Exhibit 10.20
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of March 19, 2002
among
WESCO DISTRIBUTION, INC.,
as Borrower,
THE OTHER CREDIT PARTIES SIGNATORY HERETO,
as Credit Parties,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender,
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Syndication Agent and Lender,
and
FLEET CAPITAL CORPORATION,
as Documentation Agent and Lender
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TABLE OF CONTENTS
PAGE
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1. AMOUNT AND TERMS OF CREDIT................................................................................................2
1.1 Credit Facilities...............................................................................................2
1.2 Letters of Credit...............................................................................................5
1.3 Prepayments.....................................................................................................6
1.4 Use of Proceeds.................................................................................................8
1.5 Interest and Applicable Margins.................................................................................8
1.6 Eligible Accounts..............................................................................................12
1.7 Eligible Inventory.............................................................................................14
1.8 Cash Management Systems........................................................................................16
1.9 Fees...........................................................................................................16
1.10 Receipt of Payments............................................................................................17
1.11 Application and Allocation of Payments.........................................................................17
1.12 Loan Account and Accounting....................................................................................18
1.13 Indemnity......................................................................................................18
1.14 Access.........................................................................................................20
1.15 Taxes..........................................................................................................20
1.16 Capital Adequacy; Increased Costs; Illegality..................................................................21
1.17 Single Loan....................................................................................................22
2. CONDITIONS PRECEDENT.....................................................................................................22
2.1 Conditions to the Initial Loans................................................................................22
2.2 Further Conditions to Each Loan................................................................................24
3. REPRESENTATIONS AND WARRANTIES...........................................................................................25
3.1 Corporate Existence; Compliance with Law.......................................................................25
3.2 Executive Offices, Collateral Locations, FEIN..................................................................26
3.3 Corporate Power, Authorization, Enforceable Obligations........................................................26
3.4 Financial Statements and Projections...........................................................................26
3.5 Material Adverse Effect........................................................................................27
3.6 Ownership of Property; Liens...................................................................................28
3.7 Labor Matters..................................................................................................28
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness......................................29
3.9 Government Regulation..........................................................................................29
3.10 Margin Regulations.............................................................................................30
3.11 Taxes..........................................................................................................30
3.12 ERISA..........................................................................................................31
3.13 No Litigation..................................................................................................32
3.14 Brokers........................................................................................................32
3.15 Intellectual Property..........................................................................................32
3.16 Full Disclosure................................................................................................32
3.17 Environmental Matters..........................................................................................33
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3.18 Insurance......................................................................................................33
3.19 Deposit and Disbursement Accounts..............................................................................34
3.20 Government Contracts...........................................................................................34
3.21 Customer and Trade Relations...................................................................................34
3.22 Agreements and Other Documents.................................................................................34
3.23 Solvency.......................................................................................................34
3.24 Subordinated Debt..............................................................................................35
3.25 Rent...........................................................................................................35
4. FINANCIAL STATEMENTS AND INFORMATION.....................................................................................35
4.1 Reports and Notices............................................................................................35
4.2 Communication with Accountants.................................................................................35
5. AFFIRMATIVE COVENANTS....................................................................................................36
5.1 Maintenance of Existence and Conduct of Business...............................................................36
5.2 Payment of Charges.............................................................................................36
5.3 Books and Records..............................................................................................37
5.4 Insurance; Damage to or Destruction of Collateral..............................................................37
5.5 Compliance with Laws...........................................................................................39
5.6 Supplemental Disclosure........................................................................................39
5.7 Intellectual Property..........................................................................................39
5.8 Environmental Matters..........................................................................................39
5.9 Landlords' Agreements, Mortgagee Agreements,
Bailee Letters and Real Estate Purchases.......................................................................40
5.10 Covenants Regarding Accounts...................................................................................41
5.11 Canadian Pension and Benefit Plans.............................................................................41
5.12 Further Assurances.............................................................................................42
6. NEGATIVE COVENANTS.......................................................................................................42
6.1 Mergers, Subsidiaries, Etc.....................................................................................42
6.2 Investments; Loans and Advances................................................................................49
6.3 Indebtedness...................................................................................................50
6.4 Employee Loans and Affiliate Transactions......................................................................55
6.5 Capital Structure and Business.................................................................................55
6.6 Guaranteed Indebtedness........................................................................................55
6.7 Liens..........................................................................................................56
6.8 Sale of Stock and Assets.......................................................................................56
6.9 ERISA..........................................................................................................57
6.10 Financial Covenants............................................................................................57
6.11 Hazardous Materials............................................................................................57
