EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
dated as of September 2, 2003
among
WESCO RECEIVABLES CORP.,
WESCO DISTRIBUTION, INC.,
as Servicer
THE VARIOUS PURCHASER GROUPS FROM TIME TO TIME PARTY HERETO
and
WACHOVIA SECURITIES, INC.,
as Administrator
TABLE OF CONTENTS
PAGE
ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES........................................................ 2
Section 1.1. Purchase Facility................................................................ 2
Section 1.2. Making Purchases................................................................. 2
Section 1.3. Purchased Interest Computation................................................... 4
Section 1.4. Settlement Procedures............................................................ 4
Section 1.5. Fees............................................................................. 9
Section 1.6. Payments and Computations, Etc................................................... 9
Section 1.7. Increased Costs.................................................................. 10
Section 1.8. Requirements of Law.............................................................. 11
Section 1.9. Inability to Determine Euro-Rate................................................. 12
Section 1.10. Extension of Termination Date.................................................... 12
ARTICLE II. REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS............................. 13
Section 2.1. Representations and Warranties; Covenants........................................ 13
Section 2.2. Termination Events............................................................... 13
ARTICLE III. INDEMNIFICATION........................................................................... 14
Section 3.1. Indemnities by the Seller........................................................ 14
Section 3.2. Indemnities by the Servicer...................................................... 15
ARTICLE IV. ADMINISTRATION AND COLLECTIONS............................................................ 16
Section 4.1. Appointment of the Servicer...................................................... 16
Section 4.2. Duties of the Servicer........................................................... 16
Section 4.3. Lock-Box Account Arrangements.................................................... 17
Section 4.4. Enforcement Rights............................................................... 18
Section 4.5. Responsibilities of the Seller................................................... 19
Section 4.6. Servicing Fee.................................................................... 19
ARTICLE V. THE AGENTS................................................................................ 20
Section 5.1. Appointment and Authorization.................................................... 20
Section 5.2. Delegation of Duties............................................................. 21
Section 5.3. Exculpatory Provisions........................................................... 21
Section 5.4. Reliance by Agents............................................................... 21
Section 5.5. [Intentionally Omitted].......................................................... 22
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.6. Notice of Termination Events..................................................... 22
Section 5.7. Non-Reliance on Administrator, Purchaser Agents and Other Purchasers............. 22
Section 5.8. Administrators and Affiliates.................................................... 23
Section 5.9. Indemnification.................................................................. 23
Section 5.10. Successor Administrator.......................................................... 23
ARTICLE VI. MISCELLANEOUS............................................................................. 24
Section 6.1. Amendments, Etc.................................................................. 24
Section 6.2. Notices, Etc..................................................................... 24
Section 6.3. Successors and Assigns; Participations; Assignments.............................. 25
Section 6.4. Costs, Expenses and Taxes........................................................ 27
Section 6.5. No Proceedings; Limitation on Payments........................................... 27
Section 6.6. GOVERNING LAW AND JURISDICTION................................................... 27
Section 6.7. Execution in Counterparts........................................................ 28
Section 6.8. Survival of Termination.......................................................... 28
Section 6.9. WAIVER OF JURY TRIAL............................................................. 28
Section 6.10. Sharing of Recoveries............................................................ 28
Section 6.11. Right of Setoff.................................................................. 29
Section 6.12. Entire Agreement................................................................. 29
Section 6.13. Headings......................................................................... 29
Section 6.14. Purchaser Groups' Liabilities.................................................... 29
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TABLE OF CONTENTS
(continued)
EXHIBIT I Definitions
EXHIBIT II Conditions Precedent
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-Box Banks and Lock-Box Accounts
SCHEDULE III Trade Names
SCHEDULE IV List of Group A Purchasers
SCHEDULE V Closed Branches
ANNEX A Form of Information Package
ANNEX B Form of Purchase Notice
ANNEX C List of Special Obligors
ANNEX D Form of Assumption Agreement
ANNEX E Form of Transfer Supplement
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This SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as
amended, supplemented or otherwise modified from time to time, this "Agreement")
is entered into as of September 2, 2003, among WESCO RECEIVABLES CORP., a
Delaware corporation, as seller (the "Seller"), WESCO DISTRIBUTION, INC., a
Delaware corporation ("WESCO"), as initial servicer (in such capacity, together
with its successors and permitted assigns in such capacity, the "Servicer"), THE
VARIOUS CONDUIT PURCHASERS AND RELATED COMMITTED PURCHASERS FROM TIME TO TIME
PARTY HERETO, and WACHOVIA SECURITIES, INC., as Administrator for each Purchaser
Group (in such capacity, and as successor to PNC Bank, National Association in
such capacity, the "Administrator").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I. References in the Exhibits
hereto to the "Agreement" refer to this Agreement, as amended, supplemented or
otherwise modified from time to time.
This Agreement amends and restates in its entirety the Amended and
Restated Receivables Purchase Agreement dated as of September 28, 1999 (the
"Original Agreement"), among the Seller, the Servicer, the purchaser groups
party thereto and PNC Bank, National Association as administrator thereunder.
Upon the effectiveness of this Agreement, the terms and provisions of the
Original Agreement shall, subject to this paragraph, be superseded hereby in
their entirety. Notwithstanding the amendment and restatement of the Original
Agreement by this Agreement, the Seller and the Servicer shall continue to be
liable to the Purchasers, PNC Bank, National Association or any other
Indemnified Party or Affected Person (as such terms are defined in the Original
Agreement) with respect to all unpaid fees and expenses accrued to the date
hereof under the Original Agreement and all agreements to indemnify such parties
in connection with events or conditions arising or existing prior to the
effective date of this Agreement. Upon the effectiveness of this Agreement, each
reference to the Original Agreement in any other document, instrument or
agreement shall mean and be a reference to this Agreement. Nothing contained
herein, unless expressly herein stated to the contrary, is intended to amend,
modify or otherwise effect any other instrument, document or agreement executed
and or delivered in connection with the Original Agreement.
The Seller has and, from time to time from and after the date hereof,
desires to sell, transfer and assign an undivided variable percentage interest
in a pool of receivables, and the Purchasers desire to acquire such undivided
variable percentage interest, as such percentage interest shall be adjusted from
time to time based upon, in part, reinvestment payments that are made by such
Purchasers.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility.
(a) On the terms and subject to the conditions hereof,
the Seller may, from time to time before each applicable Facility Termination
Date, request that the Conduit Purchasers, or, only if a Conduit Purchaser
denies such request or is unable to fund (and provides notice of such denial or
inability to the Seller, the Administrator and its Purchaser Agent), request
that the Related Committed Purchasers, make purchases of and reinvestments in
undivided percentage ownership interests with regard to the Purchased Interest
from the Seller from time to time from the date hereof to each applicable
Facility Termination Date. Subject to Section 1.4(b), concerning reinvestments,
at no time will a Conduit Purchaser have any obligation to make a purchase. Each
Related Committed Purchaser severally hereby agrees, on the terms and subject to
the conditions hereof, to make Purchases before its applicable Facility
Termination Date, as requested pursuant to Section 1.2(a) (each, a "Purchase")
(and, in the case of each Related Committed Purchaser, based on its Commitment
Percentage of its Purchaser Group's Ratable Share of such Purchase) to the
extent its Investment would not thereby exceed its Commitment and the Aggregate
Investment would not (after giving effect to all Purchases on such date) exceed
the Purchase Limit.
(b) The Seller may, upon 30 days' written notice to the
Administrator and each Purchaser Agent, reduce the unfunded portion of the
Purchase Limit in whole or in part (but not below the amount which would cause
the Group Investment of any Purchaser Group to exceed its Group Commitment
(after giving effect to such reduction)); provided that each partial reduction
shall be in the amount of at least $5,000,000, or an integral multiple of
$1,000,000 in excess thereof and unless terminated in whole, the Purchase Limit
shall in no event be reduced below $150,000,000. Such reduction shall at the
option of the Seller be applied either (i) ratably to reduce the Group
Commitment of each Purchaser Group or (ii) to terminate the Group Commitment of
any one Purchaser Group.
Section 1.2. Making Purchases.
(a) Each purchase (but not reinvestment) of undivided
percentage ownership interests with regard to the Purchased Interest hereunder
shall be made upon the Seller's irrevocable written notice in the form of Annex
B delivered to the Administrator and each Purchaser Agent in accordance with
Section 6.2 (which notice must be received by the Administrator and each
Purchaser Agent before 11:00 a.m., New York City time) at least three Business
Days before the requested Purchase Date (provided, however, that in the case of
the first purchase hereunder, such notice may be received on the date hereof),
which notice shall specify: (A) the amount requested to be paid to the Seller
(such amount, which shall not be less than $2,000,000, with respect to each
Purchaser Group, being the aggregate of the Investments of each Purchaser within
such Purchaser Group, relating to the undivided percentage ownership interest
then being purchased), (B) the date of such purchase (which shall be a Business
Day), (C) the amount requested from each Purchaser (which amount requested of
each Purchaser may or may not be ratable among such Purchasers, as determined in
the discretion of the Seller) and (D) a pro forma calculation of the Purchased
Interest after giving effect to the increase in the
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Aggregate Investment. If the Purchase is requested from a Conduit Purchaser and
such Conduit Purchaser determines, in its sole discretion, to make the requested
Purchase, such Conduit Purchaser shall, subject to the terms and conditions
hereof, transfer to the account of the Seller described in Section 1.2(b) below
(the "Disbursement Account"), an amount equal to the amount requested by the
Seller to be funded by such Purchaser on the requested Purchase Date. If the
Purchase is requested from the Related Committed Purchasers for a Purchaser
Group (in the case where the related Conduit Purchaser determined not to or was
unable to make such Purchase), subject to the terms and conditions hereof, such
Related Committed Purchasers for a Purchaser Group shall use its reasonable best
efforts to transfer the amount requested by the Seller to be funded by such
Purchaser (and, in the case of each Related Committed Purchaser, based on its
Commitment Percentage of its Purchaser Group's Ratable Share of such Purchase)
into the Disbursement Account by no later than 1:00 p.m. (New York time) on the
Purchase Date.
(b) On the date of each Purchase, each Purchaser (or the
related Purchaser Agent on its behalf), shall make available to the Seller in
same day funds, at PNC Bank, National Association, account number 1006970651,
ABA 000000000, an amount equal to the proceeds of such Purchase.
(c) Effective on the date of each Purchase pursuant to
this Section 1.2 and each reinvestment pursuant to Section 1.4, the Seller
hereby sells and assigns to the Administrator for the benefit of the Purchasers
(ratably, according to each such Purchaser's Investment) an undivided percentage
ownership interest in: (i) each Pool Receivable then existing, (ii) all Related
Security with respect to such Pool Receivables, and (iii) all Collections with
respect to, and other proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary
or otherwise) under this Agreement and the other Transaction Documents to which
it is a party, whether now or hereafter existing or arising, due or to become
due, direct or indirect, absolute or contingent, the Seller hereby grants to the
Administrator, for the benefit of the Purchasers, a security interest in all of
the Seller's right, title and interest (including any undivided interest of the
Seller) in, to and under all of the following, whether now or hereafter owned,
existing or arising: (i) all Pool Receivables, (ii) all Related Security with
respect to such Pool Receivables, (iii) all Collections with respect to such
Pool Receivables, (iv) the Lock-Box Accounts and all amounts on deposit therein,
and all certificates and instruments, if any, from time to time evidencing such
Lock-Box Accounts and amounts on deposit therein, (v) all rights (but none of
the obligations) of the Seller under the Sale Agreement and (vi) all proceeds
of, and all amounts received or receivable under any or all of, the foregoing
(collectively, the "Pool Assets"). The Administrator, for the benefit of the
Purchasers, shall have, with respect to the Pool Assets, and in addition to all
the other rights and remedies available to the Administrator and the Purchasers,
all the rights and remedies of a secured party under any applicable UCC.
(e) The Seller may, with the written consent of the
Administrator and each Purchaser, add additional Persons as Purchasers (either
to an existing Purchaser Group or by creating new Purchaser Groups) or cause an
existing Purchaser to increase its Commitment in connection with a corresponding
increase in the Purchase Limit; provided, however, that the Commitment of any
Purchaser may only be increased with the consent of such Purchaser. Each new
Purchaser (or Purchaser Group) and each Purchaser increasing its Commitment
shall
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become a party hereto or increase its Commitment, as the case may be, by
executing and delivering to the Administrator and the Seller an Assumption
Agreement in the form of Annex C hereto (which Assumption Agreement shall, in
the case of any new Purchaser or Purchasers be executed by each Person in such
new Purchaser's Purchaser Group).
(f) Each Related Committed Purchaser's obligation
hereunder shall be several, such that the failure of any Related Committed
Purchaser to make a payment in connection with any purchase hereunder shall not
relieve any other Related Committed Purchaser of its obligation hereunder to
make payment for any Purchase. Further, in the event any Related Committed
Purchaser fails to satisfy its obligation to make a purchase as required
hereunder, upon receipt of notice of such failure from the Administrator (or any
relevant Purchaser Agent), subject to the limitations set forth herein, the
non-defaulting Related Committed Purchasers in such defaulting Related Committed
Purchaser's Purchaser Group shall purchase the defaulting Related Committed
Purchaser's Commitment Percentage of the related Purchase pro rata in proportion
to their relative Commitment Percentages (determined without regard to the
Commitment Percentage of the defaulting Related Committed Purchaser; it being
understood that a defaulting Related Committed Purchaser's Commitment Percentage
of any Purchase shall be first put to the Related Committed Purchasers in such
defaulting Related Committed Purchaser's Purchaser Group and thereafter if there
are no other Related Committed Purchasers in such Purchaser Group or if such
other Related Committed Purchasers are also defaulting Related Committed
Purchasers, then such defaulting Related Committed Purchaser's Commitment
Percentage of such Purchase shall be put to each other Purchaser Group ratably
and applied in accordance with this paragraph (f)). Notwithstanding anything in
this paragraph (f) to the contrary, no Related Committed Purchaser shall be
required to make a Purchase pursuant to this paragraph for an amount which would
cause the aggregate Investment of such Related Committed Purchaser (after giving
effect to such Purchase) to exceed its Commitment.
Section 1.3.Purchased Interest Computation. The Purchased Interest
shall be initially computed on the date of the initial Purchase hereunder.
Thereafter, until the Facility Termination Date, such Purchased Interest shall
be automatically recomputed (or deemed to be recomputed) on each Business Day
other than a Termination Day. From and after the occurrence of any Termination
Day, the Purchased Interest shall (until the event(s) giving rise to such
Termination Day are satisfied or are waived by the Administrator and a Simple
Majority of the Purchasers) be deemed to be 100%. The Purchased Interest shall
become zero when the Aggregate Investment thereof and Aggregate Discount thereon
shall have been paid in full, all the amounts owed by the Seller and the
Servicer hereunder to each Purchaser, the Administrator and any other
Indemnified Party or Affected Person are paid in full, and the Servicer shall
have received the accrued Servicing Fee thereon.
Section 1.4. Settlement Procedures.
(a) The collection of the Pool Receivables shall be
administered by the Servicer in accordance with this Agreement. The Seller shall
provide to the Servicer on a timely basis all information needed for such
administration, including notice of the occurrence of any Termination Day and
current computations of the Purchased Interest.
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(b) The Servicer shall, on each day on which Collections
of Pool Receivables are received (or deemed received) by the Seller or the
Servicer:
(i) set aside and hold in trust (and shall, at the
request of the Administrator (with the consent or at the direction of a
Simple Majority of the Purchasers), segregate in a separate account
approved by the Administrator if, at the time of such request, there
exists an Unmatured Termination Event or a Termination Event or if the
failure to so segregate reasonably could be expected to cause a
Material Adverse Effect) for the benefit of each Purchaser Group, out
of such Collections, first, an amount equal to the Aggregate Discount
accrued through such day for each Portion of Investment and not
previously set aside, second, an amount equal to the fees set forth in
each Purchaser Group Fee Letter accrued and unpaid through such day,
and third, to the extent funds are available therefor, an amount equal
to the aggregate of each Purchaser Group's Ratable Share of the
Servicing Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day is not a
Termination Day, remit to the Seller, ratably, on behalf of each
Purchaser Group, the remainder of such Collections. Such remainder
shall, to the extent representing a return on the Aggregate Investment,
ratably, according to each Purchaser's Investment, be automatically
reinvested in Pool Receivables, and in the Related Security,
Collections and other proceeds with respect thereto; provided, however,
that if the Purchased Interest would exceed 100%, then the Servicer
shall not reinvest, but shall set aside and hold in trust for the
benefit of the Purchasers (and shall, at the request of the
Administrator (with the consent or at the direction of a Simple
Majority of the Purchasers), segregate in a separate account approved
by the Administrator if, at the time of such request, there exists an
Unmatured Termination Event or a Termination Event or if the failure to
so segregate reasonably could be expected to cause a Material Adverse
Effect) a portion of such Collections that, together with the other
Collections set aside pursuant to this paragraph, shall equal the
amount necessary to reduce the Purchased Interest to 100%; provided,
further, that (x) in the case of any Purchaser that is a Conduit
Purchaser, if such Purchaser has provided notice (a "Declining Notice")
to its Purchaser Agent, the Administrator, and the Servicer that such
Purchaser (a "Declining Conduit Purchaser") no longer wishes
Collections with respect to any Portion of Investment funded or
maintained by such Purchaser to be reinvested pursuant to this clause
(ii), and (y) in the case of any Purchaser that has provided notice (an
"Exiting Notice") to its Purchaser Agent of either its refusal,
pursuant to Section 1.10(a), to extend its Commitment hereunder or of
its desire pursuant to Section 1.10(b) to terminate its Commitment
hereunder (in either case, an "Exiting Purchaser") then in either case
(x) or (y), above, such Collections shall not be reinvested and shall
instead be held in trust for the benefit of such Purchaser and applied
in accordance with clause (iii), below.
(iii) if such day is a Termination Day (or any day
following the provision of a Declining Notice or an Exiting Notice),
set aside, segregate and hold in trust (and shall, at the request of
the Administrator (with the consent or at the direction of a Simple
Majority of the Purchasers), segregate in a separate account approved
by the Administrator) for the benefit of each Purchaser Group the
entire remainder of the Collections (or in the case of a Declining
Conduit Purchaser or an Exiting Purchaser an amount equal to such
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Purchaser's ratable share of such Collections based on its Investment;
provided, that solely for the purpose of determining such Purchaser's
ratable share of such Collections, such Purchaser's Investment shall be
deemed to remain constant from the date of the provision of a Declining
Notice or an Exiting Notice, as the case may be, until the date such
Purchaser's Investment has been paid in full; it being understood that
if such day is also a Termination Day, such Declining Conduit
Purchaser's or Exiting Purchaser's Investment shall be recalculated
taking into account amounts received by such Purchaser in respect of
this parenthetical and thereafter Collections shall be set aside for
such Purchaser ratably in respect of its Investment (as recalculated));
provided, that if amounts are set aside and held in trust on any
Termination Day of the type described in clause (a) of the definition
of "Termination Day" (or any day following the provision of a Declining
Notice or an Exiting Notice) and, thereafter, the conditions set forth
in Section 2 of Exhibit II are satisfied or waived by the Administrator
and a Simple Majority of the Purchasers (or in the case of a Declining
Notice or an Exiting Notice, such Declining Notice or Exiting Notice,
as the case may be, has been revoked by the related Declining Conduct
Purchaser or Exiting Purchaser, respectively and written notice thereof
has been provided to the Administrator, the related Purchaser Agent and
the Servicer), such previously set-aside amounts shall, to the extent
representing a return on Aggregate Investment (or the Investment of the
Declining Conduit Purchaser or Exiting Purchaser, as the case may be)
and ratably in accordance with each Purchaser's Investment, be
reinvested in accordance with clause (ii) on the day of such subsequent
satisfaction or waiver of conditions or revocation of Declining Notice
or Exiting Notice, as the case may be, and
(iv) release to the Seller (subject to Section 1.4(f)) for
its own account any Collections in excess of: (x) amounts required to
be reinvested in accordance with clause (ii) or the proviso to clause
(iii) plus (y) the amounts that are required to be set aside pursuant
to clause (i), the proviso to clause (ii) and clause (iii) plus (z) the
Seller's Share of the Servicing Fee accrued and unpaid through such day
and all reasonable and appropriate out-of-pocket costs and expenses of
the Servicer for servicing, collecting and administering the Pool
Receivables.
(c) The Servicer shall, in accordance with the priorities
set forth in Section 1.4(d), below, deposit into each applicable Purchaser's
account (or such other account designated by such applicable Purchaser or its
Purchaser Agent), on each Settlement Date, Collections held for each Purchaser
with respect to such Purchaser's Portion(s) of Investment pursuant to clause
(b)(i) or (f) plus the amount of Collections then held for such Purchaser
pursuant to clauses (b)(ii) and (iii) of Section 1.4; provided, that if WESCO or
an Affiliate thereof is the Servicer, such day is not a Termination Day and the
Administrator has not notified WESCO (or such Affiliate) that such right is
revoked, WESCO (or such Affiliate) may retain the portion of the Collections set
aside pursuant to clause (b)(i) that represents the aggregate of each Purchaser
Group's Ratable Share of the Servicing Fee. Within three Business Days of the
last day of each Yield Period with respect to any Portion of Investment, the
applicable Purchaser Agent will notify the Servicer by facsimile of the amount
of the Discount accrued with respect to each such Portion of Investment during
the related Yield Period then ending.
