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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended SEPTEMBER 30, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD
from ______ to ______
Commission file number 001-14989
WESCO INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 25-1723345
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
COMMERCE COURT
FOUR STATION SQUARE, SUITE 700
PITTSBURGH, PENNSYLVANIA 15219 (412) 454-2200
(Address of principal executive offices) (Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for at least the past 90 days. Yes _X_ No ___.
As of October 31, 1999, WESCO International, Inc. had 43,189,649 shares and
4,653,131 shares of common stock and Class B common stock outstanding,
respectively.
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WESCO INTERNATIONAL, INC. AND SUBSIDIARIES
QUARTERLY REPORT ON FORM 10-Q
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
PART I - FINANCIAL INFORMATION
ITEM 1. Financial Statements
Condensed Consolidated Balance Sheets as of December 31, 1998 and
September 30, 1999 (unaudited) 2
Condensed Consolidated Statements of Operations for the three months and
nine months ended September 30, 1998 and 1999 (unaudited) 3
Condensed Consolidated Statements of Cash Flows for the nine months
ended September 30, 1998 and 1999 (unaudited) 4
Notes to Condensed Consolidated Financial Statements (unaudited) 5
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 12
ITEM 3. Quantitative and Qualitative Disclosures about Market Risk 19
PART II - OTHER INFORMATION
ITEM 2. Changes in Securities and Use of Proceeds 19
ITEM 6. Exhibits and Reports on Form 8-K 19
Signatures 20
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</TABLE>
1
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WESCO INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31 SEPTEMBER 30
Dollars in thousands, except par values 1998 1999
- --------------------------------------------------------------------------------------------------------------------------
(UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 8,093 $ 31,812
Trade accounts receivable, net of allowance for doubtful accounts of
$8,082 and $7,489 in 1998 and 1999, respectively 181,511 207,497
Other accounts receivable 22,265 24,242
Inventories 343,764 387,210
Income taxes receivable 7,329 3,445
Prepaid expenses and other current assets 2,892 4,678
Deferred income taxes 16,217 15,452
---------------------------------
Total current assets 582,071 674,336
Property, buildings and equipment, net 107,596 113,398
Goodwill and other intangibles, net of accumulated amortization
of $10,163 and $16,564 in 1998 and 1999, respectively 234,049 252,272
Other assets 26,806 12,024
---------------------------------
Total assets $ 950,522 $ 1,052,030
=================================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 378,590 $ 435,830
Accrued payroll and benefit costs 19,614 11,098
Current portion of long-term debt 16,592 2,391
Other current liabilities 51,671 37,587
---------------------------------
Total current liabilities 466,467 486,906
Long-term debt 579,238 420,952
Other noncurrent liabilities 7,040 6,990
Deferred income taxes 18,832 23,073
---------------------------------
Total liabilities 1,071,577 937,921
Commitments and contingencies
Redeemable Class A common stock, $.01 par value; 4,901,902 issued and
outstanding in 1998 (redemption value of redeemable common stock and
vested options of $130,267 in 1998) 21,506 --
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; 20,000,000 shares authorized, no shares issued -- --
Common stock, $.01 par value; 210,000,000 shares authorized, 25,209,817 and
43,111,236 shares issued and outstanding in 1998 and 1999, respectively 252 431
Class B nonvoting convertible common stock, $.01 par value; 20,000,000 shares
authorized, 4,653,131 issued and outstanding in 1998 and 1999 46 46
Additional capital 326,783 564,944
Retained earnings (deficit) (468,220) (450,505)
Accumulated other comprehensive income (loss) (1,422) (807)
---------------------------------
Total stockholders' equity (142,561) 114,109
---------------------------------
Total liabilities and stockholders' equity $ 950,522 $ 1,052,030
=================================
</TABLE>
The accompanying notes are an integral part of the condensed
consolidated financial statements.
2
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WESCO INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
In thousands, except share data 1998 1999 1998 1999
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Sales, net $ 777,701 $903,216 $ 2,219,456 $ 2,544,782
Cost of goods sold 639,847 746,860 1,821,616 2,092,632
--------------------------------------------------------------
Gross profit 137,854 156,356 397,840 452,150
Selling, general and administrative expenses 105,697 113,034 310,804 338,659
Depreciation and amortization 3,851 5,082 10,179 14,810
Recapitalization costs -- -- 51,800 --
--------------------------------------------------------------
Income from operations 28,306 38,240 25,057 98,681
Interest expense, net 13,119 10,683 29,599 37,474
Other expenses 3,674 4,692 6,244 14,239
--------------------------------------------------------------
Income (loss) before income taxes and extraordinary item 11,513 22,865 (10,786) 46,968
Provision (benefit) for income taxes (14,925) 9,108 (27,618) 18,746
--------------------------------------------------------------
Income before extraordinary item 26,438 13,757 16,832 28,222
Extraordinary item, net of tax benefits of $6,711 (Note 4) -- -- -- (10,507)
--------------------------------------------------------------
Net income $ 26,438 $ 13,757 $ 16,832 $ 17,715
==============================================================
Basic earnings per share:
Income before extraordinary item $ 0.77 $ 0.29 $ 0.40 $ 0.68
Extraordinary item -- -- -- (0.25)
--------------------------------------------------------------
Net income $ 0.77 $ 0.29 $ 0.40 $ 0.43
==============================================================
Diluted earnings per share:
Income before extraordinary item $ 0.65 $ 0.27 $ 0.35 $ 0.62
Extraordinary item -- -- -- (0.23)
--------------------------------------------------------------
Net income $ 0.65 $ 0.27 $ 0.35 $ 0.39
==============================================================
</TABLE>
The accompanying notes are an integral part of the condensed
consolidated financial statements.
3
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WESCO INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
In thousands 1998 1999
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 16,832 $ 17,715
Adjustments to reconcile net income to net cash provided by operating activities:
Extraordinary item, net of tax benefit -- 10,507
Recapitalization costs 40,500 --
Depreciation and amortization 10,179 14,810
Accretion of original issue and amortization of purchase discounts 4,513 4,154
Amortization of debt issuance costs and interest rate caps 1,276 929
Gain on sale of property, buildings and equipment (478) (240)
Deferred income taxes (24,989) 5,006
Changes in assets and liabilities, excluding the effects of acquisitions:
Sale of trade accounts receivable 274,245 60,000
Trade and other receivables (33,728) (78,328)
Inventories 1,280 (34,403)
Other current and noncurrent assets (4,174) 9,236
Accounts payable 22,878 59,129
Accrued payroll and benefit costs (10,224) (8,516)
Other current and noncurrent liabilities 572 10,705
-----------------------------
Net cash provided by operating activities 298,682 70,704
INVESTING ACTIVITIES:
Capital expenditures (8,942) (16,299)
Proceeds from the sale of property, buildings and equipment 1,189 323
Advances to / repayments from affiliates -- 8,667
Acquisitions, net of cash acquired (163,960) (58,611)
-----------------------------
Net cash used by investing activities (171,713) (65,920)
FINANCING ACTIVITIES:
Proceeds from issuance of long-term debt 935,311 559,616
Repayments of long-term debt (687,519) (726,023)
Debt issuance costs (10,570) (2,103)
Recapitalization costs (27,674) --
Repurchase of common stock and options (654,462) --
Proceeds from issuance of common stock and exercise of options 330,098 187,445
Proceeds from contributed capital 5,806 --
-----------------------------
Net cash provided (used) by financing activities (109,010) 18,935
-----------------------------
Net change in cash and cash equivalents 17,959 23,719
Cash and cash equivalents at the beginning of period 7,620 8,093
-----------------------------
Cash and cash equivalents at the end of period $ 25,579 $ 31,812
=============================
</TABLE>
The accompanying notes are an integral part of the condensed
consolidated financial statements.
4
<PAGE> 6
WESCO INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. ORGANIZATION
WESCO International, Inc. and its subsidiaries (collectively, "WESCO"),
headquartered in Pittsburgh, Pennsylvania, is a full-line distributor of
electrical supplies and equipment and is a provider of integrated supply
procurement services. WESCO is engaged principally in one line of business-the
sale of electrical products and maintenance, repair and operating supplies.
WESCO currently operates branch locations in the United States, Canada, Mexico,
Puerto Rico, Guam, Singapore and the United Kingdom.
Subsequent to the completion in June 1998 of a leveraged
recapitalization, WESCO was substantially owned by an investor group led by
affiliates of The Cypress Group L.L.C. ("Cypress") with WESCO's management
retaining the remaining interest.
On May 17, 1999, WESCO completed an initial public offering of
11,183,750 shares of common stock at $18.00 per share (see Note 3).
2. ACCOUNTING POLICIES
Basis of Presentation
The unaudited condensed consolidated financial statements include the
accounts of WESCO and all of its subsidiaries and have been prepared in
accordance with Rule 10-01 of the Securities and Exchange Commission. The
unaudited condensed consolidated financial statements should be read in
conjunction with the audited consolidated financial statements and notes thereto
included in WESCO's 1998 Annual Report on Form 10-K filed with the Securities
and Exchange Commission.
The unaudited condensed consolidated balance sheet as of September 30,
1999, the unaudited condensed consolidated statements of operations for the
three months and nine months ended September 30, 1998 and 1999, and the
unaudited condensed consolidated statements of cash flows for the nine months
ended September 30, 1998 and 1999, in the opinion of management, have been
prepared on the same basis as the audited consolidated financial statements and
include all adjustments necessary for the fair presentation of the results of
the interim periods. All adjustments reflected in the condensed consolidated
financial statements are of a normal recurring nature. Results for the interim
periods presented are not necessarily indicative of the results to be expected
for the full year. Certain prior period amounts have been reclassified in order
to conform to the current period presentation.