6.12 Sale-Leasebacks................................................................................................57
6.13 Cancellation of Indebtedness...................................................................................57
6.14 Restricted Payments............................................................................................58
6.15 Change of Corporate Name or Location; Change of Fiscal Year....................................................58
6.16 No Impairment of Intercompany Transfers........................................................................59
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6.17 No Speculative Transactions....................................................................................59
6.18 Leases; Real Estate Purchases..................................................................................59
6.19 Changes Relating to Subordinated Debt; Material Contracts......................................................59
6.20 Holdings, WESCO Finance and WESCO Finance Canada...............................................................60
6.21 Negative Pledge................................................................................................60
6.22 Non-Canadian Foreign Subsidiaries..............................................................................60
7. TERM.....................................................................................................................61
7.1 Termination....................................................................................................61
7.2 Survival of Obligations Upon Termination of Financing Arrangements.............................................61
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES...................................................................................61
8.1 Events of Default..............................................................................................61
8.2 Remedies.......................................................................................................63
8.3 Waivers by Credit Parties......................................................................................64
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF aGENT......................................................................64
9.1 Assignment and Participations..................................................................................64
9.2 Appointment of Agent...........................................................................................67
9.3 Agent's Reliance, Etc..........................................................................................68
9.4 GE Capital and Affiliates......................................................................................68
9.5 Lender Credit Decision.........................................................................................68
9.6 Indemnification................................................................................................69
9.7 Successor Agent................................................................................................69
9.8 Setoff and Sharing of Payments.................................................................................70
9.9 Advances; Payments; Non-Funding Lenders; Information; Actions in Concert.......................................71
9.10 Syndication Agent and Documentation Agent......................................................................73
10. SUCCESSORS AND ASSIGNS...................................................................................................73
10.1 Successors and Assigns.........................................................................................73
11. MISCELLANEOUS............................................................................................................73
11.1 Complete Agreement; Modification of Agreement..................................................................73
11.2 Amendments and Waivers.........................................................................................74
11.3 Fees and Expenses..............................................................................................75
11.4 No Waiver......................................................................................................76
11.5 Remedies.......................................................................................................77
11.6 Severability...................................................................................................77
11.7 Conflict of Terms..............................................................................................77
11.8 Confidentiality................................................................................................77
11.9 GOVERNING LAW..................................................................................................78
11.10 Notices........................................................................................................79
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11.11 Section Titles.................................................................................................79
11.12 Counterparts...................................................................................................79
11.13 WAIVER OF JURY TRIAL...........................................................................................79
11.14 Press Releases and Related Matters.............................................................................80
11.15 Reinstatement..................................................................................................80
11.16 Advice of Counsel..............................................................................................80
11.17 No Strict Construction.........................................................................................81
11.18 Judgment Currency..............................................................................................81
11.19 Designated Senior Indebtedness.................................................................................81
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INDEX OF APPENDICES
Annex a (Recitals) - Definitions
Annex B (Section 1.2) - Letters of Credit
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Annex C (Section 1.8) - Cash Management System
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Annex D (Section 2.1(a)) - Closing Checklist
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Annex E (Section 4.1(a)) - Financial Statements and Projections -- Reporting
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Annex F (Section 4.1(b)) - Collateral Reports
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Annex G (Section 6.10) - Financial Covenants
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Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
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Annex I (Section 11.10) - Notice Addresses
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Annex J (from Annex A-
Commitments definition) - Commitments as of Closing Date
Exhibit 1.1(a)(i) - Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) - Form of Revolving Note
Exhibit 1.1(b)(ii) - Form of Swing Line Note
Exhibit 1.5(e) - Form of Notice of Conversion/Continuation
Exhibit 4.1(b) - Form of Borrowing Base Certificate
Exhibit 9.1(a) - Form of Assignment Agreement
Exhibit B-1 - Application for Standby Letter of Credit
Exhibit B-2 - Application for Documentary Letter of Credit
Exhibit B-3 - Application and Agreement for Documentary
Letter of Credit
Schedule 1.1 - Agent's Representatives
Disclosure Schedule 1.4 - Sources and Uses; Funds Flow Memorandum
Disclosure Schedule 3.1 - Type of Entity; State of Organization
Disclosure Schedule 3.2 - Executive Offices, Collateral Locations, FEIN
Disclosure Schedule 3.4(A) - Financial Statements
Disclosure Schedule 3.4(B) - Pro Forma
Disclosure Schedule 3.4(C) - Projections
Disclosure Schedule 3.6 - Real Estate and Leases
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates; Outstanding Stock
Disclosure Schedule 3.11 - Tax Matters
Disclosure Schedule 3.12 - ERISA Plans
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Hazardous Materials
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
Disclosure Schedule 3.20 - Government Contracts
Disclosure Schedule 3.22 - Material Agreements
Disclosure Schedule 5.1 - Trade Names
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Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.4(a) - Transactions with Affiliates
Disclosure Schedule 6.7 - Existing Liens
Disclosure Schedule 6.20(b) - WESCO Finance
Disclosure Schedule 6.20(c) - WESCO Finance Canada
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This CREDIT AGREEMENT (this "Agreement"), dated as of March
19, 2002 among WESCO Distribution, Inc., a Delaware corporation ("BORROWER");
the other Credit Parties signatory hereto; GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation (in its individual capacity, "GE CAPITAL"), for itself,
as Lender, and as Agent for Lenders, THE CIT GROUP/BUSINESS CREDIT, INC., as
Syndication Agent and Lender, FLEET CAPITAL CORPORATION, as Documentation Agent
and Lender, and the other Lenders signatory hereto from time to time.
