LIMITED CONSENT AND AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.41
This Limited Consent and Amendment No. 1 to Third Amended and Restated Credit Agreement, dated
as of November 15, 2007 (this “Amendment”), is entered into by and among WESCO
Distribution, Inc., a Delaware corporation (“WESCO Distribution”), WESCO Equity
Corporation, a Delaware corporation (“WESCO Equity”), Herning Enterprises, Inc., a Delaware
corporation (“Herning”), WESCO Nevada, Ltd., a Nevada corporation (“WESCO Nevada”),
Xxxxxxx-Xxxxx Company, an Arkansas corporation (“Xxxxxxx-Xxxxx”), Communications Supply
Corporation, a Connecticut corporation (“CSC”), Xxxxxxx Wire & Cable Corporation, a
Delaware corporation (“Xxxxxxx”), and Liberty Wire & Cable, Inc., a Delaware corporation
(“Liberty” and, together with WESCO Distribution, WESCO Equity, Herning, WESCO Nevada,
Xxxxxxx-Xxxxx, CSC and Xxxxxxx, the “US Borrowers” and each individually as a “US
Borrower”); WESCO Distribution Canada LP, an Ontario limited partnership (“WESCO DC LP”
or “Canadian Borrower” and, together with the US Borrowers, the “Borrowers”, and
each individually, a “Borrower”); the other Credit Parties; General Electric Capital
Corporation, a Delaware corporation (in its individual capacity, “GE Capital”), for itself,
as a US Lender, and as Agent for US Lenders with respect to Loans and other credit made available
to US Borrowers and as an agent for Canadian Agent and all Lenders with respect to Collateral owned
by a US Credit Party; GE Canada Finance Holding Company, a Nova Scotia unlimited liability company
(“GE Capital Canada”), as a Canadian Lender and as Canadian Agent (Canadian Agent and Agent
being defined as the “Agents”) for Loans and other credit made available to Canadian
Borrowers and as agent for Canadian Lenders with respect to Collateral owned by a Canadian Credit
Party; the other US Lenders that are parties hereto and the other Canadian Lenders that are parties
hereto.
RECITALS
A. Borrowers, the other Credit Parties, Agents and Lenders are parties to that certain Third
Amended and Restated Credit Agreement, dated as of November 1, 2006, including all annexes,
exhibits and schedules thereto (as from time to time amended, restated, supplemented or otherwise
modified, the “Credit Agreement”).
B. Borrowers and the other Credit Parties have requested that Agents and Lenders consent to
certain transactions as described below in this Amendment and Agents and Lenders are willing to do
so as and to the extent, and solely as and to the extent, and subject to the terms and conditions
set forth in this Amendment.
C. Borrowers and the other Credit Parties have requested that Agents and Lenders agree to amend
the Credit Agreement as and to the extent set forth in this Amendment and Agents and Lenders are
willing to do so as and to the extent, and solely as and to the extent, and subject to the terms
and conditions set forth in this Amendment.
D. This Amendment shall constitute a Loan Document and these Recitals shall be construed as
part of this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained, and of the Loans and other extensions of credit heretofore, now or hereafter made to, or
for the benefit of, US Borrowers by US Lenders and Canadian Borrower by Canadian Lenders,
Borrowers, the other Credit Parties, Agents and Lenders hereby agree as follows:
1. Definitions. Except to the extent otherwise specified herein, capitalized terms
used in this Amendment shall have the same meanings ascribed to them in the Credit Agreement and
Annex A thereto.