Recent Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities." This
statement, as amended, is required to be adopted by WESCO as of January 1, 2001,
although early adoption is permitted. This statement requires the recognition of
the fair value of any derivative financial instrument on the balance sheet.
Changes in fair value of the derivative and, in certain instances, changes in
the fair value of an underlying hedged asset or liability, are recognized
through either income or as a component of other comprehensive income.
Management does not expect this statement will have a material impact on the
results of operations or financial position of WESCO.
3. INITIAL PUBLIC OFFERING
On May 17, 1999, WESCO completed its initial public offering of
11,183,750 shares of common stock ("Offering") at $18.00 per share. In
connection with the Offering, certain employee rights to require WESCO to
repurchase outstanding redeemable common stock were terminated and approximately
$31.5 million of convertible notes were converted into common stock. Proceeds
from the Offering (after deducting Offering costs) totaling $187.6 million and
borrowings of approximately $65 million were used to redeem all of the 11.125%
senior discount notes ($62.8 million), to repay the revolving credit and term
loan facilities ($188.8 million).
5
<PAGE> 7
In connection with the Offering, on April 11, 1999, the Board of
Directors approved a 57.8 to one stock split effected in the form of a stock
dividend of WESCO's common stock. The Board of Directors also reclassified the
Class A common stock into common stock, increased the authorized common stock to
210,000,000 shares and the authorized Class B common stock to 20,000,000 shares
and authorized 20,000,000 shares of $.01 par preferred stock, all effective May
11, 1999. In this report, all share and per share data have been restated to
reflect the stock split.
4. EXTRAORDINARY ITEM
In the second quarter of 1999, WESCO (i) entered into a new $400
million revolving credit facility and terminated its existing term loans and
revolving facility; (ii) terminated its existing accounts receivable
securitization program and entered into a new accounts receivable securitization
program; and (iii) retired all of its outstanding 11.125% senior discount notes.
In conjunction with these transactions, approximately $8.9 million of deferred
financing charges were written off and redemption costs of $8.3 million were
incurred to redeem the 11.125% senior discount notes. These transactions
resulted in an extraordinary loss of $10.5 million, net of income tax benefits
of $6.7 million.
5. RECAPITALIZATION
On June 5, 1998, WESCO repurchased and retired 61,862,068 shares of
common stock held by certain shareholders for net consideration of approximately
$653.5 million ("Equity Consideration"). In addition, WESCO repaid approximately
$379.1 million of then outstanding indebtedness, and sold 29,604,351 shares of
common stock to an investor group led by affiliates of Cypress representing
approximately 88.7% of WESCO for an aggregate cash consideration of $318.1
million ("Cash Equity Contribution") (collectively, "Recapitalization").
Existing management retained approximately an 11.3% interest in WESCO after the
Recapitalization. WESCO funded the Equity Consideration and the repayment of
indebtedness from proceeds of the Cash Equity Contribution, issuance of
approximately $351 million of senior subordinated and senior discount notes, a
$170 million credit facility and the sale of approximately $250 million of
accounts receivable. Given the 11.3% retained ownership, the transaction was
treated as a recapitalization for financial reporting purposes and, accordingly,
the historical bases of WESCO's assets and liabilities were not affected.
In connection with the Recapitalization, WESCO recorded a one-time
charge of $51.8 million related to investment banking fees of $13.8 million,
compensation charges of $11.3 million associated with one-time bonuses paid to
certain members of management, transaction fees of $9.5 million paid to Cypress,
compensation charges of $6.2 million associated with the cash settlement of
certain stock options, compensation charges of $4.1 million associated with the
acceleration of vesting of one former executive's stock options issued at a
discount and other non-capitalized transaction fees and expenses amounting to
$6.9 million.
6. ACCOUNTS RECEIVABLE SECURITIZATION
In June 1999, WESCO and certain of its subsidiaries terminated its
previous accounts receivable securitization program and entered into a new $350
million accounts receivable securitization program ("Receivables Facility") with
another financial institution, as modified in September 1999. Under the
Receivables Facility, WESCO sells, on a continuous basis, to WESCO Receivables
Corporation, a wholly-owned, special purpose subsidiary ("SPC") an undivided
interest in all eligible accounts receivable. The SPC sells to a third-party
conduit all the receivables while maintaining a subordinated interest, in the
form of overcollateralization, in a portion of the receivables. WESCO has agreed
to continue servicing the sold receivables for the financial institution at
market rates; accordingly, no servicing asset or liability has been recorded.
6
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As of December 31, 1998 and September 30, 1999, securitized accounts
receivable totaled $360.1 million and $412.7 million, respectively, of which the
subordinated retained interest was $84.1 million and $75.5 million,
respectively. Accordingly, $276.0 million and $337.2 million of accounts
receivable balances were removed from the consolidated balance sheets at
December 31, 1998 and September 30, 1999. Net proceeds from the transactions
totaled $274.2 million in the first nine months of 1998 and $60.0 million in the
first nine months of 1999. Costs associated with the Receivables Facility
totaled $6.2 million in the first nine months of 1998, and $14.2 million in the
first nine months of 1999. These amounts are recorded as other expenses in the
condensed consolidated statement of operations and are primarily related to the
discount and loss on the sale of accounts receivables, partially offset by
related servicing revenue.
7. LONG-TERM DEBT
The following table sets forth WESCO's outstanding indebtedness.
<TABLE>
<CAPTION>
DECEMBER 31 SEPTEMBER 30
In thousands 1998 1999
--------------------------------------------------------------------------------
<S> <C> <C>
Revolving credit facility $ -- $128,328
Senior subordinated notes (1) 289,194 290,055
Term loans 169,500 --
Prior revolving facility 42,450 --
Senior discount notes (2) 52,071 --
Other 42,615 4,960
----------------------------
595,830 423,343
Less current portion (16,592) (2,391)
----------------------------
Total $579,238 $420,952
--------------------------------------------------------------------------------
</TABLE>
(1) Net of original issue discount and purchase discount of $918 and
$9,888, respectively, at December 31, 1998 and $845 and $9,100,
respectively, at September 30, 1999.
(2) Net of original issue discount and purchase discount of $33,266 and
$1,664, respectively.
During the second quarter of 1999, WESCO completed the Offering and, as
discussed below, refinanced the majority of its long-term debt facilities. As a
result of these transactions, the term loans and the senior discount notes were
repaid, the prior revolving facility was refinanced and certain convertible
notes were converted into WESCO common stock.
The term loans and prior revolving facility borrowings were made
pursuant to a credit agreement entered into by and between WESCO and certain
financial institutions. This credit agreement provided for term loan facilities
in an aggregate principal amount of $270 million and a $100 million revolving
credit facility. This facility provided variable-rate borrowings tied to market
indices plus applicable borrowing margins.
The senior discount notes with an aggregate principal amount of $87
million and a stated rate of 11.125% were issued with an original issue discount
("OID") of $36.5 million that was being accreted over the period ending June 1,
2003.
Revolving Credit Facility
On June 29, 1999, WESCO Distribution, Inc. entered into a new $400
million revolving credit facility with a consortium of financial institutions.
The revolving credit facility, which matures in June 2004, consists of up to
$365 million of revolving loans denominated in US dollars and a Canadian
sublimit totaling $35 million. Borrowings under the revolving credit facility
are collateralized by substantially all the assets, excluding real property, of
WESCO Distribution, Inc. and are guaranteed by WESCO International, Inc. and
certain subsidiaries.
7
<PAGE> 9
Borrowings bear rates of interest equal to various indices, at WESCO's
option plus a borrowing margin. At September 30, 1999, the interest rate on
revolving credit facility borrowings was 6.81%. A commitment fee of 30 to 50
basis points per annum is due on unused portions of the revolving credit
facility.
Capitalized debt issuance costs related to the new revolving credit
facility were approximately $1.8 million and are being amortized to interest
expense on a straight-line basis, which does not differ materially from the
effective-interest method, over the life of the credit agreement.
The revolving credit facility contains various restrictive covenants
that, among other things, include limitations on (i) dividend payments or
certain other restricted payments or investments; (ii) the incurrence of
additional indebtedness and guarantees or issuance of additional stock; (iii)
creation of liens; (iv) mergers, consolidation or sales of substantially all of
WESCO's assets; (v) certain transactions among affiliates; (vi) payments by
certain subsidiaries to WESCO; and (vii) capital expenditures. In addition, the
agreements require WESCO to meet certain leverage, working capital and interest
coverage ratios.
8. LONG-TERM INCENTIVE PLAN
On April 26, 1999, the Board of Directors approved the Long-Term
Incentive Plan ("LTIP"). The LTIP provides for stock participation in the form
of options, restricted stock awards and performance awards by certain key
employees of WESCO. The LTIP covers a maximum of 6,936,000 shares of WESCO's
common stock. The exercise price is determined by the Compensation Committee of
the Board of Directors.
9. ACQUISITIONS
On September 11, 1998, WESCO acquired substantially all the assets and
assumed substantially all liabilities and obligations relating to the operations
of Bruckner Supply Company, Inc. ("Bruckner"), a privately owned company
headquartered in Port Washington, New York. Bruckner is a provider of integrated
supply procurement and outsourcing activities for large industrial companies.
Net sales totaled approximately $222 million in 1997.
The following unaudited pro forma information assumes that the Bruckner
acquisition had occurred as of January 1, 1998. Adjustments to arrive at the pro
forma information include, among others, those related to acquisition financing,
amortization of goodwill and the related tax effects of such adjustments at an
assumed rate of 39%.