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(d) The Servicer shall distribute the amounts described
(and at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a
Termination Day and the Purchased Interest does not exceed 100%, first
to each Purchaser Agent ratably according to the Discount accrued
during such Yield Period (for the benefit of the relevant Purchasers
within such Purchaser Agent's Purchaser Group) in payment in full of
all accrued Discount and fees (other than Servicing Fees) with respect
to each Portion of Investment maintained by such Purchasers; it being
understood that each Purchaser Agent shall distribute such amounts to
the Purchasers within its Purchaser Group ratably according to
Discount, and second, if the Servicer has set aside amounts in respect
of the Servicing Fee pursuant to clause (b)(i) and has not retained
such amounts pursuant to clause (c), to the Servicer's own account
(payable in arrears on each Settlement Date) in payment in full of the
aggregate of each Purchaser Group's Ratable Share of accrued Servicing
Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or
on a day when the Purchased Interest exceeds 100%, first, if WESCO or
an Affiliate thereof is not the Servicer, to the Servicer's own account
in payment in full of all accrued Servicing Fees, second, to each
Purchaser Agent ratably according to Investment (for the benefit of the
relevant Purchasers within such Purchaser Agent's Purchaser Group) in
payment in full of all accrued Discount with respect to each Portion of
Investment funded or maintained by the Purchasers within such Purchaser
Agent's Purchaser Group, third, to each Purchaser Agent (for the
benefit of the relevant Purchasers within such Purchaser Agent's
Purchaser Group) ratably according to the fees accrued (other than
Servicing Fees) in payment in full of all accrued fees (other than
Servicing Fees) with respect to each Portion of Investment maintained
by such Purchasers, fourth, to each Purchaser Agent ratably according
to the aggregate of the Investment of each Purchaser in each such
Purchaser Agent's Purchaser Group (for the benefit of the relevant
Purchasers within such Purchaser Agent's Purchaser Group) in payment in
full of each Purchaser's Investment (or, if such day is not a
Termination Day, the amount necessary to reduce the Purchased Interest
to 100%); it being understood that each Purchaser Agent shall
distribute the amounts described in the second, third and fourth
clauses of this Section 1.4(d)(ii) to the Purchasers within its
Purchaser Group ratably according to Investment or, in the case of the
third clause of this Section 1.4(d)(ii), fees (not including the
Servicing Fee), fifth, to each non-Group A Purchaser Agent ratably
according to the aggregate of the Investment of each non-Group A
Purchaser in each such non-Group A Purchaser Agent's Purchaser Group
(for the benefit of the relevant non-Group A Purchasers within such
non-Group A Purchaser Agent's Purchaser Group) in payment in full of
the aggregate outstanding principal balance of each such non-Group A
Purchaser's Investment to the extent not paid pursuant to the fourth
clause of this Section 1.4(d)(ii), sixth, if the Aggregate Investment
and accrued Aggregate Discount with respect to each Portion of
Investment for all Purchaser Groups have been reduced to zero, and all
accrued Servicing Fees payable to the Servicer (if other than WESCO or
an Affiliate thereof) have been paid in full, to each Purchaser Group
ratably (for the benefit of the Purchasers within such Purchaser Group)
in accordance with its Ratable Share, the Administrator and any other
Indemnified Party or Affected Person in payment in full of
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any other amounts) owed thereto by the Seller or Servicer hereunder,
and seventh, to the Servicer's own account (if the Servicer is WESCO or
an Affiliate thereof) in payment in full of the Aggregate of each
Purchaser Group's Ratable Share of all accrued Servicing Fees.
After the Aggregate Investment, Aggregate Discount, fees payable pursuant to
each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased
Interest, and any other amounts payable by the Seller and the Servicer to each
Purchaser Group, the Administrator or any other Indemnified Party or Affected
Person hereunder, have been paid in full, all additional Collections with
respect to the Purchased Interest shall be paid to the Seller for its own
account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool
Receivable is reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed goods or services, or any
revision, cancellation, allowance, discount or other adjustment made by
the Seller or any Affiliate of the Seller, or the Servicer or any
Affiliate of the Servicer, or any setoff or dispute between the Seller
or any Affiliate of the Seller, or the Servicer or any Affiliate of the
Servicer and an Obligor, the Seller shall be deemed to have received on
such day a Collection of such Pool Receivable in the amount of such
reduction or adjustment;
(ii) if on any day any of the representations or
warranties in Section 1(g) or (n) of Exhibit III is not true with
respect to any Pool Receivable, the Seller shall be deemed to have
received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as
otherwise required by applicable law or the relevant Contract, all
Collections received from an Obligor of any Receivable shall be applied
to the Receivables of such Obligor in the order of the age of such
Receivables, starting with the oldest such Receivable, unless such
Obligor designates in writing its payment for application to specific
Receivables; and
(iv) if and to the extent the Administrator, any Purchaser
Agent or any Purchaser shall be required for any reason to pay over to
an Obligor (or any trustee, receiver, custodian or similar official in
any Insolvency Proceeding) any amount received by it hereunder, such
amount shall be deemed not to have been so received by such Person but
rather to have been retained by the Seller and, accordingly, such
Person shall have a claim against the Seller for such amount, payable
when and to the extent that any distribution from or on behalf of such
Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the
reduction of Aggregate Investment (but not to commence the liquidation, or
reduction to zero, of the entire Aggregate Investment, the Seller may do so as
follows:
(i) the Seller shall give the Administrator, each
Purchaser Agent and the Servicer (A) at least two Business Days' prior
written notice thereof for any reduction of Aggregate Investment less
than or equal to $10,000,000 and (B) at least ten Business Days' prior
written notice thereof for any reduction of Aggregate Investment
greater than
8
$10,000,000 (in each case such notice shall include the amount of such
proposed reduction and the proposed date on which such reduction will
commence);
(ii) on the proposed date of commencement of such
reduction and on each day thereafter, the Servicer shall cause
Collections not to be reinvested until the amount thereof not so
reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for
the benefit of each Purchaser ratably according to its Investment, for
payment to each such Purchaser (or its related Purchaser Agent for the
benefit of such Purchaser) on the next Settlement Date with respect to
any Portions of Investment maintained by such Purchaser immediately
following the related current Yield Period, and the Aggregate
Investment (together with the Investment of any related Purchaser)
shall be deemed reduced in the amount to be paid to such Purchaser (or
its related Purchaser Agent for the benefit of such Purchaser) only
when in fact finally so paid;
; provided, that:
(A) the amount of any such reduction shall be not less
than $1,000,000 for each Purchaser Group and shall be an integral
multiple of $500,000, and the entire Aggregate Investment after giving
effect to such reduction shall be not less than $200,000,000 and shall
be in an integral multiple of $1,000,000 (unless the Aggregate
Investment shall have been reduced to zero); and
(B) with respect to any Portion of Investment, the Seller
shall choose a reduction amount, and the date of commencement thereof,
so that to the extent practicable such reduction shall commence and
conclude in the same Yield Period.
Section 1.5. Fees. The Seller shall pay to each Purchaser Agent for the
benefit of the related Purchasers certain fees in the amounts and on the dates
set forth in those certain fee letters, each such letter (as amended or amended
and restated through the date hereof and as amended, supplemented, or otherwise
modified from time to time, a "Purchaser Group Fee Letter"), in each case among
the Seller, the Servicer and the related Purchaser Agent.
Section 1.6. Payments and Computations, Etc.
(a) All amounts to be paid or deposited by the Seller or
the Servicer hereunder shall be made without reduction for offset or
counterclaim and shall be paid or deposited no later than noon (New York City
time) on the day when due in same day funds to the applicable Purchaser's
account (as such account is identified in the related Purchaser Group Fee
Letter). All amounts received after noon (New York City time) will be deemed to
have been received on the next Business Day.
(b) The Seller or the Servicer, as the case may be,
shall, to the extent permitted by law, pay interest on any amount not paid or
deposited by the Seller or the Servicer, as the case may be, when due hereunder,
at an interest rate equal to 2.0% per annum above the Base Rate, payable on
demand.
9
(c) All computations of interest under clause (b) and all
computations of Discount, fees and other amounts hereunder shall be made on the
basis of a year of 360 (or 365 or 366, as applicable, with respect to Discount
or other amounts calculated by reference to the Base Rate) days for the actual
number of days elapsed. Whenever any payment or deposit to be made hereunder
shall be due on a day other than a Business Day, such payment or deposit shall
be made on the next Business Day and such extension of time shall be included in
the computation of such payment or deposit.
Section 1.7. Increased Costs.
(a) If any Purchaser Agent, Purchaser, Liquidity
Provider, the Administrator or any other Program Support Provider or any of
their respective Affiliates (each an "Affected Person") reasonably determines
that the existence of or compliance with: (i) any law or regulation or any
change therein or in the interpretation or application thereof, in each case
adopted, issued or occurring after the date hereof, or (ii) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement, affects or would affect the amount of capital required or
expected to be maintained by such Affected Person, and such Affected Person
determines that the amount of such capital is increased by or based upon the
existence of any commitment to make purchases of (or otherwise to maintain the
investment in) Pool Receivables related to this Agreement or any related
liquidity facility, credit enhancement facility or other commitments of the same
type, then, upon demand by such Affected Person (with a copy to the
Administrator), the Seller shall promptly pay to the Administrator, for the
account of such Affected Person, from time to time as specified by such Affected
Person, additional amounts sufficient to compensate such Affected Person in the
light of such circumstances, to the extent that such Affected Person reasonably
determines such increase in capital to be allocable to the existence of any of
such commitments. A certificate as to such amounts submitted to the Seller and
the Administrator by such Affected Person shall be conclusive and binding for
all purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) compliance
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to any Affected Person of agreeing to purchase or purchasing, or
maintaining the ownership of, the Purchased Interest or any portion thereof in
respect of which Discount is computed by reference to the Euro-Rate, then, upon
demand by such Affected Person, the Seller shall promptly pay to such Affected
Person, from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person for such increased costs.
A certificate as to such amounts submitted to the Seller and the Administrator
by such Affected Person shall be conclusive and binding for all purposes, absent
manifest error.
(c) If such increased costs affect the related Affected
Person's portfolio of financing transactions, such Affected Person shall use
reasonable averaging and attribution methods to allocate such increased costs to
the transactions contemplated by this Agreement.
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(d) For the avoidance of doubt, any interpretation of
Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board
("FASB") (including, without limitation, FASB Interpretation No. 46), shall
(notwithstanding anything in this paragraph or otherwise in this Agreement to
the contrary, whether or not issued or occurring on or prior to or after the
date hereof) constitute an adoption, change, request, guideline or directive
subject to this Section 1.7.
Section 1.8. Requirements of Law.
If any Affected Person reasonably determines that the existence of or
compliance with: (a) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof, or (b) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement:
(i) does or shall subject such Affected Person to any tax
of any kind whatsoever with respect to this Agreement, any increase in
the Purchased Interest or any portion thereof or in the amount of such
Person's Investment relating thereto, or does or shall change the basis
of taxation of payments to such Affected Person on account of
Collections, Discount or any other amounts payable hereunder (excluding
taxes imposed on the overall pre-tax net income of such Affected
Person, and franchise taxes imposed on such Affected Person, by the
jurisdiction under the laws of which such Affected Person is organized
or a political subdivision thereof),
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, purchases, advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Affected
Person that are not otherwise included in the determination of the
Euro-Rate or the Base Rate hereunder, or
(iii) does or shall impose on such Affected Person any
other condition,
and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Administrator or as a Purchaser Agent, or of
agreeing to purchase or purchasing or maintaining the ownership of undivided
percentage ownership interests with regard to the Purchased Interest (or
interests therein) or any Portion of Investment, or (B) to reduce any amount
receivable hereunder (whether directly or indirectly), then, in any such case,
upon demand by such Affected Person, the Seller shall promptly pay to such
Affected Person additional amounts necessary to compensate such Affected Person
for such additional cost or reduced amount receivable. All such amounts shall be
payable as incurred. A certificate from such Affected Person to the Seller and
the Administrator certifying, in reasonably specific detail, the basis for,
calculation of, and amount of such additional costs or reduced amount receivable
shall be conclusive and binding for all purposes, absent manifest error;
provided, however, that no Affected Person shall be required to disclose any
confidential or tax planning information in any such certificate.
11
Section 1.9. Inability to Determine Euro-Rate.
(a) If the Administrator (or any Purchaser Agent)
determines before the first day of any Yield Period (which determination shall
be final and conclusive) that, by reason of circumstances affecting the
interbank eurodollar market generally, deposits in dollars (in the relevant
amounts for such Yield Period) are not being offered to banks in the interbank
eurodollar market for such Yield Period, or adequate means do not exist for
ascertaining the Euro-Rate for such Yield Period, then the Administrator shall
give notice thereof to the Seller. Thereafter, until the Administrator or such
Purchaser Agent notifies the Seller that the circumstances giving rise to such
suspension no longer exist, (a) no Portion of Investment shall be funded at the
Yield Rate determined by reference to the Euro-Rate and (b) the Discount for any
outstanding Portions of Investment then funded at the Yield Rate determined by
reference to the Euro-Rate shall, on the last day of the then current Yield
Period, be converted to the Yield Rate determined by reference to the Base Rate.
(b) If, on or before the first day of any Yield Period,
the Administrator shall have been notified by any Purchaser, Purchaser Agent or
Liquidity Provider that, such Person has determined (which determination shall
be final and conclusive) that, any enactment, promulgation or adoption of or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by a governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Person with any guideline, request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for such Person to fund
or maintain any Portion of Investment at the Yield Rate and based upon the
Euro-Rate, the Administrator shall notify the Seller thereof. Upon receipt of
such notice, until the Administrator notifies the Seller that the circumstances
giving rise to such determination no longer apply, (a) no Portion of Investment
shall be funded at the Yield Rate determined by reference to the Euro-Rate and
(b) the Discount for any outstanding Portions of Investment then funded at the
Yield Rate determined by reference to the Euro-Rate shall be converted to the
Yield Rate determined by reference to the Base Rate either (i) on the last day
of the then current Yield Period if such Person may lawfully continue to
maintain such Portion of Investment at the Yield Rate determined by reference to
the Euro-Rate to such day, or (ii) immediately, if such Person may not lawfully
continue to maintain such Portion of Investment at the Yield Rate determined by
reference to the Euro-Rate to such day.
Section 1.10. Extension of Termination Date.
(a) The Seller may advise the Administrator and each
Related Committed Purchaser in writing of its desire to extend the Scheduled
Commitment Termination Date with respect to such Purchaser; provided such
request is made not more than 90 days prior to, and not less than 60 days prior
to, the then current Scheduled Commitment Termination Date with respect to such
Purchaser. In the event that the applicable Purchaser is agreeable to such
extension, the Administrator shall so notify the Seller in writing (it being
understood that the Purchasers may accept or decline such a request in their
sole discretion and on such terms as they may elect) not less than 30 days prior
to its then current Scheduled Commitment Termination Date and the Seller, the
Administrator, the Purchaser Agents and the Purchasers shall enter into such
documents as the Purchasers may deem necessary or appropriate to reflect such
extension, and all reasonable costs and expenses incurred by the Purchasers, the
Administrator and the Purchaser Agents in connection therewith (including
reasonable Attorneys' Costs) shall be paid by the Seller. In the event a
Purchaser declines the request for such extension,
12
the Administrator shall so notify the Seller and each Purchaser Agent of such
determination; provided, however, that the failure of the Administrator to
notify the Seller of the determination to decline such extension shall not
affect the understanding and agreement that the Purchaser shall be deemed to
have refused to grant the requested extension in the event the Administrator
fails to affirmatively notify the Seller, in writing, of their agreement to
accept the requested extension.
(b) Any Purchaser may, upon 45 days' written notice by
the related Purchaser Agent to the Administrator and the Seller, terminate its
Commitment hereunder (it being understood that upon delivery of such notice,
such Purchaser shall be an Exiting Purchaser and shall receive Collections as
described in Section 1.4(b)). Thereafter, such Purchaser's Commitment shall
terminate and such Purchaser (and in the case of a termination pursuant to this
paragraph of the Commitments of an entire Purchaser Group, the related Purchaser
Agent) shall have no further rights or obligations hereunder (except for (i) its
rights to continue to receive payments hereunder with respect to Investment,
Discount and Fees in connection with its Investment in the Purchased Interest,
(ii) its rights to receive any other amounts owing to such Purchaser as an
Indemnified Party or Affected Person, (iii) any voting rights that such
Purchaser may have with respect to any Lock-Box Account and the related Lock-Box
Agreement and (iv) any other rights that expressly survive termination, in each
case until all payments owed to such Purchaser hereunder have been paid in
full).
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1. Representations and Warranties; Covenants. Each of the
Seller, WESCO and the Servicer hereby makes the representations and warranties,
and hereby agrees to perform and observe the covenants, applicable to it set
forth in Exhibits III and IV, respectively.
Section 2.2. Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Administrator may (with the consent of a
Simple Majority of the Purchasers) or shall (at the direction of a Simple
Majority of the Purchasers), by notice to the Seller, declare the Facility
Termination Date to have occurred (in which case the Facility Termination Date
shall be deemed to have occurred); provided, that automatically upon the
occurrence of any event (without any requirement for the passage of time or the
giving of notice) described in paragraph (f) of Exhibit V, the Facility
Termination Date shall occur. Upon any such declaration, occurrence or deemed
occurrence of the Facility Termination Date, the Administrator, each Purchaser
Agent and each Purchaser shall have, in addition to the rights and remedies that
they may have under this Agreement, all other rights and remedies provided after
default under the New York UCC and under other applicable law, which rights and
remedies shall be cumulative.
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ARTICLE III.
INDEMNIFICATION
Section 3.1. Indemnities by the Seller. Without limiting any other
rights that any Purchaser Agent, Purchaser, Liquidity Provider, the
Administrator or any Program Support Provider or any of their respective
Affiliates, employees, officers, directors, agents, counsel, successors,
transferees or assigns (each, an "Indemnified Party") may have hereunder or
under applicable law, the Seller hereby agrees to indemnify each Indemnified
Party from and against any and all claims, damages, expenses, costs, losses and
liabilities (including Attorney Costs) (all of the foregoing being collectively
referred to as "Indemnified Amounts") arising out of or resulting from this
Agreement (whether directly or indirectly), the use of proceeds of purchases or
reinvestments, the ownership of the Purchased Interest, or any interest therein,
or in respect of any Receivable, Related Security or Contract, excluding,
however: (a) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party or its officers,
directors, agents or counsel, (b) recourse with respect to any Receivable to the
extent that such Receivable is uncollectible on account of the insolvency,
bankruptcy or lack of credit worthiness of the related Obligor, or (c) any
overall net income taxes or franchise taxes imposed on such Indemnified Party by
the jurisdiction under the laws of which such Indemnified Party is organized or
any political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand (which demand shall be accompanied by
documentation of the Indemnified Amounts, in reasonable detail) to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
(i) the failure of any Receivable included in the
calculation of the Net Receivables Pool Balance as an Eligible
Receivable to be an Eligible Receivable, the failure of any information
contained in an Information Package to be true and correct, or the
failure of any other information provided to such Indemnified Party by
the Seller or Servicer with respect to Receivables or this Agreement to
be true and correct,
(ii) the failure of any representation, warranty or
statement made or deemed made by the Seller (or any of its officers)
under or in connection with this Agreement to have been true and
correct as of the date made or deemed made in all respects when made,
(iii) the failure by the Seller to comply with any
applicable law, rule or regulation with respect to any Pool Receivable
or the related Contract, or the failure of any Pool Receivable or the
related Contract to conform to any such applicable law, rule or
regulation,
(iv) the failure to vest in the Administrator (for the
benefit of the Purchasers) a valid and enforceable: (A) perfected
undivided percentage ownership interest, to the extent of the Purchased
Interest, in the Receivables in, or purporting to be in, the
Receivables Pool and the other Pool Assets, or (B) first priority
perfected security interest in the Pool Assets, in each case, free and
clear of any Adverse Claim,
14
(v) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables in, or purporting to be in, the Receivables
Pool and the other Pool Assets, whether at the time of any purchase or
reinvestment or at any subsequent time,
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable in, or purporting to be in, the Receivables Pool
(including a defense based on such Receivable or the related Contract
not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other
claim resulting from the sale of the goods or services related to such
Receivable or the furnishing or failure to furnish such goods or
services or relating to collection activities with respect to such
Receivable,
(vii) any failure of the Seller, any Affiliate of the
Seller or the Servicer to perform its duties or obligations in
accordance with the provisions hereof or under the Contracts,
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with
merchandise, insurance or services that are the subject of any
Contract,
(ix) the commingling of Collections at any time with other
funds,
(x) the use of proceeds of purchases or reinvestments, or
(xi) any reduction in the Aggregate Investment as a result
of the distribution of Collections pursuant to Section 1.4(d), if all
or a portion of such distributions shall thereafter be rescinded or
otherwise must be returned for any reason.
Section 3.2. Indemnities by the Servicer. Without limiting any other
rights that any Indemnified Party may have hereunder or under applicable law,
the Servicer hereby agrees to indemnify each Indemnified Party from and against
any and all Indemnified Amounts arising out of or resulting from (whether
directly or indirectly): (a) the failure of any information contained in an
Information Package to be true and correct, or the failure of any other
information provided to such Indemnified Party by, or on behalf of, the Servicer
to be true and correct, (b) the failure of any representation, warranty or
statement made or deemed made by the Servicer (or any of its officers) under or
in connection with this Agreement or any other Transaction Document to which it
is a party to have been true and correct as of the date made or deemed made in
all respects when made, (c) the failure by the Servicer to comply with any
applicable law, rule or regulation with respect to any Pool Receivable or the
related Contract, (d) any dispute, claim, offset or defense of the Obligor to
the payment of any Receivable in, or purporting to be in, the Receivables Pool
resulting from or related to the collection activities with respect to such
Receivable, or (e) any failure of the Servicer to perform its duties or
obligations in accordance with the provisions hereof or any other Transaction
Document to which it is a party.