RECITALS
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WHEREAS, Borrower has requested that Lenders extend a
revolving credit facility to Borrower of up to Two Hundred and Ninety Million
Dollars ($290,000,000) in the aggregate for the purpose of refinancing certain
indebtedness of Borrower and to provide (a) working capital financing for
Borrower and, to the extent set forth herein, certain of its Subsidiaries, (b)
funds for other general corporate purposes of Borrower and (c) funds for other
purposes permitted hereunder; and for these purposes, Lenders are willing to
make certain loans and other extensions of credit to Borrower of up to such
amount upon the terms and conditions set forth herein; and
WHEREAS, Borrower has agreed to secure all of its obligations
under the Loan Documents by granting to Agent, for the benefit of Agent and
Lenders, a security interest in and lien upon all of its existing personal and
after-acquired assets and property; and
WHEREAS, WESCO International, Inc., a Delaware corporation
("HOLDINGS") is willing to guarantee all of the obligations of Borrower to Agent
and Lenders under the Loan Documents, to pledge to Agent, for the benefit of
Agent and Lenders, all of the Stock of Borrower and WESCO Finance Corporation, a
Delaware corporation ("WESCO FINANCE") to secure such guaranty and to grant to
Agent, for the benefit of Agent and Lenders, a security interest in all of its
other assets and properties to secure such guaranty; and
WHEREAS, WESCO Equity Corporation, a Delaware corporation
("WESCO EQUITY") is willing to guarantee all of the obligations of Borrower to
Agent and Lenders under the Loan Documents, to pledge to Agent, for the benefit
of Agent and Lenders, as sole general partner of WESCO Canada Finance Limited
Partnership ("WESCO FINANCE CANADA") all of its general partnership interest in
WESCO Finance Canada, and to grant to Agent, for the benefit of Agent and
Lenders, a security interest in all of its other assets and properties to secure
such guaranty; and
WHEREAS, WESCO Finance is willing to guarantee all of the
obligations of Borrower to Agent and Lenders under the Loan Documents, to pledge
to Agent, for the benefit of Agent and Lenders, all of its limited partnership
interest in WESCO Finance Canada, comprising 100% of the limited partnership
interests in WESCO Finance Canada, and to grant to Agent, for the benefit of
Agent and Lenders, a security interest in all of its other assets and properties
to secure such guaranty; and
WHEREAS, WESCO Finance Canada is willing to guarantee all of
the obligations of the Borrower to Agent and Lenders under the Loan Documents;
and to grant to Agent, for the benefit of Agent and Lenders, a security interest
in all of its other assets and properties to secure such guaranty; and
WHEREAS, WESCO Distribution-Canada, Inc. ("WESCO-CANADA") is
willing to guarantee all of the obligations of the Borrower to Agent and Lenders
under the Loan Documents, to pledge to Agent, for the benefit of Agent and
Lenders, all of the Stock of its Canadian and United States Subsidiaries, and to
grant to Agent, for the benefit of Agent and Lenders, a security interest in all
of its other assets and properties to secure such guaranty; and
WHEREAS, the Borrower is willing to pledge to Agent, for the
benefit of Agent and Lenders, all of the Stock of each of its domestic
Subsidiaries, all of the Stock of WESCO-Canada and all of the Stock of each of
its other Canadian Subsidiaries to secure its obligations under the Loan
Documents; and
WHEREAS, each of the domestic and Canadian Subsidiaries of
Borrower and each of their respective domestic and Canadian Subsidiaries
(excluding WESCO Receivables) is willing to guarantee all of the obligations of
Borrower to Agent and Lender under the Loan Documents, to pledge to Agent, for
the benefit of Agent and Lenders, all of the Stock of their respective domestic
and Canadian Subsidiaries, and to grant to Agent, for the benefit of Agent and
Lenders, a security interest in all of their respective assets and properties to
secure such guaranty; and
WHEREAS, capitalized terms used in this Agreement shall have
the meanings ascribed to them in ANNEX A and, for purposes of this Agreement and
the other Loan Documents, the rules of construction set forth in ANNEX A shall
govern. All Annexes, Disclosure Schedules, Exhibits and other attachments
(collectively, "APPENDICES") hereto, or expressly identified to this Agreement,
are incorporated herein by reference, and taken together with this Agreement,
shall constitute but a single agreement. These Recitals shall be construed as
part of the Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, and for other good and valuable
consideration, the parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1 CREDIT FACILITIES.
