
Facsimile: (212) 809-2124
BANCA NAZIONALE DEL LAVORO S.P.A. - NEW YORK BRANCH
Requests for Credit Extensions:
Banca Nazionale del Lavoro S.p.A. - New York Branch
25 West 51st Street
New York, NY 10019
Attn: Ana Hernandez
Telephone: (212) 314-0679
Facsimile: (212) 765-2978
Account No. 001-1-465457
Ref: Anixter Inc.
ABA# 021000021
Notices (other than Requests for Credit Extensions):
Banca Nazionale del Lavoro S.p.A. - New York Branch
25 West 51st Street
New York, NY 10019
Attn: Giulio Giovine
Vice President
Telephone: (212) 314-0239
Facsimile: (212) 765-2978
Electronic Mail: comdiv@bnlny.com
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
Requests for Credit Extensions:
Schedule 10.02-4
Bank Austria Creditanstalt
Two Greenwich Plaza
Greenwich, CT 30346
Attn: Christina Sapounakis
Telephone: (203) 861-1518
Facsimile: (203) 861-6594
Account No. 400921944
ABA#021000021
Notices (other than Requests for Credit Extensions):
Bank Austria Creditanstalt
Two Ravinia Drive, Suite 1680
Atlanta, GA 30346
Attn: Gary Andresen
Vice President
Telephone: (770) 390-1846
Facsimile: (770) 390-1851
Electronic Mail: Gary.Andresen@us.bacai.com
THE BANK OF NEW YORK
Requests for Credit Extensions:
The Bank of New York
101 Barclay Street
New York, NY 10286
Attn: Millie
Telephone: (212) 635-6687
Facsimile: (212) 635-7923
Account No. 111556
Ref: Anixter Inc.
ABA# 021000018
Notices (other than Requests for Credit Extensions):
The Bank of New York
101 Barclay Street
New York, NY 10286
Attn: M. Scott Donaldson
Assistant Treasurer
Telephone: (212) 635-1243
Facsimile: (212) 635-1208
CREDIT LYONNAIS CHICAGO BRANCH
Requests for Credit Extensions:
Credit Lyonnais
1301 Avenue of the Americas
New York, NY 10019
Schedule 10.02-5
Attn: Jai Sanachar
Telephone: (212) 261-7644
Facsimile: (212) 459-3180
Account No. 01.00688.0001.00
ABA# 026008073
Notices (other than Requests for Credit Extensions):
Credit Lyonnais Chicago Branch
227 W. Monroe St.
Suite 3800
Chicago, IL 60606
Attn: Mary Ann Klemm
Vice President
Telephone: (312) 220-7308
Facsimile: (312) 641-0527
THE DAI-ICHI KANGYO BANK, LTD.
Requests for Credit Extensions:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center
Suite 4911
New York, NY 10048
Attn: Merine Geerwar
Telephone: (212) 432-8458
Facsimile: (212) 524-0049
Account No. H10-740-014132
ABA# 026004307
Notices (other than Requests for Credit Extensions):
The Dai-Ichi Kangyo Bank, Ltd.
10 South Wacker Drive
26th Floor
Chicago, IL 60606
Attn: J. Richard Cummings
Vice President
Telephone: (312) 715-6386
Facsimile: (312) 876-2011
FIRSTAR BANK, N.A.
Requests for Credit Extensions:
Firstar Bank, N.A.
Attn: Connie Sweeney
Telephone: (920) 426-7604
Facsimile: (920) 426-7655
Account No. 3811005184
Schedule 10.02-6
Ref: Commercial Exceptions
ABA#081000210
Notices (other than Requests for Credit Extensions):
Firstar Bank, N.A.
30 N. Michigan Avenue
Chicago, IL 60602
Attn: Ed Cheney
Vice President
Telephone: (312) 696-1474
Facsimile: (312) 641-0494
Electronic Mail: Edward.A.Cheney@firstar.com
THE FUJI BANK, LIMITED
Requests for Credit Extensions:
The Fuji Bank, Limited
Two World Trade Center
New York, NY 10048
Attn: Tina Catapano
Telephone: (212) 898-2099
Facsimile: (212) 775-1460
Account No. 515060
ABA#026009700
Notices (other than Requests for Credit Extensions):
The Fuji Bank, Limited
225 W. Wacker Dr.
Suite 2000
Chicago, IL 60606
Attn: Kenneth S. Zeglin
Vice President
Telephone: (312) 621-0503
Facsimile: (312) 621-3386
Electronic Mail: fujicgoksz@aol.com
NATIONAL CITY BANK
Requests for Credit Extensions:
National City Bank
1900 E. 9th Street
Locator 2077
Cleveland, OH 44114
Attn: Revette Vickerstaff
Telephone: (216) 488-7080
Facsimile: (216) 488-7110
Account No. 151804
Schedule 10.02-7
Ref: Anixter Inc.
ABA#041000124
Notices (other than Requests for Credit Extensions):
National City Bank
1900 E. 9th Street
Locator 2077
Cleveland, OH 44114
Attn: James Ritchie
Account Officer
Telephone: (216) 575-9918
Facsimile: (216) 222-0003
Electronic Mail: james.ritchie@national-city.com
NATIONAL WESTMINSTER BANK PLC,
NEW YORK AND NASSAU BRANCHES
Requests for Credit Extensions:
National Westminster Bank Plc
65 East 55th Street
24th Floor
New York, NY 10022
Attn: Sheila Shaw
Telephone: (212) 401-1406
Facsimile: (212) 401-1494
Account No. 0011012440
Ref: National Westminster Bank Plc New York.
ABA#021000021
Schedule 10.02-8
Notices (other than Requests for Credit Extensions):
National Westminster Bank Plc
PO Box 12264
3rd Floor
1 Princess Street
London EC2 8PB
Attn: Roy Bawden
Senior Corporate Officer
Telephone: 0044-20-73901297
Facsimile: 0044-20-73901768
THE NORTHERN TRUST COMPANY
Requests for Credit Extensions:
The Northern Trust Company
801 S. Canal St.
Chicago, IL 60675
Attn: Joy Johnson
Telephone: (312) 444-3352
Facsimile: (312) 630-1566
Account No. 5186401000
Ref: Commercial Loans
ABA#071-000-152
Bid Contact:
The Northern Trust Company
50 S. LaSalle St.
Chicago, IL 60675
Attn: Edie Reed
Telephone: (312) 444-7757
Facsimile: (312) 444-4906
Notices (other than Requests for Credit Extensions):
The Northern Trust Company
50 S. LaSalle St.
Chicago, IL 60675
Attn: Fredric McClendon
Vice President
Telephone: (312) 557-1893
Facsimile: (312) 444-7028
Electronic Mail: FWM1@ntrs.com
Schedule 10.02-9
PNC BANK, NATIONAL ASSOCIATION
Requests for Credit Extensions:
PNC Bank, National Association
Two PNC Plaza
620 Liberty Blvd., 3rd Floor
Pittsburgh, PA 15222
Attn: Jack Caraccilo
Telephone: (412) 768-9973
Facsimile: (412) 768-4586
Account No. 196030010890
Ref: Anixter Inc.