2. Limited Consent. Notwithstanding any term or provision of the Credit Agreement or
any other Loan Document to the contrary, Agents and Lenders hereby consent to the transactions
described in Exhibit A hereto (the “Corporate Restructuring Transactions”);
provided, that, at each of the following steps, each of the following actions are
taken, all in a manner and in form and substance acceptable to the Agents:
Step 1 — Formation of New ULC2 by WESCO Canada. Within five (5) Business Days
of the formation of New ULC2 by WESCO Canada: (a) WESCO Canada shall enter into an amendment
to the WESCO Canada Pledge Agreement whereby it shall pledge to Agent, on behalf of itself
and Lenders, 100% of the capital stock of New ULC2 owned by WESCO Canada (the “Pledged
New ULC2 Stock”), and shall deliver to Agent the original share certificate(s)
evidencing such Pledged New ULC2 Stock along with an executed and undated stock power in
form and substance satisfactory to Agent; and (b) the Borrowers shall: (i) cause New ULC2 to
execute and deliver to Agent a joinder to the Credit Agreement pursuant to which New ULC2
shall become a Credit Party thereunder; (ii) cause New ULC2 to execute and deliver to Agent
a joinder to the Security Agreement pursuant to which New ULC2 shall become a Grantor
thereunder; (iii) cause New ULC2 to execute and deliver to Agent a joinder to the Guaranty
pursuant to which New ULC2 shall become a party to the Subsidiary Guaranty; and (iv) cause
New ULC2 to execute and deliver any and all such financing statements, agreements,
instruments and documents and take such further actions as Agent may deem necessary or
desirable to effectuate the foregoing intents and purposes.
Step 3 — Formation of Dutch CV by WESCO Canada and New ULC2. Within five (5)
Business Days of the formation of Dutch CV by WESCO Canada and New ULC2: (a) WESCO Canada
shall enter into a Pledge Agreement whereby it shall pledge to Agent, on behalf of itself
and Lenders, 100% of its equity interests in and present and future personal claims against
the Dutch CV (the “WESCO Canada Pledged Dutch CV Stock”); (b) New ULC2 shall enter
into a Pledge Agreement whereby it shall pledge to Agent, on behalf of itself and Lenders,
100% of its equity interests in and present and future personal claims against the Dutch CV
(the “New ULC2 Pledged Dutch CV
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Stock”); and (c) Dutch CV shall enter into a Pledge Agreement whereby it shall
pledge to Agent, on behalf of itself and Lenders, 100% of the capital stock of WESCO DC GP
and 100% of the capital stock of WESCO DC LP owned by Dutch CV (the “Dutch CV Pledged
Stock”).
Step 19 — Issuance of Shares by WESCO Canada to WDC Holding in Exchange for Shares
of Stock in Bruchner Polska SB Zoo Contributed to WESCO Canada by WDC Holding: Within
five (5) Business Days of the issuance by WESCO Canada of shares of its common Stock (the
“New WESCO Canada Pledged Shares”) to WDC Holding in exchange for shares of Stock in
Bruchner Polska SB Zoo, WESCO Distribution International, Ltd. (UK), WESCO Sourcing and
Procurement Services (Singapore) and WESCO International Supply Co Singapore (Singapore),
WDC Holding shall enter into an amendment to the WDC Holding Pledge Agreement whereby it
shall pledge to Agent, on behalf of itself and Lenders, 100% of the New WESCO Canada Pledged
Shares, and shall deliver to Agent the original share certificate(s) evidencing such New
WESCO Canada Pledged Shares along with an executed and undated stock power in form and
substance satisfactory to Agent.
Provided, however, that any of the five (5) Business Day deadlines set forth above in
this Section 2 may be extended by the Agents in their discretion by up to thirty
(30) additional days; and, provided, further, that the Agents, in their discretion may agree
to modifications to Exhibit A so long as such modifications do not adversely effect
the interests of the Agents, US Lenders or Canadian Lenders.
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3. Amendments.
3.1. Section 6.2 (Investments; Loans and Advances) of the Credit Agreement is hereby
amended by deleting the word “and” immediately preceding clause (f) of such Section 6.2, replacing
the period immediately following clause (f) of such Section with a semi-colon, and inserting the
following new language immediately after clause (f) of such Section:
“(g) Dutch CV may make investments, in the form of capital contributions or
loans, in WESCO DC LP, WESCO DC GP and in WESCO Mexico;
(h) Dutch CV may make investments, in the form of capital contributions or
loans, in Dutch Coop or any of its direct or indirect Subsidiaries; and
(i) Dutch BV, and any direct or indirect Subsidiaries of Dutch BV, may make
investments, in the form of capital contributions or loans, in any of their
direct or indirect Subsidiaries.”
3.2. Section 6.3 (Indebtedness) of the Credit Agreement is hereby amended by deleting
the figure “$5,000,000” from clause (a)(ix)(F) of such Section 6.3 and replacing it with the figure
$10,000,000.