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
In thousands, except per share amounts SEPTEMBER 30, 1998 SEPTEMBER 30, 1998
----------------------------------------------------------------------------------
<S> <C> <C>
Sales, net $825,580 $2,399,350
Net income 28,114 21,466
Basic earnings per share 0.82 0.52
Diluted earnings per share 0.70 0.49
----------------------------------------------------------------------------------
</TABLE>
The pro forma financial information does not purport to present what
WESCO's results of operations would have been if the Bruckner acquisition had
actually occurred as of January 1, 1998, or to project WESCO's results of
operations for any future period.
During 1999, WESCO purchased four electrical supply distributors with
annual sales of approximately $70 million for an aggregate consideration of
$24.4 million, resulting in goodwill of approximately $9.5 million.
8
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10. EARNINGS PER SHARE
The following tables set forth the details of basic and diluted
earnings per share before extraordinary item:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30
Dollars in thousands, except per share amounts 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Income before extraordinary item $26,438 $13,757
Interest on convertible debt 154 -
-----------------------------
Earnings used in diluted earnings per share
before extraordinary item $26,592 $13,757
=============================
Weighted average common shares outstanding used in
computing basic earnings per share 34,219,334 47,737,465
Common shares issuable upon exercise of
dilutive stock options 3,437,857 3,958,098
Assumed conversion of convertible debt 3,438,704 --
-----------------------------
Weighted average common shares outstanding and
common share equivalents used in computing
diluted earnings per share 41,095,895 51,695,563
=============================
Earnings per share before extraordinary item
Basic $0.77 $0.29
Diluted 0.65 0.27
----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
Dollars in thousands, except per share amounts 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Income before extraordinary item $16,832 $28,222
Interest on convertible debt 251 595
-----------------------------
Earnings used in diluted earnings per share
before extraordinary item $17,083 $28,817
=============================
Weighted average common shares outstanding used in
computing basic earnings per share 41,599,635 41,461,797
Common shares issuable upon exercise of
dilutive stock options 3,533,489 3,946,624
Assumed conversion of convertible debt 3,208,836 1,169,393
-----------------------------
Weighted average common shares outstanding and
common share equivalents used in computing
diluted earnings per share 48,341,960 46,577,814
=============================
Earnings per share before extraordinary item
Basic $0.40 $0.68
Diluted 0.35 0.62
----------------------------------------------------------------------------------
</TABLE>
9
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11. COMPREHENSIVE INCOME
The following tables set forth comprehensive income and its components:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30
In thousands 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Net income $26,438 $13,757
Foreign currency translation adjustment (245) 98
---------------------------
Comprehensive income $26,193 13,855
----------------------------------------------------------------------------------
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
In thousands 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Net income $16,832 $17,715
Foreign currency translation adjustment (522) 615
---------------------------
Comprehensive income $16,310 $18,330
----------------------------------------------------------------------------------
</TABLE>
12. CASH FLOW STATEMENT
Supplemental cash flow information with respect to acquisitions was as
follows:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
In thousands 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Details of acquisitions
Fair value of assets acquired $265,766 $31,096
Deferred acquisition payment -- 36,415
Fair value of liabilities assumed (55,564) (6,600)
Notes issued to seller (46,242) (2,300)
---------------------------
Cash paid for acquisitions $163,960 $58,611
----------------------------------------------------------------------------------
</TABLE>
Noncash investing and financing activities not reflected in the
consolidated statement of cash flows for the nine months ended September 30,
1999, consisted of the conversion of $21.5 million related to the termination of
the redemption feature for redeemable Class A common stock and the conversion of
$31.5 million of convertible notes into WESCO common stock.
13. OTHER FINANCIAL INFORMATION
In June 1998, WESCO Distribution, Inc. issued $300 million of 9 1/8%
senior subordinated notes. The senior subordinated notes are fully and
unconditionally guaranteed by WESCO International, Inc. on a subordinated basis
to all existing and future senior indebtedness of WESCO International, Inc.
Summarized financial information for WESCO Distribution, Inc. is as follows:
<TABLE>
<CAPTION>
BALANCE SHEET DATA
DECEMBER 31 SEPTEMBER 30
In thousands 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Current assets $582,071 $674,336
Noncurrent assets 368,451 377,694
Current liabilities 466,467 486,906
Long-term debt 527,167 420,952
Other noncurrent liabilities 25,872 30,063
Total liabilities and stockholder's equity 950,522 1,052,030
----------------------------------------------------------------------------------
</TABLE>
10
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<TABLE>
<CAPTION>
STATEMENT OF OPERATIONS DATA
THREE MONTHS ENDED
SEPTEMBER 30
In thousands 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Sales, net $777,701 $903,216
Gross profit 137,854 156,356
Income from operations 28,306 38,240
Net income 27,874 13,757
----------------------------------------------------------------------------------
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
In thousands 1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Sales, net $2,219,456 $2,544,782
Gross profit 397,840 452,150
Income from operations 25,057 98,681
Net income 18,751 20,117
----------------------------------------------------------------------------------
</TABLE>
14. SUBSEQUENT EVENT
In November 1999, WESCO's board of directors authorized a stock
repurchase program to purchase up to $25 million of WESCO common stock. WESCO's
common stock may be purchased at management's discretion from time to time in
open market transactions and the program may be discontinued at any time.
11
<PAGE> 13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
information in the unaudited condensed consolidated financial statements and
notes thereto included herein and WESCO International Inc.'s Financial
Statements and Management's Discussion and Analysis of Financial Condition and
Results of Operations included in its 1998 Annual Report on Form 10-K.
GENERAL
WESCO is a leading distributor of electrical products and other
industrial MRO supplies and related services in North America. WESCO has over
340 branches and five distribution centers strategically located in 48 states,
nine Canadian provinces, Puerto Rico, Guam, Mexico, the United Kingdom and
Singapore. WESCO serves over 130,000 customers worldwide, offering over
1,000,000 products from over 23,000 suppliers. WESCO's diverse customer base
includes a wide variety of industrial companies; contractors for industrial,
commercial and residential projects; utility companies; and commercial,
institutional and governmental customers. Approximately 90% of WESCO's net sales
are generated from operations in the U.S., 9% from Canada and the remainder from
other countries.
RECENT DEVELOPMENTS
Recent developments affecting the results of operations and financial
position of WESCO include the following:
Initial Public Offering. On May 17, 1999, WESCO completed its initial
public offering of 11,183,750 shares of common stock ("Offering") at $18.00 per
share. In connection with the Offering, certain employee rights to require WESCO
to repurchase outstanding redeemable common stock were terminated and
approximately $31.5 million of convertible notes were converted into common
stock. Proceeds from the Offering (after deducting Offering costs) totaling
$187.6 million and borrowings of approximately $65 million were used to redeem
all of the senior discount notes ($62.8 million), to repay the revolving credit
and term loan facilities ($188.8 million).
Credit Refinancing. On June 29, 1999, WESCO Distribution, Inc. entered
into a new $400 million revolving credit facility with a consortium of financial
institutions. WESCO believes the new credit agreement provides greater financial
flexibility and lower annual costs of financing than the previous credit
agreement. In addition, WESCO entered into a new $350 million accounts
receivable securitization program that provides for a larger amount of eligible
accounts receivable and lower costs than the previous securitization program.
In conjunction with these transactions, approximately $8.9 million of
deferred financing charges were written off and redemption costs of $8.3 million
were incurred to redeem the 11.125% senior discount notes. These transactions
resulted in an extraordinary loss of $10.5 million, net of income tax benefits
of $6.7 million.
Acquisitions. During the first nine months of 1999, WESCO purchased
four electrical supply distributors with annual sales of approximately $70
million for an aggregate consideration of $24.4 million, resulting in goodwill
of approximately $9.5 million.
12
<PAGE> 14
RESULTS OF OPERATIONS
Third Quarter of 1999 versus Third Quarter of 1998
The following table sets forth the percentage relationship to net sales
of certain items in WESCO's condensed consolidated statements of operations for
the periods presented:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30
1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Sales, net 100.0% 100.0%
Gross profit 17.7 17.3
Selling, general and administrative expenses 13.6 12.5
Depreciation and amortization 0.5 0.6
---------------------------
Income from operations 3.6 4.2
Interest expense 1.7 1.2
Other expense 0.4 0.5
---------------------------
Income before income taxes 1.5 2.5
Income taxes (1.9) 1.0
---------------------------
Net income 3.4% 1.5%
----------------------------------------------------------------------------------
</TABLE>
Net Sales. Sales in the third quarter of 1999 increased by $125.5
million, or 16.1%, to $903.2 million compared with $777.7 million in the
prior-year quarter, primarily due to sales attributable to acquired companies.
Core business sales increased approximately 7% in the quarter-to-quarter
comparison. The mix of direct shipment sales increased to approximately 46% in
the third quarter of 1999 from 41% in the third quarter of 1998 as a result of
the Bruckner acquisition completed in September 1998. Substantially all of
Bruckner's sales are direct shipment.
Gross Profit. Gross profit for the third quarter of 1999 increased by
$18.5 million to $156.4 million from $137.9 million for the third quarter of
1998. Gross profit margin declined to 17.3% in the current-year quarter from
17.7% in the third quarter of 1998. Gross profit margin in 1999 includes the
effect of an increase in direct shipment sales associated with the Bruckner
acquisition. Direct ship gross margins are lower than those of other sales;
however, operating profit margins are often higher, since the product handling
and fulfillment costs associated with direct shipments are much lower. Excluding
the effects of the Bruckner acquisition, gross profit margin was 17.8% for the
third quarter of 1998 and 1999.
Selling, General and Administrative Expenses. For the third quarter of
1999, selling, general and administrative ("SG&A") expenses increased $7.3
million, or 6.9%, to $113.0 million when compared to the third quarter of 1998.
This increase was comprised of a $10.9 million increase in salaries, wages and
commissions and a $6.2 million increase in certain other operating expenses such
as travel, transportation, telephone and sales promotion. These increases were
offset by a $5.5 million reduction in certain incentive-based compensation
expenses and a $4.3 million reduction in certain discretionary benefits.