ABA#043000096
Notices (other than Requests for Credit Extensions):
PNC Bank, National Association
One South Wacker Drive
Suite 2980
Chicago, IL 60606
Attn: James A. Wiehe
Assistant Vice President
Telephone: (312) 338-5628
Facsimile: (312) 338-5620
THE SAKURA BANK, LIMITED
Requests for Credit Extensions:
The Sakura Bank, Limited
101 Park Avenue
17th Floor
New York, NY 10178
Attn: Mariko Stewart
Telephone: (212) 909-4471
Facsimile: (212) 593-1798
Account No. 001-1-526829
ABA#021-000-021
Schedule 10.02-10
Notices (other than Requests for Credit Extensions):
The Sakura Bank, Limited
101 Park Avenue
15th Floor
New York, NY 10178
Attn: Tetsuya Takebe
Telephone: (212) 909-4596
Facsimile: (212) 909-4599
Electronic Mail: Tetsuya_Takebe@sakura.com
SUNTRUST BANK
Requests for Credit Extensions:
SunTrust Bank
303 Peachtree Street NE, 3rd Floor
Mail Code 1928
Atlanta, GA 30308
Attn: Nora Brown
Telephone: (404) 588-7221
Facsimile: (404) 588-8505
Account No. 9088000112
Ref: Anixter Inc.
ABA#061000104
Notices (other than Requests for Credit Extensions):
SunTrust Bank
401 North Michigan Avenue
Mail Code 1928
Suite 1200
Chicago, IL 60611
Attn: Molly Drennan
Director
Telephone: (312) 840-7982
Facsimile: (312) 840-7983
Electronic Mail: molly.drennan@suntrust.com
Schedule 10.02-11
U.S. BANK NATIONAL ASSOCIATION
Requests for Credit Extensions:
U.S. Bank National Association
U.S. Bank Place
MPFP0607
601 2nd Ave. South
Minneapolis, MN 55402-4302
Attn: Sharon Ologunde
Telephone: (612) 973-0556
Facsimile: (612) 973-0824
Account No. 30000472160600
Ref: Anixter (Obligor #1735021448)
ABA#091000022
Notices (other than Requests for Credit Extensions):
U.S. Bank National Association
U.S. Bank Place
MPFP0607
601 2nd Ave. South
Minneapolis, MN 55402-4302
Attn: Kurt Egertson
Senior Vice President
Telephone: (612) 973-0514
Facsimile: (612) 973-0395
Electronic Mail: kurt.egertson@usbank.com
WACHOVIA BANK, N.A.
Requests for Credit Extensions:
Wachovia Bank, N.A.
191 Peachtree Street
Atlanta, GA 30303
Attn: Bill Allen
Telephone: (404) 332-5271
Facsimile: (404) 332-4320
Account No. 18 17 14 98
Ref: Anixter Inc.
ABA#061000010
Schedule 10.02-12
Notices (other than Requests for Credit Extensions):
Wachovia Bank, N.A.
70 West Madison, Suite 2440
Chicago, IL 60614
Attn: John Canty
Vice President
Telephone: (312) 795-4341
Facsimile: (312) 853-0693
Electronic Mail: John.Canty@wachovia.com
WELLS FARGO BANK, NATIONAL ASSOCIATION
Requests for Credit Extensions:
Wells Fargo Bank, National Association
201 Third Street
San Francisco, CA 94103
Attn: Ginnie Padgett
Telephone: (415) 477-5374
Facsimile: (415) 979-0675
Account No. 271-2507201
Ref: MEMSYN/Commercial Banking Service Center
ABA#121-000-248
Notices (other than Requests for Credit Extensions):
Wells Fargo Bank, National Association
230 W. Monroe
Suite 2900
Chicago, IL 60606
Attn: Charles Reed
Vice President
Telephone: (312) 553-6653
Facsimile: (312) 553-4783
Electronic Mail: reedcw@wellsfargo.com
Schedule 10.02-13
EXHIBIT A-1
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, Bank
of America, N.A., as Administrative Agent.
The undersigned hereby requests (select one):
- A Borrowing of Committed Loans - A conversion or continuation of
Loans
1. On (a Business Day).
2. In the amount of US$_______.
3. Comprised of ________. [Type of Committed Loan requested]
4. For Eurocurrency Rate Loans: with an Interest Period of ______
months.
[The Committed Borrowing requested herein complies with the proviso to
the first sentence of Section 2.01 of the Agreement.]
ANIXTER INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT B-1
FORM OF BID REQUEST
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.
("Anixter"), certain of its Subsidiaries, the Lenders from time to time party
thereto and Bank of America, N.A., as Administrative Agent.
The Lenders are invited to make Bid Loans:
1. On __________ (a Business Day).
2. In an aggregate amount not exceeding US$_________________
(with any sublimits set forth below).
3. Comprised of (select one):
- Bid Loans based on an - Bid Loans based on
Absolute Rate: Eurocurrency Rate
MAXIMUM PRINCIPAL
BID LOAN NO. INTEREST PERIOD REQUESTED AMOUNT REQUESTED
- ------------ ------------------------- -----------------
1. _______days/mos US$__
2. _______days/mos US$__
3. _______days/mos US$__
The Bid Borrowing requested herein complies with the requirements of
the proviso to the first sentence of Section 2.03(a) of the Agreement.
Anixter authorizes the Administrative Agent to deliver this Bid Request
to the Lenders. Responses by the Lenders must be in substantially the form of
Exhibit B-2 to the Agreement and must be received by the Administrative Agent by
the time specified in Section 2.03 of the Agreement for submitting Competitive
Bids.
ANIXTER INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT B-2
FORM OF COMPETITIVE BID
___________________, _________
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent.
In response to the Bid Request dated ________, ____, the undersigned
offers to make the following Bid Loan(s):
1. Borrowing date: (a Business Day).
2. In an aggregate amount not exceeding US$ (with any sublimits
set forth below).
3. Comprised of:
ABSOLUTE RATE
BID OR
INTEREST PERIOD EUROCURRENCY
BID LOAN NO. OFFERED BID MAXIMUM BID MARGIN
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1 _______days/mos US$__________________ (- +) _______%
2 _______days/mos US$__________________ (- +) _______%
3 _______days/mos US$__________________ (- +) _______%
Contact Person: _____________________ Telephone: _______________________
[LENDER]
By: _______________________________
Name: _____________________________
Title: ____________________________
******************************************************************************
THIS SECTION IS TO BE COMPLETED BY ANIXTER IF IT WISHES TO ACCEPT
ANY OFFERS CONTAINED IN THIS COMPETITIVE BID:
The offers made above are hereby accepted in the amounts set forth below:
BID LOAN NO. PRINCIPAL AMOUNT ACCEPTED
- ------------------------------------------
US$
- ------------------------------------------
US$
- ------------------------------------------
US$
- ------------------------------------------
[BORROWER]
By: _______________________________
Name: _____________________________
Title: ____________________________
Date:______________________________
Exhibit B-2-2
EXHIBIT A-2
FORM OF FOREIGN CURRENCY LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, Bank
of America, N.A., as Administrative Agent.
The undersigned hereby requests (select one):
- A Borrowing of Foreign Currency Loans - A continuation of Loans
1. On___(a Business Day).
2. In the amount of _______________ in [Available Foreign
Currency].