3.3. Section 6.3 (Indebtedness) of the Credit Agreement is hereby amended by deleting
the word “and” immediately preceding clause (a)(xxvii) of such Section 6.3, replacing the period
immediately following clause (a)(xxvii) of such Section with a semi-colon, and inserting the
following new language immediately after clause (a)(xxvii) of such Section:
“(xxviii) Indebtedness consisting of capital contributions or loans, made by
Dutch CV to WESCO DC LP, WESCO DC GP or WESCO Mexico;
(xxix) Indebtedness consisting of capital contributions or loans, made by
Dutch CV to Dutch Coop or any of its direct or indirect Subsidiaries; and
(xxx) Indebtedness consisting of capital contributions or loans, made by
Dutch BV to any of its direct or indirect Subsidiaries.”
3.4. Section 6.3 (Indebtedness) of the Credit Agreement is hereby amended by deleting
clause (a)(xviii) of such Section 6.3 in its entirety and replacing it with the following new
clause (a)(xviii):
(i) “(xviii) Indebtedness consisting of intercompany loans and advances made following
the Original Closing Date by WESCO Distribution, WESCO DC LP or WESCO DC GP to WESCO Mexico
in an aggregate amount outstanding at any time that, when added to the then outstanding
amount of Indebtedness permitted pursuant to Section 6.3(a)(xii) shall not exceed
$15,000,000 (or the Canadian Dollar Equivalent Amount thereof) (such that any Indebtedness
consisting of intercompany loans and advances made by WESCO Distribution, WESCO DC LP or
WESCO DC GP to WESCO Mexico in excess of $10,000,000 (or the Canadian Dollar Equivalent
Amount
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thereof) shall reduce the amount of Indebtedness permitted under Section
6.3(a)(xii) in the amount of any such excess); provided that: (A) WESCO
Mexico shall have executed and delivered to WESCO Distribution, WESCO DC GP or WESCO DC LP,
as appropriate, a demand note (which shall be an “Intercompany Note” as defined herein) to
evidence any and all such intercompany Indebtedness owing at any time by WESCO Mexico to
WESCO Distribution, WESCO DC LP or WESCO DC GP, as the case may be, each of which
Intercompany Notes shall be in form and substance satisfactory to Agent and shall be pledged
and delivered to Agent as additional collateral security for the respective Obligations and
shall be accompanied by an endorsement executed in blank and any other documentation or
other deliveries necessary or desirable to perfect Agent’s security interest in such
Intercompany Note under the laws of Mexico; (B) Borrowers shall have delivered to Agent, at
least 5 Business Days prior to the incurrence of any such Indebtedness, a duly executed
Pledge Agreement in form and substance satisfactory to the Applicable Agent pledging 65% of
the Stock of WESCO Mexico to the Applicable Agent, accompanied by (as appropriate) (a) share
certificates representing all of the outstanding Stock being pledged pursuant to such Pledge
Agreement and stock or share transfer powers for such share certificates executed in blank
and (b) all Intercompany Notes to be pledged pursuant to such Pledge Agreement, and all such
agreements, documents and other information as shall be necessary or desirable to effectuate
such pledge and to perfect the Applicable Agent’s security interest (including under the
laws of Mexico) that such Agent may reasonably request in connection with such proposed
incurrence of Indebtedness, and all such agreements, documents and other information shall
be in form and substance satisfactory to Agent; (C) Borrowers shall have delivered to Agent
within 90 days following the incurrence of any such Indebtedness, an opinion of counsel,
which counsel shall be satisfactory to such Agent, opining on, among other things, the
validity of such Pledge Agreement and the perfection of such Agent’s security interest
pursuant thereto (including under the laws of Mexico) and the other documentation executed
in connection with such pledge, which opinion shall be in form and substance satisfactory to
Agent; (D) Borrowers shall record all intercompany transactions on its books and records in
a manner satisfactory to Agent; (E) at the time any such intercompany loan is made by WESCO
Distribution, WESCO DC LP or WESCO DC GP and after giving effect thereto, WESCO
Distribution, WESCO DC LP, WESCO DC GP and WESCO Mexico shall each be Solvent; (F) no
Default or Event of Default would occur and be continuing after giving effect to any such
proposed intercompany Indebtedness; and (G) at the time any such intercompany loan is made
by WESCO Distribution, WESCO DC LP or WESCO DC GP and after giving effect thereto, excess
Borrowing Availability shall be greater than Sixty Million Dollars ($60,000,000);”
3.5. Section 6.14 (Restricted Payments) of the Credit Agreement is hereby amended by
deleting the word “and” immediately preceding clause (j) of such Section 6.14, replacing the period
immediately following clause (j) of such Section with a semi-colon, and inserting the following new
