Exhibit 10.21
EXECUTION COPY
INTERCREDITOR AGREEMENT
Dated as of March 19, 2002
by and among
PNC BANK, NATIONAL ASSOCIATION,
as Receivables Agent,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lenders Agent,
WESCO RECEIVABLES CORP.,
as Receivables Seller,
WESCO DISTRIBUTION, INC.,
as Seller, as Servicer, in its individual capacity and as Borrower,
and
THE OTHER PARTIES HERETO
This INTERCREDITOR AGREEMENT, dated as of March 19, 2002 (as
supplemented, amended, restated or otherwise modified from time to time, this
"AGREEMENT"), by and among PNC BANK, NATIONAL ASSOCIATION, in its capacity as
Administrator under the Receivables Purchase Agreement (as defined below) (the
"RECEIVABLES AGENT"), GENERAL ELECTRIC CAPITAL CORPORATION, in its capacity as
Agent, for itself and on behalf of the Lenders (as defined below) (the "LENDERS
AGENT"), WESCO RECEIVABLES CORP. (the "RECEIVABLES SELLER"), WESCO DISTRIBUTION,
INC. ("WESCO"), FIFTH THIRD BANK, N.A., MELLON BANK, N.A., THE BANK OF NOVA
SCOTIA, HERNING ENTERPRISES, INC. AND WESCO EQUITY CORPORATION.
RECITALS:
A. WESCO has agreed to sell, transfer and assign to the
Receivables Seller, and the Receivables Seller has agreed to purchase or
otherwise acquire from WESCO and various of WESCO'S domestic Subsidiaries from
time to time party thereto (together with WESCO, the "Originators"), all of the
right, title and interest of WESCO in the Receivables (as hereinafter defined)
pursuant to a Receivables Purchase and Sale Agreement dated as of June 30, 1999,
as amended by that certain First Amendment to Purchase and Sale Agreement dated
as of September 28, 1999 (and as may be further supplemented, amended, restated
or otherwise modified from time to time, the "RECEIVABLES PURCHASE AND SALE
AGREEMENT").
B. The Receivables Seller, as seller, WESCO, in its capacity
as servicer and in its individual capacity, the Receivables Agent, and the
Receivables Purchasers (as defined below) are parties to an Amended and Restated
Receivables Purchase Agreement, dated as of September 28, 1999, as amended by
that certain First Amendment to Amended and Restated Receivables Purchase
Agreement, dated as of July 24, 2000, that certain Second Amendment to Amended
and Restated Receivables Purchase Agreement, dated as of September 26, 2000,
that certain Third Amendment to Amended and Restated Receivables Purchase
Agreement, dated as of October 31, 2000, that certain Fourth Amendment to
Amended and Restated Receivables Purchase Agreement, dated as of February 1,
2001, that certain Fifth Amendment to Amended and Restated Receivables Purchase
Agreement, dated as of March 12, 2001, that certain Sixth Amendment to Amended
and Restated Receivables Purchase Agreement, dated as of June 29, 2001, and that
certain Seventh Amendment to Amended and Restated Receivables Purchase
Agreement, dated as of July 27, 2001 (and as may be further supplemented,
amended, restated or otherwise modified from time to time, the "RECEIVABLES
PURCHASE AGREEMENT") pursuant to which the Receivables Purchasers have agreed,
among other things, to purchase from the Receivables Seller from time to time
Receivables (or interests therein) purchased by or contributed to the
Receivables Seller pursuant to the Receivables Purchase and Sale Agreement and
the Receivables Seller has granted a lien on the Receivables to the Receivables
Agent.
C. The Receivables Purchase and Sale Agreement and the
Receivables Purchase Agreement provide for the filing of UCC financing
statements to perfect the ownership and security interest of the parties thereto
with respect to the property covered thereby.
D. WESCO, the Lenders Agent and the financial institutions
from time to time party thereto (collectively, the "LENDERS") are parties to a
Credit Agreement dated as of the
date hereof (as supplemented, amended, restated or otherwise modified from time
to time, the "CREDIT AGREEMENT"). Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Credit Agreement.
E. To secure WESCO's obligations to the Lenders and Lenders
Agent under the Credit Agreement and other Loan Documents (as hereinafter
defined), WESCO and the other Credit Parties have granted to the Lenders Agent
for the benefit of the Lenders Agent and the Lenders a lien over, among other
things, certain accounts receivable and certain general intangibles, including
the Unsold Receivables (as hereinafter defined), certain inventory and all
proceeds of the foregoing.
F. The parties hereto wish to set forth certain agreements
with respect to the Receivables Assets (as hereinafter defined) and with respect
to the Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is hereby agreed as follows:
ARTICLE 1. DEFINITIONS.
1.1. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"BUSINESS DAY" has the meaning ascribed to such term in the
Credit Agreement.
"CLAIM" means the Lenders Claim or the Receivables Claim, as
applicable.
"COLLATERAL" means all property and interests in property, now
owned or hereafter acquired or created, of WESCO or any of the other Credit
Parties in or upon which a Lenders Interest is granted or purported to be
granted by WESCO or such other Credit Party to the Lenders or the Lenders Agent
under any of the Loan Documents.
"COLLECTIONS" means, for any Receivable as of any date, (i)
all amounts, whether in the form of wire transfer, cash, checks, drafts, or
other instruments that are received by the Receivables Seller, WESCO or any
other Originator in payment of any amounts owed in respect of such Receivable
(including purchase price finance charges, interest and other charges), or
applied to any amount owed by an Obligor on account of such Receivable,
including, without limitation, all amounts received on account of such
Receivable (including insurance payments and net proceeds of the sale or
disposition of repossessed goods or other collateral of any Person liable for
repayment of such Receivable) and all other fees and charges related thereto,
(ii) cash proceeds of Returned Goods with respect to such Receivable, (iii) all
amounts paid by WESCO in respect of such Receivable pursuant to the Receivables
Purchase and Sale Agreement and/or the Receivables Purchase Agreement and (iv)
all Proceeds of such Receivable.