Companies acquired since the beginning of the third quarter of 1998 added $8.3
million of the total increase in operating expenses. As a percent of sales, SG&A
expenses declined to 12.5% compared with 13.6% in the prior year quarter.
Depreciation and Amortization. Depreciation and amortization increased
$1.2 million to $5.1 million reflecting higher amortization of goodwill from
acquisitions and increases in property, buildings and equipment over the prior
year.
Income from Operations. Income from operations increased $9.9 million,
or 35.1%, to $38.2 million in the third quarter of 1999, compared with $28.3
million in the prior-year quarter. The increase was primarily due to higher
gross profit, partially offset by the increases in SG&A as explained above.
13
<PAGE> 15
Interest and Other Expense. Interest expense totaled $10.7 million for
the third quarter of 1999, a decrease of $2.4 million from the same period in
1998. The decline primarily was due to lower outstanding debt related to the
Offering as well as benefits resulting from the credit agreement refinancing.
Other expense totaled $4.7 million and $3.7 million in the third quarter of 1999
and 1998, respectively, reflecting costs associated with the accounts receivable
securitization.
Income Taxes. Income tax expense totaled $9.1 million in the third
quarter of 1999 and the effective tax rate was 39.8%. In the third quarter of
1998, income tax benefits totaled $14.9 million and the effective tax rate was
129.6%. The effective tax rate in the third quarter of 1998 was attributable to
the proportion of certain nondeductible recapitalization costs and other
nondeductible permanent differences relative to expected levels of operating
income. The effective tax rates differ from the federal statutory rate primarily
due to state income taxes and nondeductible expenses.
Net Income. Net income and diluted earnings per share totaled $13.8
million and $0.27, respectively, for the third quarter of 1999, compared with
$26.4 million, or $0.65 per diluted share, for the third quarter of 1998. The
comparative results were affected by $14.9 million of income tax benefits
recorded in 1998.
Nine months ended September 30, 1999 versus Nine months ended September 30, 1998
The following table sets forth the percentage relationship to net sales
of certain items in WESCO's condensed consolidated statements of operations for
the periods presented:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
1998 1999
----------------------------------------------------------------------------------
<S> <C> <C>
Sales, net 100.0% 100.0%
Gross profit 17.9 17.8
Selling, general and administrative expenses 14.0 13.3
Depreciation and amortization 0.5 0.6
Recapitalization costs 2.3 --
---------------------------
Income from operations 1.1 3.9
Interest expense 1.3 1.5
Other expense 0.3 0.6
---------------------------
Income (loss) before income taxes and
extraordinary item (0.5) 1.8
Income taxes (1.2) 0.7
---------------------------
Income before extraordinary item 0.7 1.1
Extraordinary item -- (0.4)
---------------------------
Net income 0.7% 0.7%
----------------------------------------------------------------------------------
</TABLE>
Net Sales. Sales in the first nine months of 1999 increased by $325.3
million, or 14.7%, to $2.5 billion compared with $2.2 billion in the prior-year
period primarily due to sales attributable to acquired companies. Core business
sales increased approximately 3% over the prior-year period. The mix of direct
shipment sales increased to approximately 46% in the first nine months of 1999
from 40% in the first nine months of 1998 as a result of the Bruckner
acquisition completed in September 1998. Substantially all of Bruckner's sales
are direct shipment.
Gross Profit. Gross profit for the first nine months of 1999 increased
by $54.3 million to $452.2 million from $397.8 million for the first nine months
of 1998. Gross profit margin was 17.8% and 17.9% in the first nine months of
1999 and 1998, respectively. Excluding the effects of the Bruckner acquisition,
which has a higher proportion of lower-margin direct ship sales, gross profit
margin increased to 18.4% from 18.0% in the prior-year period due to gross
margin improvement initiatives.
14
<PAGE> 16
Selling, General and Administrative Expenses. SG&A expenses increased
$27.9 million, or 9.0%, to $338.7 million. This increase was substantially due
to incremental expenses of companies acquired during 1998 and 1999 and, to a
lesser extent, increased SG&A in WESCO's core business. These increases
were partially offset by reductions in certain incentive-based compensation
expenses and a reduction in certain discretionary benefits. As a percent of
sales, SG&A expenses declined to 13.3% compared with 14.0% in the year-earlier
period reflecting a lower relative cost structure associated with the Bruckner
acquisition.
Depreciation and Amortization. Depreciation and amortization increased
$4.6 million to $14.8 million reflecting higher amortization of goodwill from
acquisitions and increases in property, buildings and equipment over the
prior-year period.
Income from Operations. Income from operations increased $73.6 million
to $98.7 million in the first nine months of 1999, compared with $25.1 million
in the prior-year period. Excluding the nonrecurring recapitalization costs in
1998, operating income increased $21.8 million. The increase was primarily due
to higher gross profit offset by increased operating costs as explained above.
Interest and Other Expense. Interest expense totaled $37.5 million for
the first nine months of 1999, an increase of $7.9 million over the same period
in 1998. The increase was primarily due to the higher levels of borrowings
associated with the recapitalization and acquisitions.
Other expense totaled $14.2 million and $6.2 million in the first nine
months of 1999 and 1998, respectively, reflecting costs associated with the
accounts receivable securitization program which commenced in June 1998.
Income Taxes. Income tax expense totaled $18.7 million in the first
nine months of 1999 and the effective tax rate was 39.9%. In the first nine
months of 1998, income tax benefits totaled $27.6 million and were primarily due
to the one-time $51.8 million recapitalization costs recorded in the second
quarter of 1998. The effective tax rate in the first nine months of 1998 was
256.1%. The effective tax rate for each interim period reflects management's
estimate of the expected rate for the full year. The higher effective rate in
1998 was attributable to the proportion of certain nondeductible
recapitalization costs and other nondeductible permanent differences relative to
expected levels of operating income.
Income Before Extraordinary Item and Net Income. For the first nine
months of 1999, income before extraordinary item totaled $28.2 million, or $0.62
per diluted share, compared with $16.8 million, or $0.35 per diluted share, in
the first nine months of 1998. The increases in the comparison are primarily due
to revenue growth and nonrecurring recapitalization costs included in the 1998
results.
Net income and diluted earnings per share totaled $17.7 million and
$0.39, respectively, for the first nine months of 1999, compared with $16.8
million, or $0.35 per diluted share, for the first nine months of 1998.
15
<PAGE> 17
LIQUIDITY AND CAPITAL RESOURCES
Total assets were approximately $1.1 billion and $1.0 billion at
September 30, 1999 and December 31, 1998, respectively. In addition,
stockholders' equity totaled $114.1 million at September 30, 1999, compared with
a deficit of $142.6 million at December 31, 1998. The increase in stockholders'
equity was primarily due to the Offering.
The following table sets forth WESCO's outstanding indebtedness.
<TABLE>
<CAPTION>
DECEMBER 31 SEPTEMBER 30
In millions 1998 1999
---------------------------------------------------------------------------------
<S> <C> <C>
Revolving credit facility $ -- $128.3
Senior subordinated notes (1) 289.2 290.1
Term loans 169.5 --
Prior revolving facility 42.4 --
Senior discount notes (2) 52.1 --
Other 42.6 5.0
-----------------------------
595.8 423.4
Less current portion (16.6) (2.4)
-----------------------------
Total $579.2 $421.0
---------------------------------------------------------------------------------
</TABLE>
(1) Net of original issue discount and purchase discount of $.9 and $9.9,
respectively, at December 31, 1998 and $.8 and $9.1, respectively, at
September 30, 1999.
(2) Net of original issue discount and purchase discount of $33.2 and $1.7,
respectively.
During the second quarter of 1999, WESCO completed the Offering with
net proceeds of $187.6 million, and, as discussed below, refinanced its credit
agreement and accounts receivable securitization program. As a result of these
transactions, the term loans and the senior discount notes were repaid, the
prior revolving facility was refinanced and $31.5 million of convertible notes
were converted into WESCO common stock.
Revolving Credit Facility
On June 29, 1999, WESCO Distribution, Inc. entered into a new $400
million revolving credit facility with a consortium of financial institutions.
The revolving credit facility, which matures in June 2004, consists of up to
$365 million of revolving loans denominated in US dollars and a Canadian
sublimit totaling $35 million. Borrowings under the revolving credit facility
are collateralized by substantially all the assets, excluding real property, of
WESCO Distribution, Inc. and are guaranteed by WESCO International, Inc. and
certain subsidiaries.
Borrowings bear rates of interest equal to various indices, at WESCO's
option plus a borrowing margin. At September 30, 1999, the interest rate on
revolving credit facility borrowings was 6.81%. A commitment fee of 30 to 50
basis points per annum is due on unused portions of the revolving credit
facility. The new credit agreement is expected to reduce WESCO's borrowing
costs.
The revolving credit facility contains various restrictive covenants
that, among other things, impose limitations on (i) dividend payments or certain
other restricted payments or investments; (ii) the incurrence of additional
indebtedness and guarantees or issuance of additional stock; (iii) creation of
liens; (iv) mergers, consolidation or sales of substantially all of WESCO's
assets (v) certain transactions among affiliates; (vi) payments by certain
subsidiaries to WESCO; and (vii) capital expenditures. In addition, the
agreements require WESCO to meet certain leverage, working capital and interest
coverage ratios.
Accounts Receivable Securitization Program
In June 1999, WESCO and certain of its subsidiaries terminated its
previous accounts receivable securitization program and entered into a new $350
million accounts receivable securitization program ("Receivables Facility") with
another financial institution as modified in September 1999. Under the
Receivables Facility WESCO sells an undivided interest in all eligible accounts
receivable. WESCO has agreed to continue servicing the sold receivables for the
financial institution at market rates; accordingly, no servicing asset or
liability has been recorded.