15
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of the Servicer.
(a) The servicing, administering and collection of the
Pool Receivables shall be conducted by the Person so designated from time to
time as the Servicer in accordance with this Section. Until the Administrator
gives notice to WESCO (in accordance with this Section 4.1) of the designation
of a new Servicer, WESCO is hereby designated as, and hereby agrees to perform
the duties and obligations of, the Servicer pursuant to the terms hereof. Upon
the occurrence of a Termination Event, the Administrator may (with the consent
of the Majority Purchasers) or shall (at the direction of the Majority
Purchasers) designate as Servicer any Person (including itself) to succeed WESCO
or any successor Servicer, on the condition in each case that any such Person so
designated shall agree to perform the duties and obligations of the Servicer
pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set
forth in clause (a), WESCO agrees that it will terminate its activities as
Servicer hereunder in a manner that the Administrator determines will facilitate
the transition of the performance of such activities to the new Servicer, and
WESCO shall cooperate with and assist such new Servicer. Such cooperation shall
include access to and transfer of related records (including all Contracts) and
use by the new Servicer of all licenses, hardware or software necessary or
desirable to collect the Pool Receivables and the Related Security.
(c) WESCO acknowledges that, in making their decision to
execute and deliver this Agreement, the Administrator and each Purchaser Group
have relied on WESCO's agreement to act as Servicer hereunder. Accordingly,
WESCO agrees that it will not voluntarily resign as Servicer.
(d) The Servicer may delegate its duties and obligations
hereunder to any subservicer (each a "Sub-Servicer"); provided, that, in each
such delegation: (i) such Sub-Servicer shall agree in writing to perform the
duties and obligations of the Servicer pursuant to the terms hereof, (ii) the
Servicer shall remain primarily liable for the performance of the duties and
obligations so delegated, (iii) the Seller, the Administrator and each Purchaser
Group shall have the right to look solely to the Servicer for performance, and
(iv) the terms of any agreement with any Sub-Servicer shall provide that the
Administrator may terminate such agreement upon the termination of the Servicer
hereunder by giving notice of its desire to terminate such agreement to the
Servicer (and the Servicer shall provide appropriate notice to each such
Sub-Servicer); provided, however, that if any such delegation is to any Person
other than an Originator or an Affiliate thereof, the Administrator and the
Majority Purchasers shall have consented in writing in advance to such
delegation.
Section 4.2. Duties of the Servicer.
(a) The Servicer shall take or cause to be taken all such
action as may be necessary or advisable to administer and collect each Pool
Receivable from time to time, all in accordance with this Agreement and all
applicable laws, rules and regulations, with reasonable
16
care and diligence, and in accordance with the Credit and Collection Policies.
The Servicer shall set aside, for the account of each Purchaser Group, the
amount of the Collections to which each such Purchaser Group is entitled in
accordance with Article I. The Servicer may, in accordance with the applicable
Credit and Collection Policy, extend the maturity of any Pool Receivable (but
not beyond 30 days or beyond 90 days from the original invoice date) and extend
the maturity or adjust the Outstanding Balance of any Defaulted Receivable as
the Servicer may determine to be appropriate to maximize Collections thereof;
provided, however, that: (i) such extension or adjustment shall not alter the
status of such Pool Receivable as a Delinquent Receivable or a Defaulted
Receivable or limit the rights of the Administrator or any Purchaser Group under
this Agreement and (ii) if a Termination Event has occurred and WESCO or an
Affiliate thereof is serving as the Servicer, WESCO or such Affiliate may make
such extension or adjustment only upon the prior approval of the Administrator
(with the consent of the Majority Purchasers). The Seller shall deliver to the
Servicer and the Servicer shall hold for the benefit of the Seller and the
Administrator (individually and for the benefit of each Purchaser Group), in
accordance with their respective interests, all records and documents (including
computer tapes or disks) with respect to each Pool Receivable. Notwithstanding
anything to the contrary contained herein, the Administrator may direct the
Servicer (whether the Servicer is WESCO or any other Person) to commence or
settle any legal action to enforce collection of any Pool Receivable or to
foreclose upon or repossess any Related Security; provided, however, that no
such direction may be given unless either: (A) a Termination Event has occurred
or (B) the Administrator believes in good faith that failure to commence, settle
or effect such legal action, foreclosure or repossession could adversely affect
Receivables constituting a material portion of the Pool Receivables.
(b) The Servicer shall, as soon as practicable following
actual receipt of collected funds, turn over to the Seller the collections of
any indebtedness that is not a Pool Receivable, less, if WESCO or an Affiliate
thereof is not the Servicer, all reasonable and appropriate out-of-pocket costs
and expenses of such Servicer of servicing, collecting and administering such
collections. The Servicer, if other than WESCO or an Affiliate thereof, shall,
as soon as practicable upon demand, deliver to the Seller all records in its
possession that evidence or relate to any indebtedness that is not a Pool
Receivable, and copies of records in its possession that evidence or relate to
any indebtedness that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate
on the later of: (i) the Facility Termination Date and (ii) the date on which
all amounts required to be paid to the Purchaser Agents, each Purchaser, the
Administrator and any other Indemnified Party or Affected Person hereunder shall
have been paid in full.
After such termination, if WESCO or an Affiliate thereof was not the
Servicer on the date of such termination, the Servicer shall promptly deliver to
the Seller all books, records and related materials that the Seller previously
provided to the Servicer, or that have been obtained by the Servicer, in
connection with this Agreement.
Section 4.3. Lock-Box Account Arrangements. Prior to the date hereof,
the Seller has entered into Lock-Box Agreements with all of the Lock-Box Banks
and delivered original counterparts of each to the Administrator and each
Purchaser Agent. Upon the occurrence of a Termination Event or WESCO ceasing to
have a rating of at least "B-" by Standard & Poor's on its corporate credit
rating, the Administrator may (with the consent of a Simple Majority of the
Purchasers) or shall (upon the direction of a Simple Majority of the
17
Purchasers) at any time thereafter give notice to each Lock-Box Bank that the
Administrator is exercising its rights under the Lock-Box Agreements to do any
or all of the following: (a) to have the exclusive ownership and control of the
Lock-Box Accounts transferred to the Administrator (for the benefit of the
Purchasers) and to exercise exclusive dominion and control over the funds
deposited therein, (b) to have the proceeds that are sent to the respective
Lock-Box Accounts redirected pursuant to the Administrator's instructions rather
than deposited in the applicable Lock-Box Account, and (c) to take any or all
other actions permitted under the applicable Lock-Box Agreement. The Seller
hereby agrees that if the Administrator at any time takes any action set forth
in the preceding sentence, the Administrator shall have exclusive control (for
the benefit of the Purchasers) of the proceeds (including Collections) of all
Pool Receivables and the Seller hereby further agrees to take any other action
that the Administrator or any Purchaser Agent may reasonably request to transfer
such control. Any proceeds of Pool Receivables received by the Seller or the
Servicer thereafter shall be sent immediately to the Administrator. The parties
hereto hereby acknowledge that if at any time the Administrator takes control of
any Lock-Box Account, the Administrator shall not have any rights to the funds
therein in excess of the unpaid amounts due to the Administrator, the Purchaser
Groups, any Indemnified Party or any other Person hereunder, and the
Administrator shall distribute or cause to be distributed such funds in
accordance with Section 4.2(b) and Article I (in each case as if such funds were
held by the Servicer thereunder).
Section 4.4. Enforcement Rights.
(a) At any time following the occurrence of a Termination
Event:
(i) the Administrator may (with the consent or at the
direction of a Simple Majority of the Purchasers) direct the Obligors
that payment of all amounts payable under any Pool Receivable is to be
made directly to the Administrator or its designee,
(ii) the Administrator may (with the consent or at the
direction of a Simple Majority of the Purchasers) instruct the Seller
or the Servicer to give notice of the Purchaser Groups' interest in
Pool Receivables to each Obligor, which notice shall direct that
payments be made directly to the Administrator or its designee (on
behalf of such Purchaser Groups), and the Seller or the Servicer, as
the case may be, shall give such notice at the expense of the Seller or
the Servicer, as the case may be; provided, that if the Seller or the
Servicer, as the case may be, fails to so notify each Obligor, the
Administrator (at the Seller's or the Servicer's, as the case may be,
expense) may so notify the Obligors, and
(iii) the Administrator may (with the consent or at the
direction of a Simple Majority of the Purchasers) request the Servicer
to, and upon such request the Servicer shall: (A) assemble all of the
records necessary or desirable to collect the Pool Receivables and the
Related Security, and transfer or license to a successor Servicer the
use of all software necessary or desirable to collect the Pool
Receivables and the Related Security, and make the same available to
the Administrator or its designee (for the benefit of the Purchasers)
at a place selected by the Administrator, and (B) segregate all cash,
checks and other instruments received by it from time to time
constituting Collections in a manner acceptable to the Administrator
and, promptly upon receipt, remit all such cash,
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checks and instruments, duly endorsed or with duly executed instruments
of transfer, to the Administrator or its designee.
(b) The Seller hereby authorizes the Administrator (on
behalf of each Purchaser Group), and irrevocably appoints the Administrator as
its attorney-in-fact with full power of substitution and with full authority in
the place and stead of the Seller, which appointment is coupled with an
interest, to take any and all steps in the name of the Seller and on behalf of
the Seller necessary or desirable, in the determination of the Administrator,
after the occurrence of a Termination Event, to collect any and all amounts or
portions thereof due under any and all Pool Assets, including endorsing the name
of the Seller on checks and other instruments representing Collections and
enforcing such Pool Assets. Notwithstanding anything to the contrary contained
in this subsection, none of the powers conferred upon such attorney-in-fact
pursuant to the preceding sentence shall subject such attorney-in-fact to any
liability if any action taken by it shall prove to be inadequate or invalid, nor
shall they confer any obligations upon such attorney-in-fact in any manner
whatsoever.
Section 4.5. Responsibilities of the Seller.
(a) Anything herein to the contrary notwithstanding, the
Seller shall: (i) perform all of its obligations, if any, under the Contracts
related to the Pool Receivables to the same extent as if interests in such Pool
Receivables had not been transferred hereunder, and the exercise by the
Administrator, the Purchaser Agents or the Purchasers of their respective rights
hereunder shall not relieve the Seller from such obligations, and (ii) pay when
due any taxes, including any sales taxes payable in connection with the Pool
Receivables and their creation and satisfaction. The Administrator, the
Purchaser Agents or any of the Purchasers shall not have any obligation or
liability with respect to any Pool Asset, nor shall any of them be obligated to
perform any of the obligations of the Seller, Servicer, WESCO or the Originators
thereunder.
(b) WESCO hereby irrevocably agrees that if at any time
it shall cease to be the Servicer hereunder, it shall act (if the then-current
Servicer so requests) as the data-processing agent of the Servicer and, in such
capacity, WESCO shall conduct the data-processing functions of the
administration of the Receivables and the Collections thereon in substantially
the same way that WESCO conducted such data-processing functions while it acted
as the Servicer.
Section 4.6. Servicing Fee.
(a) Subject to clause (b), the Servicer shall be paid a
fee (the "Servicing Fee") equal to 1.0% per annum of the daily average aggregate
Outstanding Balance of the Pool Receivables. The aggregate of each Purchaser
Group's Ratable Share of such fee shall be paid through the distributions
contemplated by Section 1.4(d), and the Seller's Share of such fee shall be paid
by the Seller.
(b) If the Servicer ceases to be WESCO or an Affiliate
thereof, the servicing fee shall be the greater of: (i) the amount calculated
pursuant to clause (a), and (ii) an alternative amount specified by the
successor Servicer not to exceed 110% of the aggregate reasonable costs
19
and expenses incurred by such successor Servicer in connection with the
performance of its obligations as Servicer.
ARTICLE V.
THE AGENTS
Section 5.1. Appointment and Authorization.
(a) Each Purchaser and Purchaser Agent hereby irrevocably
designates and appoints Wachovia Securities, Inc. as the "Administrator"
hereunder and authorizes the Administrator to take such actions and to exercise
such powers as are delegated to the Administrator hereby and to exercise such
other powers as are reasonably incidental thereto. The Administrator shall hold,
in its name, for the benefit of each Purchaser, ratably, the Purchased Interest.
The Administrator shall not have any duties other than those expressly set forth
herein or any fiduciary relationship with any Purchaser or Purchaser Agent, and
no implied obligations or liabilities shall be read into this Agreement, or
otherwise exist, against the Administrator. The Administrator does not assume,
nor shall it be deemed to have assumed, any obligation to, or relationship of
trust or agency with, the Seller or Servicer. Notwithstanding any provision of
this Agreement or any other Transaction Document to the contrary, in no event
shall the Administrator ever be required to take any action which exposes the
Administrator to personal liability or which is contrary to the provision of any
Transaction Document or applicable law.
(b) Each Purchaser hereby irrevocably designates and
appoints the respective institution identified as the Purchaser Agent for such
Purchaser's Purchaser Group on the signature pages hereto or in the Assumption
Agreement or Transfer Supplement pursuant to which such Purchaser becomes a
party hereto, and each authorizes such Purchaser Agent to take such action on
its behalf under the provisions of this Agreement and to exercise such powers
and perform such duties as are expressly delegated to such Purchaser Agent by
the terms of this Agreement, if any, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Purchaser Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or other Purchaser Agent or the Administrator,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of such Purchaser Agent shall be read into this
Agreement or otherwise exist against such Purchaser Agent.
(c) Except as otherwise specifically provided in this
Agreement, the provisions of this Article V are solely for the benefit of the
Purchaser Agents, the Administrator and the Purchasers, and none of the Seller
or Servicer shall have any rights as a third-party beneficiary or otherwise
under any of the provisions of this Article V, except that this Article V shall
not affect any obligations which any Purchaser Agent, the Administrator or any
Purchaser may have to the Seller or the Servicer under the other provisions of
this Agreement. Furthermore, no Purchaser shall have any rights as a third-party
beneficiary or otherwise under any of the provisions hereof in respect of a
Purchaser Agent which is not the Purchaser Agent for such Purchaser.
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(d) In performing its functions and duties hereunder, the
Administrator shall act solely as the agent of the Purchasers and the Purchaser
Agents and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller or Servicer or any of
their successors and assigns. In performing its functions and duties hereunder,
each Purchaser Agent shall act solely as the agent of its respective Purchaser
and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller, the Servicer, any other
Purchaser, any other Purchaser Agent or the Administrator, or any of their
respective successors and assigns.
Section 5.2. Delegation of Duties. The Administrator may execute any of
its duties through agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrator
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 5.3. Exculpatory Provisions. None of the Purchaser Agents, the
Administrator or any of their directors, officers, agents or employees shall be
liable for any action taken or omitted (i) with the consent or at the direction
of the Majority Purchasers (or in the case of any Purchaser Agent, the
Purchasers within its Purchaser Group that have a majority of the aggregate
Commitment of such Purchaser Group) or (ii) in the absence of such Person's
gross negligence or willful misconduct. The Administrator shall not be
responsible to any Purchaser, Purchaser Agent or other Person for (i) any
recitals, representations, warranties or other statements made by the Seller,
Servicer, or any of their Affiliates, (ii) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any Transaction Document, (iii)
any failure of the Seller, any Originator or any of their Affiliates to perform
any obligation or (iv) the satisfaction of any condition specified in Exhibit
II. The Administrator shall not have any obligation to any Purchaser or
Purchaser Agent to ascertain or inquire about the observance or performance of
any agreement contained in any Transaction Document or to inspect the
properties, books or records of the Seller, Servicer, Originator or any of their
Affiliates.
Section 5.4. Reliance by Agents. Each Purchaser Agent and the
Administrator shall in all cases be entitled to rely, and shall be fully
protected in relying, upon any document or other writing or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person and upon advice and statements of legal counsel (including
counsel to the Seller), independent accountants and other experts selected by
the Administrator. Each Purchaser Agent and the Administrator shall in all cases
be fully justified in failing or refusing to take any action under any
Transaction Document unless it shall first receive such advice or concurrence of
the Majority Purchasers (or in the case of any Purchaser Agent, the Purchasers
within its Purchaser Group that have a majority of the aggregate Commitment of
such Purchaser Group), and assurance of its indemnification, as it deems
appropriate.
(a) The Administrator shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Purchasers or the Purchaser Agents,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all Purchasers, the Administrator and Purchaser Agents.
(b) The Purchasers within each Purchaser Group with a
majority of the Commitment of such Purchaser Group shall be entitled to request
or direct the related Purchaser
21
Agent to take action, or refrain from taking action, under this Agreement on
behalf of such Purchasers. Such Purchaser Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of such Purchasers with such majority, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of such Purchaser Agent's Purchasers.
(c) Unless otherwise advised in writing by a Purchaser
Agent or by any Purchaser on whose behalf such Purchaser Agent is purportedly
acting, each party to this Agreement may assume that (i) such Purchaser Agent is
acting for the benefit of each of the Purchasers in respect of which such
Purchaser Agent is identified as being the "Purchaser Agent" in the definition
of "Purchaser Agent" hereto, as well as for the benefit of each assignee or
other transferee from any such Person, and (ii) each action taken by such
Purchaser Agent has been duly authorized and approved by all necessary action on
the part of the Purchasers on whose behalf it is purportedly acting. Each
Purchaser Agent and its Purchaser(s) shall agree amongst themselves as to the
circumstances and procedures for removal, resignation and replacement of such
Purchaser Agent.
Section 5.5. [Intentionally Omitted].
Section 5.6. Notice of Termination Events. Neither any Purchaser Agent
nor the Administrator shall be deemed to have knowledge or notice of the
occurrence of any Termination Event or Unmatured Termination Event unless such
Administrator has received notice from any Purchaser, Purchaser Agent, the
Servicer or the Seller stating that a Termination Event or Unmatured Termination
Event has occurred hereunder and describing such Termination Event or Unmatured
Termination Event. In the event that the Administrator receives such a notice,
it shall promptly give notice thereof to each Purchaser Agent whereupon each
such Purchaser Agent shall promptly give notice thereof to its Purchasers. In
the event that a Purchaser Agent receives such a notice (other than from the
Administrator), it shall promptly give notice thereof to the Administrator. The
Administrator shall take such action concerning a Termination Event or Unmatured
Termination Event as may be directed by the Majority Purchasers unless such
action otherwise requires the consent of all Purchasers), but until the
Administrator receives such directions, the Administrator may (but shall not be
obligated to) take such action, or refrain from taking such action, as the
Administrator deems advisable and in the best interests of the Purchasers and
Purchaser Agents.
Section 5.7. Non-Reliance on Administrator, Purchaser Agents and Other
Purchasers. Each Purchaser expressly acknowledges that none of the
Administrator, the Purchaser Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrator, or any
Purchaser Agent hereafter taken, including any review of the affairs of the
Seller, WESCO, Servicer or any Originator, shall be deemed to constitute any
representation or warranty by the Administrator or such Purchaser Agent, as
applicable. Each Purchaser represents and warrants to the Administrator and the
Purchaser Agents that, independently and without reliance upon the
Administrator, Purchaser Agents or any other Purchaser and based on such
documents and information as it has deemed appropriate, it has made and will
continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, WESCO, Servicer or the Originators, and the
22
Receivables and its own decision to enter into this Agreement and to take, or
omit, action under any Transaction Document. Except for items specifically
required to be delivered hereunder, the Administrator shall not have any duty or
responsibility to provide any Purchaser Agent with any information concerning
the Seller, WESCO, Servicer or the Originators or any of their Affiliates that
comes into the possession of the Administrator or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section 5.8. Administrators and Affiliates. Each of the Purchasers and
the Administrator and their Affiliates may extend credit to, accept deposits
from and generally engage in any kind of banking, trust, debt, entity or other
business with the Seller, WESCO, Servicer or any Originator or any of their
Affiliates and Wachovia Securities, Inc. may exercise or refrain from exercising
its rights and powers as if it were not the Administrator. With respect to the
acquisition of the Eligible Receivables pursuant to this Agreement, each of the
Purchaser Agents and the Administrator shall have the same rights and powers
under this Agreement as any Purchaser and may exercise the same as though it
were not such an agent, and the terms "Purchaser" and "Purchasers" shall include
each of the Purchaser Agents and the Administrator in their individual
capacities.
Section 5.9. Indemnification. Each Purchaser Group shall indemnify and
hold harmless the Administrator (but solely in its capacity as Administrator)
and its officers, directors, employees, representatives and agents (to the
extent not reimbursed by the Seller, WESCO or Servicer and without limiting the
obligation of the Seller, WESCO or Servicer to do so), ratably in accordance
with its Ratable Share from and against any and all liabilities, obligations,
losses, damages, penalties, judgments, settlements, costs, expenses and
disbursements of any kind whatsoever (including in connection with any
investigative or threatened proceeding, whether or not the Administrator or such
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Administrator or such Person as a result of,
or related to, any of the transactions contemplated by the Transaction Documents
or the execution, delivery or performance of the Transaction Documents or any
other document furnished in connection therewith (but excluding any such
liabilities, obligations, losses, damages, penalties, judgments, settlements,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Administrator or such Person as finally determined by
a court of competent jurisdiction); provided, that in the case of each Purchaser
that is a commercial paper conduit, such indemnity shall be provided solely to
the extent of amounts received by such Purchaser under this Agreement which
exceed the amounts required to repay such Purchaser's outstanding Notes.
Notwithstanding anything in this Section 5.9 to the contrary, each of the
Administrator, each Purchaser Agent and each Purchaser hereby covenants and
agrees that it shall not institute against, or join any other Person in
instituting against, any Conduit Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing Note issued by such Conduit Purchaser is paid in full.