language immediately after clause (j) of such Section:
“(k) a one-time distribution in aggregate amount not to exceed the Basket
Amount or the Canadian Dollar equivalent thereof to be made by WESCO DC LP
to WESCO DC GP on or prior to December 31, 2007; provided,
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that (i) no Default or Event of Default has occurred and is continuing or
would result after giving effect to any Restricted Payment pursuant to this
clause (k), and (ii) Borrowers shall have average daily Borrowing
Availability for the 90-day period preceding the making of such Restricted
Payment of more than $60,000,000 on a pro forma basis (after giving effect
to such Restricted Payment as if made on the first day of such period) and
shall have projected average daily Borrowing Availability of more than
$60,000,000 for at least 90 days after the making of such Restricted
Payment; (l) a one-time distribution in aggregate amount not to exceed the
Basket Amount or the Canadian Dollar Equivalent Amount thereof to be made by
WESCO DC LP to Dutch CV on or prior to December 31, 2007; provided,
that (i) no Default or Event of Default has occurred and is continuing or
would result after giving effect to any Restricted Payment pursuant to this
clause (l), and (ii) Borrowers shall have average daily Borrowing
Availability for the 90-day period preceding the making of such Restricted
Payment of more than $60,000,000 on a pro forma basis (after giving effect
to such Restricted Payment as if made on the first day of such period) and
shall have projected average daily Borrowing Availability of more than
$60,000,000 for at least 90 days after the making of such Restricted
Payment; (m) a one-time distribution in aggregate amount not to exceed the
Basket Amount or the Canadian Dollar Equivalent Amount thereof to be made by
WESCO DC GP to Dutch CV on or prior to December 31, 2007; provided,
that (i) no Default or Event of Default has occurred and is continuing or
would result after giving effect to any Restricted Payment pursuant to this
clause (m), and (ii) Borrowers shall have average daily Borrowing
Availability for the 90-day period preceding the making of such Restricted
Payment of more than $60,000,000 on a pro forma basis (after giving effect
to such Restricted Payment as if made on the first day of such period) and
shall have projected average daily Borrowing Availability of more than
$60,000,000 for at least 90 days after the making of such Restricted
Payment; (n) dividends and distributions in aggregate amount not to exceed
the Basket Amount or the Canadian Dollar Equivalent Amount thereof to be
made by WESCO DC LP to Dutch CV, provided, that (i) no Default or Event of
Default has occurred and is continuing or would result after giving effect
to any Restricted Payment pursuant to this clause (n), and (ii)
Borrowers shall have average daily Borrowing Availability for the 90-day
period preceding the making of such Restricted Payment of more than
$60,000,000 on a pro forma basis (after giving effect to such Restricted
Payment as if made on the first day of such period) and shall have projected
average daily Borrowing Availability of more than $60,000,000 for at least
90 days after the making of such Restricted Payment; (o) dividends and
distributions in aggregate amount not to exceed the Basket Amount or the
Canadian Dollar Equivalent Amount thereof to be made by WESCO DC GP to Dutch
CV, provided, that (i) no Default or Event of Default has occurred and is
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continuing or would result after giving effect to any Restricted Payment
pursuant to this clause (o), and (ii) Borrowers shall have average
daily Borrowing Availability for the 90-day period preceding the making of
such Restricted Payment of more than $60,000,000 on a pro forma basis (after
giving effect to such Restricted Payment as if made on the first day of such
period) and shall have projected average daily Borrowing Availability of
more than $60,000,000 for at least 90 days after the making of such
Restricted Payment; and (p) dividends and distributions in aggregate amount
not to exceed the Basket Amount or the Canadian Dollar Equivalent Amount
thereof to be made by WESCO DC LP or WESCO DC GP to any of their respective
parent entities provided, that (i) no Default or Event of Default has
occurred and is continuing or would result after giving effect to any
Restricted Payment pursuant to this clause (p), and (ii) Borrowers
shall have average daily Borrowing Availability for the 90-day period
preceding the making of such Restricted Payment of more than $60,000,000 on
a pro forma basis (after giving effect to such Restricted Payment as if made
on the first day of such period) and shall have projected average daily
Borrowing Availability of more than $60,000,000 for at least 90 days after
the making of such Restricted Payment.”