3. With an Interest Period of ________________ months.
[The Foreign Currency Borrowing requested herein complies with the
proviso to the first sentence of Section 2.03 of the Agreement.]
ANIXTER INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT C-1
[FORM OF]
BORROWING SUBSIDIARY AGREEMENT
Bank of America, N.A., as Administrative Agent
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, Anixter Inc. ("Anixter"), refers to the Five-Year
Credit Agreement dated as of October 6, 2000 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
Anixter, the Borrowing Subsidiaries named therein, the financial institutions
from time to time party thereto as Lenders, Bank One, NA, as Syndication Agent,
The Bank of Nova Scotia, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
Anixter and ________ (the "Designated Borrowing Subsidiary") (i)
confirm that the Designated Borrowing Subsidiary is a Foreign Subsidiary and
(ii) make, on and as of the date hereof, the representations and warranties as
to the Designated Borrowing Subsidiary contained in Article V of the Credit
Agreement. The Designated Borrowing Subsidiary agrees to be bound in all
respects by the terms of the Credit Agreement, including without limitation,
Article IV thereof, and to perform all of the obligations of a Borrowing
Subsidiary thereunder. Each reference to a Borrowing Subsidiary in the Agreement
shall be deemed to include the Designated Borrowing Subsidiary.
Each Guarantor ratifies and confirms the provisions of the Guaranty
with respect to all Loans made by any Lender to the Designated Borrowing
Subsidiary.
The address to which communications to the Designated Borrowing
Subsidiary under the Credit Agreement should be directed is
________________________________
________________________________
________________________________
This instrument shall be construed in accordance with and governed by
the laws of the State of Illinois. Loan proceeds should be deposited as provided
in the Credit Agreement.
Upon the execution of this Borrowing Subsidiary Agreement by Anixter,
the Designated Borrowing Subsidiary and each Guarantor, and acceptance hereof by
the Administrative Agent, the Designated Borrowing Subsidiary shall become a
Borrowing Subsidiary under the Credit
Agreement as though it were an original party thereto and shall be entitled to
borrow under the Credit Agreement upon the satisfaction of the conditions
precedent set forth in Section 4.02 of the Credit Agreement.
Very truly yours,
ANIXTER INC.
By:________________________________
Name:
Title:
C-1-2
[DESIGNATED BORROWING SUBSIDIARY]
By:________________________________
Name:
Title:
ANIXTER INTERNATIONAL INC.
By:________________________________
Name:
Title:
[OTHER GUARANTORS]
By:________________________________
Name:
Title:
Accepted as of the date first above written.
BANK OF AMERICA, N.A., as Administrative Agent
By:_____________________________________
Name:
Title:
C-1-3
EXHIBIT C-2
[FORM OF]
BORROWING SUBSIDIARY TERMINATION
Bank of America, N.A., as Administrative Agent
[Date]
Attention:
Ladies and Gentlemen:
Anixter Inc. ("Anixter"), refers to the Five-Year Credit Agreement
dated as of October 6, 2000 (as it may hereafter be amended, modified, extended
or restated from time to time, the "Credit Agreement"), among Anixter, the
Borrowing Subsidiaries named therein, the financial institutions from time to
time party thereto as Lenders, Bank One, NA, as Syndication Agent, The Bank of
Nova Scotia, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
Anixter elects to terminate the status of _________ (the "Terminated
Borrowing Subsidiary") as a Borrowing Subsidiary for purposes of the Credit
Agreement. Anixter represents and warrants that no Loans made to the Terminated
Borrowing Subsidiary are outstanding as of the date hereof and that all
principal and interest on all Loans payable by the Terminated Borrowing
Subsidiary pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof.
This instrument shall be construed in accordance with and governed by
the laws of the State of Illinois.
Very truly yours,
ANIXTER INC.
By:________________________________
Name:
Title:
EXHIBIT D-1
FORM OF COMMITTED LOAN NOTE
________________________
FOR VALUE RECEIVED, Anixter Inc. (the "Borrower"), hereby promises to
pay to the order of _____________________________ (the "Lender"), on the
Maturity Date (as defined in the Credit Agreement referred to below) the
principal amount of all Committed Loans (as defined in such Credit Agreement)
made by the Lender to the Borrower under that certain Five-Year Revolving Credit
Agreement, dated as of October 6, 2000 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement"; the terms defined therein being used herein as therein defined),
among the Borrower, certain of its Subsidiaries, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of
each Committed Loan from the date of such Committed Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Lender in US Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is one of the Committed Loan Notes referred to in the
Agreement, is entitled to the benefits thereof and is subject to optional and
mandatory prepayment in whole or in part as provided therein. This Note is also
entitled to the benefits of the Guaranty. Upon the occurrence of one or more of
the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Committed Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount and maturity of its Committed
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
ANIXTER INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
D-1-2
COMMITTED LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OUTSTANDING
TYPE OF AMOUNT OF END OF OR INTEREST PRINCIPAL
LOAN LOAN INTEREST PAID THIS BALANCE NOTATION
DATE MADE MADE PERIOD DATE THIS DATE MADE BY
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D-1-3
EXHIBIT D-2
FORM OF BID LOAN NOTE
FOR VALUE RECEIVED, Anixter Inc. (the "Borrower"), hereby promises to
pay to the order of __________ (the "Lender") on the last day of the Interest
Period therefor, the principal amount of each Bid Loan from time to time made by
the Lender to the Borrower under that certain Five-Year Revolving Credit
Agreement, dated as of October 6, 2000 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among the Borrower, certain of its Subsidiaries, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of
each Bid Loan from the date of such Bid Loan until such principal amount is paid
in full, at such interest rates and at such times as provided in the Agreement.
All payments of principal and interest shall be made to the Administrative Agent
for the account of the Lender in US Dollars in immediately available funds at
the Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Bid Loan Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. This Note is also entitled to the
benefits of the Guaranty. Upon the occurrence of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Bid Loans made by the Lender shall be evidenced by
one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and
endorse thereon the date, amount and maturity of its Bid Loans and payments with
respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
ANIXTER INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
D-2-2
EXHIBIT D-3
FORM OF FOREIGN CURRENCY LOAN NOTE
_______________________
FOR VALUE RECEIVED, ____________________ (the "Borrower"), hereby
promises to pay to the order of ____________________ (the "Lender"), on the
Maturity Date (as defined in the Credit Agreement referred to below) the
principal amount of all Foreign Currency Loans (as defined in such Credit
Agreement) made by the Lender to the Borrower under that certain Five-Year
Revolving Credit Agreement, dated as of October 6, 2000 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement"; the terms defined therein being used herein as therein defined),
among Anixter Inc., certain of its Subsidiaries, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of
each Foreign Currency Loan from the date of such Foreign Currency Loan until
such principal amount is paid in full, at such interest rates, and at such times
as are specified in the Agreement. All payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in US Dollars
in immediately available funds at the Administrative Agent's Office. If any
amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum
rate set forth in the Agreement.