Section 5.10. Successor Administrator. The Administrator may, upon at
least five (5) days notice to the Seller and each Purchaser and Purchaser Agent,
resign as Administrator. Such resignation shall not become effective until a
successor agent is appointed by the Majority Purchasers and has accepted such
appointment. Upon such acceptance of its appointment as Administrator hereunder
by a successor Administrator, such successor Administrator shall
23
succeed to and become vested with all the rights and duties of the retiring
Administrator, and the retiring Administrator shall be discharged from its
duties and obligations under the Transaction Documents. After any retiring
Administrator's resignation hereunder, the provisions of Sections 3.1 and 3.2
and this Article V shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Administrator.
ARTICLE VI.
MISCELLANEOUS
Section 6.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any other Transaction Document, or consent to any departure
by the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by the Administrator and each of the Majority Purchasers, and, in the
case of any amendment, by the other parties thereto; and then such amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that to the extent required
by the commercial paper program of any Conduit Purchaser, no such material
amendment shall be effective until both Moody's and Standard & Poor's have
notified the Servicer and the Administrator in writing that such action will not
result in a reduction or withdrawal of the rating of any Notes; provided,
further that no such amendment or waiver shall, without the consent of each
affected Purchaser, (A) extend the date of any payment or deposit of Collections
by the Seller or the Servicer, (B) reduce the rate or extend the time of payment
of Discount, (C) reduce any fees payable to the Administrator, any Purchaser
Agent or any Purchaser pursuant to the applicable Purchaser Group Fee Letter,
(D) change the amount of Investment of any Purchaser, any Purchaser's pro rata
share of the Purchased Interest or any Related Committed Purchaser's Commitment,
(E) amend, modify or waive any provision of the definition of "Majority
Purchaser" or this Section 6.1, (F) consent to or permit the assignment or
transfer by the Seller of any of its rights and obligations under this
Agreement, (G) change the definition of "Eligible Receivable," "Loss Reserve,"
"Loss Reserve Percentage," "Dilution Reserve," "Dilution Reserve Percentage" or
"Termination Event", (H) amend or modify any defined term (or any defined term
used directly or indirectly in such defined term) used in clauses (A) through
(G) above in a manner that would circumvent the intention of the restrictions
set forth in such clauses, or (I) otherwise materially and adversely affect the
rights of any such Purchaser hereunder; provided, further, that no such
amendment or waiver shall, without the consent of each Purchaser, change the
definition of "Group A Required Reserve Percentage" (or any defined term used to
calculate the Group A Required Reserve Percentage) so as to effectuate a
decrease in the Group A Required Reserve Percentage. Notwithstanding anything
herein to the contrary, no amendment, assignment or increase shall without the
consent of all Purchasers become effective if such amendment, assignment or
increase would cause the aggregate of the Commitments of the Purchasers that are
not Group A Purchasers to become more than $200,000,000, unless the Purchasers
that are not Group A Purchasers have an aggregate Commitment that is at least
50% of the aggregate Commitment of all Purchasers. No failure on the part of the
Purchasers or the Administrator to exercise, and no delay in exercising any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
Section 6.2. Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and
24
be sent or delivered to each party hereto at its address set forth under its
name on the signature pages hereof (or in any Assumption Agreement pursuant to
which it became a party hereto) or at such other address as shall be designated
by such party in a written notice to the other parties hereto. Notices and
communications by facsimile shall be effective when sent (and shall be followed
by hard copy sent by first class mail), and notices and communications sent by
other means shall be effective when received.
Section 6.3. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Except as otherwise provided herein, the Seller may not
assign or transfer any of its rights or delegate any of its duties hereunder or
under any Transaction Document without the prior consent of the Administrator,
the Purchaser Agents and the Purchasers.
(b) Participations. Any Purchaser may sell to one or more
Persons (each a "Participant") participating interests in the interests of such
Purchaser hereunder; provided, however, that no Purchaser shall grant any
participation under which the Participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Transaction Document. Such
Purchaser shall remain solely responsible for performing its obligations
hereunder, and the Seller, each Purchaser Agent and the Administrator shall
continue to deal solely and directly with such Purchaser in connection with such
Purchaser's rights and obligations hereunder. A Purchaser shall not agree with a
Participant to restrict such Purchaser's right to agree to any amendment hereto,
except amendments that require the consent of all Purchasers.
(c) Assignments by Certain Related Committed Purchasers.
Any Related Committed Purchaser may assign to one or more Persons (each a
"Purchasing Related Committed Purchaser"), reasonably acceptable to the related
Purchaser Agent in its sole discretion, any portion of its Commitment pursuant
to a supplement hereto, substantially in the form of Annex E with any changes as
have been approved by the parties thereto (a "Transfer Supplement"), executed by
each such Purchasing Related Committed Purchaser, such selling Related Committed
Purchaser, such related Purchaser Agent. Any such assignment by Related
Committed Purchaser cannot be for an amount less than $25,000,000. Upon (i) the
execution of the Transfer Supplement, (ii) delivery of an executed copy thereof
to the Seller, such related Purchaser Agent and the Administrator and (iii)
payment by the Purchasing Related Committed Purchaser to the selling Related
Committed Purchaser of the agreed purchase price, such selling Related Committed
Purchaser shall be released from its obligations hereunder to the extent of such
assignment and such Purchasing Related Committed Purchaser shall for all
purposes be a Related Committed Purchaser party hereto and shall have all the
rights and obligations of a Related Committed Purchaser hereunder to the same
extent as if it were an original party hereto. The amount of the Commitment of
the selling Related Committed Purchaser allocable to such Purchasing Related
Committed Purchaser shall be equal to the amount of the Commitment of the
selling Related Committed Purchaser transferred regardless of the purchase price
paid therefor. The Transfer Supplement shall be an amendment hereof only to the
extent necessary to reflect the addition of such Purchasing Related Committed
Purchaser as a "Related Committed
25
Purchaser" and any resulting adjustment of the selling Related Committed
Purchaser's Commitment.
(d) Replaceable Related Committed Purchaser. If any
Related Committed Purchaser (a "Replaceable Related Committed Purchaser") shall
(i) petition the Seller for any amounts under Section 1.7 or 1.8 or (ii) cease
to have a short-term debt rating of "A-1" by Standard & Poor's and "P-1" by
Xxxxx'x (if such a rating is required by the related Purchaser's securitization
program), the related Purchaser Agent may designate a replacement financial
institution (a "Replacement Related Committed Purchaser"), to which such
Replaceable Related Committed Purchaser shall, subject to its receipt of an
amount equal to the aggregate outstanding principal balance of its Investment
and accrued and unpaid Discount thereon (and, if applicable, its receipt (unless
a later date for the remittance thereof shall be agreed upon by the Seller and
such Replaceable Related Committed Purchaser) of all amounts claimed under
Section 1.7 and/or 1.8) promptly assign all of its rights, obligations and
Commitment hereunder, together with all of its right, title and interest in, to
and under the Purchased Interest allocable to it, to the Replacement Related
Committed Purchaser in accordance with Section 6.3(c), above. Once such
assignment becomes effective, the Replacement Related Committed Purchaser shall
be deemed to be a "Related Committed Purchaser" for all purposes hereof and such
Replaceable Related Committed Purchaser shall cease to be "Related Committed
Purchaser" for all purposes hereof and shall have no further rights or
obligations hereunder.
(e) Assignment by Conduit Purchasers. Each party hereto
agrees and consents (i) to any Conduit Purchaser's assignment, participation,
grant of security interests in or other transfers of any portion of, or any of
its beneficial interest in, the Purchased Interest (or portion thereof),
including without limitation to any collateral agent in connection with its
commercial paper program and (ii) to the complete assignment by any Conduit
Purchaser of all of its rights and obligations hereunder to any other Person,
and upon such assignment such Conduit Purchaser shall be released from all
obligations and duties, if any, hereunder; provided, however, that such Conduit
Purchaser may not, without the prior consent of its Related Committed
Purchasers, make any such transfer of its rights hereunder unless the assignee
(i) is principally engaged in the purchase of assets similar to the assets being
purchased hereunder, (ii) has as its Purchaser Agent the Purchaser Agent of the
assigning Conduit Purchaser and (iii) issues commercial paper or other Notes
with credit ratings substantially comparable to the ratings of the assigning
Conduit Purchaser. Any assigning Conduit Purchaser shall deliver to any assignee
a supplement hereto, substantially in the form of Annex D with any changes as
have been approved by the parties thereto (also, a "Transfer Supplement"), duly
executed by such Conduit Purchaser, assigning any portion of its interest in the
Purchased Interest to its assignee. Such Conduit Purchaser shall promptly (i)
notify each of the other parties hereto of such assignment and (ii) take all
further action that the assignee reasonably requests in order to evidence the
assignee's right, title and interest in such interest in the Purchased Interest
and to enable the assignee to exercise or enforce any rights of such Conduit
Purchaser hereunder. Upon the assignment of any portion of its interest in the
Purchased Interest, the assignee shall have all of the rights hereunder with
respect to such interest (except that the Discount therefor shall thereafter
accrue at the rate, determined with respect to the assigning Conduit Purchaser
unless the Seller, the related Purchaser Agent and the assignee shall have
agreed upon a different Discount).
26
(f) Opinions of Counsel. If required by the Administrator
or the applicable Purchaser Agent or to maintain the ratings of any Conduit
Purchaser, each Transfer Supplement must be accompanied by an opinion of counsel
of the assignee as to such matters as the Administrator or such Purchaser Agent
may reasonably request.
Section 6.4. Costs, Expenses and Taxes. In addition to the rights of
indemnification granted under Section 3.1, the Seller agrees to pay on demand
(which demand shall be accompanied by documentation thereof in reasonable
detail) all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic internal audits by
the Administrator of Pool Receivables) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for the
Administrator, each Purchaser Group and their respective Affiliates and agents
with respect thereto and with respect to advising the Administrator, each
Purchaser Group and their respective Affiliates and agents as to their rights
and remedies under this Agreement and the other Transaction Documents, and (ii)
all reasonable costs and expenses (including Attorney Costs), if any, of the
Administrator, each Purchaser Group and their respective Affiliates and agents
in connection with the enforcement of this Agreement and the other Transaction
Documents.
(a) In addition, the Seller shall pay on demand any and
all stamp and other taxes and fees payable in connection with the execution,
delivery, filing and recording of this Agreement or the other documents or
agreements to be delivered hereunder, and agrees to save each Indemnified Party
harmless from and against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
Section 6.5. No Proceedings; Limitation on Payments. Each of the
Seller, WESCO, the Servicer, the Administrator, the Purchaser Agents, the
Purchasers, each assignee of the Purchased Interest or any interest therein, and
each Person that enters into a commitment to purchase the Purchased Interest or
interests therein, hereby covenants and agrees that it will not institute
against, or join any other Person in instituting against, any Conduit Purchaser
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, for one year and one day after the latest maturing Note issued by such
Conduit Purchaser is paid in full. The provision of this Section 6.5 shall
survive any termination of this Agreement.
Section 6.6. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A
SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL
ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
27
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY
BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 6.7. Execution in Counterparts. This Agreement may be executed
in any number of 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.
Section 6.8. Survival of Termination. The provisions of Sections 1.7,
1.8, 3.1, 3.2, 6.4, 6.5, 6.6, 6.9 and 6.14 shall survive any termination of this
Agreement.
Section 6.9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
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 AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY 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. EACH OF THE PARTIES HERETO
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO
FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 6.10. Sharing of Recoveries. Each Purchaser agrees that if it
receives any recovery, through set-off, judicial action or otherwise, on any
amount payable or recoverable hereunder in a greater proportion than should have
been received hereunder or otherwise inconsistent with the provisions hereof,
then the recipient of such recovery shall purchase for cash an interest in
amounts owing to the other Purchasers (as return of Investment or otherwise),
without representation or warranty except for the representation and warranty
that such interest is being sold by each such other Purchaser free and clear of
any Adverse Claim created or granted by such other Purchaser, in the amount
necessary to create proportional participation by the
28
Purchaser in such recovery. If all or any portion of such amount is thereafter
recovered from the recipient, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
Section 6.11. Right of Setoff. During a Termination Event, each
Purchaser is hereby authorized (in addition to any other rights it may have) to
setoff, appropriate and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and any other
indebtedness held or owing by such Purchaser (including by any branches or
agencies of such Purchaser) to, or for the account of, the Seller against
amounts owing by the Seller hereunder (even if contingent or unmatured).
Section 6.12. Entire Agreement. This Agreement and the other
Transaction Documents embody the entire agreement and understanding between the
parties hereto, and supersede all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
Section 6.13. Headings. The captions and headings of this Agreement and
any Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
Section 6.14. Purchaser Groups' Liabilities. The obligations of each
Purchaser Agent and each Purchaser under the Transaction Documents are solely
the corporate obligations of such Person. Except with respect to any claim
arising out of the willful misconduct or gross negligence of the Administrator,
any Purchaser Agent or any Purchaser, no claim may be made by the Seller or the
Servicer or any other Person against the Administrator, any Purchaser Agent or
any Purchaser or their respective Affiliates, directors, officers, employees,
attorneys or agents for any special, indirect, consequential or punitive damages
in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by the Agreement or
any other Transaction Document, or any act, omission or event occurring in
connection therewith; and each of Seller and Servicer hereby waives, releases,
and agrees not to xxx upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
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.
WESCO RECEIVABLES CORP.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Treasurer and Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WESCO DISTRIBUTION, INC.,
as Servicer
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Treasurer and Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Second Amended and Restated
Receivables Purchase Agreement
X-0
XXXXXX XXXXXX FUNDING CORPORATION,
as a Conduit Purchaser
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
Market Street Funding Corporation
c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
PNC Bank, National Association
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent for Market Street Funding
Corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
PNC Bank, National Association
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Second Amended and Restated
Receivables Purchase Agreement
S-2
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Conduit Purchaser
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Account Manager-Wesco
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
GENERAL ELECTRIC CAPITAL
CORPORATION, as Purchaser Agent for General
Electric Capital Corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Account Manager-Wesco
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Second Amended and Restated
Receivables Purchase Agreement
S-3
WACHOVIA SECURITIES, INC.,
as Administrator
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
XX-0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Second Amended and Restated
Receivables Purchase Agreement
S-4
BLUE RIDGE ASSET FUNDING
CORPORATION, as a Conduit Purchaser
By: Wachovia Capital Markets, LLC
as Attorney in Fact
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Blue Ridge Asset Funding Corporation
c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Purchaser Agent for Blue
Ridge Asset Funding Corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
XX-0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Second Amended and Restated
Receivables Purchase Agreement
S-5
FIFTH THIRD BANK, as a Conduit Purchaser
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
FIFTH THIRD BANK,
as Purchaser Agent for Fifth Third Bank
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Second Amended and Restated
Receivables Purchase Agreement
S-6
THE RELATED COMMITTED PURCHASERS:
PNC BANK, NATIONAL ASSOCIATION,
as a Related Committed Purchaser for Market Street
Funding Corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telephone No: (000) 000-0000
Facsimile No.: (000) 000-0000
Commitment: $40,000,000
Scheduled Commitment Termination Date: August
31, 2004
Second Amended and Restated
Receivables Purchase Agreement
S-7
FIFTH THIRD BANK, as a Related Committed
Purchaser for Fifth Third Bank
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Commitment: $60,000,000
Scheduled Commitment Termination Date: August
29, 2006
Second Amended and Restated
Receivables Purchase Agreement
S-8
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Related Committed
Purchaser for General Electric Capital Corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Account Manager-Wesco
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Commitment: $75,000,000
Scheduled Commitment Termination Date: August
29, 2006
Second Amended and Restated
Receivables Purchase Agreement
S-9
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Related Committed Purchaser
for Blue Ridge Asset Funding Corporation
By: Wachovia Capital Markets, LLC
as Attorney in Fact
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Blue Ridge Asset Funding Corporation
c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Commitment: $125,000,000
Scheduled Commitment Termination Date: August
31, 2004
Second Amended and Restated
Receivables Purchase Agreement
S-10
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and
Annexes), 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). Unless otherwise indicated, all Section, Annex, Exhibit and Schedule
references in this Exhibit are to Sections of and Annexes, Exhibits and
Schedules to the Agreement.
"Administrator" has the meaning set forth in the preamble to the
Agreement.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any thereof in favor of the Administrator (for the benefit of the
Purchasers ) shall not constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.7 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that, in the case of each Conduit
Purchaser, Affiliate shall mean the holder of its capital stock. For purposes of
this definition, control of a Person shall mean the power, direct or indirect:
(x) to vote 25% or more of the securities having ordinary voting power for the
election of directors of such Person, or (y) to direct or cause the direction of
the management and policies of such Person, in either case whether by ownership
of securities, contract, proxy or otherwise.
"Aggregate Discount" at any time, means the sum of the aggregate for
each Purchaser of the accrued and unpaid Discount with respect to each such
Purchaser's Investment at such time.
"Aggregate Investment" means, at any time, the aggregate of the
Investments of each Purchaser at such time.
"Agreement" has the meaning set forth in the preamble to the Agreement.
"Assumption Agreement" means an agreement substantially in the form set
forth in Annex D to the Agreement.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all reasonable disbursements of
internal counsel.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.), as amended from time to time.
"Base Rate" means, any Purchaser, for any day (a) a fluctuating
interest rate per annum as shall be in effect from time to time, which rate
shall be at all times equal to the higher of:
I-1
(i) the rate of interest in effect for such day as
publicly announced from time to time by such Purchaser's Purchaser
Agent as its "prime rate", "base rate" or similarly designate rate and
which is used as a general reference point for pricing some loans,
which may be priced at, above or below such announced rate, and
(ii) 0.50% per annum above the latest Federal Funds Rate;
or
(b) such other rate set forth as the "Base Rate" for such
Purchaser in its Purchaser Group Fee Letter, or any other document pursuant to
which is became a party hereto.
"BBA" means the British Bankers' Association.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator, WESCO or
any ERISA Affiliate is, or at any time during the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day (other than a Saturday or Sunday) on
which: (a) banks are not authorized or required to close in New York City, New
York or Pittsburgh, Pennsylvania, and (b) if this definition of "Business Day"
is utilized in connection with the Euro-Rate, dealings are carried out in the
London interbank market.
"Change in Control" means that WESCO ceases to own, directly or
indirectly, (a) 100% of the capital stock of the Seller free and clear of all
Adverse Claims or (b) a majority of the capital stock of any Originator free and
clear of all Adverse Claims other than the pledges by WESCO to General Electric
Capital Corporation, as agent for itself and various lenders pursuant to (i) the
Security Agreement dated as of March 19, 2002, among WESCO, General Electric
Capital Corporation, as agent, and various other parties and (ii) the Borrower
Pledge Agreement dated as of March 19, 2002 between WESCO and General Electric
Capital Corporation as agent, as either such agreement may be amended, restated,
supplemented or otherwise modified from time to time.
"Closing Date" means September 2, 2003.
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by any Originator, WESCO, the Seller or the Servicer in
payment of any amounts owed in respect of such Receivable (including purchase
price, finance charges, interest and all other charges), or applied to amounts
owed in respect of such Receivable (including insurance payments and net
proceeds of the sale or other disposition of repossessed goods or other
collateral or property of the related Obligor or any other Person directly or
indirectly liable for the payment of such Pool Receivable and available to be
applied thereon), (b) all amounts deemed to have been received pursuant to
Section 1.4(e) of the Agreement and (c) all other proceeds of such Pool
Receivable.
"Commitment" means, with respect to each Related Committed Purchaser,
the maximum amount which such Purchaser is obligated to pay hereunder on account
of any Purchase, as set forth below its signature to this Agreement or in the
Assumption Agreement or any similar document pursuant to which it became a
Purchaser, as such amount may be modified in
I-2
connection with any subsequent assignment pursuant to Section 6.3(c) or in
connection with a change in the Purchase Limit pursuant to Section 1.1(b).
"Commitment Percentage" means, for each Related Committed Purchaser in
a Purchaser Group, such Related Committed Purchaser's Commitment divided by the
total of all Commitments of all Related Committed Purchasers in such Purchaser
Group.
"Company Note" has the meaning set forth in Section 3.1 of the Sale
Agreement.
"Concentration Percentage" means: (a) for any Obligor that is not a
Special Obligor, the Normal Concentration Percentage and (b) for any Special
Obligor, the "Special Obligor Concentration Percentage", approved in writing by
each Purchaser Agent, and set forth as such opposite its name on Annex C to the
Agreement; provided, however, that the Administrator may, if the Rating Agency
Condition is satisfied and each of the Purchasers has so consented, approve
higher Concentration Percentages for selected Obligors (which approved
percentage shall become the "Concentration Percentage" applicable to such
Obligor).
"Conduit Purchasers" means each commercial paper conduit or other
entity that is a party to the Agreement, as a purchaser, or that becomes a party
to the Agreement, as a purchaser pursuant to an Assumption Agreement.
"Construction Division" means each of the following branches of WESCO
or Wesco Equity Corporation, as applicable: (a) Hicksville, (b) Parsippany, (c)
Rochester, (d) Pittsburgh, (e) Las Vegas, (f) Avon Electrical Supply/Liberty
Electric, (g) Xxxxxx and (h) Nevada Electric Supply.
"Construction Division Pool Receivable" means each Pool Receivable
originated by a branch in the Construction Division of WESCO.
"Contract" means, with respect to any Receivable, any and all
contracts, instruments, agreements, leases, invoices, notes or other writings
pursuant to which such Receivable arises or that evidence such Receivable or
under which an Obligor becomes or is obligated to make payment in respect of
such Receivable.