(a) REVOLVING CREDIT FACILITY.
(i) Subject to the terms and conditions hereof, each
Lender agrees to make available to Borrower from time to time until the
Commitment Termination Date its Pro Rata Share of advances (each, a "REVOLVING
CREDIT ADVANCE"). The Pro Rata Share of the Revolving Loan of any Lender shall
not at any time exceed its separate Revolving Loan Commitment. The obligations
of each Lender hereunder shall be several and not joint. Until the Commitment
Termination Date, Borrower may from time to time borrow, repay and reborrow
2
under this Section 1.1(a); provided, that the amount of any Revolving Credit
Advance to be made at any time shall not exceed Borrowing Availability at such
time. Borrowing Availability may be further reduced by Reserves imposed by Agent
in its reasonable credit judgment. Until the Commitment Termination Date,
Borrower may from time to time borrow, repay and reborrow under this SECTION
1.1(a). Each Revolving Credit Advance shall be made on notice by Borrower to one
of the representatives of Agent identified in SCHEDULE 1.1 at the address
specified therein. Any such notice must be given no later than (1) 12:00 noon
(New York time) on the Business Day of the proposed Revolving Credit Advance, in
the case of an Index Rate Loan, or (2) 12:00 noon (New York time) on the date
which is 3 Business Days prior to the proposed Revolving Credit Advance, in the
case of a LIBOR Loan. Each such notice (a "NOTICE OF REVOLVING CREDIT ADVANCE")
must be given in writing (by telecopy or overnight courier) substantially in the
form of EXHIBIT 1.1(a)(i), and shall include the information required in such
Exhibit and such other information as may be required by Agent. If Borrower
desires to have the Revolving Credit Advances bear interest by reference to a
LIBOR Rate, it must comply with SECTION 1.5(e).
(ii) Except as provided in SECTION 1.12, Borrower shall
execute and deliver to each Lender a note to evidence the Revolving Loan
Commitment of that Lender. Each note shall be in the principal amount of the
Revolving Loan Commitment of the applicable Lender, dated the Closing Date and
substantially in the form of EXHIBIT 1.1(a)(ii) (each a "REVOLVING NOTE" and,
collectively, the "REVOLVING NOTES"). Each Revolving Note shall represent the
obligation of Borrower to pay the amount of Lender's Revolving Loan Commitment
or, if less, such Lender's Pro Rata Share of the aggregate unpaid principal
amount of all Revolving Credit Advances to Borrower together with interest
thereon as prescribed in SECTION 1.5. The entire unpaid balance of the Revolving
Loan and all other non-contingent Obligations shall be immediately due and
payable in full in immediately available funds on the Commitment Termination
Date.
(iii) Any provision of this Agreement to the contrary
notwithstanding, at the request of Borrower, in its discretion Agent may (but
shall have absolutely no obligation to), make Revolving Credit Advances to
Borrower on behalf of Lenders in amounts that cause the outstanding balance of
the aggregate Revolving Loan to exceed the Borrowing Base (less the Swing Line
Loan) (any such excess Revolving Credit Advances are herein referred to
collectively as "OVERADVANCES"); provided that (A) no such event or occurrence
shall cause or constitute a waiver of Agent's, the Swing Line Lender's or
Lenders' right to refuse to make any further Overadvances, Swing Line Advances
or Revolving Credit Advances, or incur any Letter of Credit Obligations, as the
case may be, at any time that an Overadvance exists, and (B) no Overadvance
shall result in a Default or Event of Default due to Borrower's failure to
comply with SECTION 1.3(b)(i) for so long as Agent permits such Overadvance to
remain outstanding, but solely with respect to the amount of such Overadvance.