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"CONTRACT" has the meaning ascribed to such term in the
Receivables Purchase Agreement.
"CREDIT PARTY" has the meaning ascribed to such term in the
Credit Agreement.
"DISPOSITION" means, with respect to any assets of WESCO, any
liquidation of WESCO or its assets, the establishment of any receivership for
WESCO or its assets, a Bankruptcy proceeding of WESCO (either voluntary or
involuntary), the payment of any insurance, condemnation, confiscation, seizure
or other claim upon the condemnation, confiscation, seizure, loss or destruction
or thereof, or damage to, or any other sale, transfer, assignment or other
disposition of such assets.
"ENFORCEMENT" means collectively or individually, for (a) any
of the Receivables Agent or the Receivables Purchasers to (i) declare the
Expiration Date under the Receivables Documents or (ii) commence the judicial or
nonjudicial enforcement of any of the default rights and remedies under any of
the Receivables Documents upon the occurrence of such default and (b) any of the
Lenders Agent or the Lenders during the continuance of a Lenders Event of
Default (i) to demand payment in full of or accelerate the indebtedness of WESCO
to the Lenders and Lenders Agent or (ii) to commence the judicial or nonjudicial
enforcement of any of the default rights and remedies under any of the Loan
Documents.
"ENFORCEMENT NOTICE" means a written notice delivered in
accordance with SECTION 2.5 which notice shall (i) if delivered by the
Receivables Agent, state that the Expiration Date has occurred, specify the
nature of the Termination Event that has caused the declaration of such
Expiration Date, and state that an Enforcement Period has commenced and (ii) if
delivered by the Lenders Agent, state that a Lenders Event of Default has
occurred and that the payment in full of the Lenders Claim has been demanded or
the indebtedness of WESCO to the Lenders has been accelerated, specify the
nature of the Lenders Event of Default that caused such demand and acceleration,
and state that an Enforcement Period has commenced.
"ENFORCEMENT PERIOD" means the period of time following the
receipt by either the Lenders Agent, on the one hand, or the Receivables Agent,
on the other, of an Enforcement Notice delivered by any of the others until the
earliest of the following: (1) the Receivables Claim has been satisfied in full,
none of the Receivables Purchasers have any further obligations under the
Receivables Documents and the Receivables Documents have been terminated; (2)
the Lenders Claim has been satisfied in full, the Lenders have no further
obligations under the Credit Agreement and the other Loan Documents and the
Credit Agreement and the other Loan Documents have been terminated; and (3) the
parties hereto agree in writing to terminate the Enforcement Period.
"FACILITY TERMINATION DATE" has the meaning ascribed to such
term in the Receivables Purchase Agreement.
"LENDERS" shall mean the Lenders from time to time party to
the Credit Agreement, the Agent and each other Secured Party (as defined in the
Security Agreement).
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"LENDERS CLAIM" means all of the indebtedness, obligations and
other liabilities of WESCO and the other Credit Parties now or hereafter arising
under, or in connection with, the Credit Agreement and the other Loan Documents,
including, but not limited to, all sums now or hereafter loaned or advanced to
or for the benefit of WESCO, all reimbursement obligations of WESCO with respect
to letters of credit and guarantees issued thereunder for its account, all
guarantee obligations of the Credit Parties, any interest thereon (including,
without limitation, interest accruing after the commencement of a bankruptcy,
insolvency or similar proceeding relating to any of the Credit Parties, whether
or not such interest is an allowed claim in any such proceeding), any
reimbursement obligations, fees or expenses due thereunder, and any costs of
collection or enforcement.
"LENDERS COLLATERAL" means all Collateral which does not
constitute Receivables Assets.
"LENDERS EVENT OF DEFAULT" has the meaning ascribed to the
term "Event of Default" in the Credit Agreement.
"LENDERS INTEREST" means, with respect to any property or
interest in property, now owned or hereafter acquired or created, of WESCO or
any of the Credit Parties, any lien, claim, encumbrance, security interest or
other interest of the Lenders Agent or the Lenders in such property or interests
in property.
"LOAN DOCUMENTS" has the meaning ascribed to such term in the
Credit Agreement.
"OBLIGOR" has the meaning ascribed to such term in the
Receivables Purchase and Sale Agreement.
"OUTSTANDING BALANCE" has the meaning ascribed to such term in
the Receivables Purchase Agreement.
"PERSON" means any individual, partnership, corporation
(including a business trust), joint stock company, limited liability company,
trust, unincorporated association, joint venture or other entity.
"PROCEEDS" has the meaning ascribed to such term in the UCC.
"PURCHASED RECEIVABLES" means now owned or hereafter existing
Receivables sold, purported to be sold, transferred or contributed or purported
to be transferred or contributed by WESCO or any other Originator to the
Receivables Seller under the Receivables Purchase and Sale Agreement. Without
limiting the generality of the foregoing, Purchased Receivables include all
Receivables originated or acquired by WESCO or any other Originator.
"PURCHASER AGENTS" means each Person from time to time party
to the Receivables Purchase Agreement in the capacity of a "Purchaser Agent."
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"RECEIVABLE" means:
(a) indebtedness, right to payment or other obligation of an
Obligor (whether constituting an account, chattel, paper, document, instrument
or general intangible) arising from the provision of merchandise, goods or
services to such Obligor, including all monies due or to become due with respect
thereto, including the right to payment of any interest or finance charges and
other obligations of such Obligor with respect thereto;
(b) all security interests or liens and property subject
thereto from time to time securing or purporting to secure any such indebtedness
by such Obligor;
(c) all guarantees, indemnities and warranties, insurance
policies, financing statements and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such
indebtedness;
(d) all Collections with respect to any of the foregoing;
(e) all Records with respect to any of the foregoing;
(f) when used with respect to a Purchased Receivable, all
rights, interests and claims of the Receivables Seller under the Receivables
Purchase and Sale Agreement; and
(g) all Proceeds with respect to any of the foregoing.