3.6. Annex A (Definitions) to the Credit Agreement is hereby further amended by
inserting the following new defined terms into such Annex in appropriate alphabetical order:
“Basket Amount means the amount not to exceed $50,000,000 in the
aggregate, which amount may be used for purposes of Restricted Payments
permitted under clauses (k), (l), (m), (n), (o) and (p) of
Section 6.14 so long as the aggregate amount of Restricted Payment under all
such clauses does not exceed such $50,000,000 amount during the term of this
Agreement.”
“Dutch BV” means the limited liability company formed under the laws
of the Netherlands as a subsidiary of Dutch Coop.
“Dutch Coop means the cooperative incorporated under the laws of the
Netherlands as a subsidiary of WDC Holding and Dutch CV.”
“Dutch CV means the limited partnership formed under the laws of the
Netherlands as a subsidiary of WESCO Canada and New ULC2.”
“New ULC2 means the unlimited liability company formed under the
laws of Nova Scotia as a subsidiary of WESCO Canada.”
“New ULC3 means the unlimited liability company formed under the
laws of Nova Scotia as a subsidiary of Dutch CV.”
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4. Representations and Warranties. The Borrowers and the other Credit Parties,
jointly and severally, hereby represent and warrant to Agents and Lenders that:
4.1. The execution, delivery and performance by each Borrower and each other Credit Party of
this Amendment have been duly authorized by all necessary corporate, limited liability company or
other constituent document action, and this Amendment constitutes the legal, valid and binding
obligation of each Borrower and each other Credit Party enforceable against each of them in
accordance with its terms, except as the enforcement hereof may be subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’
rights generally or to general principles of equity.
4.2. Each of the execution, delivery and performance of this Amendment by each Borrower and
each other Credit Party and the consummation of the transactions contemplated hereby (i) does not,
and will not, contravene or conflict with any provision of law, any judgment, decree or order, or
the certificate or articles of incorporation or by-laws or limited liability company agreement or
membership agreement or other constituent documents of any Borrower or any other Credit Party, and
(ii) does not, and will not, contravene or conflict with, or cause any Lien to arise under, any
provision of any indenture, agreement, mortgage, lease, instrument or other document binding upon
or otherwise affecting any Borrower or any other Credit Party or any property of any Borrower or
any other Credit Party.
4.3. No Default or Event of Default exists under the Credit Agreement or any other Loan
Document or will exist after or be triggered by the execution, delivery and performance of this
Amendment or the consummation of the Corporate Restructuring Transactions or any of the other
transactions contemplated hereby. In addition, each Borrower and each other Credit Party hereby
represents, warrants and reaffirms that the Credit Agreement and each of the other Loan Documents
to which it is a party remains in full force and effect.
5. Conditions Precedent to Effectiveness. The effectiveness of the consents set forth
in Section 2 hereof and the amendments set forth in Section 3 hereof are subject in
each instance to the satisfaction of each of the following conditions precedent, each in a manner
reasonably satisfactory to Agent:
5.1. Amendment. This Amendment shall have been duly executed and delivered by each
Borrower, each other Credit Party, Agents and Requisite Lenders.
5.2. No Default. No Default or Event of Default shall have occurred and be continuing
or would result from the effectiveness of this Amendment or the consummation of any of the
transactions contemplated hereby.
5.3. Resolutions. Agent shall have received resolutions of each Borrower’s and each
other Credit Party’s Board of Directors or other applicable body, approving and authorizing the
execution, delivery and performance of this Amendment and the transactions to be consummated in
connection with this Amendment, each certified by such entity’s corporate secretary or assistant
secretary as being in full force and effect without any modification or amendment as of the date of
this Amendment.
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5.4. Opinions of Counsel. Agent and Lenders shall have received, or, to the extent so
agreed by Agent, shall receive at the appropriate time and appropriate Step as set forth in Section
2 above, duly executed originals of opinions of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP,
XxXxxxxx Xxxxx Xxxxxxxxxx LLP, Xxxxxxx XxXxxxxx Stirling Scales and Houthoff Buruma N.V., each as
counsel for the Credit Parties, with respect to this Amendment, covering such matters as Agent
shall reasonably request, in form and substance acceptable to Agent.