"Core Division" means each of the following branches of WESCO
(including WESCO) or Wesco Equity Corporation, as applicable, each of which use
the ENDURA System: (a) EESCO-ACE, (b) Diversified Electric, (c) Xxxxx-Xxxxx, (d)
IES-Atlanta, (e) Murco, (f) Power Supply, (g) Standard Electric and (h)
Statewide Electric; excluding, however, the following branches: (a) Hicksville,
(b) Parsippany, (c) Rochester, (d) Pittsburgh, (e) Las Vegas, (f) Fife, (g) M&M
Power and (h) New York, Construction Division branches.
"Core Division Pool Receivable" means each Pool Receivable originated
by a branch in the Core Division of WESCO.
"CP Rate" means, with respect to any Conduit Purchaser for any Yield
Period with respect to any Portion of Investment (a) the per annum rate
equivalent to the "weighted average cost" (as defined below) related to the
issuance of such Conduit Purchaser's Notes that are allocated, in whole or in
part, by it (or by its Purchaser Agent) to fund or maintain such Portion
I-3
of Investment (and which may also be allocated in part to the funding of other
Portions of Investment hereunder or of other assets of such Conduit Purchaser);
provided, however, that if any component of such rate is a discount rate, in
calculating the "CP Rate" for such Portion of Investment for such Yield Period,
such Conduit Purchaser shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum;
provided, further, that notwithstanding anything in the Agreement or the other
Transaction Documents to the contrary, the Seller agrees that any amounts
payable to the Purchasers in respect of Discount for any Yield Period with
respect to any Portion of Investment funded by such Purchaser at the CP Rate
shall include an amount equal to the portion of the face amount of the
outstanding Notes issued to fund or maintain such Portion of Investment that
corresponds to the portion of the proceeds of such Notes that was used to pay
the interest component of maturing Notes issued to fund or maintain such Portion
of Investment, to the extent that such Purchaser had not received payments of
interest in respect of such interest component prior to the maturity date of
such maturing Notes (for purposes of the foregoing, the "interest component" of
Notes equals the excess of the face amount thereof over the net proceeds
received by such Purchaser from the issuance of Notes, except that if such Notes
are issued on an interest-bearing basis its "interest component" will equal the
amount of interest accruing on such Notes through maturity) (as used in this
definition, "weighted average cost" shall consist of (x) the actual interest
rate (or discount) paid to purchasers of Conduit Purchaser's Notes, together
with the commissions of placement agents and dealers in respect of such Notes,
to the extent such commissions are allocated, in whole or in part, to such Notes
by such Conduit Purchaser (or by its Purchaser Agent) and (y) any incremental
carrying costs incurred with respect to such Conduit Purchaser's Notes maturing
on dates other than those on which corresponding funds are received by such
Conduit Purchaser), or (b) such other rate set fort as the "CP Rate" for such
Conduit Purchaser in its Purchaser Group Fee Letter or any other document
pursuant to which it became a party hereto. Notwithstanding the foregoing, the
"CP Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2% above the Base Rate in effect on such day.
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of each Originator and
of WESCO in effect on the date of the Agreement and described in Schedule I to
the Agreement, as modified in compliance with the Agreement.
"Cut-off Date" has the meaning set forth in the Sale Agreement.
"Days' Sales Outstanding" means, for any calendar month, an amount
computed as of the last day of such calendar month equal to: (a) the average of
the Outstanding Balance of all Pool Receivables as of the last day of each of
the three most recent calendar months ended on the last day of such calendar
month divided by (b)(i) the aggregate credit sales made by the Originators
during the three calendar months ended on the last day of such calendar month
divided by (ii) 90.
"Debt" means: (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases that shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or
I-4
otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (a) through (d).
"Default Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that became Defaulted Receivables during such
month, by (b) the aggregate credit sales made by the Originators during the
month that is five months before such month.
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains
unpaid for more than 150 days from the original invoice date for such
payment, or
(b) without duplication (i) as to which an Event of
Bankruptcy shall have occurred with respect to the Obligor thereof or
any other Person obligated thereon or owning any Related Security with
respect thereto, (ii) that has been written off the Seller's books as
uncollectible or (iii) that should have been written off the Seller's
books as uncollectible pursuant to the Credit and Collection Policy.
"Delinquency Ratio" means the ratio (expressed as a percentage and
rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward),
computed as of the last day of each calendar month by dividing: (a) the
aggregate Outstanding Balance of all Pool Receivables that became Delinquent
Receivables during such month, by (b) the aggregate Outstanding Balance of all
Pool Receivables on such day.
"Delinquent Receivable" means a Receivable (a) as to which any payment,
or part thereof, remains unpaid for more than 120 days from the original invoice
date for such payment or (b) without duplication, which has been (or consistent
with the Credit and Collection Policy, would be) classified as a Delinquent
Receivable by the applicable Originator.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as
of the last day of each calendar month by dividing: (a) the aggregate amount of
payments made or owed by the Seller pursuant to Section 1.4(e)(i) of the
Agreement during such calendar month by (b) the aggregate credit sales made by
all the Originators during the calendar month that is one month prior to such
calendar month.
"Dilution Reserve" means, on any day, an amount equal to: (a) the
aggregate of the portions of the Investments of all Purchasers set forth in
paragraph (a) of the definition thereof at the close of business of the Servicer
on such date multiplied by (b) (i) the Dilution Reserve Percentage on such date,
divided by (ii) 100% minus the Dilution Reserve Percentage on such date.
"Dilution Reserve Percentage" means on any date, the positive
difference, if any, of (i) the most recently determined Dilution Ratio, minus
(ii) 6.5%.
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"Discount" means with respect to any Purchaser:
(a) for any Portion of Investment for any Yield Period
with respect to any Purchaser to the extent such Portion of Investment
will be funded by such Purchaser during such Yield Period through the
issuance of Notes:
CPR x I x ED/360
(b) for any Portion of Investment for any Yield Period
with respect to any Purchaser to the extent such Portion of Investment
will not be funded by such Purchaser during such Yield Period through
the issuance of Notes:
YR x I x ED/Year + TF
where:
YR = the "Yield Rate" as defined herein, for
such Portion of Investment for such Yield
Period with respect to such Purchaser,
I = the Investment with respect to such Portion
of Investment during such Yield Period with
respect to such Purchaser,
CPR = the CP Rate for the Portion of Investment
for such Yield Period with respect to such
Purchaser,
ED = the actual number of days during such Yield
Period,
Year = if such Portion of Investment is funded
based upon: (i) the Euro-Rate, 360 days,
and (ii) the Base Rate, 365 or 366 days, as
applicable, and
TF = the Termination Fee, if any, for the
Portion of Investment for such Yield Period
with respect to such Purchaser;
provided, that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided further, that Discount for any Portion of Investment shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is (i) a United States resident;
provided, however, if the Obligor of such Receivable is not a resident
of the United States, such Receivable shall be deemed to satisfy the
requirements of this clause (a)(i) to the extent that the sum of the
Outstanding Balance of such Receivables does not exceed the lesser of
$8,000,000 or 2% of the aggregate Outstanding Balance of all other
Eligible Receivables at such time, as determined without giving effect
to this proviso, (ii) not a government or a governmental subdivision,
affiliate or agency; provided, however, if the Obligor of such
Receivable is a government or governmental
I-6
subdivision, affiliate or agency, such Receivable shall be deemed to
satisfy the requirements of this clause (a)(ii) to the extent that the
sum of the Outstanding Balance of such Receivables does not exceed
1.00% of the aggregate Outstanding Balance of all other Eligible
Receivables at such time, as determined without giving effect to this
proviso, (iii) not subject to any action of the type described in
paragraph (f) of Exhibit V to the Agreement and (iv) not an Affiliate
of WESCO or any Affiliate of WESCO,
(b) that is denominated and payable only in U.S. dollars
in the United States,
(c) that does not have a stated maturity which is more
than 90 days after the original invoice date of such Receivable, unless
a longer stated maturity is approved by and in the sole discretion of
the Administrator and all of the Purchasers in writing, prior to the
acquisition of such Receivable (or any interest therein),
(d) that arises under a duly authorized Contract for the
sale and delivery of goods and services in the ordinary course of an
Originator's business,
(e) that arises under a duly authorized Contract that is
in full force and effect and that is a legal, valid and binding
obligation of the related Obligor, enforceable against such Obligor in
accordance with its terms,
(f) that conforms in all material respects with all
applicable laws, rulings and regulations in effect,
(g) that is not the subject of any asserted dispute,
offset, hold back defense, Adverse Claim or other claim,
(h) that satisfies all applicable requirements of the
applicable Credit and Collection Policy,
(i) that has not been modified, waived or restructured
since its creation, except as permitted pursuant to Section 4.2 of the
Agreement,
(j) in which the Seller owns good and marketable title,
free and clear of any Adverse Claims, and that is freely assignable by
the Seller (including without any consent of the related Obligor),
(k) for which the Administrator (for the benefit of each
Purchaser) shall have a valid and enforceable undivided percentage
ownership or security interest, to the extent of the Purchased
Interest, and a valid and enforceable first priority perfected security
interest therein and in the Related Security and Collections with
respect thereto, in each case free and clear of any Adverse Claim,
(l) that constitutes an account as defined in the UCC,
and that is not evidenced by instruments or chattel paper,
I-7
(m) that is not a Defaulted Receivable,
(n) for which none the Originator thereof, the Seller and
the Servicer has established any offset arrangements with the related
Obligor,
(o) for which Defaulted Receivables of the related
Obligor do not exceed 25% of the Outstanding Balance of all such
Obligor's Receivables,
(p) that represents amounts earned and payable by the
Obligor that are not subject to the performance of additional services
by the Originator thereof, and
(q) if such Receivables was generated by the XXX
Division, that when added to the aggregate Outstanding Balance of all
other Receivables generated by the XXX Division, shall not exceed 30%
of the aggregate Outstanding Balance of all Eligible Receivables then
in the Receivables Pool.
"ENDURA System" means the accounts receivable system maintained at the
main operating center of WESCO in Murraysville, Pennsylvania.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Seller, any Originator or WESCO, (b) a trade
or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Seller, any
Originator or WESCO, or (c) a member of the same affiliated service group
(within the meaning of Section 414(m) of the Internal Revenue Code) as the
Seller, any Originator, any corporation described in clause (a) or any trade or
business described in clause (b).
"Euro-Rate" means with respect to any Yield Period, the interest rate
per annum determined by the Administrator by dividing (the resulting quotient
rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the
rate of interest determined by the applicable Purchaser Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank market offered rates for U.S.
dollars quoted by the BBA as set forth on Dow Xxxxx Markets Service (formerly
known as Telerate) (or appropriate successor or, if British Bankers' Association
or its successor ceases to provide display page 3750 (or such other display page
on the Dow Xxxxx Markets Service system as may replace display page 3750) at or
about 11:00 a.m. (London time) on the Business Day which is two (2) Business
Days prior to the first day of such Yield Period for an amount comparable to the
Portion of Investment to be funded at the Yield Rate and based upon the
Euro-Rate during such Yield Period by (ii) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage. The Euro-Rate may also be expressed by the
following formula:
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Average of London interbank offered rates quoted by
BBA as shown on Dow Xxxxx Markets Service display
page 3750 or appropriate successor
Euro-Rate = ---------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
where "Euro-Rate Reserve Percentage" means, the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including without limitation, supplemental, marginal, and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"). The Euro-Rate shall be adjusted with respect to any
Portion of Investment funded at the Yield Rate and based upon the Euro-Rate that
is outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The applicable Purchaser Agent shall give
prompt notice to the Seller of the Euro-Rate as determined or adjusted in
accordance herewith (which determination shall be conclusive absent manifest
error).
"Event of Bankruptcy" means (a) any case, action or proceeding before
any court or other governmental authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors or (b) any general assignment for the benefit of creditors
of a Person or any composition, marshalling of assets for creditors of a Person,
or other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each of cases (a) and (b) undertaken
under U.S. Federal, state or foreign law, including the U.S. Bankruptcy Code.
"Excess Concentration" means the sum of the amounts by which the
Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the applicable Concentration
Percentage for such Obligor multiplied by (b) the Outstanding Balance of all
Eligible Receivables then in the Receivables Pool.
"Excluded Receivable" means any Receivable (without giving effect to
the exclusion of "Excluded Receivables" from the definition thereof) (i) owed by
an Obligor not a resident of the United States and denominated in a currency
other than U.S. dollars, (ii) originated by any of the New York City Branch, the
Fife Branch or the Tampa Major Projects Branch, identified on WESCO's system as
Branch Nos. 1225, 7147 and 3840, respectively or (iii) originated by any closed
branch, as identified on Schedule V.
"Exiting Purchaser" has the meaning set forth in Section 1.4(b)(ii).
"Facility Termination Date" means the earliest to occur of: (a) with
respect to any Purchaser, the applicable Scheduled Commitment Termination Date
with respect to such Purchaser, subject to any extension thereof pursuant to
Section 1.10 of the Agreement (it being understood that if any such Purchaser
does not extend its Commitment hereunder then the Purchase Limit shall be
reduced ratably with respect to the Purchasers in each Purchaser Group by an
amount equal to the Commitment of such Exiting Purchaser and the Commitment
Percentages and Group Commitments of the Purchasers within each Purchaser Group
shall be
I-9
appropriately adjusted), (b) the date determined pursuant to Section 2.2 of the
Agreement, (c) the date the Purchase Limit reduces to zero pursuant to Section
1.1(b) of the Agreement, (d) with respect to each Purchaser Group, the date that
the commitments of all of the Liquidity Providers terminate under the related
Liquidity Agreements and (e) with respect to each Purchaser Group, the date that
the commitment, of all of the Related Committed Purchasers of such Purchaser
Group terminate pursuant to Section 1.10.
"FASB" has the meaning set forth in Section 1.7(d).
"Federal Funds Rate" means, for any day, the per annum rate set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day will be
the arithmetic mean as determined by the Administrator of the rates for the last
transaction in overnight Federal funds arranged before 9:00 a.m. (New York time)
on that day by each of three leading brokers of Federal funds transactions in
New York City selected by the Administrator.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fees" means the fees payable by the Seller to each Purchaser Group
pursuant to the applicable Purchaser Group Fee Letter.
"GAAP" means the generally accepted accounting principles and practices
in the United States, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Adjusted Dilution Ratio" means, at any time, the rolling
average of the Dilution Ratio for the 12 months then most recently ended.
"Group A Deferred Purchase Price" means, at any time, the positive
difference, if any, between: (i) the Group A Required Reserves at such time and
(ii) the Total Reserves at such time.
"Group A Dilution Horizon Ratio" means, as of any date of
determination, a ratio (expressed as a decimal), computed by dividing (i) the
aggregate sales generated by the
I-10
Originators during the month ending on such date, by (ii) the Net Receivables
Pool Balance as of such date.
"Group A Dilution Reserve" means, on any date, the product (expressed
as a percentage) of: (a) the sum of (i) 2 times the Group A Adjusted Dilution
Ratio as of the last day of the immediately preceding calendar month, plus (ii)
the Group A Dilution Volatility Component as of the last day of the immediately
preceding calendar month, times (b) the Group A Dilution Horizon Ratio as of the
last day of the immediately preceding calendar month.
"Group A Dilution Volatility Component" means the product (expressed as
a percentage) of (i) the difference between (a) the highest three (3)-month
rolling average Dilution Ratio over the past 12 months and (b) the Group A
Adjusted Dilution Ratio, and (ii) a fraction, the numerator of which is equal to
the amount calculated in (i)(a) of this definition and the denominator of which
is equal to the amount calculated in (i)(b) of this definition.
"Group A Loss Reserve" means, on any date, the product (expressed as a
percentage) of (a) 2.0, times (b) the highest three-month rolling average
Default Ratio during: (i) for any month in the first 12 months following
December 31, 2002, the period of time equal to the number of months since
December 31, 2002 ending on the last day of the calendar month immediately
preceding such date, and (ii) on and at all times after the twelfth month
following December 31, 2002, the twelve month period ending on the last day of
the calendar month immediately preceding such date, times (c) the aggregate
credit sales made during the five most recent calendar months.
"Group A Purchaser" means, at any time, each Purchaser listed on
Schedule IV to the Agreement, as such schedule may be amended, supplanted or
otherwise modified from time to time.
"Group A Ratable Share" means on any date with respect to any Group A
Purchaser, a fraction, expressed as a percentage (a) the numerator of which is
equal to the portion of the Investment of such Purchaser set forth in paragraph
(a) of the definition thereof at such time, and (b) the denominator of which is
the aggregate of the portions of the Investment of all Group A Purchasers set
forth in paragraph (a) of the definition thereof at such time.
"Group A Required Reserve Factor Floor" means, for any month, the sum
(expressed as a percentage) of (a) 11% plus (b) the product of the Group A
Adjusted Dilution Ratio and the Group A Dilution Horizon Ratio, in each case, as
of the last day of the immediately preceding calendar month.
"Group A Required Reserve Percentage" means, on any day, the greater of
(a) the Group A Required Reserve Factor Floor and (b) the sum of the Group A
Loss Reserve, the Group A Yield Reserve, the Group A Dilution Reserve and the
Group A Servicing Reserve.
"Group A Required Reserves" means, on any day: (I) the product of (a)
the aggregate of the portions of the Investments of all Purchasers described in
paragraph (a) of the definition thereof, as determined at the close of business
of the Servicer on such date, multiplied by (b)(i) the Group A Required Reserves
Percentage on such date divided by (ii) 100% minus the Group
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A Required Reserve Percentage on such date minus (II) the amount of claims and
deductions considered as ineligible Receivables on such day.
"Group A Servicing Reserve" means, for any month, the product
(expressed as a percentage) of (a) 1.0%, times (b) a fraction, the numerator of
which is the highest Days' Sales Outstanding for the most recent 12 months and
the denominator of which is 360.
"Group A Yield Reserve" means, on any date, the product (expressed as a
percentage) of (a) 1.5 times (b) the Base Rate as of the last day of the
immediately preceding calendar month times (c) a fraction the numerator of which
is the highest Days' Sales Outstanding for the most recent the twelve month
period ending on the last day of the calendar month immediately preceding such
date, and the denominator of which is 360.
"Group Commitment" means with respect to any Purchaser Group the
aggregate of the Commitments of each Purchaser within such Purchaser Group.
"Group Investment" means with respect to any Purchaser Group, an amount
equal to the aggregate of all Investments of the Purchasers within such
Purchaser Group.
"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Independent Director" has the meaning set forth in paragraph 3(c) of
Exhibit IV to the Agreement.
"Information Package" means a report, in substantially the form of
Annex A to the Agreement, furnished to the Administrator pursuant to the
Agreement.
"Insolvency Proceeding" means: (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, in each case undertaken under U.S. Federal, state or foreign law,
including the Bankruptcy Code.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
"Investment" means with respect to any Purchaser (a) the amount paid to
the Seller by such Purchaser pursuant to the Agreement as reduced from time to
time by Collections distributed and applied on account of such Investment
pursuant to Section 1.4(d) of the Agreement; provided, that if such Investment
shall have been reduced by any distribution and thereafter all or a portion of
such distribution is rescinded or must otherwise be returned for any reason,
such Investment shall be increased by the amount of such rescinded or returned
I-12
distribution as though it had not been made, plus (b) solely in the case of any
Group A Purchaser, such Purchaser's Group A Ratable Share of the Group A
Deferred Purchase Price at such time.
"ISC" has the meaning set forth in the preamble to the Agreement.
"Liquidity Agent" means each of the banks acting or other Persons as
agent for the various Liquidity Banks under each Liquidity Agreement.
"Liquidity Agreement" means any agreement entered into in connection
with this Agreement pursuant to which a Liquidity Provider agrees to make
purchases or advances to, or purchase assets from, any Conduit Purchaser in
order to provide liquidity for such Conduit Purchaser's Purchases.
"Liquidity Provider" means each bank or other financial institution
that provides liquidity support to any Conduit Purchaser pursuant to the terms
of a Liquidity Agreement.
"Lock-Box Account" means an account maintained at a bank or other
financial institution for the purpose of receiving Collections.
"Lock-Box Agreement" means an agreement, among the Seller, the Servicer
and a Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock-Box Accounts.
"Loss Reserve" means, on any date, an amount equal to the greater of:
(a) 20%, multiplied by the aggregate of the portions of the Investments of all
Purchasers set forth in paragraph (a) of the definition thereof at the close of
business of the Servicer on such date and (b) (i) the aggregate of the portions
of the Investment of all Purchasers set forth in paragraph (a) of the definition
therof at the close of business of the Servicer on such date multiplied by
(ii)(A) the Loss Reserve Percentage on such date divided by (B) 100% minus the
Loss Reserve Percentage on such date.
"Loss Reserve Percentage" means, on any date, (i) the product of (A) 2
times the highest average of the Default Ratios for any three consecutive
calendar months during the twelve most recent calendar months multiplied by (B)
the aggregate credit sales made during the five most recent calendar months
divided by (ii) the aggregate Outstanding Balance of Eligible Receivables that
are included in the calculation of the Net Receivables Pool Balance as of such
date.
"Majority Purchasers" means, at any time, Purchasers whose Commitments
aggregate more than 66.67% of the aggregate of the Commitments of all
Purchasers; provided, however, that so long as any Purchaser's Commitment is
greater than 66.67% of the aggregate Commitments, then "Majority Purchasers"
shall mean a minimum of two Purchasers whose Commitments aggregate more than
66.67% of the aggregate Commitments.
"Material Adverse Effect" means, relative to any Person with respect to
any event or circumstance, a material adverse effect on:
I-13
(a) the assets, operations, business or financial condition of
such Person,
(b) the ability of any of such Person to perform its
obligations under the Agreement or any other Transaction Document to
which it is a party,
(c) the validity or enforceability of any other Transaction
Document, or the validity, enforceability or collectibility of a
material portion of the Pool Receivables, or
(d) the status, perfection, enforceability or priority of any
Purchaser's or the Seller's interest in the Pool Assets.