"RECEIVABLES ASSETS" means (i) the Purchased Receivables, (ii)
the Collections related to such Purchased Receivables, (iii) Returned Goods
relating to such Purchased Receivables, (iv) each deposit or other bank account
to which any Collections of such Purchased Receivables are deposited (but in no
event shall Receivables Assets include any Collections or other monies deposited
in such accounts which are not Collections related to Purchased Receivables),
and (v) all Proceeds with respect to any of the foregoing.
"RECEIVABLES CLAIM" means all indebtedness, obligations and
other liabilities of WESCO and the other Originators to the Receivables Seller
and of the Originators and the Receivables Seller to the Receivables Agent, the
Receivables Purchasers and/or the Purchaser Agents now or hereafter arising
under, or in connection with, the Receivables Documents, including, but not
limited to, all sums or increases now or hereafter advanced or made to or for
the benefit of the Receivables Seller thereunder as the purchase price paid for
Purchased Receivables (or any interests therein) or otherwise under the
Receivables Purchase Agreement, any yield thereon (including, without
limitation, yield accruing after the commencement of a Bankruptcy, insolvency or
similar proceeding relating to any Originator or the Receivables Seller, whether
or not such yield is an allowed claim in any such proceeding), any repayment
obligations, fees or expenses due thereunder, and any costs of collection or
enforcement.
"RECEIVABLES DOCUMENTS" means the Receivables Purchase and
Sale Agreement, the Receivables Purchase Agreement and any other agreements,
instruments or documents (i)
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executed by the Originators and delivered to the Receivables Seller, the
Receivables Agent, the Purchase Agents or the Receivables Purchaser or (ii)
executed by the Receivables Seller and delivered to the Receivables Agent, the
Purchaser Agents or the Receivables Purchasers.
"RECEIVABLES INTEREST" means, with respect to any property or
interests in property, now owned or hereafter acquired or created, of the
Originators (regardless of whether sold or contributed by the Originators to the
Receivables Seller), any lien, claim, encumbrance, security interest or other
interest of the Receivables Seller and/or the Receivables Agent, the Purchaser
Agents or any Receivables Purchaser in such property or interests in property.
"RECEIVABLES PURCHASER" means each Person from time to time
party to the Receivables Purchase Agreement in the capacity of a "Conduit
Purchaser" or a "Committed Purchaser", as each such term is defined in the
Receivables Purchase Agreement.
"RECORDS" means all Contracts and other documents, books,
records and other information (including computer programs, tapes, disks, data
processing software and related property and rights) maintained with respect to
Receivables, the Obligors thereunder and the Receivables Assets.
"RETURNED GOODS" means all right, title and interest of WESCO
or any Originator, the Receivables Seller, the Receivables Agent or any
Receivables Purchaser, as applicable, in and to returned, repossessed or
foreclosed goods and/or merchandise the sale of which gave rise to a Receivable.
"TERMINATION EVENT" has the meaning ascribed to such term in
the Receivables Purchase Agreement.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"UNSOLD RECEIVABLES" means any Receivables other than
Purchased Receivables.
1.2. REFERENCES TO TERMS DEFINED IN THE RECEIVABLES DOCUMENTS
AND THE LOAN DOCUMENTS. Whenever in SECTION 1.1 a term is defined by reference
to the meaning ascribed to such term in any of the Receivables Documents or in
any of the Loan Documents, then, unless otherwise specified herein, such term
shall have the meaning ascribed to such term in the Receivables Documents or
Loan Documents.
ARTICLE 2. INTERCREDITOR PROVISIONS.
2.1. PRIORITIES WITH RESPECT TO RECEIVABLES ASSETS.
Notwithstanding any provision of the UCC, any applicable law, equitable
principle or decision or any of the Loan Documents or the Receivables Documents,
the Lenders Agent (for itself and on behalf of each Lenders) hereby agrees that,
upon the sale or other transfer (including, without limitation, by way of
capital contribution) or the purported sale or other purported transfer
(including, without limitation, by means of capital contribution) of any
Receivable (or interest therein) by WESCO
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or any other Originator to the Receivables Seller pursuant to the Receivables
Purchase and Sale Agreement, any Lenders Interest of the Lenders or the Lenders
Agent solely in such Receivables and all Receivables Assets with respect thereto
shall automatically and without further action cease and be forever released and
discharged and the Lenders Agent and the Lenders shall have no Lenders Interest
therein; PROVIDED, HOWEVER, that nothing in this SECTION 2.1 shall be deemed to
constitute a release by the Lenders Agent and the Lenders of: (i) any Lenders
Interest in the proceeds received by WESCO or any other Originator from the
Receivables Seller for the sale of Receivables pursuant to the Receivables
Purchase and Sale Agreement (including, without limitation, cash payments made
by the Receivables Seller); (ii) any Lenders Interest or right of Lenders Agent
or Lenders in any interest which WESCO or any other Originator may have in
Returned Goods; PROVIDED, FURTHER, HOWEVER, that any Lenders Interest in such
Returned Goods shall be junior and subject and subordinate to the Receivables
Interest therein unless and until WESCO and the Receivables Seller shall have
made all payments or adjustments required to be made under the Receivables
Documents on account of the reduction of the outstanding balance of any
Purchased Receivable related to such Returned Goods; and (iii) any Lenders
Interest or right the Lenders or the Lenders Agent have in any Unsold
Receivables and the proceeds thereof. If any goods or merchandise, the sale of
which has given rise to a Purchased Receivable, are returned to or repossessed
by WESCO or any other Originator, on behalf of the Receivables Seller, then,
upon payment by WESCO or any other Originator and the Receivables Seller of all
adjustments required on account thereof under the Receivables Purchase Agreement
and the other Receivable Documents, the Receivables Interest in such Returned
Goods shall automatically and without further action cease to exist and be
released and extinguished and such Returned Goods shall thereafter not
constitute Receivables Assets for purposes of this Agreement unless and until
such Returned Goods have been resold so as to give rise to a Receivable and such
Receivable has been sold or contributed to the Receivables Seller.