5.5. Miscellaneous. Agent and Lenders shall have received such other agreements,
instruments and documents as Agent or Lenders may reasonably request.
6. Reference to and Effect Upon the Credit Agreement and other Loan Documents.
6.1. Full Force and Effect. Except as specifically provided herein, the Credit
Agreement and each other Loan Document shall remain in full force and effect and each is hereby
ratified and confirmed by each Borrower and each other Credit Party.
6.2. No Waiver. The execution, delivery and effect of this Amendment shall be limited
precisely as written and shall not be deemed to (i) be a consent to any waiver of any term or
condition, or to any amendment or modification of any term or condition (except as specifically
provided herein) of the Credit Agreement or any other Loan Document or (ii) prejudice any right,
power or remedy which any Agent or any Lender now has or may have in the future under or in
connection with the Credit Agreement or any other Loan Document.
6.3. Certain Terms. Each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein” or any other word or words of similar import shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in any other Loan Document
to the Credit Agreement or any word or words of similar import shall be and mean a reference to the
Credit Agreement as amended hereby.
7. Counterparts. This Amendment may be executed in any number of counterparts, each
of which when so executed shall be deemed an original but all such counterparts shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier or “pdf” shall be as effective as delivery of a manually executed
counterpart signature page to this Amendment.
8. Costs and Expenses. As provided in Section 11.3 (Fees and Expenses) of the
Credit Agreement, Borrowers shall pay the fees, costs and expenses incurred by each Agent in
connection with the preparation, execution and delivery of this Amendment (including, without
limitation, attorneys’ fees).
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPALS.
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10. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first written above.
| BORROWERS: WESCO DISTRIBUTION, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| HERNING ENTERPRISES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| WESCO EQUITY CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Corporate Secretary | ||||
| WESCO NEVADA, LTD. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Secretary | ||||
| XXXXXXX-XXXXX COMPANY |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| COMMUNICATIONS SUPPLY CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| XXXXXXX WIRE & CABLE CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| LIBERTY WIRE & CABLE, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| WESCO DISTRIBUTION CANADA LP |
||||
| By: | Wesco Distribution Canada GP Inc., | |||
| its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Secretary | ||||
| CREDIT PARTIES: WESCO INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| WESCO FINANCE CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| CDW HOLDCO, LLC |
||||
| By: | Wesco Distribution, Inc., its Managing Member |
|||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Treasurer | ||||
| WDC HOLDING INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| WESCO NIGERIA, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| CBC LP HOLDINGS, LLC |
||||
| By: | Xxxxxxx-Xxxxx Company, its Sole Member | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| XXXXXXX-XXXXX COMPANY OF TEXAS GP, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| COMMUNICATIONS SUPPLY HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| WESCO DISTRIBUTION CANADA GP INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Secretary | ||||
| WESCO DISTRIBUTION CANADA CO. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X . Xxxxxx | ||||
| Assistant Secretary | ||||
| GENERAL ELECTRIC CAPITAL CORPORATION, as Agent and a Lender |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Xxxxxx Xxxxxxxxx | ||||
| GE CANADA FINANCE HOLDING COMPANY, as Canadian Agent and a Lender |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | ||||