16
<PAGE> 18
WESCO's liquidity needs arise from seasonal working capital
requirements, capital expenditures, debt service obligations and acquisitions.
An analysis of cash flows for the first nine months of 1999 and 1998 follows:
Operating Activities. Cash provided by operating activities totaled
$70.7 million in the first nine months of 1999, compared to $298.7 million a
year ago. Cash provided by operations in the first nine months of 1999 and 1998
included proceeds of $60.0 million and $274.2 million, respectively, from the
sale of accounts receivable in connection with the accounts receivable
securitization program. Excluding this transaction, operating activities
provided $10.7 million in 1999 and $24.5 million in 1998. On this basis, the
period-to-period decline in operating cash flow was primarily due to increases
in working capital.
Investing Activities. Net cash used in investing activities was $65.9
million in the first nine months of 1999, compared to $171.7 million in the same
period of 1998. Cash used for investing activities was higher in 1998 primarily
due to amounts invested in business acquisitions. Capital expenditures for the
first nine months of 1999 were $16.3 million compared to $9.4 million for first
nine months of 1998 and were for computer equipment and software, branch and
distribution center facility improvements, forklifts and delivery vehicles. The
increase from the prior year was primarily due to the replacement of computer
hardware at the branch locations.
Financing Activities. Cash provided by financing activities totaled
$18.9 million in the first nine months of 1999 primarily due to the Offering,
offset, in part, by a net reduction in long-term debt. In the first nine months
of 1998, cash used by financing activities totaled $109.0 million primarily
reflecting the Recapitalization completed in June 1998.
Management believes that cash generated from operations, together with
amounts available under the credit agreement and the receivables facility, will
be sufficient to meet WESCO's working capital, capital expenditures and other
cash requirements for the foreseeable future. There can be no assurance,
however, that this will be the case. Financing of acquisitions can be funded
under the existing credit agreement and may, depending on the number and size of
acquisitions, require the issuance of additional debt and equity securities.
YEAR 2000 READINESS DISCLOSURE
The Year 2000 issue concerns the ability of automated applications to
process date-dependent processes, calculations and information by properly
interpreting the year. The Year 2000 issue may potentially impact WESCO's
business-critical computerized applications related to, among others, customer
sales, service and invoicing, purchasing, inventory management, payroll,
financing and financial accounting and reporting. In addition, other non
business-critical systems and services may also be affected. WESCO has assembled
an internal project team composed of information systems, operations, finance
and executive personnel to:
o assess the readiness of our systems, vendors and suppliers,
third-party service providers, customers and financial
institutions;
o replace or correct through program changes all non-compliant
applications;
o develop remediation action plans for systems that may not be Year
2000 compliant; and
o develop contingency plans in the event systems and services are
not compliant.
The readiness assessment phase of the project is complete and consisted
of a detailed assessment and testing of substantially all internal computer
systems, surveys of significant vendors and suppliers, service providers and
customers. WESCO has received, or is seeking, documentation from many external
parties, including its major suppliers, customers and service providers,
indicating their Year 2000 readiness. Over the past three years, WESCO has
invested approximately $6.0 million in new information systems to support the
growth and diversity of its business. In addition to meeting this objective,
Year 2000 compliance was also achieved in many systems.
17
<PAGE> 19
As of the date of this report, WESCO's information technology and
non-information technology systems are Year 2000 compliant. Additional testing
will continue through December 1999. The project team is also developing or
enhancing contingency plans to minimize the potential adverse effect the Year
2000 issue could have on WESCO in the event business-critical systems and
processes of WESCO or its suppliers or customers fail to be compliant. Such
contingent plans include identifying alternative suppliers or service providers.
Costs specifically associated with modifying WESCO's systems for Year 2000
compliance are expensed as incurred. Through September 30, 1999, such costs
totaled approximately $3.0 million. Costs to be incurred in the remainder of
1999 to address Year 2000 problems are estimated to be insignificant. Such costs
do not include normal system upgrades and replacements.
Based on current information, WESCO believes that the most likely worst
case scenario to result from a Year 2000 failure by WESCO, its suppliers or
customers would be a temporary limitation in its ability to distribute
electrical products from certain operating locations or provide integrated
supply services to its customers. Based on its own efforts and information
received from third parties, WESCO does not believe that Year 2000 issues are
likely to result in significant operational problems or have a material adverse
impact on its consolidated financial position, operations or cash flow.
Nonetheless, failures of suppliers, third party vendors or customers resulting
from Year 2000 issues could result in a short-term material adverse effect.
INFLATION
The rate of inflation, as measured by changes in the consumer price
index, did not have a material effect on the sales or operating results of
WESCO during the periods presented. However, inflation in the future could
affect WESCO's operating costs. Price changes from suppliers have historically
been consistent with inflation and have not had a material impact on WESCO's
results of operations.
SEASONALITY
WESCO's operating results are affected by certain seasonal factors.
Sales are typically at their lowest during the first quarter due to a reduced
level of activity during the winter months. Sales increase during the warmer
months beginning in March and continuing through November. Sales drop again
slightly in December as the weather cools and also as a result of reduced level
of activity during the holiday season. As a result, WESCO reports sales and
earnings in the first quarter that are generally lower than that of the
remaining quarters.
FORWARD-LOOKING STATEMENTS
From time to time in this report and in other written reports and oral
statements, references are made to expectations regarding future performance of
WESCO. When used in this context, the words "anticipates," "plans," "believes,"
"estimates," "intends," "expects," "projects" and similar expressions are
intended to identify forward-looking statements, although not all
forward-looking statements contain such words. Such statements including, but
not limited to, WESCO's statements regarding its business strategy, growth
strategy, productivity and profitability enhancement, new product and service
introductions and liquidity and capital resources are based on management's
beliefs, as well as on assumptions made by, and information currently available
to, management, and involve various risks and uncertainties, certain of which
are beyond WESCO's control. WESCO's actual results could differ materially from
those expressed in any forward-looking statement made by or on behalf of WESCO.
In light of these risks and uncertainties there can be no assurance that the
forward-looking information will in fact prove to be accurate. Factors that
might cause actual results to differ from such forward-looking statements
include, but are not limited to, an increase in competition, the amount of
outstanding indebtedness, the availability of appropriate acquisition
opportunities, availability of key products, functionality of information
systems, Year 2000 readiness, international operating environments and other
risks that are described in WESCO's Annual Report on Form 10-K for the year
ended December 31, 1998 which are incorporated by reference herein. WESCO has
undertaken no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
18
<PAGE> 20
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
The information required relative to market risk has not been included,
as it is not material to WESCO.
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On May 17, 1999, WESCO completed its initial public offering of
11,183,750 shares of common stock, $.01 par value, ("Offering") at $18.00 per
share. In connection with the Offering, certain employee rights to require WESCO
to repurchase outstanding redeemable common stock were terminated and
approximately $31.5 million of convertible notes were converted into common
stock. Proceeds from the Offering (after deducting Offering costs) totaling
$187.6 million and borrowings of approximately $65 million were used to redeem
all of the senior discount notes ($62.8 million) and to repay the revolving
credit and term loan facilities ($188.8 million). All of the proceeds of the
Offering have been applied and the Offering has terminated.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
The following exhibits are filed herewith.
10.1 Amended and Restated Receivables Purchase
Agreement, dated as of September 28, 1999,
among WESCO Receivables Corp., WESCO
Distribution, Inc., and PNC Bank, N.A.
27.1 Financial Data Schedule
Copies of these exhibits may be retrieved electronically at the
Securities and Exchange Commission's home page at www.sec.gov. Exhibits
will also be furnished without charge by writing to Steven A. Burleson,
Vice President and Chief Financial Officer, Commerce Court, Four
Station Square, Suite 700, Pittsburgh, Pennsylvania 15219. Requests may
also be directed to (412) 454-2200.
(b) REPORTS ON FORM 8-K
None
19
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on November 15, 1999 on its
behalf by the undersigned thereunto duly authorized.
WESCO International, Inc. and Subsidiaries
By: /s/ Steven A. Burleson
--------------------------------------
Steven A. Burleson
Vice President and
Chief Financial Officer
20
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- --------------------------------------------------------------------------------
<S> <C>
10.1 Amended and Restated Receivables Purchase Agreement,
dated as of September 28, 1999, among WESCO
Receivables Corp., WESCO Distribution, Inc., and
PNC Bank, N.A., filed herewith. Omitted schedules and
exhibits will be provided supplementally to the
Commission upon request.