2.2. RESPECTIVE INTERESTS IN RECEIVABLES ASSETS AND LENDERS
COLLATERAL.
(a) Except for all rights to access to and use of Records
granted to the Receivables Agent, the Purchaser Agents and the Receivables
Purchasers pursuant to the Receivables Documents and except for the Receivables
Interest of the Receivables Agent (for the benefit of the Purchaser Agents and
Receivables Purchasers) in Returned Goods, which interest is senior in all
respects to any Lenders Interest therein, each of the Receivables Seller and the
Receivables Agent (for itself and on behalf of each Receivables Purchaser)
agrees that it does not have and shall not have any Receivables Interest in any
of the Lenders Collateral. Each of the Receivables Seller and the Receivables
Agent (for itself and on behalf of each Receivables Purchaser) agrees that it
shall not request or accept, directly or indirectly (by assignment or otherwise)
from WESCO or any other Originator any collateral security for payment of any
Receivables Claims (other than any such collateral security included in the
Receivables Assets and the right of access to and use of Records granted to the
Receivables Agent and the Receivables Purchasers pursuant to the Receivables
Documents) and hereby releases any Receivables Interest in any such collateral
security.
(b) Except for rights in Returned Goods granted to the Lenders
Agent and the Lenders, which Lenders Interest is junior and subordinate to any
Receivables Interest therein, the
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Lenders Agent (for itself and on behalf of each Lender) agrees that neither the
Lenders Agent nor the Lenders have, nor shall they have, any Lenders Interest in
the Receivables Assets.
2.3. DISTRIBUTION OF PROCEEDS. At all times, all proceeds of
Lenders Collateral and Receivables Assets shall be distributed in accordance
with the following procedure:
(a) All proceeds of the Lenders Collateral shall be paid to
the Lenders Agent for application on the Lenders Claim and other obligations and
liabilities owing under the Credit Agreement and other Loan Documents until the
Lenders Claim and such other obligations and liabilities have been paid and
satisfied in full in cash and each of the Credit Agreement and the other Loan
Documents is terminated and, thereafter, any remaining proceeds shall be paid to
WESCO or as otherwise required by applicable law. The Receivables Seller and the
Receivables Agent (for itself and on behalf of each Receivables Purchaser)
agrees that none of the Receivables Seller, the Receivables Agent or the
Receivables Purchasers have, nor shall they have, any Receivables Interest in
such remaining proceeds. The foregoing shall not, however, impair any claim or
any right or remedy which the Receivables Seller, the Receivables Agent, the
Purchaser Agents or the Receivables Purchasers may have against WESCO or any
other Originator under the Receivables Documents or otherwise.
(b) All proceeds of the Receivables Assets shall be paid to
the Receivables Agent for application against the Receivables Claim and for
application in accordance with the Receivables Documents until the Receivables
Claim has been paid and satisfied in full in cash and the Receivables Documents
have terminated and, thereafter, any remaining proceeds shall be paid to the
Receivables Seller or as otherwise required by applicable law. The Lenders Agent
(for itself and on behalf of the Lenders) agrees that neither the Lenders Agent
nor the Lenders have, nor shall they have, any Lenders Interest in such
remaining proceeds. The foregoing shall not, however, impair any claim or any
right or remedy which the Lenders Agent or the Lenders may have against WESCO or
any other Originator under the Loan Documents or otherwise.
(c) In the event that any of the Receivables Seller, the
Receivables Agent or the Receivables Purchasers now or hereafter obtains
possession of any Lenders Collateral, it shall immediately deliver to the
Lenders Agent such Lenders Collateral (and until delivered to the Lenders Agent
such Lenders Collateral shall be held in trust for the Lenders Agent). Each of
the Receivables Seller, the Receivables Agent (for itself and on behalf of each
Receivables Purchaser) further agrees to immediately turn over the proceeds of
any Disposition of Lenders Collateral which it (or any Receivables Purchaser)
might receive while any Lenders Claim, any other obligations or liabilities
under the Credit Agreement, any other Loan Document or any commitment to make
financial accommodations thereunder remain outstanding, regardless of whether
the Lenders Agent has a perfected and enforceable lien in the assets of WESCO or
any other Originator from which the proceeds of any such Disposition have been
received.
(d) In the event that any of the Lenders or the Lenders Agent
now or hereafter obtains possession of any Receivables Assets, it shall
immediately deliver to the Receivables Agent such Receivables Assets (and until
delivered to the Receivables Agent such Receivables Assets shall be held in
trust for the Receivables Agent). The Lenders Agent (for itself and on behalf of
each Lenders) further agrees to immediately turn over the proceeds of any
Disposition
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of Receivables Assets to the Receivables Agent which it (or the Lenders) might
receive while any Receivables Claim, any other obligations or liabilities under
the Receivables Documents or any commitment to make financial accommodations
thereunder remain outstanding, regardless of whether the Receivables Agent has a
perfected and enforceable lien in the assets from which the proceeds of such
Disposition have been received.
(e) To the extent that any Inventory of WESCO or any other
Originator has been commingled with Returned Goods in which the Receivables
Interest continues as provided in SECTION 2.1 above, and the Lenders Agent or
any Lenders receives any proceeds on account of such Returned Goods (whether by
reason of sale or by reason of insurance payments on account thereof) prior to
release of such Receivables Interest, then all proceeds of such Returned Goods
shall, promptly upon receipt of such proceeds by Lenders Agent, be paid to the
Receivables Agent for application against the Receivables Claim.
2.4. UNSOLD RECEIVABLES.
(a) The Receivables Seller and the Receivables Agent (for
itself and on behalf of each Receivables Purchaser) hereby acknowledge that the
Lenders Agent on behalf of the Lenders and itself shall be entitled to the
Collections of Unsold Receivables.