"Moody's" means Xxxxx'x Investors Service, Inc.
"XXX Division" means each of the following branches of WESCO or Wesco
Equity Corporation, as applicable, for so long as they do not use the ENDURA
System: (a) Xxxxx Electric, (b) Xxxxxxxx International Group-Houston, (c)
Xxxxxxxx Supply, (d) Xxxxxxx Electric, (e) IES (Birmingham), (f)
Xxxxx-Tri-City-Ies (Mobile) and (g) Xxxxxxxxx Electric.
"XXX Division Receivable" means each Receivable originated by a branch
in the XXX Division of WESCO.
"XXX Division Pool Receivable" means each Pool Receivable originated by
a branch in the XXX Division of WESCO.
"Net Receivables Pool Balance" means, at any time: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool minus (b) the
Excess Concentration.
"Normal Concentration Percentage" means, at any time, 2.0%.
"Notes" means short-term promissory notes issued, or to be issued, by
each Conduit Purchaser (or, if applicable, issued by the funding source pursuant
to which such Conduit Purchaser finances its Investment hereunder) to fund its
investments in accounts receivable or other financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated
to make payments pursuant to the Contract relating to such Receivable.
"Originator" has the meaning set forth in the Sale Agreement.
"Originator Assignment Certificate" means each assignment, in
substantially the form of Exhibit C to the Sale Agreement, evidencing Seller's
ownership of the Receivables generated by Originator, as the same may be
amended, supplemented, amended and restated, or otherwise modified from time to
time in accordance with the Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Payment Date" has the meaning set forth in Section 2.1 of the Sale
Agreement.
I-14
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the
Agreement.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Investment" means, with respect to any Purchaser and its
related Investment, the portion of such Investment being funded or maintained by
such Purchaser by reference to a particular interest rate basis.
"Program Support Agreement" means and includes any Liquidity Agreement
and any other agreement entered into by any Program Support Provider providing
for: (a) the issuance of one or more letters of credit for the account of any
Conduit Purchaser, (b) the issuance of one or more surety bonds for which the
such Conduit Purchaser is obligated to reimburse the applicable Program Support
Provider for any drawings thereunder, (c) the sale by such Conduit Purchaser to
any Program Support Provider of the Purchased Interest (or portions thereof)
maintained by such Conduit Purchaser and/or (d) the making of loans and/or other
extensions of credit to any Conduit Purchaser in connection with such Conduit
Purchaser's securitization program contemplated in the Agreement, together with
any letter of credit, surety bond or other instrument issued thereunder (but
excluding any discretionary advance facility provided by the Administrator).
"Program Support Provider" means and includes with respect to each
Conduit Purchaser any Liquidity Provider and any other Person (other than any
customer of such Conduit Purchaser) now or hereafter extending credit or having
a commitment to extend credit to or for the account of, or to make purchases
from, such Conduit Purchaser pursuant to any Program Support Agreement.
"Purchase" is defined in Section 1.1(a).
"Purchase and Sale Indemnified Amounts" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Indemnified Party" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Termination Date" has the meaning set forth in
Section 1.4 of the Sale Agreement.
"Purchase and Sale Termination Event" has the meaning set forth in
Section 8.1 of the Sale Agreement.
"Purchase Date" means the date of which a Purchase or a reinvestment is
made pursuant to the Agreement.
"Purchase Facility" has the meaning set forth in Section 1.1 of the
Sale Agreement.
I-15
"Purchase Limit" means $300,000,000, as such amount may be reduced
pursuant to Section 1.1(b) of the Agreement. References to the unused portion of
the Purchase Limit shall mean, at any time, the Purchase Limit minus the then
outstanding Aggregate Investment.
"Purchase Price" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchase Report" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchased Interest" means, at any time, the undivided percentage
ownership interest in: (a) each and every Pool Receivable now existing or
hereafter arising, (b) all Related Security with respect to such Pool
Receivables and (c) all Collections with respect to, and other proceeds of, such
Pool Receivables and Related Security. Such undivided percentage interest shall
be computed as:
Aggregate Investment + Total Reserves
----------------------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchaser" means each Conduit Purchaser and/or each Related Committed
Purchaser, as applicable.
"Purchaser Agent" means each Person acting as agent on behalf of a
Purchaser Group and designated as a Purchaser Agent for such Purchaser Group on
the signature pages to the Agreement or any other Person who becomes a party to
this Agreement as a Purchaser Agent pursuant to an Assumption Agreement or a
Transfer Supplement.
"Purchaser Group" means, for each Conduit Purchaser, such Conduit
Purchaser, its Related Committed Purchasers (if any) and its related Purchaser
Agent.
"Purchaser Group Fee Letter" has the meaning set forth in Section 1.5
of the Agreement.
"Ratable Share" means, for each Purchaser Group, such Purchaser Group's
aggregate Commitments divided by the aggregate Commitments of all Purchaser
Groups.
"Rating Agency Condition" means, with respect to any material event or
occurrence, receipt by the Administrator (or the applicable Purchaser Agent) of
written confirmation from each of Standard & Poor's and Moody's that such event
or occurrence shall not cause the rating on the then outstanding Notes of any
applicable Purchaser to be downgraded or withdrawn.
"Receivable" means any indebtedness and other obligations (other than
Excluded Receivables) owed to the Seller or any Originator by, or any right of
the Seller or any Originator to payment from or on behalf of, an Obligor,
whether constituting an account, chattel paper, instrument or general
intangible, arising in connection with the sale of goods or the rendering of
services by an Originator (whether or not earned by performance), and includes
the obligation to pay any finance charges, fees and other charges with respect
thereto. Indebtedness and other obligations arising from any one transaction,
including indebtedness and other obligations
I-16
represented by an individual invoice or agreement, shall constitute a Receivable
separate from a Receivable consisting of the indebtedness and other obligations
arising from any other transaction.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased by the Seller pursuant to the Sale Agreement prior to the
Facility Termination Date.
"Related Committed Purchaser" means each Person listed as such (and its
respective Commitment) for each Conduit Purchaser as set forth on the signature
pages of the Agreement or in any Assumption Agreement or Transfer Supplement.
"Related Rights" has the meaning set forth in Section 1.1 of the Sale
Agreement.
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's and the Originator thereof's interest
in any goods (including returned goods), and documentation of title
evidencing the shipment or storage of any goods (including returned
goods), relating to any sale giving rise to such Receivable,
(b) all instruments and chattel paper that may evidence such
Receivable,
(c) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise, together with all UCC financing statements or similar
filings relating thereto, and
(d) all of the Seller's and the Originator thereof's rights,
interests and claims under the Contracts and all guaranties,
indemnities, insurance and other agreements (including the related
Contract) or arrangements of whatever character from time to time
supporting or securing payment of such Receivable or otherwise relating
to such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise.
"Sale Agreement" means the Purchase and Sale Agreement, dated as of
June 30, 1999, among the Seller, the Originators and the Servicer as amended
through the date of the Agreement and as such agreement may be amended, amended
and restated, supplemented or otherwise modified from time to time.
"Scheduled Commitment Termination Date" means with respect to any
Related Committed Purchaser, the date set forth as such below its signature to
the Agreement or in any Assumption Agreement or other document pursuant to which
such Purchaser became a party hereto.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Seller's Share" of any amount means the greater of: (a) $0 and (b)
such amount minus the product of (i) such amount multiplied by (ii) the
Purchased Interest.
"Servicer" has the meaning set forth in the preamble to the Agreement.
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"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Settlement Date" means the 22nd day of each calendar month or if such
day is not a Business Day, the next succeeding Business Day.
"Simple Majority" means, at any time, Purchasers whose Commitments
aggregate 50% or more of the aggregate of the Commitments of all Purchasers.
"Solvent" means, with respect to any Person at any time, a condition
under which:
(i) the fair value and present fair saleable value of
such Person's total assets is, on the date of determination, greater
than such Person's total liabilities (including contingent and
unliquidated liabilities) at such time;
(ii) the fair value and present fair saleable value of
such Person's assets is greater than the amount that will be required
to pay such Person's probable liability on its existing debts as they
become absolute and matured ("debts," for this purpose, includes all
legal liabilities, whether matured or unmatured, liquidated or
unliquidated, absolute, fixed, or contingent);
(iii) such Person is and shall continue to be able to pay
all of its liabilities as such liabilities mature; and
(iv) such Person does not have unreasonably small capital
with which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or
unliquidated liabilities at any time shall be that amount
which, in light of all the facts and circumstances then
existing, represents the amount which can reasonably be
expected to become an actual or matured liability;
(B) the "fair value" of an asset shall be the
amount which may be realized within a reasonable time either
through collection or sale of such asset at its regular market
value;
(C) the "regular market value" of an asset shall
be the amount which a capable and diligent business person
could obtain for such asset from an interested buyer who is
willing to Purchase such asset under ordinary selling
conditions; and
(D) the "present fair saleable value" of an
asset means the amount which can be obtained if such asset is
sold with reasonable promptness in an arm's-length transaction
in an existing and not theoretical market.
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"Special Obligor" means an Obligor specifically approved in writing by
the Administrator, all of the Purchasers and each of Moody's and Standard &
Poor's, as a Special Obligor and set forth on Annex C to the Agreement.
"Standard & Poor's" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc.
"Subsidiary" means, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock of each class
or other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Tangible Net Worth" means, with respect to any Person, the tangible
net worth of such Person as determined in accordance with GAAP.
"Termination Day" means: (a) each day on which the conditions set forth
in Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day
that occurs on or after the Facility Termination Date.
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Termination Fee" means, for any Yield Period, with respect to any
Purchaser, the amount, if any, by which: (a) the additional Discount related to
such Purchaser's Investment (calculated without taking into account any
Termination Fee or any shortened duration of such Yield Period) that would have
accrued during such Yield Period on the reductions of Investment relating to
such Yield Period had such reductions not been made, exceeds (b) the income, if
any, received by such Purchaser from investing the proceeds of such reductions
of Investment, as determined by the such Purchaser's Purchaser Agent, which
determination shall be binding and conclusive for all purposes, absent manifest
error.
"Total Reserves" means, at any time the sum of : (a) the Loss Reserve,
plus (b) the Dilution Reserve.
"Transaction Documents" means the Agreement, the Lock-Box Agreements,
each Purchaser Group Fee Letter, the Sale Agreement and all other certificates,
instruments, UCC financing statements, reports, notices, agreements and
documents executed or delivered under or in connection with the Agreement, in
each case as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the Agreement.
"Transfer Supplement" has the respective meanings set forth in Sections
6.3(c) and 6.3(e).
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction.
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"Unmatured Purchase and Sale Termination Event" means any event which,
with the giving of notice or lapse of time, or both, would become a Purchase and
Sale Termination Event.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
"WESCO" has the meaning set forth in the preamble to the Agreement.
"Yield Period" means, with respect to each Portion of Investment: (a)
before the Facility Termination Date: (i) initially the period commencing on the
date of the initial Purchase pursuant to Section 1.2 of the Agreement (or in the
case of any fees payable hereunder, commencing on the Closing Date) and ending
on (but not including) the next Settlement Date, and (ii) thereafter, each
period commencing on such Settlement Date and ending on (but not including) the
next Settlement Date, and (b) on and after the Facility Termination Date: such
period (including a period of one day) as shall be selected from time to time by
the Administrator or, in the absence of any such selection, each period of 30
days from the last day of the preceding Yield Period.
"Yield Rate" for any Yield Period for any Portion of Investment of the
Purchased Interest with respect to any Purchaser, means: (a) an interest rate
per annum equal to, at such Purchaser's option: (x) the rate, if any, set forth
as the "Applicable Margin" in the Purchaser Group Fee Letter relating to such
Purchaser above the Euro-Rate for such Yield Period, or (y) the Base Rate for
such Yield Period; provided, however, that in the case of:
(i) any Yield Period on or before the first day of which
the such Purchaser's Purchaser Agent shall have been notified by any
Purchaser or other Program Support Provider that the introduction of or
any change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other Governmental Authority
asserts that it is unlawful, for such Person, to fund any Euro-Rate
Portion of Investment (and such Person shall not have subsequently
notified the such Purchaser Agent that such circumstances no longer
exist),
(ii) any Yield Period of one to (and including) 29 days,
(iii) any Yield Period as to which the such Purchaser's
Purchaser Agent does not receive notice before noon (New York City
time) on the third Business Day preceding the first day of such Yield
Period that the Seller desires that the related Portion of Investment
be a Euro-Rate Portion of Investment, or
(iv) any Yield Period relating to a Portion of Investment
with respect to such Purchaser that is less than $5,000,000,
the "Yield Rate" for each such Yield Period shall be an interest rate per annum
equal to the Base Rate in effect on each day of such Yield Period or (b) such
other rate set forth as the "Yield Rate" for such Purchaser in its Purchaser
Group Fee Letter or any other document pursuant to which it became a party
hereto. The "Yield Rate" for any day while a Termination Event exists shall be
an interest rate equal to 2% per annum above the applicable Base Rate in effect
on such day.
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Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
Unless the context otherwise requires, "or" means "and/or," and "including" (and
with correlative meaning "include" and "includes") means including without
limiting the generality of any description preceding such term.
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EXHIBIT II
CONDITIONS PRECEDENT
1. Conditions Precedent to Initial Purchase. The effectiveness of
this Agreement is subject to the conditions precedent that the Administrator and
each Purchaser Agent shall have received the following items, each in form and
substance (including the date thereof) satisfactory to the Administrator and
each such Purchaser Agent:
(a) A counterpart of the Agreement executed by each of the parties
thereto.
(b) Certified copies of: (i) the resolutions of the Board of
Directors of each of the Seller, the Originators and WESCO authorizing the
execution, delivery and performance by the Seller, such Originator and WESCO, as
the case may be, of the Agreement and the other Transaction Documents to which
it is a party; (ii) all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to the Agreement and the other
Transaction Documents and (iii) the certificate of incorporation and by-laws of
the Seller, each Originator and WESCO.
(c) A certificate of the Secretary or Assistant Secretary of the
Seller, the Originators and WESCO certifying the names and true signatures of
its officers who are authorized to sign the Agreement and the other Transaction
Documents. Until the Administrator and each Purchaser Agent receives a
subsequent incumbency certificate from the Seller, an Originator or WESCO, as
the case may be, the Administrator and each Purchaser Agent shall be entitled to
rely on the last such certificate delivered to it by the Seller, such Originator
or WESCO, as the case may be.
(d) Acknowledgment copies, or time stamped receipt copies, of
proper financing statements (and/or amendments to, or assignments of, the
financing statements filed in connection with the Original Agreement), duly
filed on or before the date hereof under the UCC of all jurisdictions that the
Administrator or any Purchaser Agent may deem necessary or desirable in order to
perfect the interests of the Seller and the Administrator (on behalf of each
Purchaser) contemplated by the Agreement and the Sale Agreement.
(e) [Reserved].
(f) Completed UCC search reports, dated on or shortly before the
date hereof, listing the financing statements filed in all applicable UCC
jurisdictions that name the Originators or the Seller as debtor, together with
copies of such other financing statements, and similar search reports with
respect to judgment liens, federal tax liens and liens of the Pension Benefit
Guaranty Corporation in such jurisdictions, as the Administrator or any
Purchaser Agent may request, showing no Adverse Claims on any Pool Assets.
(g) Copies of any applicable amendments to the existing Lock-Box
Agreements reasonably requested by the Administrator or any Purchaser Agent to
evidence the transfer of administrative functions hereunder and thereunder from
PNC Bank, National Association to Wachovia Securities, Inc.
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(h) Favorable opinions (including any applicable bring-down
opinions), in form and substance reasonably satisfactory to the Administrator
and each Purchaser Agent, of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for Seller,
Servicer and the Originators as to such bankruptcy, UCC and/or general corporate
and enforceability matters, as the Administrator or any Purchaser Agent may
reasonably request.
(i) [Reserved].
(j) [Reserved].
(k) Evidence of payment by the Seller of all accrued and unpaid
fees (including those contemplated by each Purchaser Group Fee Letter), costs
and expenses to the extent then due and payable on the date thereof, including
any such costs, fees and expenses arising under or referenced in Section 6.4 of
the Agreement and the Fee Letter.
(l) Each applicable Purchaser Group Fee Letter and/or any
amendments thereto or amendments and restatements thereof (received only by the
related Purchaser Group Agent) duly executed by the Seller and the Servicer.
(m) Good standing certificates with respect to each of the Seller,
the Originators and the Servicer issued by the Secretary of State (or similar
official) of the state of each such Person's organization and principal place of
business.
(n) To the extent required by each Conduit Purchaser's commercial
paper program, letters from each of the rating agencies then rating the Notes
confirming the rating of such Notes after giving effect to the transaction
contemplated by the Agreement.
(o) [Reserved].
(p) [Reserved].
(q) Such other approvals, opinions or documents as the
Administrator or any Purchaser Agent may reasonably request.
(r) Evidence in form and substance satisfactory to the
Administrator and each Purchaser Agent (including in the form of a payoff
letter) that the aggregate outstanding Investment, Discount and all fees and
other amounts payable to all applicable Purchasers in the Purchaser Groups
including Three Rivers Funding Corporation and Liberty Street Funding Corp. have
been finally paid in full.
2. Conditions Precedent to All Purchases and Reinvestments. Each
Purchase (including the initial Purchase) and each reinvestment shall be subject
to the further conditions precedent that:
(a) in the case of each purchase, the Servicer shall have delivered to
the Administrator and each Purchaser Agent on or before such purchase, in form
and substance satisfactory to the Administrator and such Purchaser Agent, a
completed pro forma Information Package to reflect
II-2
the level of Investment with respect to each Purchaser Group and related
reserves after such subsequent purchase; and
(b) on the date of such purchase or reinvestment the following
statements shall be true (and acceptance of the proceeds of such purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
(i) the representations and warranties contained in Exhibit III to
the Agreement are true and correct in all material respects on and as of the
date of such purchase or reinvestment as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from
such purchase or reinvestment, that constitutes a Termination Event or an
Unmatured Termination Event; and
(iii) the Aggregate Investment shall not exceed the Purchase Limit,
and the Purchased Interest shall not exceed 100%.
II-3
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents
and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to do business and is in good standing as a foreign corporation
in every jurisdiction where the nature of its business requires it to be so
qualified, except where the failure to be so qualified would not have a Material
Adverse Effect.
(b) The execution, delivery and performance by the Seller of the
Agreement and the other Transaction Documents to which it is a party, including
its use of the proceeds of purchases and reinvestments: (i) are within its
corporate powers; (ii) have been duly authorized by all necessary corporate
action; (iii) do not contravene or result in a default under or conflict with:
(A) its charter or by-laws, (B) any law, rule or regulation applicable to it,
(C) any indenture, loan agreement, mortgage, deed of trust or other material
agreement or instrument to which it is a party or by which it is bound, or (D)
any order, writ, judgment, award, injunction or decree binding on or affecting
it or any of its property; and (iv) do not result in or require the creation of
any Adverse Claim upon or with respect to any of its properties. The Agreement
and the other Transaction Documents to which it is a party have been duly
executed and delivered by the Seller.
(c) No authorization, approval or other action by, and no notice
to or filing with, any Governmental Authority or other Person is required for
its due execution, delivery and performance by the Seller of the Agreement or
any other Transaction Document to which it is a party, other than the Uniform
Commercial Code filings referred to in Exhibit II to the Agreement, all of which
shall have been filed on or before the date of the first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents to
which the Seller is a party constitutes its legal, valid and binding obligation
of the Seller enforceable against the Seller in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws from time to time in effect affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(e) There is no pending or, to Seller's best knowledge, threatened
action or proceeding affecting Seller or any of its properties before any
Governmental Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used to
acquire any equity security of a class that is registered pursuant to Section 12
of the Securities Exchange Act of 1934.
III-1
(g) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security, free and clear of any Adverse Claim. Upon each
purchase or reinvestment, Administrator (for the benefit of each Purchaser)
shall acquire a valid and enforceable perfected undivided percentage ownership
or security interest, to the extent of the Purchased Interest, in each Pool
Receivable then existing or thereafter arising and in the Related Security,
Collections and other proceeds with respect thereto, free and clear of any
Adverse Claim. The Agreement creates a security interest in favor of the
Administrator (for the benefit of each Purchaser) in the Pool Assets, and the
Administrator (for the benefit of each Purchaser) has a first priority perfected
security interest in the Pool Assets, free and clear of any Adverse Claims. No
effective financing statement or other instrument similar in effect covering any
Pool Asset is on file in any recording office, except those filed in favor of
the Seller pursuant to the Sale Agreement and the Administrator (for the benefit
of each Purchaser) relating to the Agreement, or in respect of which the
Administrator has received evidence satisfactory to the Administrator of
acknowledgment copies, or time-stamped receipt copies, of proper financing
statements releasing or terminating, as applicable, all security interests and
other rights of any Person in such Pool Asset.
(h) Each Information Package (if prepared by the Seller or one of
its Affiliates, or to the extent that information contained therein is supplied
by the Seller or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Administrator or any Purchaser Agent in
connection with the Agreement or any other Transaction Document to which it is a
party is or will be complete and accurate in all material respects as of its
date or as of the date so furnished, and does not and will not contain any
material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading.
(i) The Seller's (x) principal place of business and chief
executive office and the office where it keeps its records concerning the
Receivables and (y) "location" (as such term is used in the UCC), are, in each
case, located at the addresses referred to in Sections 1(b) and 2(b) of Exhibit
IV to the Agreement.