27.1 Financial Data Schedule, filed herewith
</TABLE>
21
<PAGE> 1
================================================================================
Exhibit 10.1
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
dated as of September 28, 1999
among
WESCO RECEIVABLES CORP.,
WESCO DISTRIBUTION, INC.,
as Servicer
THE VARIOUS PURCHASER GROUPS FROM TIME TO TIME PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES
<S> <C> <C>
Section 1.1. Purchase Facility..............................................2
Section 1.2. Making Purchases ..............................................2
Section 1.3. Purchased Interest Computation ................................4
Section 1.4. Settlement Procedures..........................................5
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 ................................13
ARTICLE II.REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1. Representations and Warranties; Covenants.....................13
Section 2.2. Termination Events............................................13
ARTICLE III. INDEMNIFICATION
Section 3.1. Indemnities by the Seller.....................................14
Section 3.2. Indemnities by the Servicer...................................15
ARTICLE IV. ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of the Servicer...................................16
Section 4.2. Duties of the Servicer .......................................16
Section 4.3. Lock-Box Account Arrangements ...............................18
Section 4.4. Enforcement Rights ..........................................18
Section 4.5. Responsibilities of the Seller ..............................19
Section 4.6. Servicing Fee.................................................19
ARTICLE V. THE AGENTS
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
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 5.5. Assumed Payments .............................................22
Section 5.6. Notice of Termination Events .................................22
Section 5.7. Non-Reliance on Administrator, Purchaser Agents and Other
Purchasers .................................................23
Section 5.8. Administrators and Affiliates..................................23
Section 5.9. Indemnification ..............................................24
Section 5.10. Successor Administrator .....................................24
ARTICLE VI. MISCELLANEOUS
Section 6.1. Amendments, Etc...............................................24
Section 6.2. Notices, Etc..................................................25
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
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
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
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
</TABLE>
ii
<PAGE> 4
This AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as
amended, supplemented or otherwise modified from time to time, this "Agreement")
is entered into as of September 28, 1999, 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"), PNC
BANK, NATIONAL ASSOCIATION, as agent for Market Street Funding Corporation, and
as Administrator for each Purchaser Group (in such capacity, the
"Administrator"), MARKET STREET FUNDING CORPORATION ("Market Street"), a
Delaware corporation, as a Conduit Purchaser, BANK ONE, NA (Main Office
Chicago), as agent for International Securitization Corporation, INTERNATIONAL
SECURITIZATION CORPORATION ("ISC"), a [Delaware ] corporation, as a Conduit
Purchaser, MELLON BANK, N.A., as agent for Three Rivers Funding Corporation,
THREE RIVERS FUNDING CORPORATION ("TRFCO"), a [Delaware ] corporation, as a
Conduit Purchaser, THE BANK OF NOVA SCOTIA, as agent for Liberty Street Funding
Corp., LIBERTY STREET FUNDING CORP. ("Liberty"), a Delaware corporation, as a
Conduit Purchaser and each of the other members of each Purchaser Group party
hereto or that become parties hereto by executing an Assumption Agreement or a
Transfer Supplement.
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 Receivables
Purchase Agreement dated as of June 30, 1999 (the "ORIGINAL AGREEMENT"), among
the Seller, the Servicer, Market Street Capital Corp. ("MSCC") and the
Administrator. 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 MSCC, the Administrator 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 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.
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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 the 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),
ratably 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 the 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 the Facility Termination Date, based on
the applicable Purchaser Group's Ratable Share of each purchase
requested pursuant to Section 1.2(a) (each a "Purchase") (and, in the
case of each Related Committed Purchaser, 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 $200,000,000. 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
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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, 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), and (C) a pro
forma calculation of the Purchased Interest after giving effect to the increase
in the 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 transfer to the account of
the Seller described in Section 1.2(b), below (the "Disbursement Account"), an
amount equal to such Conduit Purchaser's Purchaser Group Ratable Share of such
Purchase 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 applicable Purchaser Group's Ratable Share of each Purchase (and,
in the case of each Related Committed Purchaser, 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
043000096, 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
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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 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.
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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.
(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 the Majority
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 the Majority Purchasers), segregate in a separate account approved by
the Administrator if, at the time of such request, there exists an
Unmatured
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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
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
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(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.
(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
Discount (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
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of Investment funded or maintained by the Purchasers within such
Purchaser Agent's Purchaser Group, THIRD 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 first and second clauses of this Section
1.4(d)(ii) to the Purchasers within its Purchaser Group ratably
according to Discount and Investment, respectively, FOURTH, 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
any other amounts owed thereto by the Seller or Servicer hereunder and,
fifth, 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
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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
$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
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(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 letters, dated the date hereof, each such letter (as amended,
supplemented, or otherwise modified from time to time, "a Purchaser Group Fee
Letter") in each case among the Seller, the Servicer, the Administrator 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.
(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
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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.
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
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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.
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
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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 Purchaser Agent in writing of its desire to extend
the Facility Termination Date for an additional 364 days, provided such request
is made not more than 90 days prior to, and not less than 60 days prior to, the
then current Facility Termination Date. In the event that the Purchaser Agents
are all agreeable to such extension, the Administrator shall so notify the
Seller in writing (it being understood that the Purchaser Agents 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 the then current Facility 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 the Purchaser Agents decline the request for such extension, the
Administrator shall so notify the Seller 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 Agents 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 (i) 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).
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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.
ARTICLE III.
INDEMNIFICATION
Section 3.1. INDEMNITIES BY THE SELLER. Without limiting any other
rights that the 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
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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,
(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,
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(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,
(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, or
(xii) the Year 2000 Problem.
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, (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, or (f) the Year 2000 Problem.
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
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(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 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) and extend the maturity
or adjust the Outstanding Balance of any Defaulted
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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. Within 45 days from
the initial purchase hereunder, the Seller shall have 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, the Administrator may (with the consent of a Simple Majority
of
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the Purchasers) or shall (upon the direction of a Simple Majority of the
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 the Majority 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 the Majority 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 the Majority 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
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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, 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 0.50% 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
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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 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 PNC Bank, National
Association 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
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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.
(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
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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.
(b) 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.
(c) 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 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 majority Purchasers, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of such Purchaser Agent's Purchasers.
(d) 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.
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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
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 PNC Bank, National Association 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 (it being understood
that, in the case of the Purchaser Group including TRFCO, the provisions of this
SECTION 5.9 shall only apply to each Purchaser therein) 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
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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 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 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 Yield, (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 Capital 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,"
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"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. 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 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)
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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 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 Moody's (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
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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).
(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
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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.
(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
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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 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
30
<PAGE> 34
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 sue 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]
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<PAGE> 35
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: /s/ Robert M. Napolitan
-------------------------------------------------
Name: Robert M. Napolitan
-------------------------------------------
Title: Assistant Secretary & Assistant Treasurer
------------------------------------------
Address:
Commerce Court, Suite 700
Four Station Square
Pittsburgh, Pennsylvania 15219
Attention: Secretary and General Counsel
Telephone: (412) 454-2254
Facsimile: (412) 454-2515
WESCO DISTRIBUTION, INC.,
as Servicer
By: /s/ Daniel A. Brailer
-------------------------------------------------
Name: Daniel A. Brailer
-------------------------------------------
Title: Treasurer & Secretary
------------------------------------------
Address:
Commerce Court, Suite 700
Four Station Square
Pittsburgh, Pennsylvania 15219
Attention: Secretary and General Counsel
Telephone: (412) 454-2254
Facsimile: (412) 454-2515
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<PAGE> 36
MARKET STREET FUNDING CORPORATION
By: /s/ Elizabeth S. Eldridge
--------------------------------------------
Name: Elizabeth S. Eldridge
--------------------------------------
Title: Vice President
-------------------------------------
Address:
Market Street Funding Corporation
c/o AMACAR Group, L.L.C.
6525 Morrison Blvd., Suite 318
Charlotte, North Carolina 28211
Attention: Douglas K. Johnson
Telephone No.: (704) 365-0569
Facsimile No.: (704) 365-1362
With a copy to:
PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: John Smathers
Telephone No.: (412) 762-6440
Facsimile No.: (412) 762-9184
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<PAGE> 37
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ John Smathers
-----------------------------------------
Name: John Smathers
-----------------------------------
Title: Vice President
----------------------------------
Address:
PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: John Smathers
Telephone No.: (412) 762-6440
Facsimile No.: (412) 762-9184
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Amended and Restated RPA
<PAGE> 38
INTERNATIONAL SECURITIZATION CORPORATION
By: /s/ Julie C. Benda
-----------------------------------------
Name: Julie C. Benda
-----------------------------------
Title: Authorized Signatory
----------------------------------
Address:
c/o Bank One, NA (Main Office Chicago)
Asset Backed Finance, Suite IL1-0079,
19th Floor
1 Bank One Plaza
Chicago, Illinois 60670-0079
Attention: Funding Manager
Telephone No.: (312) 732-7206
Facsimile No.: (312) 732-1844
BANK ONE, NA (Main Office Chicago),
as a Purchaser Agent
By: /s/ Julie C. Benda
------------------------------------------
Name: Julie C. Benda
------------------------------------
Title: Vice President
-----------------------------------
Address:
Bank One, NA (Main Office Chicago)
Asset Backed Finance, Suite IL1-0596,
21st Floor
1 Bank One Plaza
Chicago, Illinois 60670-0596
Attention: Juile C. Benda
Telephone No.: (312) 732-5594
Facsimile No.: (312) 732-4487
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Amended and Restated RPA
<PAGE> 39
THREE RIVERS FUNDING CORPORATION
By: /s/ Bernard J. Angelo
----------------------------------------------
Name: Bernard J. Angelo
----------------------------------------
Title: Vice President
---------------------------------------
Address:
c/o Global Securitization Services, LLC
25 West 43rd Street, Suite 704
New York, New York 10036
Attention: Bernard J. Angelo
Telephone No.: (212) 302-5151
Facsimile No.: (212) 302-8767
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 0410
Pittsburgh, Pennsylvania 15258-0001
Attention: Jonathan F. Widich
Telephone: (412) 234-0711
Facsimile: (412) 234-5434
MELLON BANK, N.A.,
as a Purchaser Agent
By: /s/ Roy W. Hartmann
----------------------------------------------
Name: Roy W. Hartmann
----------------------------------------
Title: First Vice President
---------------------------------------
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Amended and Restated RPA
<PAGE> 40
Address:
Mellon Bank, N.A.
One Mellon Bank Center, Room 0410
Pittsburgh, Pennsylvania 15258-0001
Attention: Jonathan F. Widich
Telephone: (412) 234-0711
Facsimile: (412) 234-5434
LIBERTY STREET FUNDING CORP.