This Note is one of the Foreign Currency Loan Notes referred to in the
Agreement, is entitled to the benefits thereof and is subject to optional and
mandatory prepayment in whole or in part as provided therein. This Note is also
entitled to the benefits of the Guaranty. Upon the occurrence of one or more of
the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Foreign Currency Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Foreign Currency Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
[BORROWER]
By: _______________________________
Name: _____________________________
Title: ____________________________
D-3-2
FOREIGN CURRENCY LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
End of Principal or Principal
Type of Loan Amount of Loan Interest Interest Paid Balance This Notation
Date Made Made Period This Date Date Made By
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D-3-3
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.
("Anixter"), certain of its Subsidiaries, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _____________________________________ of Anixter, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the
behalf of Anixter, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(b) of the Agreement for the Fiscal
Year of Anixter ended as of the above date, together with the report and opinion
of an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(a) of the Agreement for the Fiscal Quarter
of Anixter ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of Anixter and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of
the Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or otherwise) of
Anixter during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Loan Parties during such
fiscal period has been made under the supervision of the undersigned with a view
to determining whether during such fiscal period the Loan Parties performed and
observed all their Obligations under the Loan Documents, and
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD,
THE BORROWERS PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO THEM.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT OR EVENT OF DEFAULT
AND ITS NATURE AND STATUS:]
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________________, _________.
ANIXTER INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
E-2
For the Fiscal Quarter/Fiscal Year ended ___________________("Statement
Date")
SCHEDULE 2
to the Compliance Certificate
(US$ in 000's)
I. SECTION 7.15 - RECEIVABLES SECURITIZATION TRANSACTIONS.
A. Aggregate outstanding investment or principal amount of claims held by
purchasers, assignees or transferees of (or of interests in)
receivables of Anixter and its Subsidiaries in connection with
Receivables Securitization Transactions US$_________
Maximum permitted:
II. SECTION 7.16 - CONSOLIDATED NET WORTH.
A. Actual Consolidated Net Worth at Statement Date:
1. Shareholders' Equity: US$__________
B. 50% of Consolidated Net Income for each Fiscal
Quarter ending after September 30, 2000 (No
reduction for losses): US$__________
C. Minimum required Consolidated Net Worth
(US$375,000,000 + Line II.B): US$__________
D. Excess (deficiency) for covenant compliance
(Line II.A - II.C): US$__________
III. SECTION 7.18 - CONSOLIDATED FIXED CHARGE COVERAGE RATIO.
A. Consolidated EBITDA for four consecutive Fiscal Quarters ending
on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period (by Fiscal
Quarter):
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
2. Net interest expense for Subject Period (by Fiscal Quarter):
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
E-3
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
3. Provision for income taxes for Subject Period (by Fiscal
Quarter):
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
4. Depreciation and amortization expenses for Subject Period (by
Fiscal Quarter):
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
5. Permitted Exclusions for Subject Period (by Fiscal Quarter):
a. Fiscal Quarter ended _________, 200__ US$______
Description:___________________________________
b. Fiscal Quarter ended _________, 200__ US$______
Description:___________________________________
c. Fiscal Quarter ended _________, 200__ US$______
Description:___________________________________
d. Fiscal Quarter ended _________, 200__ US$______
Description:___________________________________ US$__
E-4
6. Consolidated EBITDA (Lines III.A.1 + 2 + 3 + 4-5)(by Fiscal
Quarter):
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
B. Rental Expense for Subject Period:
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
C. Consolidated Fixed Charge Expense for Subject Period:
a. Fiscal Quarter ended _________, 200__ US$______
b. Fiscal Quarter ended _________, 200__ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______ US$__
D. Interest Coverage Ratio ((Line III.A.6 +Line III.B)/(Line
III.C): _________________ to 1
Minimum required:
MINIMUM FIXED
CHARGE
FISCAL QUARTERS ENDING COVERAGE RATIO
- -------------------------------------------------------------------------
Closing Date through September 30, 2001 2.00:1
December 31, 2001 through March 31, 2003 2.50:1
June 30, 2003 and each Fiscal Quarter thereafter 3.00:1
IV. SECTION 7.17 - LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: US$_______
B. Consolidated EBITDA for Subject Period (Line III.A.6 above):
US$________
C. Leverage Ratio (Line IV.A/Line IV.B): ___________ to 1
E-5
Maximum permitted:
MAXIMUM
FISCAL QUARTERS ENDING LEVERAGE RATIO
- ----------------------------------------------------------------------------
Closing Date through September 30, 2001 3.50:1
December 31, 2001 through March 31, 2003 3.25:1
June 30, 2003 and each Fiscal Quarter thereafter 3.00:1
V. SECTION 7.19 -- CAPITAL EXPENDITURES.
A. Capital expenditures made during Fiscal Year to date (by
Fiscal Quarter): Fiscal Quarters during Fiscal Year to date:
a. Fiscal Quarter ended _________, _____ US$______
b. Fiscal Quarter ended _________, ____ US$______
c. Fiscal Quarter ended _________, 200__ US$______
d. Fiscal Quarter ended _________, 200__ US$______
US$______
B. Capital expenditures that could have made during prior Fiscal
Year but which were not made (> or = US$______________):
US$_________
C. Maximum permitted capital expenditures
(US$50,000,000 + Line V.B.): US$_________
D. Excess (deficiency) for covenant compliance (Line V.C -
V.A):US$________
E-6
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Five-Year Revolving Credit Agreement,
dated as of October 6, 2000 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Anixter Inc.,
certain of its Subsidiaries, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent.
The assignor identified on the signature page hereto (the "Assignor")
and the assignee identified on the signature page hereto (the "Assignee") agree
as follows:
1. (a) Subject to paragraph 11, effective as of the date
specified on Schedule 1 hereto (the "Effective Date"), the Assignor hereby
irrevocably sells and assigns to the Assignee without recourse to the Assignor,
and the Assignee hereby irrevocably purchases and assumes from the Assignor
without recourse to the Assignor, the interest described on Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Agreement.
(b) From and after the Effective Date, (i) the Assignee shall be a
party under the Agreement and will have all the rights and obligations of a
Lender for all purposes under the Loan Documents to the extent of the
Assigned Interest and be bound by the provisions thereof, and (ii)the
Assignor shall relinquish its rights and be released from its obligations
under the Agreement to the extent of the Assigned Interest. The Assignor
and/or the Assignee, as agreed by the Assignor and the Assignee, shall
deliver, in immediately available funds, any applicable assignment fee
required under Section 10.07(b) of the Agreement.
2. On the Effective Date, the Assignee shall pay to the Assignor,
in immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed upon by the Assignor and the Assignee.
3. From and after the Effective Date, the Administrative Agent
shall make all payments under the Agreement and the Notes, if any, in respect of
the Assigned Interest (including all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and the Assignee shall make
all appropriate adjustments in payments under the Agreement and such Notes, if
any, for periods prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
(a) The Assignor is the legal and beneficial owner of the Assigned
Interest, and the Assigned Interest is free and clear of any adverse claim;
(b) the Assigned Interest listed on Schedule 1 accurately and
completely sets forth the Outstanding Amount of all Loans relating to the
Assigned Interest as of the Effective Date;
(c) it has the power and authority and the legal right to make,
deliver and perform, and has taken all necessary action, to authorize the
execution, delivery and performance of
this Assignment and Acceptance, and any and all other documents delivered
by it in connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and Acceptance
and the Loan Documents, and no consent or authorization of, filing with, or
other act by or in respect of any Governmental Authority, is required in
connection in connection herewith or therewith; and
(d) this Assignment and Acceptance constitutes the legal, valid
and binding obligation of the Assignor. The Assignor makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of Anixter or any of its Affiliates or the
performance by Anixter or any of its Affiliates of their respective
obligations under the Loan Documents, and assumes no responsibility with
respect to any statements, warranties or representations made under or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document
other than as expressly set forth above.