(b) Each of the parties hereto hereby agrees that all
Collections received on account of Receivables Assets shall be paid or delivered
to the Receivables Agent for application in accordance with SECTION 2.3(b) and
all Collections received on account of Unsold Receivables shall be paid or
delivered to the Lenders Agent for application in accordance with SECTION
2.3(a).
(c) The Lenders Agent agrees that it shall not exercise any
rights it may have under the Loan Documents to send any notices to Obligors
informing them of the Lenders' interest (if any) in the Receivables or directing
such Obligors to make payments in any particular manner of any amounts due under
the Receivables prior to the payment in full of the Receivables Claim and the
termination of the Receivables Documents, except that from and after any date on
which (x) a Receivables Termination Notice has been delivered pursuant to
Section 2.18, (y) the termination and cessation of transfers of Receivables is
required to be effective under the terms of Section 2.18 and (z) the Receivables
Claim has been paid in full or the Purchased Receivables giving rise to any
unpaid Receivables Claim have been written off in accordance with their terms,
the Lenders Agent may inform any Obligors of Unsold Receivables that such Unsold
Receivables have been assigned to the Lenders Agent, so long as such notices do
not under any circumstances direct that payments on account of such Unsold
Receivables be made to any location or account to which payments on account of
Purchased Receivables are required to be made pursuant to the terms of the
Receivables Documents.
2.5. ENFORCEMENT ACTIONS. Each of the Lenders Agent and the
Receivables Agent agrees to use reasonable efforts to give an Enforcement Notice
to the others prior to commencement of Enforcement (but failure to do so shall
not prevent such Person from commencing Enforcement or affect its rights
hereunder nor create any cause of action or liability against such Person).
Subject to the foregoing, each of the parties hereto agrees that during an
Enforcement Period:
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(a) Subject to any applicable restrictions in the Receivables
Documents, the Receivables Agent may at its option and without the
prior consent of the other parties hereto, take any action to (i)
accelerate payment of the Receivables Claim or any other obligations
and liabilities under any of the Receivables Documents and (ii)
liquidate the Receivables Assets or to foreclose or realize upon or
enforce any of its rights with respect to the Receivables Assets;
PROVIDED, however, that, subject to Section 2.3(e), the Receivables
Agent shall not take any action to foreclose or realize upon or to
enforce any rights it may have with respect to any Receivables Assets
constituting Returned Goods which have been commingled with the Lenders
Collateral without the prior written consent of the Lenders Agent.
(b) Subject to any applicable restrictions in the Loan
Documents, the Lenders Agent or the Lenders may, at their option and
without the prior consent of the other parties hereto, take any action
to accelerate payment of the Lenders Claim or any other obligation or
liability arising under the Credit Agreement or any of the other Loan
Documents, foreclose or realize upon or enforce any of their rights
with respect to the Lenders Collateral, including, except as otherwise
provided in SECTION 2.3(e), with respect to any Receivables Assets
constituting Returned Goods that have been commingled with the Lenders
Collateral, or take any other actions as they deem appropriate;
PROVIDED, HOWEVER, that the Lenders Agent shall not otherwise take any
action to foreclose or realize upon or to enforce any rights it may
have with respect to uncommingled Returned Goods without the
Receivables Agent's prior written consent unless the Receivables Claim
shall have been first paid and satisfied in full and the Receivables
Documents have terminated.
(c) If Returned Goods are commingled with Inventory, the
parties agree to cooperate in the disposition of such Returned Goods
and Inventory and the application of the proceeds thereof as provided
in SECTION 2.3(e).
2.6. ACCESS TO RECORDS. Subject to any applicable restrictions
in the Receivables Documents (but without limiting any rights under the
Receivables Documents), each of the Receivables Purchasers, the Purchaser Agents
and the Receivables Agent may enter one or more premises of WESCO, any other
Originator, the Receivables Seller or their respective affiliates, whether
leased or owned, at any time during reasonable business hours, without force or
process of law and without obligation to pay rent or compensation to WESCO, any
other Originator, the Receivables Seller, such affiliates, the Lenders or the
Lenders Agent, whether before, during or after an Enforcement Period, and may
have access to and use of all Records located thereon and may have access to and
use of any other property to which such access and use are granted under the
Receivables Documents.
2.7. ACCOUNTINGS. The Lenders Agent agrees to render
statements to the Receivables Agent upon reasonable prior written request, which
statements shall identify in reasonable detail the Unsold Receivables and shall
render an account of the Lenders Claim, giving effect to the application of
proceeds of Lenders Collateral as hereinbefore provided. The Receivables Agent
agrees to render Purchase Reports (as defined in the Receivables Purchase
10
Agreement) to the Lenders Agent upon reasonable prior written request. WESCO and
the Receivable Seller hereby authorize the Lenders Agent and the Receivables
Agent to provide the statements described in this section. The Lenders Agent and
the Receivables Agent shall bear no liability if their respective accounts are
incorrect.
2.8. AGENCY FOR PERFECTION. The Receivables Agent and the
Lenders Agent hereby appoint each other as agent for purposes of perfecting by
possession their respective security interests and ownership interests and liens
on the Collateral and Receivables Assets described hereunder. In the event that
the Receivables Agent obtains possession of any of the Lenders Collateral, the
Receivables Agent shall notify the Lenders Agent of such fact, shall hold such
Lenders Collateral in trust and shall deliver such Lenders Collateral to the
Lenders Agent upon request. In the event that the Lenders Agent obtains
possession of any of the Receivables Assets, the Lenders Agent shall notify the
Receivables Agent of such fact, shall hold such Receivables Assets in trust and
shall deliver such Receivables Assets to the Receivables Agent upon request.
2.9. UCC NOTICES. In the event that any party hereto shall be
required by the UCC or any other applicable law to give notice to the other of
intended disposition of Receivables Assets or Lenders Collateral, respectively,
such notice shall be given in accordance with SECTION 3.1 hereof and ten (10)
days' notice shall be deemed to be commercially reasonable.