| BANK OF AMERICA, N.A., as a Lender |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
| THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx | ||||
| Vice President | ||||
| CITIZENS BANK OF PENNSYLVANIA, as a Lender |
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| By: | /s/ Xxx Xxxx | |||
| Xxx Xxxx | ||||
| Vice President | ||||
| PNC BANK, N.A., as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Vice President | ||||
| FIRST COMMONWEALTH BANK as a Lender |
||||
| By: | /s/ C. Xxxxxxx Xxxxx | |||
| C. Xxxxxxx Xxxxx | ||||
| Senior Vice President | ||||
| LASALLE BANK NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |||
| Xxxxxxxxxxx X. Xxxxxxx | ||||
| Senior Vice President | ||||
| JPMORGAN CHASE BANK, N.A., as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx | ||||
| Assistant Vice President | ||||
| NATIONAL CITY BUSINESS CREDIT, INC., as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx | ||||
| Vice President | ||||
| WACHOVIA CAPITAL FINANCE, as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Xxxxxxx Xxxxxx | ||||
| Vice President | ||||
| BANK OF AMERICA, N.A., CANADA BRANCH, as a Lender |
||||
| By: | /s/ Xxxxxxx Sales de Xxxxxxx | |||
| Xxxxxxx Sales xx Xxxxxxx | ||||
| Vice President | ||||
| CIT FINANCIAL LTD., as a Lender |
||||
| By: | /s/ J. Xxxxx Xxxxxxxxx | |||
| J. Xxxxx Xxxxxxxxx | ||||
| President | ||||
| JPMORGAN CHASE BANK, N.A. TORONTO BRANCH, as a Lender |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Vice President | ||||
| NATIONAL CITY BANK, CANADA BRANCH, as a Lender |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx | ||||
| Vice President | ||||
| WACHOVIA CAPITAL FINANCE CORPORATION (CANADA) Formerly, CONGRESS FINANCIAL CORPORATION (CANADA), as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Xxxxxxx Xxxxxxxxxx | ||||
| Vice President | ||||
EXHIBIT A
to
LIMITED CONSENT AND AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
[See attached]
EXHIBIT A TO FIRST AMENDMENT AND WAIVER
PARTICIPANTS/ABBREVIATIONS
| Abbreviation | Party | |
“BP POL”
|
Bruchner Polska SB Zoo, a limited liability company formed under the laws of Poland. | |
“CDW”
|
CDW HoldCo LLC, a Delaware limited liability company. | |
“ChinaCo”
|
{WESCO (Shanghai) Trading Co Ltd }, a corporation formed under the laws of China by WESCO HK | |
“Dutch BV”
|
{WESCO International Netherlands B V }, a limited liability company formed under the laws of the Netherlands by Dutch Coop. | |
“Dutch Coop”
|
{WESCO International Netherlands cooperatief U.A. }, a cooperative incorporated under the laws of the Netherlands by Dutch CV and WDC Holding | |
“Dutch CV”
|
{WESCO International Netherlands CV}, a limited partnership formed under the laws of the Netherlands by New ULC and WESCO CANADA CO | |
“New ULC 2”
|
WESCO Distribution II ULC, an unlimited liability company formed under the laws of Nova Scotia | |
“New ULC 3”
|
WESCO Distribution III ULC, an unlimited liability company formed under the laws of Nova Scotia | |
“WDC Holding”
|
WDC Holding Inc., a Delaware corporation | |
“WDCGP”
|
WESCO Distribution Canada GP Inc., a limited liability company formed under the laws of Nova Scotia. | |
“WDCLP”
|
WESCO Distribution Canada LP, a limited partnership formed under the laws of Ontario by WESCO CANADA CO. as limited partner and WDCGP as general partner |
| Abbreviation | Party | |
“WDI UK”
|
WESCO Distribution International, Ltd, a corporation formed under the laws of the U.K. | |
“WDI”
|
WESCO Distribution, Inc., a Delaware corporation | |
“WESCO Canada Co”
|
WESCO Distribution Canada Co , an unlimited liability company amalgamated under the laws of Nova Scotia, | |
“WESCO HK”
|
WESCO HK, a corporation formed under the laws of Hong Kong by Dutch BV. | |
“WISC Singapore”
|
WESCO International Supply Co Singapore Pte Ltd | |
“WSPS Singapore”
|
WESCO Sourcing and Procurement Services Pte |
STEPS
| STEP | ||
1(a)
|
File Certificate of Registration to create New ULC 2 under the Corporations Registration Act (Nova Scotia) as subsidiary of WESCO Canada Co. | |
1(b)
|
Payment of not more than US $15,000 subscription price by WESCO Canada Co to New ULC 2 for one share of common stock | |