5. The Assignee represents and warrants to the Assignor and the
Administrative Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to authorize
the execution, delivery and performance of this Assignment and Acceptance,
and any and all other documents delivered by it in connection herewith and
to fulfill its obligations under, and to consummate the transactions
contemplated by, this Assignment and Acceptance and the Loan Documents, and
no consent or authorization of, filing with, or other act by or in respect
of any Governmental Authority, is required in connection in connection
herewith or therewith;
(c) this Assignment and Acceptance constitutes the legal, valid
and binding obligation of the Assignee;
(d) under applicable Laws no tax will be required to be withheld
by the Administrative Agent or Anixter with respect to any payments to be
made to the Assignee hereunder or under any Loan Document, and unless
otherwise indicated in the space opposite the Assignee's signature below,
no tax forms described in Section 10.15 of the Agreement are required to be
delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement, together
with copies of the most recent financial statements of Anixter delivered
pursuant thereto, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance. The Assignee has independently and without
reliance upon the Assignor or the Administrative Agent and based on such
information as the Assignee has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Acceptance. The
Assignee will, independently and without reliance upon the Administrative
Agent or any Lender, and based upon such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Agreement.
F-2
6. The Assignee appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Agreement, the other Loan Documents or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto.
7. If either the Assignee or the Assignor desires a Note to
evidence its Loans, it shall request the Administrative Agent to procure a Note
from the related Borrowers.
8. The Assignor and the Assignee agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or obligations
hereunder without the prior written consent of the Assignor and any purported
assignment, absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile
signatures with the same force and effect as if manually signed and may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the state specified in the Section of the Agreement entitled
"Governing Law."
11. The effectiveness of the assignment described herein is
subject to:
(a) if such consent is required by the Agreement, receipt by the
Assignor and the Assignee of the consent of the Administrative Agent and/or
Anixter to the assignment described herein. By delivering a duly executed
and delivered copy of this Assignment and Acceptance to the Administrative
Agent, the Assignor and the Assignee hereby request any such required
consent and request that the Administrative Agent register the Assignee as
a Lender under the Agreement effective as of the Effective Date; and
(b) receipt by the Administrative Agent of (or other arrangements
acceptable to the Administrative Agent with respect to) any applicable
assignment fee referred to in Section 10.07(b) of the Agreement and any tax
forms required by Section 10.15 of the Agreement.
By signing below, the Administrative Agent agrees to register the
Assignee as a Lender under the Agreement, effective as of the Effective Date
with respect to the Assigned Interest, and will adjust the registered Pro Rata
Share of the Assignor under the Agreement to reflect the assignment of the
Assigned Interest.
12. Attached hereto as Schedule 2 is all contact, address, account
and other administrative information relating to the Assignee.
F-3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:________________________________
Title:_____________________________
By:________________________________
- - Tax forms required by Section 10.15 of
the Agreement included
ASSIGNEE:__________________________
[NAME OF ASSIGNEE]
By:________________________________
Title:_____________________________
By:________________________________
(Signatures continue)
F-4
In accordance with and subject to Section 10.07 of
the Credit Agreement, the undersigned consent to
the foregoing assignment as of the Effective Date:
ANIXTER INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_________________________________________
Name:_______________________________________
Title:______________________________________
F-5
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
EFFECTIVE DATE: ______________________
TYPE AND AMOUNT OF OUTSTANDING ASSIGNED PRO RATA
ASSIGNED COMMITMENT OBLIGATIONS ASSIGNED SHARE
- -----------------------------------------------------------------------------
US$________________ [TYPE] US$____________________ ________________%
Schedule 1-1
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
Schedule 2-1
EXHIBIT G
GUARANTY
This GUARANTY, dated as of October 6, 2000, is by ANIXTER INTERNATIONAL
INC., a Delaware corporation, ANIXTER INC., a Delaware corporation ("Anixter"),
ANIXTER-REAL ESTATE, INC., an Illinois corporation, ANIXTER INFORMATION SYSTEMS
CORPORATION, an Illinois corporation, and ANIXTER FINANCIAL INC., a Delaware
corporation (each a "Guarantor" and collectively, the "Guarantors"), in favor of
BANK OF AMERICA, N.A., as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders (as hereafter defined).
Recitals
B. Anixter, Anixter U.K. Ltd., an English limited liability
company and Anixter International N.V./S.A., a Belgian company (together with
Anixter and Anixter U.K. Ltd., and any other Subsidiary that may become a
Borrowing Subsidiary in accordance with the terms thereof, collectively, the
"Borrowers" and individually a "Borrower"), the financial institutions from time
to time party thereto (the "Lenders"), Bank One, NA, as Syndication Agent, The
Bank of Nova Scotia, as Documentation Agent, and the Administrative Agent have
entered into a Five-Year Revolving Credit Agreement, dated as of October 6,
2000. The Credit Agreement as now in effect or hereafter extended, renewed,
modified, supplemented, amended, or restated is hereinafter called the "Credit
Agreement".
C. The Lenders are willing to make the Loans to the Borrowers on
the condition (among others) that the Guarantors enter into this Guaranty.
D. Each Guarantor will derive substantial and direct benefits
(which benefits are hereby acknowledged by the Guarantors) from the Loans and
other benefits to be provided to the Borrowers under the Credit Agreement.
E. In order to induce the Lenders to make the Loans to the
Borrowers as provided in the Credit Agreement, and for other valuable
consideration, the Guarantors hereby issue this Guaranty.
1. Definitions. Unless otherwise defined herein, capitalized
terms used in this Guaranty have the meanings given to them from time to time in
the Credit Agreement.
2. Guaranty.
2.1 Guaranty. The Guarantors, jointly and severally,
hereby irrevocably, absolutely and unconditionally guarantee the full and
punctual payment or performance when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand, or otherwise, of all of
the Guaranteed Obligations, including Guaranteed Obligations in respect of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Section
101 et seq.) (the "Bankruptcy Code") or the operation of Sections 502(b) and
506(b) of the Bankruptcy Code. This Guaranty constitutes a guaranty of payment
and performance when due and not of collection, and the
Guarantors specifically agree that it shall not be necessary or required that
the Administrative Agent or any Lender exercise any right, assert any claim or
demand, or enforce any remedy whatsoever against the Borrowers (or any other
Person) before or as a condition to the obligations of the Guarantors hereunder.
The Administrative Agent or any Lender may permit the indebtedness of the
Borrowers to the Administrative Agent or any Lender to include indebtedness
other than the Guaranteed Obligations, and may apply any amounts received from
any source, other than from the Guarantors, to that portion of the Borrowers'
indebtedness to the Administrative Agent or any Lender which is not a part of
the Guaranteed Obligations. The obligations and liabilities of the Guarantors
hereunder are joint and several. "Guaranteed Obligations" shall mean all
Obligations plus all obligations of the Borrowers to the Administrative Agent
and the Lenders pursuant to any agreement (including any master agreement and
any agreement, whether or not in writing, relating to any single transaction)
that is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, station, currency option or any other, similar agreement (including
any option to enter into any of the foregoing).