2.10. INDEPENDENT CREDIT INVESTIGATIONS. Neither the
Receivables Purchasers, the Receivables Agent, the Lenders Agent nor the Lenders
nor any of their respective directors, officers, agents or employees shall be
responsible to the other or to any other person, firm, corporation or entity for
the solvency, financial condition or ability of WESCO, any other Originator or
the Receivables Seller to repay the Receivables Claim or the Lenders Claim, or
for the worth of the Receivables Assets or the Lenders Collateral, or for
statements of WESCO, any other Originator, the Receivables Seller or the Credit
Parties, oral or written, or for the validity, sufficiency or enforceability of
the Receivables Claim, the Lenders Claim, the Receivables Documents, the Loan
Documents, the Receivables Agent's interest in the Receivables Assets or the
Lenders' or Lenders Agent's interest in the Lenders Collateral. The Lenders and
the Receivables Purchasers have entered into their respective agreements with
WESCO, the Originators, the Receivables Seller or the Credit Parties, as
applicable, based upon their own independent investigations. None of the
Lenders, the Receivables Agent or the Receivables Purchasers makes any warranty
or representation to the other nor does it rely upon any representation of the
other with respect to matters identified or referred to in this SECTION 2.10.
2.11. LIMITATION ON LIABILITY OF PARTIES TO EACH OTHER. Except
with respect to liability for breach of an express obligation under this
Agreement, no party shall have any liability to any other party except for
liability arising from the gross negligence or willful misconduct of such party.
2.12. AMENDMENTS TO FINANCING ARRANGEMENTS OR TO THIS
AGREEMENT. The Lenders Agent agrees to use reasonable efforts to give,
concurrently with any written amendment, waiver or other modification in the
Loan Documents with respect to the Collateral, prompt notice to the Receivables
Agent of the same and the Receivables Agent agrees to use
11
reasonable efforts to give, concurrently with any written amendment, waiver or
other modification in the Receivables Documents with respect to the Receivable
Assets or the Collateral, prompt notice to the Lenders Agent of the same;
PROVIDED, however, that the failure to do so shall not create a cause of action
against any party failing to give such notice or create any claim or right on
behalf of any third party or affect any such amendment or modification. Each
party hereto shall, upon reasonable request of any other party hereto, provide
copies of all such modifications or amendments and copies of all other
agreements, instruments, filings or documentation relevant to the Receivables
Assets or the Lenders Collateral. All modifications or amendments of this
Agreement must be in writing and duly executed by an authorized officer of each
party hereto to be binding and enforceable.
2.13. MARSHALLING OF ASSETS. Nothing in this Agreement will be
deemed to require either the Receivables Agent or the Lenders Agent (i) to
proceed against certain property securing the Lenders Claim (or any other
obligation or liability under the Credit Agreement or any other Loan Documents)
or the Receivables Claim (or any other obligation or liability under the
Receivables Documents), as applicable, prior to proceeding against other
property securing such Claim or obligations or liabilities or against certain
persons guaranteeing any such obligations or (ii) to marshal the Lenders
Collateral (or any other collateral) or the Receivables Assets (as applicable)
upon the enforcement of the Lenders Agent's or the Receivables Agent's remedies
under the Loan Documents or Receivables Documents, as applicable.
2.14. RELATIVE RIGHTS.
(a) The relative rights of the Lenders, each as against the
other, shall be determined by agreement among such parties in accordance with
the terms of the Credit Agreement and the other Loan Documents. The Receivables
Agent and the Receivables Purchasers shall be entitled to rely on the power and
authority of the Lenders Agent to act on behalf of all of the Lenders to the
extent the provisions hereof have the Lenders Agent so act.
(b) The Lenders Agent and the Lenders shall be entitled to
rely on the power and authority of the Receivables Agent to act on behalf of the
Purchaser Agents and Receivables Purchasers to the extent the provisions hereof
have the Receivables Agent so act.
2.15. EFFECT UPON LOAN DOCUMENTS AND RECEIVABLES DOCUMENTS. By
executing this Agreement, WESCO, the other Originators and the Receivables
Seller agree to be bound by the provisions hereof (i) as they relate to the
relative rights of the Lenders and the Lenders Agent with respect to the
property of WESCO; and (ii) as they relate to the relative rights of WESCO, the
other Originators, the Receivables Seller, the Receivables Purchasers, the
Purchaser Agents and/or the Receivables Agent as creditors of (or purchasers
from) WESCO, the other Originators, or the Receivables Seller, as the case may
be. Each of WESCO and the other Obligors acknowledges that the provisions of
this Agreement shall not give it or any other Credit Party any substantive
rights as against the Lenders Agent or the Lenders and that nothing in this
Agreement shall (except as expressly provided herein) amend, modify, change or
supersede the terms of the Loan Documents as between WESCO, the other Credit
Parties, the Lenders Agent and the Lenders. Each of the Receivables Seller,
WESCO and the other Obligors acknowledges that the provisions of this Agreement
shall not give the Receivables Seller, WESCO, or the other
12
Originators any substantive rights as against the Receivables Agent, the
Purchaser Agents or the Receivables Purchasers and that nothing in this
Agreement shall (except as expressly provided herein) amend, modify, change or
supersede the terms of the Receivables Documents as among the Receivables
Seller, WESCO, the other Originators, the Receivables Agent, the Purchaser
Agents or the Receivables Purchasers. WESCO, the other Originators and the
Receivables Seller further acknowledge that the provisions of this Agreement
shall not give any such party any substantive rights as against the other and
that nothing in this Agreement shall amend, modify, change or supersede the
terms of the Receivables Documents as among WESCO, the other Originators and the
Receivables Seller. To the extent possible, this Agreement, the other Loan
Documents and the Receivables Documents shall be read and construed together so
as to give full effect to each of them. Notwithstanding the foregoing, each of
the Receivables Agent (for itself and on behalf of each Receivables Purchaser),
and the Lenders Agent (for itself and on behalf of each Lenders) agrees, that,
as between themselves, to the extent the terms and provisions of the other Loan
Documents or the Receivables Documents are inconsistent with the terms and
provisions of this Agreement, the terms and provisions of this Agreement shall
control.