(j) The names and addresses of all the Lock-Box Banks, together
with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are
specified in Schedule II to the Agreement (or at such other Lock-Box Banks
and/or with such other Lock-Box Accounts as have been notified to the
Administrator in accordance with the Agreement) and all Lock-Box Accounts are
subject to Lock-Box Agreements (except as otherwise agreed to in writing by the
Administrator). Seller has not granted to any Person, other than the
Administrator as contemplated by the Agreement, dominion and control of any
Lock-Box Account, or the right to take dominion and control of any such account
at a future time or upon the occurrence of a future event.
(k) The Seller is not in violation of any order of any court,
arbitrator or Governmental Authority.
(l) Neither the Seller nor any of its Affiliates has any direct or
indirect ownership or other financial interest in any Purchaser.
III-2
(m) No proceeds of any purchase or reinvestment will be used for
any purpose that violates any applicable law, rule or regulation, including
Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing that constitutes a
Termination Event or an Unmatured Termination Event and no event would result
from a purchase in respect of, or reinvestment in respect of, the Purchased
Interest or from the application of the proceeds therefrom that constitutes a
Termination Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage
ownership interests in Receivables in its books and financial statements as
sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the
Credit and Collection Policy of each Originator with regard to each Receivable
originated by such Originator.
(r) The Seller has complied in all material respects with all of
the terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it and all laws, rules, regulations
and orders that are applicable to it.
(s) The Seller's complete corporate name is set forth in the
preamble to the Agreement, and it does not use and has not during the last five
years used any other corporate name, trade name, doing-business name or
fictitious name, except as set forth on Schedule III to the Agreement and except
for names first used after the date of the Agreement and set forth in a notice
delivered to the Administrator pursuant to Section 1(k)(iv) of Exhibit IV to the
Agreement.
(t) The Seller is not an "investment company," or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. In addition, the Seller is not a "holding
company," a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(u) [Reserved].
(v) With respect to each Receivable transferred to the Seller
under the Sale Agreement, Seller has given reasonably equivalent value to the
Originator thereof in consideration therefor and such transfer was not made for
or on account of an antecedent debt. No transfer by any Originator of any
Receivable under the Sale Agreement is or may be voidable under any Section of
the Bankruptcy Code.
(w) Each Contract with respect to each Receivable is effective to
create, and has created, a legal, valid and binding obligation of the related
Obligor to pay the Outstanding Balance of the Receivable created thereunder and
any accrued interest thereon, enforceable
III-3
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(x) Since its most recent fiscal year end, there has been no
change in the business, operations, financial condition, properties or assets of
the Seller which would have a Material Adverse Effect on its ability to perform
its obligations under the Agreement or any other Transaction Document to which
it is a party or materially and adversely affect the transactions contemplated
under the Agreement or such other Transaction Documents.
2. Representations and Warranties of WESCO (including in its capacity
as the Servicer). WESCO, individually and in its capacity as the Servicer,
represents and warrants as follows:
(a) WESCO is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and is duly qualified
to do business and is in good standing as a foreign corporation in every
jurisdiction where the nature of its business requires it to be so qualified,
except where the failure to be so qualified would not have a Material Adverse
Effect.
(b) The execution, delivery and performance by WESCO of the
Agreement and the other Transaction Documents to which it is a party, including
the Servicer's use of the proceeds of purchases and reinvestments: (i) are
within its corporate powers; (ii) have been duly authorized by all necessary
corporate action; (iii) do not contravene or result in a default under or
conflict with: (A) its charter or by-laws, (B) any law, rule or regulation
applicable to it, (C) any indenture, loan agreement, mortgage, deed of trust or
other material agreement or instrument to which it is a party or by which it is
bound, or (D) any order, writ, judgment, award, injunction or decree binding on
or affecting it or any of its property; and (iv) do not result in or require the
creation of any Adverse Claim upon or with respect to any of its properties. The
Agreement and the other Transaction Documents to which WESCO is a party have
been duly executed and delivered by WESCO.
(c) No authorization, approval or other action by, and no notice
to or filing with any Governmental Authority or other Person, is required for
the due execution, delivery and performance by WESCO of the Agreement or any
other Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents to
which WESCO is a party constitutes the legal, valid and binding obligation of
WESCO enforceable against WESCO in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) The balance sheets of WESCO and its consolidated Subsidiaries
as at December 31, 2002, and the related statements of income and retained
earnings for the fiscal year then ended, copies of which have been furnished to
the Administrator and each Purchaser Agent,
III-4
fairly present the financial condition of WESCO and its consolidated
Subsidiaries as at such date and the results of the operations of WESCO and its
Subsidiaries for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since December 31, 2002
there has been no event or circumstances which have had a Material Adverse
Effect.
(f) Except as disclosed in the most recent audited financial
statements of WESCO furnished to the Administrator and each Purchaser Agent,
there is no pending or, to its best knowledge, threatened action or proceeding
affecting it or any of its Subsidiaries before any Governmental Authority or
arbitrator that could have a Material Adverse Effect.
(g) No proceeds of any purchase or reinvestment will be used to
acquire any equity security of a class that is registered pursuant to Section 12
of the Securities Exchange Act of 1934.
(h) Each Information Package (if prepared by WESCO or one of its
Affiliates, or to the extent that information contained therein is supplied by
WESCO or an Affiliate), information, exhibit, financial statement, document,
book, record or report furnished or to be furnished at any time by or on behalf
of the Servicer to the Administrator, any Purchaser or any Purchaser Agent in
connection with the Agreement is or will be complete and accurate in all
material respects as of its date or as of the date so furnished and does not and
will not contain any material misstatement of fact or omit to state a material
fact or any fact necessary to make the statements contained therein not
misleading.
(i) The office where WESCO keeps its records concerning the
Receivables are located at the address referred to in Section 2(b) of Exhibit IV
to the Agreement.
(j) WESCO is not in violation of any order of any court,
arbitrator or Governmental Authority, which could have a Material Adverse
Effect.
(k) Neither WESCO nor any of its Affiliates has any direct or
indirect ownership or other financial interest in any Purchaser.
(l) The Servicer has complied in all material respects with the
Credit and Collection Policy of each Originator with regard to each Receivable
originated by such Originator.
(m) WESCO has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it.
(n) WESCO is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended. In addition, WESCO is not a "holding company," a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(o) [Reserved].
III-5
(p) Since its most recent fiscal year end, there has been no
change in the business, operations, financial condition, properties or assets of
the Servicer which would have a Material Adverse Effect on its ability to
perform its obligations under the Agreement or any other Transaction Document to
which it is a party or materially and adversely affect the transactions
contemplated under the Agreement or such other Transaction Documents.
(q) No license or approval is required for the Administrator or
any successor Servicer to use any program used by the Servicer in the servicing
of the Receivables.
III-6
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility
Termination Date, the date on which no Investment of or Discount in respect of
the Purchased Interest shall be outstanding or the date all other amounts owed
by the Seller under the Agreement to any Purchaser, Purchaser Agent, the
Administrator and any other Indemnified Party or Affected Person shall be paid
in full:
(a) Compliance with Laws, Etc. The Seller shall comply with all
applicable laws, rules, regulations and orders, and preserve and maintain its
corporate existence, rights, franchises, qualifications and privileges, except
to the extent that the failure so to comply with such laws, rules and
regulations or the failure so to preserve and maintain such rights, franchises,
qualifications and privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Seller: (i)
shall keep its principal place of business, chief executive office and
"location" (as such term is used in the UCC) and the office where it keeps its
records concerning the Receivables at the addresses and locations of the Seller
set forth under its name on the signature page to the Agreement or, pursuant to
clause (k)(iv) below, at any other locations in jurisdictions where all actions
reasonably requested by the Administrator to protect and perfect the interest of
the Administrator (for the benefit of the Purchasers) in the Receivables and
related items (including the Pool Assets) have been taken and completed and (ii)
shall provide the Administrator with at least 30 days' written notice before
making any change in the Seller's name or making any other change in the
Seller's identity or corporate structure (including a Change in Control) that
could render any UCC financing statement filed in connection with this Agreement
"seriously misleading" as such term (or similar term) is used in the UCC; each
notice to the Administrator pursuant to this sentence shall set forth the
applicable change and the effective date thereof. The Seller also will maintain
and implement (or cause the Servicer to maintain and implement) administrative
and operating procedures (including an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain (or cause the Servicer to keep and
maintain) all documents, books, records, computer tapes and disks and other
information reasonably necessary or advisable for the collection of all
Receivables (including records adequate to permit the daily identification of
each Receivable and all Collections of and adjustments to each existing
Receivable). The Seller will (and will cause each Originator to) on or prior to
the date of the Agreement, xxxx its master data processing records and other
books and records relating to the Purchased Interest (and at all times
thereafter (until the latest of the Facility Termination Date or the date all
other amounts owed by the Seller under the Agreement shall be paid in full)
continue to maintain such records) with a legend, acceptable to the
Administrator, describing the Purchased Interest.
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Seller shall (and shall cause the Servicer to), at its
expense, timely and fully perform and comply with all material provisions,
covenants and other promises required to be observed by it under the Contracts
related to the Receivables, and timely and fully comply in all material
IV-1
respects with the applicable Credit and Collection Policies with regard to each
Receivable and the related Contract.
(d) Ownership Interest, Etc. The Seller shall (and shall cause the
Servicer to), at its expense, take all action necessary or desirable to
establish and maintain a valid and enforceable undivided percentage ownership or
security interest, to the extent of the Purchased Interest, in the Pool
Receivables, the Related Security and Collections with respect thereto, and a
first priority perfected security interest in the Pool Assets, in each case free
and clear of any Adverse Claim, in favor of the Administrator (for the benefit
of the Purchasers), including taking such action to perfect, protect or more
fully evidence the interest of the Administrator (for the benefit of the
Purchasers) as the Administrator, may reasonably request.
(e) Sales, Liens, Etc. The Seller shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Adverse Claim upon or with respect to, any or all of its right, title
or interest in, to or under any Pool Assets (including the Seller's undivided
interest in any Receivable, Related Security or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or
assign any right to receive income in respect of any items contemplated by this
paragraph.
(f) Extension or Amendment of Receivables. Except as provided in
the Agreement, the Seller shall not, and shall not permit the Servicer to,
extend the maturity or adjust the Outstanding Balance or otherwise modify the
terms of any Pool Receivable, or amend, modify or waive any term or condition of
any related Contract.
(g) Change in Business or Credit and Collection Policy. The Seller
shall not make (or permit any Originator to make) any change in the character of
its business or in any Credit and Collection Policy, or any change in any Credit
and Collection Policy that would have a Material Adverse Effect with respect to
the Receivables. The Seller shall not make (or permit any Originator to make)
any other change in any Credit and Collection Policy without giving prior
written notice thereof to the Administrator and each Purchaser Agent.
(h) Audits. The Seller shall (and shall cause each Originator to),
from time to time during regular business hours, but no more frequently than
annually unless (x) a Termination Event or Unmatured Termination Event has
occurred and is continuing or (y) in the opinion of the Administrator (with the
consent or at the direction of the Majority Purchasers) reasonable grounds for
insecurity exist with respect to the collectibility of a material portion of the
Pool Receivables or with respect to the Seller's performance or ability to
perform in any material respect its obligations under the Agreement, as
reasonably requested in advance (unless a Termination Event or Unmatured
Termination Event exists) by the Administrator, permit the Administrator, or its
agents or representatives: (i) to examine and make copies of and abstracts from
all books, records and documents (including computer tapes and disks) in the
possession or under the control of the Seller (or any such Originator) relating
to Receivables and the Related Security, including the related Contracts, and
(ii) to visit the offices and properties of the Seller and the Originators for
the purpose of examining such materials described in clause (i) above, and to
discuss matters relating to Receivables and the Related Security or the
Seller's, WESCO's or the Originators' performance under the Transaction
Documents or under the Contracts with
IV-2
any of the officers, employees, agents or contractors of the Seller, WESCO or
the Originators having knowledge of such matters.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. The Seller shall not, and shall not permit the
Servicer or any Originator to, add or terminate any bank as a Lock-Box Bank or
any account as a Lock-Box Account from those listed in Schedule II to the
Agreement, or make any change in its instructions to Obligors regarding payments
to be made to the Seller, the Originators, the Servicer or any Lock-Box Account
(or related post office box), unless the Administrator and the Majority
Purchasers shall have consented thereto in writing and the Administrator shall
have received copies of all agreements and documents (including Lock-Box
Agreements) that it may request in connection therewith.
(j) Deposits to Lock-Box Accounts. The Seller shall (or shall
cause the Servicer to): (i) instruct all Obligors to make payments of all
Receivables to one or more Lock-Box Accounts or to post office boxes to which
only Lock-Box Banks have access (and shall instruct the Lock-Box Banks to cause
all items and amounts relating to such Receivables received in such post office
boxes to be removed and deposited into a Lock-Box Account on a daily basis), and
(ii) deposit, or cause to be deposited, any Collections received by it, the
Servicer or any Originator into Lock-Box Accounts not later than one Business
Day after receipt thereof. Except as otherwise agreed to in writing by the
Administrator and the Majority Purchasers, each Lock-Box Account shall at all
times be subject to a Lock-Box Agreement. The Seller will not (and will not
permit the Servicer to) deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Lock-Box Account cash or cash proceeds other than
Collections.
(k) Reporting Requirements. The Seller will provide to the
Administrator (in multiple copies, if requested by the Administrator) and each
Purchaser Agent the following:
(i) as soon as available and in any event within 90 days
after the end of each fiscal year of the Seller, a copy of the annual
report for such year for the Seller, containing unaudited financial
statements for such year certified as to accuracy by the chief
financial officer or treasurer of the Seller;
(ii) as soon as possible and in any event within five days
after the occurrence of each Termination Event or Unmatured Termination
Event, a statement of the chief financial officer of the Seller setting
forth details of such Termination Event or Unmatured Termination Event
and the action that the Seller has taken and proposes to take with
respect thereto;
(iii) promptly after the filing or receiving thereof,
copies of all reports and notices that the Seller or any Affiliate
files under ERISA with the Internal Revenue Service, the Pension
Benefit Guaranty Corporation or the U.S. Department of Labor or that
the Seller or any Affiliate receives from any of the foregoing or from
any multiemployer plan (within the meaning of Section 4001(a)(3) of
ERISA) to which the Seller or any of its Affiliates is or was, within
the preceding five years, a contributing employer, in each case in
respect of the assessment of withdrawal liability or an event or
condition that could, in the aggregate, result in the imposition of
liability on the Seller and/or any such Affiliate;
IV-3
(iv) at least thirty days before any change in the
Seller's name or any other change requiring the amendment of UCC
financing statements, a notice setting forth such changes and the
effective date thereof;
(v) promptly after the Seller obtains knowledge thereof,
notice of any: (A) material litigation, investigation or proceeding
that may exist at any time between the Seller and any Person or (B)
material litigation or proceeding relating to any Transaction Document;
(vi) promptly after the occurrence thereof, notice of a
material adverse change in the business, operations, property or
financial or other condition of the Seller, the Servicer or any
Originator; and
(vii) such other information respecting the Receivables or
the condition or operations, financial or otherwise, of the Seller or
any of its Affiliates as the Administrator or any Purchaser Agent may
from time to time reasonably request.
(l) Certain Agreements. Without the prior written consent of the
Administrator and the Majority Purchasers, the Seller will not (and will not
permit any Originator to) amend, modify, waive, revoke or terminate any
Transaction Document to which it is a party or any provision of Seller's
certificate of incorporation or by-laws.
(m) Restricted Payments. (i) Except pursuant to clause (ii) below,
the Seller will not: (A) purchase or redeem any shares of its capital stock, (B)
declare or pay any dividend or set aside any funds for any such purpose, (C)
prepay, purchase or redeem any Debt, (D) lend or advance any funds or (E) repay
any loans or advances to, for or from any of its Affiliates (the amounts
described in clauses (A) through (E) being referred to as "Restricted
Payments").
(ii) Subject to the limitations set forth in clause (iii)
below, the Seller may make Restricted Payments so long as such
Restricted Payments are made only in one or more of the following ways:
(A) the Seller may make cash payments (including prepayments) on the
Company Note in accordance with its terms, and (B) if no amounts are
then outstanding under the Company Note, the Seller may declare and pay
dividends.
(iii) The Seller may make Restricted Payments only out of
the funds it receives pursuant to Sections 1.4(b)(ii) and (iv) of the
Agreement. Furthermore, the Seller shall not pay, make or declare: (A)
any dividend if, after giving effect thereto, the Seller's tangible net
worth would be less than $50,000,000 or (B) any Restricted Payment
(including any dividend) if, after giving effect thereto, any
Termination Event or Unmatured Termination Event shall have occurred
and be continuing.
(n) Other Business. The Seller will not: (i) engage in any
business other than the transactions contemplated by the Transaction Documents;
(ii) create, incur or permit to exist any Debt of any kind (or cause or permit
to be issued for its account any letters of credit or bankers' acceptances)
other than pursuant to this Agreement or the Company Note; or (iii) form any
Subsidiary or make any investments in any other Person; provided, however, that
the Seller shall be permitted to incur minimal obligations to the extent
necessary for the day-to-day operations of the Seller (such as expenses for
stationery, audits, maintenance of legal status, etc.).
IV-4
(o) Use of Seller's Share of Collections. The Seller shall apply
the Seller's Share of Collections to make payments in the following order of
priority: (i) the payment of its expenses (including all obligations payable to
the Purchaser Groups and the Administrator under the Agreement and under each
Purchaser Group Fee Letter); (ii) the payment of accrued and unpaid interest on
the Company Note; and (iii) other legal and valid corporate purposes.
(p) Tangible Net Worth. The Seller will not permit its tangible
net worth, at any time, to be less than $50,000,000.
(q) Exclusion of Credit Memos. As soon as possible, the Seller
shall (and shall cause each Originator and the Servicer to) remove credit memos
from any aging schedules contained in or used to calculate the information set
forth in each Information Package delivered pursuant to Section 2(i)(iii) of
Exhibit IV to the Agreement.
(r) Calculation of the Purchased Interest. The Seller shall
calculate the Purchased Interest on a daily basis and, if requested, provide the
results of such calculation to the Administrator, any Purchaser Agent, Xxxxx'x
or Standard & Poor's, as applicable.
2. Covenants of the Servicer and WESCO. Until the latest of the
Facility Termination Date, the date on which no Investment of or Discount in
respect of the Purchased Interest shall be outstanding or the date all other
amounts owed by the Seller under the Agreement to the Purchaser Agents, the
Purchasers, the Administrator and any other Indemnified Party or Affected Person
shall be paid in full:
(a) Compliance with Laws, Etc. The Servicer and, to the extent
that it ceases to be the Servicer, WESCO shall comply (and shall cause each
Originator to comply) in all material respects with all applicable laws, rules,
regulations and orders, and preserve and maintain its corporate existence,
rights, franchises, qualifications and privileges, except to the extent that the
failure so to comply with such laws, rules and regulations or the failure so to
preserve and maintain such existence, rights, franchises, qualifications and
privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer and,
to the extent that it ceases to be the Servicer, WESCO, shall keep (and shall
cause each Originator to keep) its principal place of business, chief executive
office and "location" (as such term is used in the applicable UCC) and the
office where it keeps its records concerning the Receivables at the addresses of
the Servicer set forth under its name on the signature page to the Agreement or,
upon at least 30 days' prior written notice of a proposed change to the
Administrator, at any other locations in jurisdictions where all actions
reasonably requested by the Administrator to protect and perfect the interest of
the Administrator (for the benefit of each Purchaser) in the Receivables and
related items (including the Pool Assets) have been taken and completed. The
Servicer and, to the extent that it ceases to be the Servicer, WESCO, also will
(and will cause each Originator to) maintain and implement administrative and
operating procedures (including an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records,
computer tapes and disks and other information reasonably necessary or advisable
for the
IV-5
collection of all Receivables (including records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each
existing Receivable).
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Servicer and, to the extent that it ceases to be the
Servicer, WESCO, shall (and shall cause Originator to), at its expense, timely
and fully perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy with regard to each Receivable and the related
Contract.
(d) Extension or Amendment of Receivables. Except as provided in
the Agreement, the Servicer and, to the extent that it ceases to be the
Servicer, WESCO, shall not extend (and shall not permit any Originator to
extend), the maturity or adjust the Outstanding Balance or otherwise modify the
terms of any Pool Receivable, or amend, modify or waive any term or condition of
any related Contract.
(e) Change in Business or Credit and Collection Policy. The
Servicer and, to the extent that it ceases to be the Servicer, WESCO, shall not
make (and shall not permit any Originator to make) any change in the character
of its business or in any Credit and Collection Policy that would have a
Material Adverse Effect. The Servicer and, to the extent that it ceases to be
the Servicer, WESCO, shall not make (and shall not permit any Originator to
make) any other change in any Credit and Collection Policy without giving prior
written notice thereof to the Administrator and each Purchaser Agent.
(f) Audits. The Servicer and, to the extent that it ceases to be
the Servicer, WESCO, shall (and shall cause each Originator to), from time to
time during regular business hours, but no more frequently than annually unless
(x) a Termination Event or Unmatured Termination Event has occurred and is
continuing or (y) in the opinion of the Administrator (with the consent or at
the direction of the Majority Purchasers) reasonable grounds for insecurity
exist with respect to the collectibility of a material portion of the Pool
Receivables or with respect to the Servicer's performance or ability to perform
in any material respect its obligations under the Agreement, as reasonably
requested in advance (unless a Termination Event or Unmatured Termination Event
exists) by the Administrator, permit the Administrator, or its agents or
representatives: (i) to examine and make copies of and abstracts from all books,
records and documents (including computer tapes and disks) in its possession or
under its control relating to Receivables and the Related Security, including
the related Contracts; and (ii) to visit its offices and properties for the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to Receivables and the Related Security or its
performance hereunder or under the Contracts with any of its officers,
employees, agents or contractors having knowledge of such matters.