2.2 Obligations Independent. The obligations hereunder
are independent of the obligations of the Borrowers, and a separate action or
actions may be brought and prosecuted against any or all of the Guarantors
whether action is brought against a Borrower or whether any Borrower be joined
in any such action or actions.
2.3 Authorization of Renewals, Etc. Each Guarantor
authorizes the Administrative Agent and each Lender, without notice or demand
and without affecting its liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate, or
otherwise change the time for payment, or otherwise change the terms, of the
Guaranteed Obligations, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of the Credit Agreement or any other Loan
Document;
(b) to receive and hold security for the payment of this
Guaranty or the obligations and exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any such security;
(c) to apply such security and direct the order or manner
of sale thereof as the Administrative Agent, or any Lender, as the case may be,
in its or their discretion may determine; and
(d) to release or substitute any one or more of any
endorsers or guarantors of the Guaranteed Obligations.
Each Guarantor further agrees that the performance or occurrence of any of the
acts or events described in clauses (a), (b), (c), and (d) above with respect to
indebtedness or other obligations of the Borrowers other than the Guaranteed
Obligations, to the Administrative Agent or any Lender, shall not affect the
liability of the Guarantors hereunder.
G-2
2.4 Waiver of Certain Rights. Each Guarantor waives any
right to require the Administrative Agent or any Lender:
(a) to proceed against the Borrowers, a Borrower or any
other Person;
(b) to proceed against or exhaust any security for the
Guaranteed Obligations or any other indebtedness of the Borrowers to the
Administrative Agent or any Lender; or
(c) to pursue any other remedy in the Administrative
Agent's or any such Lender's power whatsoever.
2.5 Waiver of Certain Defenses and Rights. Each Guarantor
waives any defense arising by reason of any disability or other defense of the
Borrowers, or the cessation from any cause whatsoever of the liability of the
Borrowers, whether consensual or arising by operation of law or any bankruptcy,
insolvency or debtor relief proceeding, or from any other cause, or any claim
that such Guarantor's obligations exceed or are more burdensome than those of
the Borrowers. Each Guarantor waives any defense arising by reason of any
statute of limitations affecting the liability of the Borrowers. Each Guarantor
waives all rights and defenses arising out of an election of remedies by the
Administrative Agent or any Lender, even though that election of remedies, has
destroyed such Guarantor's rights of subrogation and reimbursement against the
Borrowers by operation of applicable law, and all rights or defenses such
Guarantor may have by reason of protection afforded to the Borrowers with
respect to the Guaranteed Obligations pursuant to the antideficiency laws or
other laws of the applicable jurisdiction limiting or discharging the Guaranteed
Obligations.
2.6 Waiver of Presentments, Etc. Each Guarantor waives
all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Guaranteed Obligations or any other indebtedness of Borrowers to the
Administrative Agent or any Lender.
2.7 Information Relating to Borrowers. Each Guarantor
acknowledges and agrees that it shall have the sole responsibility for obtaining
from the Borrowers such information concerning the Borrowers, financial
condition or business operations as such Guarantor may require, and that neither
the Administrative Agent nor any Lender has any duty at any time to disclose to
the Guarantors any information relating to the business operations or financial
condition of the Borrowers.
2.8 Right of Setoff. In addition to any rights and
remedies of the Lenders provided by law, if an Event of Default has occurred and
is continuing, each Lender is authorized at any time and from time to time,
without prior notice to the Guarantors, any such notice being waived by each
Guarantor to the fullest extent permitted by law, to set-off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of one or more Guarantors against any and all obligations
of the Guarantors now or hereafter existing under this Guaranty or any other
Loan Document, irrespective of whether or not the Administrative Agent or such
Lender shall have made demand under this Guaranty or any other Loan Document.
Each
G-3
Lender agrees promptly to notify the Guarantors and the Administrative Agent
after any such set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 2.8 are in addition to
the other rights and remedies (including, without limitation, other rights of
set-off) which such Lender may have.
2.9 Subordination. Any obligations of any Borrower to one
or more of the Guarantors, now or hereafter existing, including, but not limited
to, obligations to one or more of the Guarantors as subrogee of the
Administrative Agent or any Lender or resulting from one or more of the
Guarantors' performance under this Guaranty, are hereby fully subordinated in
time and priority of payment to the Guaranteed Obligations and all other
indebtedness of the Borrowers to the Administrative Agent or any Lender. The
obligations of such Borrower to the Guarantors if the Lenders so request shall
be enforced and performance received by the Guarantors as trustee for the
Administrative Agent and the Lenders and the proceeds thereof shall be paid over
to the Administrative Agent and the Lenders on account of the Guaranteed
Obligations, but without reducing or affecting in any manner the liability of
the Guarantors under the other provisions of this Guaranty.
2.10 Reinstatement of Guaranty. If any payment or transfer
of any interest in property by any Borrower to the Administrative Agent or any
Lender in fulfillment of any obligation is rescinded or must at any time
(including after the return or cancellation of this Guaranty) be returned, in
whole or in part, by the Administrative Agent or any Lender to a Borrower or any
other Person, upon the insolvency, bankruptcy, or reorganization of such
Borrower or otherwise, this Guaranty shall be reinstated with respect to any
such payment or transfer, regardless of any such prior return or cancellation.
2.11 Powers. It is not necessary for the Administrative
Agent or any Lender to inquire into the powers of any Borrower or any other
Person obligated in respect of the Guaranteed Obligations or of the officers,
directors, partners, or agents acting or purporting to act on its or their
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
2.12 Taxes. (a) Any and all payments by any Guarantor to
each Lender or the Administrative Agent under this Guaranty shall be made free
and clear of, and without deduction for, any Taxes. In addition, the Guarantors
shall pay all Other Taxes.
(b) If any Guarantor shall be required by law to deduct
any Taxes, from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions (including
deductions applicable to additional sums payable under this Section),
such Lender or the Administrative Agent, as the case may be, receives
and retains an amount equal to the sum it would have received and
retained had no such deductions been made;
(ii) the Guarantors shall make such deductions;
G-4
(iii) the Guarantors shall pay the full amount
deducted to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Guarantors shall also pay to each Lender
or the Administrative Agent for the account of such Lender, at the time
interest is paid, such additional amount that the respective Lender
specifies as necessary to preserve the after-tax yield the Lender would
have received if such Taxes or Other Taxes had not been imposed.
(c) Each Guarantor agrees to indemnify and hold harmless
each Lender and the Administrative Agent for the full amount of (i) Taxes and
(ii) Other Taxes, and (iii) amounts payable under Section 2.12(b)(iv), and (iv)
any liability (including penalties, interest, additions to tax, and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 30 days after the date the Lender or the Administrative
Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by any
Guarantor of Taxes or Other Taxes, such Guarantor shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to the Administrative
Agent.