In addition, Overadvances may be made even if the conditions to lending set
forth in SECTION 2 have not been met. All Overadvances shall constitute Index
Rate Loans, shall bear interest at the Default Rate and shall be payable on
demand. Except as otherwise provided in SECTION 1.11(b), the authority of Agent
to make Overadvances is limited to an aggregate amount not to exceed $15,000,000
at any time, shall not cause the Revolving Loan to exceed the Maximum Amount,
shall not result in Overadvances being outstanding for more than 90 days in any
180-day period, and may be revoked
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prospectively by a written notice to Agent signed by Lenders holding more than
50% of the Revolving Loan Commitments.
(b) SWING LINE FACILITY.
(i) Agent shall notify the Swing Line Lender upon Agent's
receipt of any Notice of Revolving Credit Advance. Subject to the terms and
conditions hereof, the Swing Line Lender may, in its discretion, make available
from time to time until the Commitment Termination Date advances (each, a "SWING
LINE ADVANCE") in accordance with any such notice. The provisions of this
SECTION 1.1(b) shall not relieve Lenders of their obligations to make Revolving
Credit Advances under SECTION 1.1(a); provided that if the Swing Line Lender
makes a Swing Line Advance pursuant to any such notice, such Swing Line Advance
shall be in lieu of any Revolving Credit Advance that otherwise may be made by
Lenders pursuant to such notice. The aggregate amount of Swing Line Advances
outstanding shall not exceed at any time the lesser of (A) the Swing Line
Commitment and (B) the lesser of the Maximum Amount and (except for
Overadvances) the Borrowing Base, in each case, less the outstanding balance of
the Revolving Loan at such time ("SWING LINE AVAILABILITY"). Until the
Commitment Termination Date, Borrower may from time to time borrow, repay and
reborrow under this SECTION 1.1(b). Each Swing Line Advance shall be made
pursuant to a Notice of Revolving Credit advance delivered by Borrower to Agent
in accordance with SECTION 1.1(a). Any such notice must be given no later than
1:00 p.m. (New York time) on the Business Day of the proposed Swing Line
Advance. Unless the Swing Line Lender has received at least one Business Day's
prior written notice from Requisite Lenders instructing it not to make a Swing
Line Advance, the Swing Line Lender shall, notwithstanding the failure of any
condition precedent set forth in SECTION 2.2, be entitled to fund that Swing
Line Advance, and to have such Lender make Revolving Credit Advances in
accordance with SECTION 1.1(b)(iii) or purchase participating interests in
accordance with SECTION 1.1(b)(iv). Notwithstanding any other provision of this
Agreement or the other Loan Documents, the Swing Line Loan shall constitute a
Loan bearing interest at the commercial paper rate plus the Applicable Revolver
LIBOR Margin as provided in SECTION 1.5(a) and no Swing Line Loan shall remain
outstanding for more than five (5) Business Days. Borrower shall repay the
aggregate outstanding principal amount of the Swing Line Loan upon demand
therefor by Agent.
(ii) Borrower shall execute and deliver to the Swing Line
Lender a promissory note to evidence the Swing Line Commitment. Such note shall
be in the principal amount of the Swing Line Commitment of the Swing Line
Lender, dated the Closing Date and substantially in the form of EXHIBIT
1.1(b)(ii) (the "SWING LINE NOTE"). The Swing Line Note shall represent the
obligation of Borrower to pay the amount of the Swing Line Commitment or, if
less, the aggregate unpaid principal amount of all Swing Line Advances made to
Borrower together with interest thereon as prescribed in SECTION 1.5. The entire
unpaid balance of the Swing Line Loan and all other noncontingent Obligations
shall be immediately due and payable in full in immediately available funds on
the Commitment Termination Date if not sooner paid in full.
(iii) The Swing Line Lender, at any time and from time to
time in its sole and absolute discretion, may on behalf of Borrower (and
Borrower hereby irrevocably
4
authorizes the Swing Line Lender to so act on its behalf) request each Lender
(including the Swing Line Lender) to make a Revolving Credit Advance to Borrower
(which shall be an Index Rate Loan) in an amount equal to that Lender's Pro Rata
Share of the principal amount of the Swing Line Loan (the "REFUNDED SWING LINE
LOAN") outstanding on the date such notice is given. Unless any of the events
described in SECTIONS 8.1(h) OR 8.1(i) has occurred (in which event the
procedures of SECTION 1.1(b)(iv) shall apply) and regardless of whether the
conditions precedent set forth in this Agreement to the making of a Revolving
Credit Advance are then satisfied, each Lender shall disburse directly to Agent,
its Pro Rata Share of a Revolving Credit Advance on behalf of the Swing Line
Lender, prior to 3:00 p.m. (New York time), in immediately available funds on
the Business Day next succeeding the date that notice is given. The proceeds of
those Revolving Credit Advances shall be immediately paid to the Swing Line
Lender and applied to repay the Refunded Swing Line Loan.