By: /s/ Andrew L. Stidd
---------------------------------------------
Name: Andrew L. Stidd
---------------------------------------
Title: President
--------------------------------------
Address:
c/o Global Securitization Services, LLC
25 West 43rd Street, Suite 704
New York, New York 10036
Attention: Andrew L. Stidd
Telephone No.: (212) 302-8330
Facsimile No.: (212) 302-8767
THE BANK OF NOVA SCOTIA,
as a Purchaser Agent
By: /s/ Richard A. Josephs
---------------------------------------------
Name: Richard A. Josephs
---------------------------------------
Title: Product Manager
--------------------------------------
Address:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
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<PAGE> 41
Attention: Richard A. Josephs
Telephone No.: (212) 225-5118
Facsimile No.: (212) 225-5090
THE RELATED COMMITTED PURCHASERS:
PNC BANK, NATIONAL ASSOCIATION,
as a Related Committed Purchaser for Market Street
Funding Corporation
By: /s/ Enrico A. Della Corma
-------------------------------------------
Name: Enrico A. Della Corma
-----------------------------------------
Title: Vice President
----------------------------------------
Address:
One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: William Armitage
Telephone No: (412) 768-1444
Facsimile No.: (412) 762-9184
Commitment: $100,000,000
BANK ONE, NA (Main Office Chicago),
as a Related Committed Purchaser for International
Securitization Corporation
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<PAGE> 42
By: /s/ Julie C. Benda
-------------------------------------
Name: Julie C. Benda
-------------------------------
Title: Vice President
------------------------------
Address:
Bank One, NA (Main Office Chicago)
Asset Backed Finance, Suite IL1-0596,
21st Floor
1 Bank One Plaza
Chicago, Illinois 60670-0596
Attention: Julie C. Benda
Telephone No.: (312) 732-5594
Facsimile No.: (312) 732-4487
Commitment: $75,000,000
THREE RIVERS FUNDING CORPORATION,
as a Related Committed Purchaser for Three
Rivers Funding Corporation
By: /s/ Bernard J. Angelo
-------------------------------------
Name: Bernard J. Angelo
-------------------------------
Title: Vice President
------------------------------
Address:
c/o Global Securitization Services, LLC
25 West 43rd Street, Suite 704
New York, New York 10036
Attention: Bernard J. Angelo
Telephone No.: (212) 302-5151
Facsimile No.: (212) 302-8767
Commitment: $100,000,000
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 0410
Pittsburgh, Pennsylvania 15258-0001
Attention: Jonathan F. Widich
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<PAGE> 43
Telephone: (412) 234-0711
Facsimile: (412) 234-5434
THE BANK OF NOVA SCOTIA,
as a Related Committed Purchaser for Liberty
Street Funding Corp.
By: /s/ Richard A. Josephs
----------------------------------------
Name: Richard A. Josephs
----------------------------------
Title: Product Manager
---------------------------------
Address:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: Richard A. Josephs
Telephone No.: (212) 225-5118
Facsimile No.: (212) 225-5090
Commitment: $75,000,000
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Amended and Restated RPA
<PAGE> 44
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's Account" means the account (account number 1002422076)
of the Administrator maintained at the office of PNC at One PNC Plaza, 249 Fifth
Avenue, Pittsburgh, Pennsylvania 15222-2707, or such other account as may be so
designated in writing by the Administrator to the Servicer.
"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 the amount paid to the Seller in respect of
the Purchased Interest or portion thereof by each Purchaser pursuant to the
Agreement, as reduced from time to time by Collections distributed and applied
on account of such Aggregate Investment pursuant to Section 1.4(d) of the
Agreement; PROVIDED, that if such Aggregate 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,
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<PAGE> 45
such Aggregate Investment shall be increased by the amount of such rescinded or
returned distribution as though it had not been made.
"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. ss. 101, et seq.), as amended from time to time.
"Base Rate" means, for any day, (i) in the case of the Purchaser Group
including Market Street, the Market Street Base Rate, and (ii) in the case of
each of other Purchaser Group shall mean the rate set forth as the Base Rate for
such Purchaser Group in the related Purchaser Group Fee Letter.
"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.
"Cash Applied Amount" means with respect to the NED Division the amount
determined by the Administrator as of the last day of each calender month which
represents the Collections received during such month in respect of NED Division
Receivables that are Defaulted Receivables on such day.
"Cash Collection Rate" means the rate determined by the Administrator as
of the last day of each calendar month by dividing (a) the Cash Applied Amount
on such date by (b) the Aggregate Outstanding Balance of all NED Division Pool
Receivables that were Defaulted Receivables at the beginning of such month.
"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
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<PAGE> 46
Originator free and clear of all Adverse Claims other than the pledge by WESCO
to Bank of America National Trust and Savings Association pursuant to the
Security Agreement dated as of June 29, 1999, among WESCO, Bank of America
National Trust and Savings Association and various other parties.
"Closing Date" means September 28, 1999.
"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 pursuant to which it became a Purchaser, as such amount
may be modified in 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 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.
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<PAGE> 47
"Construction Default Factor" means an amount determined as of the last
day of each calendar month equal to the aggregate Outstanding Balance of all
Construction Division Pool Receivables that remained outstanding 151 to 180 days
after their respective original invoice dates, TIMES 42.1875%.
"Construction 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
Construction Default Factor on such date, by (b) the aggregate credit sales made
by the Construction Division during the month that is six months before such
month.
"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) Manuel and (h) [Nevada Electric Supply].
"Construction Division Receivable" means each Receivable originated by a
branch in the Construction Division of WESCO.
"Construction Division Pool Receivable" means each Pool Receivable
originated by a branch in the Construction Division of WESCO.
"Construction Loss Reserve Percentage" means, on any date, (i) the
product of (A) 2 times the highest average of the Construction Default Ratios
for any three consecutive calendar months during the twelve most recent calendar
months multiplied by (B) the aggregate credit sales in respect of Construction
Division Receivables made during the six most recent calendar months divided by
(ii) the aggregate Outstanding Balance of Eligible Receivables that are
Construction Division Receivables and that are included in the calculation of
the Net Receivables Pool Balance as of such date.
"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 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 Core Division Pool Receivables that became Defaulted
Receivables during such month, by (b) the aggregate credit sales made by the
Core Division during the month that is five months before such month.
"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) Hamby-Young, (d)
IES-Atlanta, (e) Murco, (f) Power Supply, (g) Standard
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<PAGE> 48
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.
"Core Division Pool Receivable" means each Pool Receivable originated by
a branch in the Core Division of WESCO.
"Core Division Receivable" means each Receivable originated by a branch
in the Core Division of WESCO.
"Core Loss Reserve Percentage" means, on any date, (i) the product of
(A) 2 times the highest average of the Core Default Ratios for any three
consecutive calendar months during the twelve most recent calendar months
multiplied by (B) the aggregate credit sales in respect of Core Division
Receivables made during the five most recent calendar months divided by (ii) the
aggregate Outstanding Balance of Eligible Receivables that are Core Division
Receivables and that are included in the calculation of the Net Receivables Pool
Balance as of such date as of such date.
"CP Rate" for any Yield Period for any Portion of Investment (i) in the
case of the Purchaser Group including Market Street, means the Market Street CP
Rate and (ii) in the case of each of other Purchaser Group shall mean the rate
set forth as the CP Rate for such Purchaser Group in the related Purchaser Group
Fee Letter.
"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 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).
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"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for
more than (i) in the case of the Core Division, 150 days, (ii) in the
case of the Construction Division, 180 days and (iii) in the case of the
NED Division, 90 days, in each case 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 were Delinquent Receivables on
such day 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 90 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 Investment 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%.
"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:
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<PAGE> 50
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 Euro-Rate or Base Rate, as applicable, 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, (ii)
not a government or a governmental subdivision, affiliate or agency,
(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,
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(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,
(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,
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(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 NED Division, that
when added to the aggregate Outstanding Balance of all other Receivables
generated by the NED 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 Jones 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 Jones 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 Jones 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 or (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.
"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 each Purchaser September 26, 2000, subject to any extension
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
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to the Commitment of such Exiting Purchaser and the Commitment Percentages and
Group Commitments of the Purchasers within each Purchaser Group shall be
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.
"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 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.
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"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 the amount paid to the
Seller by such Purchaser pursuant to the Agreement, or such amount divided or
combined in accordance with Section 1.7 of the Agreement, in each case 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 distribution as though it had not been made.
"ISC" has the meaning set forth in the preamble to the Agreement.
"Liquidity Agent" means each of the banks acting 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.
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"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 Investment at the close of business of the
Servicer on such date and (b) (i) the Aggregate Investment 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, the weighted average (as
determined with respect to the aggregate Outstanding Balance of Eligible
Receivables of each of the Core Division, the Construction Division and the NED
Division, respectively) of (i) the Core Loss Reserve Percentage, plus, (ii) the
Construction Loss Reserve Percentage, plus (iii) the NED Loss Reserve
Percentage.
"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 50% of the aggregate Commitments, then "Majority Purchasers" shall
mean a minimum of two Purchasers whose Commitments aggregate more than 50% of
the aggregate Commitments.
"Market Street" has the meaning set forth in the preamble to the
Agreement.
"Market Street Base Rate" means, in the case of Market Street or any
Purchaser in its Purchaser Group, for any day, 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:
(a) the rate of interest in effect for such day as publicly
announced from time to time by PNC in Pittsburgh, Pennsylvania as its
"prime rate." Such "prime rate" is set by PNC based upon various
factors, including PNC's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such
announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Market Street CP Rate" means, with respect to Market Street for any
Yield Period with respect to any Portion of Investment, the per annum rate
equivalent to the "weighted average cost" (as defined
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below) related to the issuance of Market Street's Notes that are allocated, in
whole or in part, by Market Street (or by its Purchaser Agent) to fund or
maintain such Portion of Investment (and which may also be allocated in part to
the funding of other Portions of Investment hereunder or of other assets of
Market Street); PROVIDED, HOWEVER, that if any component of such rate is a
discount rate, in calculating the "MARKET STREET CP RATE" for such Portion of
Investment for such Yield Period, Market Street shall for such component use the
rate resulting from converting such discount rate to an interest bearing
equivalent rate per annum. As used in this definition, Market Street's "WEIGHTED
AVERAGE COST" shall consist of (x) the actual interest rate (or discount) paid
to purchasers of Market Street'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 Market Street
(or by its Purchaser Agent) and (y) any incremental carrying costs incurred with
respect to Market Street's Notes maturing on dates other than those on which
corresponding funds are received by Market Street. 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.
