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 ▇▇▇▇▇ 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.
2
"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/▇▇▇▇▇'▇/ 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 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
▇. ▇▇▇▇▇▇▇, 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.
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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
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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;
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(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:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn : ▇▇▇ ▇▇▇▇▇▇▇▇▇
ANIXTER INC.
By:________________________________
Title:_____________________________
Notice Information:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn : ▇▇▇ ▇▇▇▇▇▇▇▇▇
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ANIXTER-REAL ESTATE, INC.
By:________________________________
Title:_____________________________
Notice Information:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn : ▇▇▇ ▇▇▇▇▇▇▇▇▇
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ANIXTER INFORMATION SYSTEMS
CORPORATION
By:________________________________
Title:_____________________________
Notice Information:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn : ▇▇▇ ▇▇▇▇▇▇▇▇▇
ANIXTER FINANCIAL INC.
By:________________________________
Title:_____________________________
Notice Information:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn : ▇▇▇ ▇▇▇▇▇▇▇▇▇
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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:_____________________________