(iv) If, prior to refunding a Swing Line Loan with a
Revolving Credit Advance pursuant to SECTION 1.1(b)(iii), one of the events
described in SECTIONS 8.1(h) OR 8.1(I) has occurred, then, subject to the
provisions of SECTION 1.1(b)(v) below, each Lender shall, on the date such
Revolving Credit Advance was to have been made for the benefit of Borrower,
purchase from the Swing Line Lender an undivided participation interest in the
Swing Line Loan in an amount equal to its Pro Rata Share of such Swing Line
Loan. Upon request, each Lender shall promptly transfer to the Swing Line
Lender, in immediately available funds, the amount of its participation
interest.
(v) Each Lender's obligation to make Revolving Credit
Advances in accordance with SECTION 1.1(b)(iii) and to purchase participation
interests in accordance with SECTION 1.1(b)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of any Default or Event of
Default; (C) any inability of Borrower to satisfy the conditions precedent to
borrowing set forth in this Agreement at any time or (D) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
If any Lender does not make available to Agent or the Swing Line Lender, as
applicable, the amount required pursuant to SECTIONS 1.1(b)(iii) OR 1.1(b)(iv),
as the case may be, the Swing Line Lender shall be entitled to recover such
amount on demand from such Lender, together with interest thereon for each day
from the date of non-payment until such amount is paid in full at the Federal
Funds Rate for the first two Business Days and at the Index Rate thereafter.
(c) RELIANCE ON NOTICES. Agent shall be entitled to rely
upon, and shall be fully protected in relying upon, any Notice of Revolving
Credit Advance, Notice of Conversion/Continuation or similar notice believed by
Agent to be genuine. Agent may assume that each Person executing and delivering
any notice in accordance herewith was duly authorized, unless the responsible
individual acting thereon for Agent has actual knowledge to the contrary.
1.2 LETTERS OF CREDIT. Subject to and in accordance with
the terms and conditions contained herein and in Annex B, Borrower shall have
the right to request, and
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Lenders agree to incur, or purchase participations in, Letter of Credit
Obligations in respect of Borrower.
1.3 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS; REDUCTIONS IN REVOLVING LOAN
COMMITMENTS. Borrower may at any time on at least 5 days' prior written notice
to Agent permanently reduce (but not terminate) the Revolving Loan Commitment;
PROVIDED that (A) any such reductions shall be in a minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess of such amount, (B) the Revolving
Loan Commitment shall not be reduced to an amount less than the amount of the
Revolving Loan then outstanding, plus $25,000,000, and (C) after giving effect
to such reduction, Borrower shall comply with SECTION 1.3(b)(i). Borrower may at
any time on at least ten 10 days' prior written notice to Agent terminate the
Revolving Loan Commitment, PROVIDED that upon such termination all Loans and
other Obligations shall be immediately due and payable in full and all Letter of
Credit Obligations shall be cash collateralized or otherwise satisfied in
accordance with ANNEX B hereto. Any reduction or termination of the Revolving
Loan Commitment must be accompanied by the payment of any LIBOR funding breakage
costs in accordance with SECTION 1.13(b). Upon any such reduction or termination
of the Revolving Loan Commitment, Borrower's right to request Revolving Credit
Advances, or request that Letter of Credit Obligations be incurred on its
behalf, or request Swing Line Advances, shall simultaneously be permanently
reduced or terminated, as the case may be; PROVIDED that a permanent reduction
of the Revolving Loan Commitment shall not require a corresponding pro rata
reduction in the L/C Sublimit.
(b) MANDATORY PREPAYMENTS.
(i) If at any time the outstanding balances of the
Revolving Loan and the Swing Line Loan exceed the lesser of (A) the Maximum
Amount and (B) the Borrowing Base, Borrower shall immediately repay the
aggregate outstanding Revolving Credit Advances to the extent required to
eliminate such excess. If any such excess remains after repayment in full of the
aggregate outstanding Revolving Credit Advances, Borrower shall provide cash
collateral for the Letter of Credit Obligations in the manner set forth in ANNEX
B to the extent required to eliminate such excess. Notwithstanding the
foregoing, any Overadvance made pursuant to SECTION 1.1(a)(iii) shall be repaid
only on demand.