"Market Street Yield Rate" for any Yield Period for any Portion of
Investment of the Purchased Interest in the case of Market Street or any
Purchaser in its Purchaser Group, means an interest rate per annum equal to, at
PNC's option: (a) the rate set forth as the "Applicable Margin" in the Purchaser
Group Fee Letter relating to Market Street above the Euro-Rate for such Yield
Period, or (b) 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
Administrator 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 Administrator
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 Administrator 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 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. 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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"Material Adverse Effect" means, relative to any Person with respect to
any event or circumstance, a material adverse effect on:
(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.
"Monthly Cash Collection Rate" means the rate determined by the
Administrator as of the last day of each calendar month equal to the product of
(a) the lowest average of the Cash Collection Rates for any three consecutive
calendar months during the twelve most recent calendar months, multiplied by (b)
75%.
"Monthly Remainder Rate" means 1 minus the Monthly Cash Collection Rate.
"Moody's" means Moody's Investors Service, Inc.
"NED Default Percentage" means, a percentage, determined by the
Administrator as of the last day of each calendar month, equal to the Monthly
Remainder Rate to the fourth power.
"NED 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 product of (i)
the NED Default Percentage on such day, times (ii) the aggregate Outstanding
Balance of all NED Division Pool Receivables that became Defaulted Receivables
during such calendar month, by (b) the aggregate credit sales made by the NED
Division during the month that is three months before such month.
"NED 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) Brown Electric, (b) Bruckner International Group-Houston, (c)
Bruckner Supply, (d) Coghlin Electric, (e) IES (Birmingham), (f)
Reily-Tri-City-Ies (Mobile) and (g) Whitehill Electric.
"NED Division Receivable" means each Receivable originated by a branch
in the NED Division of WESCO.
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"NED Division Pool Receivable" means each Pool Receivable originated by
a branch in the NED Division of WESCO.
"NED Loss Reserve Percentage" means, on any date, (i) the product of (A)
2 times the highest average of the [NED Default Ratios ] for any three
consecutive calendar months during the twelve most recent calendar months
multiplied by (B) the aggregate credit sales in respect of NED Division
Receivables made during the three most recent calendar months divided by (ii)
the aggregate Outstanding Balance of Eligible Receivables that are NED Division
Receivables and that are included in the calculation of the Net Receivables Pool
Balance as of such date as of such date. The method of analysis used by the
Administrator to calculate the various amounts and ratios that make up the NED
Division Loss Reserve Percentage each month is set forth in the form of EXHIBIT
F attached hereto.
"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 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.
"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.
"PNC" has the meaning set forth in the preamble to the Agreement.
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"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.
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"Purchase Facility" has the meaning set forth in SECTION 1.1 of the
Sale Agreement.
"Purchase Limit" means $350,000,000, 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.
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"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, 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 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.
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"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.
"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;
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(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.
"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
McGraw-Hill 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.
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"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.
"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.
"Year 2000 Problem" means with respect to any Person, the risk that
certain computer applications used by such Person may be unable to recognize and
perform properly date-sensitive functions involving dates prior to, on and after
December 31, 1999.
"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 (i) in the case of the Purchaser Group including Market
Street, means the Market Street Yield Rate and (ii) in the case of each of other
Purchaser Group shall mean the rate set forth as the Yield Rate for such
Purchaser Group in the related Purchaser Group Fee Letter.
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
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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 OF PURCHASES
1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial Purchase under
this Agreement is subject to the following conditions precedent that the
Administrator and each Purchaser Agent shall have received on or before
the date of such Purchase, each in form and substance (including the
date thereof) satisfactory to the Administrator and each Purchaser
Agent:
(a) A counterpart of the Agreement and the other Transaction Documents
(including the First Amendment to the Sale Agreement) executed by 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, duly filed on or before the date of such initial purchase
under the UCC of all jurisdictions that the Administrator may deem necessary or
desirable in order to perfect the interests of the Seller, WESCO and the
Administrator (on behalf of each Purchaser) contemplated by the Agreement and
the Sale Agreement.
(e) Acknowledgment copies, or time-stamped receipt copies, of proper
financing statements, if any, necessary to release all security interests and
other rights of any Person in the Receivables, Contracts or Related Security
previously granted by the Originators, WESCO or the Seller.
(f) Completed UCC search reports, dated on or shortly before the date of
the initial purchase hereunder, listing the financing statements filed in all
applicable jurisdictions referred to in SUBSECTION (e) above 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
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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 executed Lock-Box Agreements with each Lock-Box Bank.
(h) Favorable opinions, in form and substance reasonably satisfactory to
the Administrator and each Purchaser Agent, of: (i) Sidley & Austin, counsel for
the Seller, the Originators, WESCO and the Servicer, and (ii) Jeffery B. Kramp,
internal counsel for Seller, WESCO and the Originators.
(i) Satisfactory results of a review and audit (performed by
representatives of the Administrator) of the Servicer's collection, operating
and reporting systems, the Credit and Collection Policy of each Originator,
historical receivables data and accounts, including satisfactory results of a
review of the Servicer's operating location(s) and satisfactory review and
approval of the Eligible Receivables in existence on the date of the initial
purchase under the Agreement, as confirmed in the agreed upon procedures report
prepared by PriceWaterhouseCoopers, L.L.P., and delivered to the Administrator
prior to the date hereof.
(j) A pro forma Information Package representing the performance of the
Receivables Pool for the calendar month before closing.
(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 Purchaser Group Fee Letter (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) Each Liquidity Agreement (received only by the related Purchaser
Group Agent) and all other Transaction Documents duly executed by the parties
thereto.
(p) A computer file containing all information with respect to the
Receivables as the Administrator or any Purchaser Agent may reasonably request.
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(q) Such other approvals, opinions or documents as the Administrator or
any Purchaser Agent may reasonably request.
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 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; and
(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.
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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.
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(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 principal place of business and chief executive office
(as such terms are used in the UCC) and the office where it keeps its records
concerning the Receivables are located at the address 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.
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(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 six 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) The Seller has reviewed the areas within its business and operations
which could be adversely affected by, and has developed or is developing a
program to address on a timely basis, the Year 2000 Problem. The Year 2000
Problem will not have any Material Adverse Effect.
(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
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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 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
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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, 1998, 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, 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, 1998 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 principal place of business and chief executive office (as such
terms are used in the UCC) of WESCO and the office where it 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.
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(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) The Servicer has reviewed the areas within its business and
operations which could be adversely affected by, and has developed or is
developing a program to address on a timely basis, the Year 2000 Problem. The
Year 2000 Problem will not have any Material Adverse Effect.
(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.
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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 and chief executive office (as such terms
or similar terms are used in the UCC) and the office where it keeps its records
concerning the Receivables at the address 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, mark 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.
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(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 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
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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 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;
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(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) 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.
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(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.).
(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, Moody's 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,
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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 and chief executive
office (as such terms or similar terms are used in the applicable UCC) and the
office where it keeps its records concerning the Receivables at the address 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 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
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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
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;
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(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);
(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;
(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
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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; and
(xii) promptly after the occurrence thereof, notice of any
material acquisition or investment by WESCO of or in any Person,
business or operation.
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
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Seller unless the Independent Director shall approve the taking of such
action in writing before the taking of such action, and (ii) 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;
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(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 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.
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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
three Business Days 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,
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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 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) (i) the (A) Core Default Ratio shall exceed 6.0%, (B) Construction
Default Ratio shall exceed 8.5%, (C) NED Default Ratio shall exceed 15.0 %, (D)
Delinquency Ratio shall exceed 25.0% or (E) Dilution Ratio shall exceed 10.0% or
(ii) the average for three consecutive calendar months of: the (A) Core Default
Ratio shall exceed 4.5%, (B) Construction Default Ratio shall exceed 7.5%, (C)
NED Default Ratio shall exceed 10.0 %, (D) the Delinquency Ratio shall exceed
19.0% or (E) the Dilution Ratio shall exceed 8.0%;
(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
V-2
<PAGE> 89
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 Seller, any Originator, WESCO
or any ERISA Affiliate and 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
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; or
(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.
V-3
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM WESCO
INTERNATIONAL, INC. AND SUBSIDIARIES' UNAUDITED INTERIM CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 31,812
<SECURITIES> 0
<RECEIVABLES> 214,986
<ALLOWANCES> 7,489
<INVENTORY> 387,210
<CURRENT-ASSETS> 674,336
<PP&E> 113,398
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,052,030
<CURRENT-LIABILITIES> 486,906
<BONDS> 420,952
0
0
<COMMON> 477
<OTHER-SE> 113,632
<TOTAL-LIABILITY-AND-EQUITY> 1,052,030
<SALES> 2,544,782
<TOTAL-REVENUES> 2,544,782
<CGS> 2,092,632
<TOTAL-COSTS> 2,446,101
<OTHER-EXPENSES> 14,239
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 37,474
<INCOME-PRETAX> 46,968
<INCOME-TAX> 18,746
<INCOME-CONTINUING> 28,222
<DISCONTINUED> 0
<EXTRAORDINARY> 10,507
<CHANGES> 0
<NET-INCOME> 17,715
<EPS-BASIC> 0.43
<EPS-DILUTED> 0.39
</TABLE>