2
|
Lender Consent not required | |
3
|
Form Dutch CV and consummate Contribution Agreement pursuant to which WESCO Canada Co contributes its limited partnership interest in WDCLP and 17,783,061 common shares of WDCGP and New ULC 2 contributes not more than $15,000 to acquire respective 99.99% and 0.01% interests in Dutch CV | |
4
|
Lender Consent not required | |
5
|
Lender Consent not required | |
6
|
Lender Consent not required | |
7(a)
|
File deed of incorporation of Dutch Coop on behalf of its members, WDC Holding and Dutch CV | |
7(b)
|
Capitalize Dutch Coop at not more than US $10,000 (or Euro equivalent) paid by WDC Holding and Dutch CV | |
8
|
Lender Consent not required | |
9(a)
|
File documents to form Dutch BV as subsidiary of Dutch Coop | |
9(b)
|
Capitalize Dutch BV at not more than US $7,500 (or Euro equivalent) paid by Dutch Coop | |
10(a)
|
File documents to form WESCO HK as subsidiary of Dutch BV | |
10(b)
|
Capitalize WESCO HK at not more than US $5,000 (or Euro or Hong Kong dollar equivalent) paid by Dutch BV | |
11
|
WDCLP distributes Can $900,000 to Dutch CV and Can $100,000 to WDCGP, in each case as a dividend | |
12
|
WDCGP distributes Can $100,000 to Dutch CV as a dividend |
| STEP | ||
13
|
Dutch CV pays not more than Can $750,000 (or Euro equivalent) to Dutch Coop in return for membership interest in or contribution to capital of the Dutch Coop | |
14
|
Dutch Coop pays not more than Can $650,000 {or Euro equivalent} to Dutch BV in return for additional shares in the capital of Dutch BV | |
15
|
Dutch BV pays not more than Can $650,000 {or Euro or HK Dollar equivalent}to WESCO HK in return for additional shares in the capital of WESCO HK | |
16
|
File formation documents for China Co as subsidiary of WESCO HK | |
17
|
WESCO HK pays not more than Can $400,000 {or Euro or HK Dollar or Yuan equivalent} to China Co for additional shares in the capital of ChinaCo | |
18
|
Consummate Contribution Agreement between WDI and WDC Holding pursuant to which WDI sells (a) 1,000 WDI UK shares, (b) 100,000 WSPS Singapore shares, (c) 2 WISC Singapore shares, and (d) 100 BP Pol shares to WDC Holding | |
19
|
Consummate Purchase Agreement between WDC Holding and WESCO Canada Co, pursuant to which WDC Holding sells (a) 1,000 WDI UK shares, (b) 000,00 XXXX Xxxxxxxxx shares, (c) 2 WISC Singapore shares, and (d) 99 BP Pol shares to WESCO CANADA CO. in return for the issuance by WESCO CANADA CO to WDC Holding of common shares in the capital of WESCO Canada Co. | |
20
|
Lender Consent not required | |
21
|
Consummate Contribution Agreement between WESCO Canada Co. and Dutch CV pursuant to which WESCO Canada Co. sells to Dutch CV (a) 1,000 WDI UK shares, (b) 100,000 WSPS Singapore shares, (c) 2 WISC Singapore shares, and (d) 99 BP Pol shares | |
22
|
Lender Consent not required | |
23
|
Lender Consent not required | |
24
|
Consummate Contribution Agreement between Dutch CV and Dutch Coop pursuant to which Dutch CV sells to Dutch Coop (a) 1,000 WDI UK shares, (b) 100,000 WSPS Singapore shares, (c) 2 WISC Singapore shares, and (d) 99 BP Pol shares |
| STEP | ||
25
|
Consummate Contribution Agreement between Dutch Coop and Dutch BV pursuant to which Dutch Coop sells to Dutch BV (a) 1,000 WDI UK shares, (b) 100,000 WSPS Singapore shares, (c) 2 WISC Singapore shares, and (d) 99 BP Pol shares | |
26(a)
|
File Certificate of Registration to create New ULC 3 under the Corporations Registration Act (Nova Scotia) as subsidiary of Dutch CV | |
26(b)
|
Payment of the $1 subscription price by Dutch CV to New ULC 3 for one share of common stock | |
26(c)
|
Consummate Contribution Agreement between Dutch CV and New ULC 3 pursuant to which Dutch CV sells to New ULC 3.99% of the equity of Dutch Coop in return for shares of New ULC 3 | |
27
|
Consummate Contribution Agreement between WDC Holding and WESCO Canada Co pursuant to which Dutch WDC Holding contributes to WESCO Canada Co. 1% of the equity of Dutch Coop | |
28
|
Consummate Contribution Agreement between WESCO Canada Co. and Dutch CV pursuant to which WESCO Canada Co. contributes to Dutch CV 1% of the equity of Dutch Coop |