(ii) Immediately upon receipt by any Credit Party of
proceeds of any asset disposition (excluding proceeds of asset dispositions
permitted by SECTION 6.8(a)) or any sale of Stock of any Subsidiary of any
Credit Party or of any incurrence of Indebtedness in a mortgage financing
transaction permitted under SECTION 6.3(a)(x) or the incurrence of any other
Indebtedness from any third party in a transaction permitted under SECTION 6.3
(other than the issuance of additional Subordinated Notes, which shall be
governed by CLAUSE (IV) below), Borrower shall prepay the Loans in an amount
equal to all such proceeds, net of (A) commissions and other reasonable and
customary transaction costs, fees and expenses properly attributable to such
transaction and payable by Borrower in connection therewith (in each case, paid
to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior
Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if
any (D) an appropriate reserve for
6
income taxes in accordance with GAAP in connection therewith. Any such
prepayment shall be applied in accordance with SECTION 1.3(c).
(iii) If Holdings or Borrower issues Stock, other than (i)
the issuance of common Stock of Holdings in connection with 401(k) plans
established for the benefit of employees, (ii) the issuance of common Stock upon
the exercise of the stock options granted to employees pursuant to stock option
plans adopted for the benefit of employees, (iii) the issuance of common Stock
of Holdings pursuant to the provisions of SECTION 1.5(c)(v) of the Xxxxxxxx
Acquisition Agreement and (iv) the issuance of common Stock of Holdings in
connection with Permitted Acquisitions consummated in compliance with each of
the terms and conditions of SECTION 6.1; PROVIDED, THAT, in the case of each of
CLAUSES (i), (ii), (iii) and (iv), there shall be no Change of Control upon any
such issuance of common Stock of Holdings, no later than the Business Day
following the date of receipt of the proceeds thereof, Borrower shall prepay the
Loans in an amount equal to all such proceeds, net of underwriting discounts and
commissions and other reasonable costs paid to non-Affiliates in connection
therewith. Any such prepayment shall be applied in accordance with SECTION
1.3(c).
(iv) If Borrower issues additional Subordinated Notes in a
transaction permitted under SECTION 6.3(a)(xvi) and the other provisions of this
Agreement, no later than the first Business Day following the date of receipt of
the net proceeds thereof, Borrower shall prepay the Loans in an amount equal to
all such proceeds (and correspondingly permanently reduce the amount of the
Revolving Loan Commitment). Any such prepayment shall be applied in accordance
with SECTION 1.3(c).
(c) APPLICATION OF CERTAIN MANDATORY PREPAYMENTS. Any
prepayments made by Borrower pursuant to SECTIONS 1.3(b)(ii) OR (b)(iii) above
shall be applied as follows: FIRST, to Fees and reimbursable expenses of Agent
then due and payable pursuant to any of the Loan Documents; SECOND, to interest
then due and payable on the Swing Line Loan; THIRD, to the principal balance of
the Swing Line Loan until the same has been repaid in full; FOURTH, to interest
then due and payable on the Revolving Credit Advances; FIFTH, to the outstanding
principal balance of Revolving Credit Advances until the same has been paid in
full; and SIXTH, to any Letter of Credit Obligations, to provide cash collateral
therefor in the manner set forth in ANNEX B, until all such Letter of Credit
Obligations have been fully cash collateralized in the manner set forth in ANNEX
B. Neither the Revolving Loan Commitment nor the Swing Line Commitment shall be
permanently reduced by the amount of any such prepayments; PROVIDED, HOWEVER,
notwithstanding the foregoing, the Revolving Loan Commitment shall be
permanently reduced by the amount of any such prepayments made pursuant to
SECTION 1.3(b)(iv).
(d) APPLICATION OF PREPAYMENTS FROM INSURANCE PROCEEDS
AND CONDEMNATION PROCEEDS. Prepayments from insurance or condemnation proceeds
in accordance with SECTION 5.4(c) and insurance or condemnation proceeds from
casualties or losses to Equipment, Fixtures and Real Estate, respectively, shall
be applied as follows: insurance proceeds from casualties or losses shall be
applied first, to the Swing Line Loans and, second, to the Revolving Credit
Advances. Neither the Revolving Loan Commitment nor the Swing Line Loan
Commitment shall be permanently reduced by the amount of any such prepayments.
7
(e) NO IMPLIED CONSENT. Nothing in this SECTION 1.3
shall be construed to constitute Agent's or any Lender's consent to any
transaction that is not permitted by other provisions of this Agreement or the
other Loan Documents.