2.13 Addition of Guarantors. Each Guarantor at any time a
party hereto consents and agrees that, at any time that any Person executes and
delivers to Administrative Agent a letter, substantially in the form of Exhibit
A attached hereto, with such changes, if any, as Administrative Agent shall
approve, such Person shall, without further action on the part of any Person,
automatically become a party hereto and a "Guarantor" hereunder.
2.14 Limit of Liability. Notwithstanding anything to the
contrary contained herein, each Guarantor shall be liable hereunder only for the
largest amount that would not render such Guarantor's obligations hereunder
subject to avoidance under Section 548 of the Bankruptcy Code or comparable
provisions of any applicable state law; provided that such amount shall be
presumed to be the entire amount of the Guaranteed Obligations. If any Guarantor
claims that such Guarantor's liability hereunder is less than the entire amount
of the Obligations, such Guarantor shall have the burden of proving, by clear
and convincing evidence, that such Guarantor's liability hereunder should be so
limited since the information concerning, and the circumstances of, the
financial condition of such Guarantor are more readily available to and are
under the control of such Guarantor.
2.15 Waiver of Subrogation. Until such time as the
Guaranteed Obligations shall have been indefeasibly paid in full in cash, each
Guarantor waives any right of subrogation, reimbursement, indemnification and
contribution (contractual, statutory or otherwise), including any claim or right
of subrogation under the Bankruptcy Code or any successor statute, against the
Borrowers arising from the existence or performance of this Guaranty, and each
Guarantor waives any right to enforce any remedy which the Administrative Agent
or any Lender now has or may hereafter have against the Borrowers, and waives
any benefit of, and any right to participate in, any security now or hereafter
held by the Administrative Agent or any Lender securing the Guaranteed
Obligations.
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3. Representations and Warranties. Each Guarantor represents and
warrants to the Administrative Agent and each Lender as follows:
3.1 Organization; Corporate Powers. Such Guarantor (i) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
in which it owns or leases real property or in which the nature of its business
requires it to be so qualified, except those jurisdictions where the failure to
be in good standing or to so qualify has not had or could not reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite
corporate power and authority to own, operate and encumber its property and
assets and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the transactions
contemplated by the Transaction Documents.
3.2 Authority.
(1) Such Guarantor has the requisite corporate power and authority
to execute, deliver and perform its obligations under this Guaranty.
(2) The execution, delivery and performance (or filing or
recording, as the case may be) of this Guaranty and the consummation of the
transactions contemplated thereby, have been duly authorized by all necessary
corporate action on the part of this Guaranty and no other proceedings on the
part of any such Person are necessary to consummate such transactions.
(3) This Guaranty has been duly executed and delivered (or filed
or recorded, as the case may be) by such Guarantor, constitutes its legal, valid
and binding obligations, enforceable against it in accordance with its terms
(except as enforceabiltiy may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles), and is in full
force and effect (unless terminated in accordance with the terms thereof).
3.3 No Conflict. The execution, delivery and performance
of this Guaranty and each of the transactions contemplated hereby, do not and
will not (i) conflict with any Contractual Obligation of such Guarantor, any
liability resulting from which would have or could be reasonably expected to
have a Material Adverse Effect, or (ii) conflict with or violate such
Guarantor's certificate or articles of incorporation or by-laws or similar
charter and constituting documents, or (iii) conflict with, result in a breach
of or constitute (with or without notice or lapse of time or both) a default
under any Requirement of Law or Contractual Obligation of such Guarantor, or
require termination of any Contractual Obligation of such Guarantor, or (iv)
result in or require the creation or imposition of any Lien whatsoever upon any
of the properties or assets of any such Person (other than Liens permitted
pursuant to Section 7.02(b) of the Credit Agreement), or (v) require any
approval of stockholders of such Guarantor, unless such approval has been
obtained.
3.4 Governmental Consents. The execution, delivery and
performance of this Guaranty by such Guarantor, and the transactions
contemplated hereby do not and will not require any registration with, consent
or approval of, or notice to, or other action with or by, any
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Governmental Authority, except filings, consents or notices which have been
made, obtained or given and are in full force and effect.
3.5 Governmental Regulation. Such Guarantor is not
subject to regulation under the Public Utility Holdings Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, the Investment Company Act of
1940 or any other statute or regulation of any Governmental Authority such that
its ability to incur indebtedness is limited or its ability to consummate the
transactions contemplated hereby is materially impaired.
4. Miscellaneous.
4.1 Application of Payments on Guaranty. All payments
required to be made by the Guarantors hereunder shall, unless otherwise
expressly provided herein, be made to the Administrative Agent for the account
of the Lenders at the Administrative Agent's Office. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other applicable
share as expressly provided herein) of such payment in like funds as received.
Payments received from the Guarantors shall, unless otherwise expressly provided
herein, be applied to costs, fees, or other expenses due under the Loan
Documents, any interest (including interest due under [subsection 2.09(c)] of
the Credit Agreement), any principal due under the Loan Documents and any other
Guaranteed Obligations, in such order as the Administrative Agent, with the
consent of or at the request of the Lenders, shall determine.
4.2 Assignments, Participations, Confidentiality. Subject
to the provisions of [Section 10.07] of the Credit Agreement, any Lender may
from time to time, without notice to the Guarantors and without affecting the
Guarantors' obligations hereunder, transfer its interest in the Guaranteed
Obligations. Each Guarantor agrees that each such transfer will give rise to a
direct obligation of the Guarantors to each such transferee and that each such
transferee shall have the same rights and benefits under this Guaranty as it
would have if it were a Lender party to the Credit Agreement and this Guaranty.
4.3 Loan Document. This Guaranty is a Loan Document
executed and delivered pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered, and applied in
accordance with the terms and provisions thereof. Without limiting the
generality of the foregoing, the provisions of Sections [1.02 through 1.06] of
the Credit Agreement shall apply to the interpretation and administration of
this Guaranty as if such provisions were incorporated herein, with all
references to the "Agreement" in such Sections being deemed to be references to
this Guaranty.
4.4 Waivers; Writing Required. No delay or omission by
the Administrative Agent or any Lender to exercise any right under this Guaranty
shall impair any such right, nor shall it be construed to be a waiver thereof.
No waiver of any single breach or default under this Guaranty shall be deemed a
waiver of any other breach or default. Any amendment or waiver of any provision
of this Guaranty must be in writing and signed by the Guarantors and the
Administrative Agent, with the written consent of the Required Lenders or all of
the Lenders, in accordance with the terms of Section 10.01 of the Credit
Agreement.
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4.5 Revocation. Each Guarantor absolutely,
unconditionally, knowingly, and expressly waives any right to revoke such
Guarantor's guaranty obligation hereunder as to future Guaranteed Obligations.