(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. The Servicer and, to the extent that it ceases to be
the Servicer, WESCO, shall not (and shall not permit any Originator to) add or
terminate any bank as a Lock-Box Bank or any account as a Lock-Box Account from
those listed in Schedule II to the Agreement, or make any change in its
instructions to Obligors regarding payments to be made to the Servicer or any
Lock-Box Account (or related post office box), unless the Administrator and the
Majority
IV-6
Purchasers shall have consented thereto in writing and the Administrator shall
have received copies of all agreements and documents (including Lock-Box
Agreements) that it may request in connection therewith.
(h) Deposits to Lock-Box Accounts. The Servicer shall: (i)
instruct all Obligors to make payments of all Receivables to one or more
Lock-Box Accounts or to post office boxes to which only Lock-Box Banks have
access (and shall instruct the Lock-Box Banks to cause all items and amounts
relating to such Receivables received in such post office boxes to be removed
and deposited into a Lock-Box Account on a daily basis); and (ii) deposit, or
cause to be deposited, any Collections received by it into Lock-Box Accounts not
later than one Business Day after receipt thereof. Except as otherwise agreed to
in writing by the Administrator and the Majority Purchasers, each Lock-Box
Account shall at all times be subject to a Lock-Box Agreement. The Servicer will
not deposit or otherwise credit, or cause or permit to be so deposited or
credited, to any Lock-Box Account cash or cash proceeds other than Collections.
(i) Reporting Requirements. WESCO shall provide to the
Administrator (in multiple copies, if requested by the Administrator) and each
Purchaser Agent the following:
(i) as soon as available and in any event within 45 days
after the end of the first three quarters of each fiscal year of WESCO,
balance sheets of WESCO and its consolidated Subsidiaries as of the end
of such quarter and statements of income, retained earnings and cash
flow of WESCO and its consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, certified by the chief financial officer of such
Person;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of WESCO, a copy of the annual report
for such year for WESCO and its consolidated Subsidiaries, containing
financial statements for such year audited by independent certified
public accountants of nationally recognized standing;
(iii) as to the Servicer only, as soon as available and in
any event not later than the twentieth day after the last day of each
calendar month, an Information Package as of the last day of such month
or, within 10 Business Days of a request by the Administrator or any
Purchaser Agent, an Information Package for such periods as is
specified by the Administrator or such Purchaser Agent (including on a
semi-monthly, weekly or daily basis); provided, however that if WESCO
shall cease to have a rating of at least "B-" by Standard & Poor's on
its corporate credit rating the Servicer shall (i) provide an
Information Package on the first Business Day of each calendar week and
(ii) provide such information as shall requested by the Administrator
in its sole discretion regarding Collections to the Administrator on a
daily basis;
(iv) as soon as possible and in any event within five days
after becoming aware of the occurrence of each Termination Event or
Unmatured Termination Event, a statement of the chief financial officer
of WESCO setting forth details of such Termination Event or Unmatured
Termination Event and the action that such Person has taken and
proposes to take with respect thereto;
IV-7
(v) promptly after the sending or filing thereof, copies
of all reports that WESCO sends to any of its security holders, and
copies of all reports and registration statements that WESCO or any
Subsidiary files with the Securities and Exchange Commission or any
national securities exchange; provided, that any filings with the
Securities and Exchange Commission that have been granted
"confidential" treatment shall be provided promptly after such filings
have become publicly available;
(vi) promptly after the filing or receiving thereof,
copies of all reports and notices that WESCO or any of its Affiliate
files under ERISA with the Internal Revenue Service, the Pension
Benefit Guaranty Corporation or the U.S. Department of Labor or that
such Person or any of its Affiliates receives from any of the foregoing
or from any multiemployer plan (within the meaning of Section
4001(a)(3) of ERISA) to which such Person or any of its Affiliate is or
was, within the preceding five years, a contributing employer, in each
case in respect of the assessment of withdrawal liability or an event
or condition that could, in the aggregate, result in the imposition of
liability on WESCO and/or any such Affiliate;
(vii) at least thirty days before any change in WESCO's or
any Originator's name or any other change requiring the amendment of
UCC financing statements, a notice setting forth such changes and the
effective date thereof;
(viii) promptly after WESCO obtains knowledge thereof,
notice of any: (A) litigation, investigation or proceeding that may
exist at any time between WESCO or any of its Subsidiaries and any
Governmental Authority that, if not cured or if adversely determined,
as the case may be, would have a Material Adverse Effect; (B)
litigation or proceeding adversely affecting such Person or any of its
Subsidiaries in which the amount involved is $500,000 or more and not
covered by insurance or in which injunctive or similar relief is
sought; or (C) litigation or proceeding relating to any Transaction
Document;
(ix) promptly after the occurrence thereof, notice of a
material adverse change in the business, operations, property or
financial or other condition of WESCO or any of its Subsidiaries;
(x) promptly after the occurrence thereof, notice of any
downgrade of WESCO;
(xi) such other information respecting the Receivables or
the condition or operations, financial or otherwise, of WESCO or any of
its Affiliates as the Administrator or any Purchaser Agent may from
time to time reasonably request;
(xii) promptly after the occurrence thereof, notice of any
material acquisition or investment by WESCO of or in any Person,
business or operation; and
(xiii) On or before 30 days prior to each anniversary of the
Closing Date, the Servicer shall, at its own expense, cause an
independent auditor acceptable to the Administrator and each Purchaser
Agent to furnish to WESCO, the Administrator and each Purchaser Agent,
(A) a report in a format acceptable to each Purchaser Agent, to the
IV-8
effect that they have (1) reviewed and audited WESCO's books, records
and servicing procedures, (2) performed testing of a statistically
significant sample of Receivables and each Information Package
generated during such fiscal year then ended, and describing the
results of such review and testing, and (3) during such review and
testing, not discovered any deviations (other than those described in
the report) from the Credit and Collection Policy, and (B) a report in
a format acceptable to each Purchaser Agent to the effect that they
have applied certain procedures agreed upon with the Servicer, the
Administrator and each Purchaser Agent and examined certain documents
and records relating to the servicing of Receivables under this
Agreement, and that, based upon such agreed upon procedures, nothing
has come to the attention of such accountants that caused them to
believe such servicing (including without limitation, the allocation of
Collections) has not been conducted in compliance with the terms and
conditions set forth herein, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in
such statement. In addition, each report shall set forth the agreed
upon procedures performed.
3. Separate Existence. Each of the Seller and WESCO hereby acknowledges
that the Purchasers, the Purchaser Agents, the Administrator and the Liquidity
Providers are entering into the transactions contemplated by this Agreement and
the other Transaction Documents in reliance upon the Seller's identity as a
legal entity separate from WESCO and its Affiliates. Therefore, from and after
the date hereof, each of the Seller and WESCO shall take all steps specifically
required by the Agreement or reasonably required by the Administrator to
continue the Seller's identity as a separate legal entity and to make it
apparent to third Persons that the Seller is an entity with assets and
liabilities distinct from those of WESCO and any other Person, and is not a
division of WESCO, its Affiliates or any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the other
covenants set forth herein, each of the Seller and WESCO shall take such actions
as shall be required in order that:
(a) The Seller will be a limited purpose corporation whose
primary activities are restricted in its certificate of incorporation
to: (i) purchasing or otherwise acquiring from the Originators, owning,
holding, granting security interests or selling interests in Pool
Assets, (ii) entering into agreements for the selling and servicing of
the Receivables Pool, and (iii) conducting such other activities as it
deems necessary or appropriate to carry out its primary activities;
(b) The Seller shall not engage in any business or activity,
or incur any indebtedness or liability, other than as expressly
permitted by the Transaction Documents;
(c) Not less than one member of the Seller's Board of
Directors (the "Independent Director") shall be an individual who is
not a direct, indirect or beneficial stockholder, officer, director,
employee, affiliate, associate or supplier of WESCO or any of its
Affiliates. The certificate of incorporation of the Seller shall
provide that: (i) the Seller's Board of Directors shall not approve, or
take any other action to cause the filing of, a voluntary bankruptcy
petition with respect to the Seller unless the Independent Director
shall approve the taking of such action in writing before the taking of
such action, and (ii)
IV-9
such provision cannot be amended without the prior written consent of
the Independent Director;
(d) The Independent Director shall not at any time serve as a
trustee in bankruptcy for the Seller, WESCO or any Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be
compensated from the Seller's funds for services provided to the
Seller. The Seller will not engage any agents other than its attorneys,
auditors and other professionals, and a servicer and any other agent
contemplated by the Transaction Documents for the Receivables Pool,
which servicer will be fully compensated for its services by payment of
the Servicing Fee, and a manager, which manager will be fully
compensated from the Seller's funds;
(f) The Seller will contract with the Servicer to perform for
the Seller all operations required on a daily basis to service the
Receivables Pool. The Seller will pay the Servicer the Servicing Fee
pursuant to the Agreement. The Seller will not incur any material
indirect or overhead expenses for items shared with WESCO (or any other
Affiliate thereof) that are not reflected in the Servicing Fee. To the
extent, if any, that the Seller (or any Affiliate thereof) shares items
of expenses not reflected in the Servicing Fee or the manager's fee,
such as legal, auditing and other professional services, such expenses
will be allocated to the extent practical on the basis of actual use or
the value of services rendered, and otherwise on a basis reasonably
related to the actual use or the value of services rendered; it being
understood that WESCO shall pay all expenses relating to the
preparation, negotiation, execution and delivery of the Transaction
Documents, including legal, agency and other fees;
(g) The Seller's operating expenses will not be paid by WESCO
or any other Affiliate thereof;
(h) All of the Seller's business correspondence and other
communications shall be conducted in the Seller's own name and on its
own separate stationery;
(i) The Seller's books and records will be maintained
separately from those of WESCO and any other Affiliate thereof;
(j) All financial statements of WESCO or any Affiliate thereof
that are consolidated to include Seller will contain detailed notes
clearly stating that: (i) a special purpose corporation exists as a
Subsidiary of WESCO, and (ii) the Originators have sold receivables and
other related assets to such special purpose Subsidiary that, in turn,
has sold undivided interests therein to certain financial institutions
and other entities;
(k) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of WESCO or
any Affiliate thereof;
(l) The Seller will strictly observe corporate formalities in
its dealings with WESCO or any Affiliate thereof, and funds or other
assets of the Seller will not be commingled with those of WESCO or any
Affiliate thereof except as permitted by the Agreement in connection
with servicing the Pool Receivables. The Seller shall not
IV-10
maintain joint bank accounts or other depository accounts to which
WESCO or any Affiliate thereof (other than WESCO in its capacity as the
Servicer) has independent access. The Seller is not named, and has not
entered into any agreement to be named, directly or indirectly, as a
direct or contingent beneficiary or loss payee on any insurance policy
with respect to any loss relating to the property of WESCO or any
Subsidiary or other Affiliate of WESCO. The Seller will pay to the
appropriate Affiliate the marginal increase or, in the absence of such
increase, the market amount of its portion of the premium payable with
respect to any insurance policy that covers the Seller and such
Affiliate; and
(m) The Seller will maintain arm's-length relationships with
WESCO (and any Affiliate thereof). Any Person that renders or otherwise
furnishes services to the Seller will be compensated by the Seller at
market rates for such services it renders or otherwise furnishes to the
Seller. Neither the Seller nor WESCO will be or will hold itself out to
be responsible for the debts of the other or the decisions or actions
respecting the daily business and affairs of the other. The Seller and
WESCO will immediately correct any known misrepresentation with respect
to the foregoing, and they will not operate or purport to operate as an
integrated single economic unit with respect to each other or in their
dealing with any other entity.
(n) WESCO shall not pay the salaries of Seller's employees, if
any.
IV-11
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) (i) the Seller, WESCO, any Originator or the Servicer shall
fail to perform or observe any term, covenant or agreement under the Agreement
or any other Transaction Document and, except as otherwise provided herein, such
failure shall continue for 5 days after knowledge or notice thereof, (ii) the
Seller or the Servicer shall fail to make when due any payment or deposit to be
made by it under the Agreement and such failure shall continue unremedied for
one Business Day or (iii) WESCO shall resign as Servicer, and no successor
Servicer reasonably satisfactory to the Administrator and the Majority
Purchasers shall have been appointed;
(b) WESCO (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that WESCO
(or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the
Seller, WESCO or any Originator (or any of their respective officers) under or
in connection with the Agreement or any other Transaction Document, or any
information or report delivered by the Seller, WESCO or any Originator or the
Servicer pursuant to the Agreement or any other Transaction Document, shall
prove to have been incorrect or untrue in any material respect when made or
deemed made or delivered, and shall remain incorrect or untrue for 5 days after
notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the
Information Package pursuant to the Agreement, and such failure shall remain
unremedied for two days;
(e) the Agreement or any purchase or reinvestment pursuant to the
Agreement shall for any reason: (i) cease to create, or the Purchased Interest
shall for any reason cease to be, a valid and enforceable perfected undivided
percentage ownership or security interest to the extent of the Purchased
Interest in each Pool Receivable, the Related Security and Collections with
respect thereto, free and clear of any Adverse Claim, or (ii) cease to create
with respect to the Pool Assets, or the interest of the Administrator (for the
benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a
valid and enforceable first priority perfected security interest, free and clear
of any Adverse Claim;
(f) the Seller, WESCO or any Originator shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Seller, WESCO
or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
V-1
the case of any such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or unstayed for a period of
60 days, or any of the actions sought in such proceeding (including the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its
property) shall occur; or the Seller, WESCO or any Originator shall take any
corporate action to authorize any of the actions set forth above in this
paragraph;
(g) the average for three consecutive calendar months of: the (A)
Default Ratio shall exceed 3.00%, (B) the Delinquency Ratio shall exceed 4.05%,
or (C) the Dilution Ratio shall exceed 7.00%;
(h) a Change in Control shall occur;
(i) at any time (i) the sum of (A) the Aggregate Investment plus
(B) the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool
Balance at such time plus (B) the Purchasers' share of the amount of Collections
then on deposit in the Lock-Box Accounts (other than amounts set aside therein
representing Discount and Fees), and such circumstance shall not have been cured
within two Business Days;
(j) (i) WESCO or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any of its Debt that is outstanding in a
principal amount of at least $20,000,000 in the aggregate when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement, mortgage, indenture
or instrument relating to such Debt (and shall have not been waived); or (ii)
any other event shall occur or condition shall exist under any agreement,
mortgage, indenture or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement,
mortgage, indenture or instrument (and shall have not been waived), if, in
either case: (a) the effect of such non-payment, event or condition is to give
the applicable debtholders the right (whether acted upon or not) to accelerate
the maturity of such Debt, or (b) any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to repay, redeem,
purchase or defease such Debt shall be required to be made, in each case before
the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to
any Benefit Plan sufficient to give rise to a lien under Section 302(f) of
ERISA, (ii) the Internal Revenue Service shall file a notice of lien asserting
(1) a claim or claims pursuant to the Internal Revenue Code with regard to any
of the assets of Seller or (2) a claim or claims of $250,000 or more in the
aggregate pursuant to the Internal Revenue Code with regard to any of the assets
of any Originator, WESCO or any ERISA Affiliate, and in each case such lien
shall have been filed and not released within 10 days, or (iii) the Pension
Benefit Guaranty Corporation shall, or shall indicate its intention in writing
to the Seller, any Originator, WESCO or any ERISA Affiliate to, either file a
notice of lien asserting a claim pursuant to ERISA with regard to any assets of
the Seller, any Originator, WESCO or any ERISA Affiliate or terminate any
Benefit Plan that has unfunded benefit liabilities, or any steps shall have been
taken to terminate any Benefit Plan
V-2
subject to Title IV of ERISA so as to result in any liability in excess of
$1,000,000 and such lien shall have been filed and not released within 10 days;
(l) one or more final judgments for the payment of money shall be
entered against the Seller or (ii) one or more final judgments for the payment
of money in an amount in excess of $20,000,000, individually or in the
aggregate, shall be entered against the Servicer on claims not covered by
insurance or as to which the insurance carrier has denied its responsibility,
and such judgment shall continue unsatisfied and in effect for sixty (60)
consecutive days without a stay of execution;
(m) the "Purchase and Sale Termination Date" under and as defined
in the Sale Agreement shall occur under the Sale Agreement or any Originator
shall for any reason cease to transfer, or cease to have the legal capacity to
transfer, or otherwise be incapable of transferring Receivables to the Seller
under the Sale Agreement ; or
(n) If on or prior to December 31, 2003 the Seller shall not have
established (or caused to be established) such lockbox or accounts, in form and
substance satisfactory to the Administrator and each Purchaser Agent, with
respect to which lockboxes or accounts Collections on Receivables relating to
the Avon Branch are received and/or deposited, and over which the Administrator
shall have control for all purposes of the UCC.
V-3
SCHEDULE I
CREDIT AND COLLECTION POLICY
On File With:
WESCO Receivables Corp.
Commerce Court, Suite 000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Secretary and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Schedule I
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Title Account
-------- ---- ----- -------
530409 PNC Bank Int'l Structures 1001145943
771751 PNC Bank Wesco Distribution Inc 1001145943
802578 PNC Bank Wesco Distribution Inc 1001145943
676504 PNC Bank Xxxxxxxx International 1001145943
676763 PNC Bank Cash Sales 1001145943
676780 PNC Bank Xxxxx Electric 1001145943
890914 PNC Bank Murco 1001145943
910465 PNC Bank Wesco Distribution Inc 1001145943
825089 PNC Bank Bala cynwyd 1001145943
640376 PNC Bank Wesco Distribution Inc 1001145943
641447 PNC Bank Pittsburgh Lockbox 1001145943
641836 PNC Bank Cash Sales 1001145943
642432 PNC Bank Xxxxx Xxxxx 1001145943
642526 PNC Bank Xxxxxxx 1001145943
642565 PNC Bank Xxxxxxxx Supply 1001145943
642728 PNC Bank Control Corp of America 1001145943
633718 Fifth Third Wesco Distribution Inc 83527712
Schedule II
SCHEDULE III
TRADE NAMES
None
Schedule III
SCHEDULE IV
LIST OF GROUP A PURCHASERS
Blue Ridge Asset Funding Corporation
Market Street Funding Corporation
PNC Bank, National Association
Wachovia Bank, National Association
Schedule IV
SCHEDULE V
CLOSED BRANCHES
Branch Name
------ ----
1040 F/S - BALA CYNWYD PA
1111 BOSTON MA
1118 PORTLAND ME
1119 WORCESTER MA QUANTUM
0000 XXXXXXXXXX XX
1337 TROY NY - GARDEN WAY
1446 PHILADELPHIA PA - PECO
0000 XXXXXXXXXX XX
0000 XXXXXXXXXX XX
3271 TOLEDO OH - NORTH STAR STEEL
3338 YOUNGSTOWN OH-WCI CONS
0000 XXXXXXXX XX
3417 CANTON OH
3561 ALBANY GA - XXXXXX TIRE
0000 XXXXXXXX XX
0000 XXXXXXXXXXXX XX
3726 XXXXXXXXX XX
0000 XXXXXXXXX XX - FORD MOTOR
3769 JACKSON MS-INTL PAPER
3770 JACKSON MS
3836 ORLANDO-UNIVERSAL STUDIO
0000 XXXXXX XXXX XX
0000 XXXXXXXXX XX
5566 BATON ROUGE LA
5569 BEAUMONT TX - HUNTSMAN
5570 CORPUS CHRISTI TX
5573 HOUSTON TX-INDUS
0000 XXX XXXXXXX XX
0000 XXXXXXX DEPOT 3
6108 ANCHORAGE AK UNOCAL
0000 XXXXXX OR
0000 XXX XXXXXXXXX XX
0000 XXXXXXX XX
0000 XXXXX XX
0000 XXX XXXXXXX XX - O.E.M.
0000 XXXXXXX XX - INTNATL
7424 MANUF HOUSING SUPPLY XX XX
0000 XXXXXXX XX - UTILITY
0000 XXXXXX XX - MURCO
7613 PRESQUE ISLE ME - STANDARD
7615 MILLINOCKET ME - STANDARD
7617 XXXXXXXXX ME - STANDARD
Schedule V-1
Branch Name
------ ----
7618 PORTLAND ME INTL PAPER
7624 PENSACOLA FL
7625 COMMUNICATIONS - XXXXX
0000 XXXXXXXXX - XXXXX
0000 LAPORTE IN
7636 CRYSTAL LAKE IL - ESSCO
7643 SCHOFIELD WI
7652 ROCHESTER MN - XXXXX
0000 XXXXXXXXX GA - ACE
0000 XXXXXXXXXXXX XX B&L - ACE
0000 XXXXXXXX XX - PSI
0000 XXXXXXX XX - SSC
7801 ENERGY SVC CO SUPPORT
7802 PITTSBURGH UTILITY
0000 XXXXX XX - HERNING
7851 DULUTH MN
7860 UTILITY CONST PROJ
9999 TEST BRANCH
Schedule V-2
ANNEX A
to Second Amended And Restated Receivables Purchase Agreement
FORM OF INFORMATION PACKAGE
ANNEX A
ANNEX B
to Second Amended And Restated Receivables Purchase Agreement
FORM OF PURCHASE NOTICE
ANNEX B
ANNEX C
to Second Amended And Restated Receivables Purchase Agreement
LIST OF SPECIAL OBLIGORS
None
ANNEX C
ANNEX D
to Second Amended And Restated Receivables Purchase Agreement
FORM OF ASSUMPTION AGREEMENT
ANNEX D
ANNEX E
to Second Amended And Restated Receivables Purchase Agreement
FORM OF TRANSFER SUPPLEMENT
ANNEX E