2.16. NATURE OF THE LENDERS CLAIM AND MODIFICATION OF LOAN
DOCUMENTS; NATURE OF RECEIVABLES CLAIM. (a) Each of the Receivables Seller and
the Receivables Agent (for itself and on behalf of each Receivables Purchaser)
acknowledge that the Lenders Claim and other obligations and liabilities owing
under the Loan Documents are revolving in nature and that the amount of such
revolving indebtedness which may be outstanding at any time or from time to time
may be increased or reduced and subsequently reborrowed. Except as provided in
Section 2.12, the terms of the Credit Agreement and the other Loan Documents may
be modified, extended or amended from time to time, and the amount thereof may
be increased or reduced, all without notice to or consent by any of the
Receivables Seller, the Receivables Agent or the Receivables Purchasers and
without affecting the provisions of this Agreement. Without in any way limiting
the generality of the foregoing, each of the Receivables Seller and the
Receivables Agent (for itself and on behalf of each Receivables Purchaser)
hereby agrees that the maximum amount of the Lenders Claim and other obligations
and liabilities owing under the Loan Documents may be increased at any time and
from time to time to any amount.
(b) Except as provided in Section 2.12, the terms of the
Receivables Documents may be modified, extended or amended from time to time,
and the amount thereof may be increased or reduced, all without notice to or
consent by the Lenders Agent and without affecting the provisions of this
Agreement. Without in any way limiting the generality of the foregoing, the
Lenders Agent (for itself and on behalf of the Lenders) acknowledges that the
Receivables Claim and other obligations owing under the Receivables Documents
are revolving in nature and the amount of such indebtedness which may be
outstanding at any time or from time to time may be increased or reduced in
accordance with the terms of the Receivables Documents.
2.17. FURTHER ASSURANCES. Each of the parties agrees to take
such actions as may be reasonably requested by any other party, whether before,
during or after an Enforcement Period, in order to effect the rules of
distribution and allocation set forth above in this ARTICLE 2 and to otherwise
effectuate the agreements made in this ARTICLE 2.
13
2.18. TERMINATION AND CESSATION OF TRANSFER OF RECEIVABLES.
After the occurrence and during the continuance of a Lenders Event of Default
and upon written notice thereof by the Lenders Agent to the Receivables Agent (a
"Receivables Termination Notice"), (i) WESCO, the other Originators and the
Receivables Seller shall terminate and cease all transfers of Receivables from
WESCO and the other Originators to the Receivables Seller and (ii) the
Receivables Seller and the Receivables Agent, Receivables Purchasers and
Purchaser Agents shall terminate and cease, or shall cause the termination and
cessation of, all transfers of Receivables from the Receivables Seller to the
Receivables Purchasers or the Purchaser Agents (all such termination and
cessation to be effective at the close of business on the date such notice is
effective in accordance with SECTION 3.1; provided that in the case of a Lenders
Event of Default resulting from the commencement of a Bankruptcy, insolvency or
similar proceeding relating to WESCO, any Originator or any other Credit Party,
all transfers of Receivables by the Originators to the Receivables Seller
immediately and automatically shall terminate and cease without notice of any
kind; PROVIDED, FURTHER, that neither the Receivables Agent, the Receivables
Purchasers nor the Purchaser Agents shall have any responsibility for ensuring
compliance by WESCO, the other Originators or the Receivables Seller with the
provisions of this SECTION 2.18.). Nothing contained in this Section shall
affect the rights of the Receivables Seller, Receivables Agent, Receivables
Purchasers or Purchaser Agents with respect to Receivables transferred prior to
delivery of such notice.
2.19 BLOCKED ACCOUNTS. The Receivables Agent (for itself and
on behalf of the Receivables Purchasers and Purchaser Agents) hereby consents to
the execution of blocked account agreements with respect to bank accounts held
in the name of the Receivables Seller (the "Blocked Account Agreements"), in
accordance with the terms of the Security Agreement (it being understood that
the interest of Lenders Agent, on behalf of itself and Lenders, in such bank
accounts and amounts held therein shall extend only to Unsold Receivables and
Collections and other proceeds in respect thereof). The Receivable Agent agrees,
upon the written request of the Lenders Agent (an "Initial Notification
Request"), to provide a written response stating whether or not the Receivables
Documents have been terminated and all monetary obligations under the
Receivables Documents have been satisfied in full and, if such termination and
satisfaction have occurred, to notify the applicable banks under the Blocked
Account Agreements (it being understood that the Lenders Agent shall deliver an
Initial Notification Request only if it believes in good faith that the
Receivables Documents may have been terminated and all monetary obligations
thereunder may have been paid, or if the Lenders Agent has been instructed in
good faith by the Requisite Lenders to make such Initial Notification Request).
If the Receivables Agent does not respond in writing within five (5) Business
Days of its receipt of the Initial Notification Request, the Lenders Agent may
deliver a second notice (the "Final Notification Request") to the Receivables
Agent asking it to provide a written response stating whether or not the
Receivables Documents have been terminated and all monetary obligations under
the Receivable Documents have been satisfied in full and, if such termination
and satisfaction have occurred, to notify the applicable banks under the Blocked
Account Agreements. In the event that the Receivables Agent has not responded in
writing within three (3) Business Days of its receipt of the Final Notification
Request, the Lenders Agent shall be entitled to activate the Blocked Account
Agreements. Notwithstanding anything to the contrary in this Section 2.19, if
the Receivables Agent responds in writing to an Initial Notification Request or
a Final
14
Notification Request within the respective time periods allowed herein for such
response, and such written response states that the Receivables Documents have
not terminated or that all monetary obligations in respect thereof have not been
satisfied, the Lenders Agent (regardless of whether it disputes the statements
set forth in such response) shall not be entitled to activate any of the Blocked
Accounts (or otherwise notify the applicable account banks to take other actions
with respect to such Blocked Accounts) unless and until the Receivables Agent
shall have indicated in writing (or a court of competent jurisdiction shall have
determined) that the Receivables Documents have been terminated and all monetary
obligations in respect thereof have been satisfied.