Each Guarantor fully realizes and understands that, upon execution of this
Guaranty, such Guarantor will not have any right to revoke this Guaranty as to
any future indebtedness and, thus, may have no control over such Guarantor's
ultimate responsibility for the Guaranteed Obligations. If, contrary to the
express intent of this Guaranty, any such revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that: (a) no such revocation shall be effective until written notice thereof has
been received by the Administrative Agent and the Lenders; (b) no such
revocation shall apply to any Guaranteed Obligations in existence on such date
(including any subsequent continuation, extension, or renewal thereof, or change
in the interest rate, payment terms, or other terms and conditions thereof); (c)
no such revocation shall apply to any Guaranteed Obligations made or created
after such date to the extent made or created pursuant to a legally binding
commitment of the Lenders which is, or is believed in good faith by the Lenders
to be, in existence on the date of such revocation; (d) no payment by any other
source, prior to the date of such revocation shall reduce the obligations of any
Guarantor hereunder; and (e) any payment by any Borrower or from any source
other than a Guarantor, subsequent to the date of such revocation, shall first
be applied to that portion of the Guaranteed Obligations, if any, as to which
the revocation by a Guarantor is effective (and which are not, therefore,
guarantied by the Guarantors hereunder), and, to the extent so applied, shall
not reduce the Guaranteed Obligations of the Guarantors hereunder.
4.6 Remedies. All rights and remedies provided in this
Guaranty and any instrument or agreement referred to herein are cumulative and
are not exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not preclude the further
exercise thereof or the exercise of any other right or remedy.
4.7 Costs and Expenses. Each Guarantor agrees to pay or
reimburse the Administrative Agent and each Lender within five Business Days
after demand for all reasonable costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Guaranty (including in
connection with any "workout" or restructuring regarding amounts due under this
Guaranty, and including in any Insolvency Proceeding or appellate proceeding).
4.8 Severability. The illegality or unenforceability of
any provision of this Guaranty or any instrument or agreement referred to herein
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Guaranty or any instrument or agreement referred to
herein.
4.9 Notices. All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided that
any matter transmitted by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 10.02 to the
Credit Agreement, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on the signature pages hereof in the case of
Guarantors and as provided in the Credit Agreement in the case of Administrative
Agent and Lenders; or to such other address as shall be designated by any such
party in a written notice to the other parties. All such notices, requests
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and communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the fourth
Business Day after the date deposited into the U.S. mail, or if delivered, upon
delivery. Any agreement of the Administrative Agent and the Lenders to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Guarantors. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by a Guarantor to give such notice and the Administrative Agent and
the Lenders shall not have any liability to any Guarantor or other Person on
account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Guarantors hereunder shall not be affected in any way or to any extent by
any failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice.
4.10 Governing Law and Jurisdiction. THIS GUARANTY SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
4.11 Waiver of Jury Trial. EACH GUARANTOR, THE LENDERS,
AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY, IN ANY ACTION, PROCEEDING, OR OTHER LITIGATION OF ANY TYPE BROUGHT
BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE GUARANTORS, THE LENDERS, AND
THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL
BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR
MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
4.12 Entire Agreement. This Guaranty (a) integrates all
the terms and conditions mentioned herein or incidental hereto, (b) supersedes
all oral negotiations and prior writings with respect to the subject matter
hereof, and (c) is intended by the parties as the final expression of the
agreement with respect to the terms and conditions set forth in this Guaranty
and any such instrument, agreement and document and as the complete and
exclusive statement of the terms agreed to by the parties.
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4.13 Execution in Counterparts. This Guaranty may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of an executed counterpart of the
signature page to this Guaranty by telecopier shall be effective as delivery of
a manually executed counterpart of this Guaranty. Any party delivering an
executed counterpart of the signature page to this Guaranty by telecopier shall
thereafter also promptly deliver a manually executed counterpart of this
Guaranty, but the failure to deliver such manually executed counterpart shall
not affect the validity, enforceability, and binding effect of this Guaranty.
THIS WRITTEN GUARANTY, TOGETHER WITH THE OTHER WRITTEN LOAN DOCUMENTS
EXECUTED IN CONNECTION HEREWITH, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its
duly authorized officers as of the day and year first above written.
ANIXTER INTERNATIONAL INC.
By:________________________________
Title:_____________________________
Notice Information:
4711 Golf Road
Skokie, IL 60076
Attn : Rod Shoemaker
ANIXTER INC.
By:________________________________
Title:_____________________________
Notice Information:
4711 Golf Road
Skokie, IL 60076
Attn : Rod Shoemaker
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ANIXTER-REAL ESTATE, INC.
By:________________________________
Title:_____________________________
Notice Information:
4711 Golf Road
Skokie, IL 60076
Attn : Rod Shoemaker
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ANIXTER INFORMATION SYSTEMS
CORPORATION
By:________________________________
Title:_____________________________
Notice Information:
4711 Golf Road
Skokie, IL 60076
Attn : Rod Shoemaker
ANIXTER FINANCIAL INC.
By:________________________________
Title:_____________________________
Notice Information:
4711 Golf Road
Skokie, IL 60076
Attn : Rod Shoemaker
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EXHIBIT A
TO GUARANTY AGREEMENT
_______________, 200___
To the Lenders and Administrative Agent
Referenced below:
Ladies and Gentlemen:
Reference is made to the following documents: (a) that certain
Five-Year Revolving Credit Agreement, dated as October 6, 2000 (as amended or
modified from time to time, the "Credit Agreement"), among Anixter Inc., a
Delaware corporation ("Anixter"), Anixter U.K. Ltd., an English limited
liability company and Anixter International N.V./S.A., a Belgian company
(together with Anixter and Anixter U.K. Ltd., collectively, the "Borrowers" and
individually a "Borrower"), the financial institutions from time to time party
thereto (the "Lenders"), Bank One, NA, as Syndication Agent, The Bank of Nova
Scotia, as Documentation Agent, and Bank of America, N.A., as Administrative
Agent; and (b) that certain Guaranty dated as of October 6, 2000 (as amended or
modified from time to time, the "Guaranty"), by certain Affiliates of the
Borrowers party thereto in favor of Administrative Agent. Unless specifically
defined herein, capitalized terms used herein have the meaning set forth in the
Credit Agreement.
The undersigned hereby confirms and agrees that it has been furnished
with and has read each of the Loan Documents in effect as of the date hereof and
that, effective as of the date hereof, the undersigned is a party to and
obligated as a Guarantor under the Guaranty. The undersigned hereby warrants and
represents to you that the representations and warranties of the undersigned as
a Guarantor under Section 3 of the Guaranty are true, correct, and complete in
all material respects on the date hereof.
Very truly yours,
[NAME OF NEW GUARANTOR],
a _______________
By:________________________________
Title:_____________________________
Notice Information:
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EXHIBIT H
FORM OF OPINION OF COUNSEL
EXHIBIT I
FORM OF ALLOCATION NOTICE
BANC OF AMERICA SECURITIES LLC
October [__], 2000
[LENDER]
Dear Ladies and Gentlemen:
This Confirmation is delivered with reference to the Five-Year Credit Agreement
and the 364-Day Credit Agreement, each dated as of October __, 2000 among
Anixter Inc., certain of its subsidiaries, various financial institutions, and
Bank of America, N.A, as administrative agent (together, the "Credit
Agreements").
The undersigned serves as the Lead Arranger for the Commitments under the Credit
Agreements, and hereby confirms your allocation of the following Commitments
under the Credit Agreements:
Five-Year Commitment $
364-Day Commitment $
BANC OF AMERICA SECURITIES LLC
By:________________________________
Title:_____________________________
ANIXTER INC.
By:________________________________
Title:_____________________________