2.20 NO PETITION. The Lenders Agent, on behalf of itself and
the Lenders, agrees that it shall not institute against or join any other Person
in instituting against the Receivables Seller or a Receivables Purchaser any
bankruptcy, reorganization, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy, insolvency or similar law
until after the payment in full of the Receivable Claims and termination of the
Receivable Documents.
ARTICLE 3. MISCELLANEOUS
3.1. NOTICES. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
communication by facsimile copy) and mailed, telexed, transmitted or delivered,
as to each party hereto, at its address set forth under its name on the
signature pages hereof or at such other address as shall be designated by such
party in a written notice to the other parties hereto. All such notices and
communications shall be effective upon receipt, or, in the case of notice by
mail, five (5) days after being deposited in the mails, postage prepaid, or in
the case of notice by facsimile copy, when verbal confirmation of receipt is
obtained, in each case addressed as aforesaid.
3.2. AGREEMENT ABSOLUTE. Each of the Receivables Agent and the
Receivables Purchasers shall be deemed to have entered into and continued with
the Receivables Documents in express reliance upon this Agreement and the
Lenders and the Lenders Agent shall be deemed to have entered into and continued
with the Loan Documents in express reliance upon this Agreement. This Agreement
may not be amended or otherwise modified, unless such amendment or other
modification is agreed to in writing by all of the parties hereto. This
Agreement shall be applicable both before and after the filing of any petition
by or against WESCO, any other Originator or the Receivables Seller or any
Credit Party under the U.S. Bankruptcy Code and all references herein to WESCO,
any other Originator or the Receivables Seller or any Credit Party shall be
deemed to apply to a debtor-in-possession for such party and all allocations of
payments between the Lenders and the Receivables Purchasers shall, subject to
any court order to the contrary, continue to be made after the filing of such
petition on the same basis that the payments were to be applied prior to the
date of the petition.
3.3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns. The successors and assigns for WESCO and the Receivables
Seller shall include a debtor-in-possession or trustee of or for such party. The
successors and assigns for the Lenders, the
15
Receivables Purchasers, Purchaser Agents, the Lenders Agent and the Receivables
Agent, as the case may be, shall include any successor Lenders, Receivables
Purchasers, the Purchaser Agents, Lenders Agent and Receivables Agent, as the
case may be, appointed under the terms of the Loan Documents or the Receivables
Documents, as applicable. Each of the Lenders Agent (for itself and on behalf of
each Lenders) and the Receivables Agent (for itself and on behalf of each
Receivables Purchaser), as the case may be, agrees not to transfer any interest
it may have in the Loan Documents or the Receivables Documents unless such
transferee has been notified of the existence of this Agreement and its terms
and conditions. In the event that the financing provided under the Credit
Agreement shall be refinanced, replaced, refunded or restated, WESCO, the
Receivables Seller and the Receivables Agent hereby agree, at the request of the
agent or lenders under the credit facility that so refinances, replaces, refunds
or restates, the financing under the Credit Agreement, to execute and deliver a
new intercreditor agreement with such agent and/or lenders on substantially the
same terms as herein provided. In the event that the financing provided under
the Receivables Documents shall be refinanced, replaced, refunded or restated,
the Lenders Agent (for itself and on behalf of each Lenders) hereby agrees that,
at the request of the agent or purchasers under the facility that so refinances,
replaces, refunds or restates the financing under the Receivables Documents, to
execute and deliver a new intercreditor agreement with such agent and/or
purchasers on substantially the same terms as herein provided.
3.4. BENEFICIARIES. The terms and provisions of this Agreement
shall be for the sole benefit of the parties hereto, the Lenders, the Purchaser
Agents and the Receivables Purchasers and their respective successors and
assigns, and no other Person shall have any right, benefit or priority by reason
of this Agreement.
3.5. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK. EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
3.6. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG THE PARTIES HERETO ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG
16
THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS RELATED THERETO.
3.7. SECTION TITLES. The article and section headings
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
3.8. SEVERABILITY. Any provision of this Agreement 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 hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
3.9. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed signature page by telecopy machine shall be
as effective as delivery of a manually signed, original signature page.
[signature pages follow]
17
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as
of the date first above written.
PNC BANK, NATIONAL ASSOCIATION,
as Receivables Agent
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
18
FIFTH THIRD BANK, N.A.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
19
MELLON BANK, N.A.
By: /s/ Xxx X. Xxxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxxx
Title: First Vice President
00
XXX XXXX XX XXXX XXXXXX
By: /s/ J. Xxxx Xxxxxxx
-------------------------------------
Name: J. Xxxx Xxxxxxx
Title: Managing Director
21
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lenders Agent
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Duly Authorized Signatory
Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: WESCO Distribution - Account
Manager
Telecopy: (000) 000-0000
22
WESCO RECEIVABLES CORP.,
as Receivables Seller
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
Address: Commerce Court, Suite 700
-------------------------
Four Station Square
-------------------
Xxxxxxxxxx, Xx 00000
---------------------
Attention: Xxxxxx X. Xxxxxxx
-----------------
Telecopy: (000) 000-0000
--------------
23
HERNING ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Van Oss
-------------------------------------
Name: Xxxxxxx X. Van Oss
Title: Vice President
24
WESCO EQUITY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
25
WESCO DISTRIBUTION, INC.
as Seller, as Servicer and as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
Address: Commerce Court, Suite 700
-------------------------
Four Station Square
-------------------
Xxxxxxxxxx, Xx 00000
---------------------
Attention: Xxxxxx X. Xxxxxxx
-----------------
Telecopy: (000) 000-0000
--------------
26