1.4 USE OF PROCEEDS.
Borrower shall utilize the proceeds of the Revolving Loan and
the Swing Line Loan solely for the Refinancing (and to pay any related
transaction expenses), and for the financing of Borrower's ordinary working
capital and general corporate needs, including to the extent, and only to the
extent, (i) set forth in SECTION 6.3 to be used by Borrower to make intercompany
loans and advances to Credit Parties which are Guarantors and other Subsidiaries
of Borrower but solely to the extent permitted hereunder, (ii) set forth in
SECTION 6.14, to be used by Borrower in connection with the repurchase of either
Holdings' publicly traded common Stock or the Subordinated Notes in a
transaction consummated in a transaction expressly permitted under SECTION 6.14
and (iii) set forth in SECTION 6.1, to be used by Borrower in connection with
the consummation of a Permitted Acquisition consummated in compliance with each
of the terms and conditions of SECTION 6.1. DISCLOSURE SCHEDULE (1.4) contains a
description of Borrower's sources and uses of funds as of the Closing Date,
including Loans and Letter of Credit Obligations to be made or incurred on that
date, and a funds flow memorandum detailing how funds from each source are to be
transferred to particular uses.
1.5 INTEREST AND APPLICABLE MARGINS.
(a) Borrower shall pay interest to Agent, for the ratable
benefit of Lenders in accordance with the various Loans being made by each
Lender, in arrears on each applicable Interest Payment Date, at the following
rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus
the Applicable Revolver Index Margin per annum or, at the election of Borrower,
the applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum,
based on the aggregate Revolving Credit Advances outstanding from time to time;
(ii) with respect to the Swing Line Loan, at the rate equal to the last month
end published rate for 30 day dealer commercial paper (high grade unsecured
notes sold through dealers by major corporations in multiples of $1,000) which
normally appears in the "Money Rate" column of the Wall Street Journal, plus the
Applicable Revolver LIBOR Margin per annum.
As of the Closing Date, the Applicable Margins are as follows:
Applicable Revolver Index Margin 1.00%
Applicable Revolver LIBOR Margin 2.50%
Applicable L/C Margin 2.50%
Applicable Unused Line Fee Margin .50%
8
The Applicable Margins shall be adjusted (up or down)
prospectively as determined by Borrower's average daily excess Borrowing
Availability for the quarter then ended, commencing with the first day of the
first calendar month that occurs more than five (5) days after delivery of
Borrower's Compliance Certificate to Lenders for the Fiscal Quarter ending June
30, 2002. Adjustments in Applicable Margins will be determined by reference to
the following grids:
(x) For Interest and Letter of Credit Fees:
------------------------------------------------------------------------------------------------------------
IF EXCESS BORROWING LEVEL OF
AVAILABILITY IS: APPLICABLE MARGINS:
--------------- -------------------
-----------------------------------------------------------------------------------------------------------
Less than 50,000,000 Level I
-----------------------------------------------------------------------------------------------------------
Less than 125,000,000, but equal to or greater than 50,000,000 Level II
-----------------------------------------------------------------------------------------------------------
equal to or less than 150,000,000, but equal to or greater than 125,000,000 Level III
-----------------------------------------------------------------------------------------------------------
greater than 150,000,000 Level IV
-----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
APPLICABLE MARGINS
------------------
--------------------------------------------------------------------------------------------------------
XXXXX X XXXXX XX XXXXX XXX XXXXX XX
------- -------- --------- --------
Applicable Revolver 1.25% 1.00% 0.75% 0.50%
-------------------------------------- --------------- --------------- ---------------- ---------------
Index Margin
-------------------------------------- --------------- --------------- ---------------- ---------------
Applicable Revolver LIBOR 2.75% 2.50% 2.25% 2.00%
-------------------------------------- --------------- --------------- ---------------- ---------------
Margin
-------------------------------------- --------------- --------------- ---------------- ---------------
Applicable L/C Margin 2.75% 2.50% 2.25% 2.00%
-------------------------------------- --------------- --------------- ---------------- ---------------
(y) For Unused Line Fee:
--------------------------------------------------------------------------------
IF THE PERCENTAGE OF THE AVERAGE
FOR THE PERIOD OF THE DAILY
CLOSING BALANCES OF THE
REVOLVING LOAN OUTSTANDING TO LEVEL OF
THE MAXIMUM AMOUNT IS: APPLICABLE MARGIN:
---------------------- ------------------
--------------------------------------------------------------------------------
equal to or less than 33% Level A
---------------------------------------- --------------------------------------
greater than 33% Level B
---------------------------------------- --------------------------------------
-----------------------------------------------------------------------
APPLICABLE MARGINS
------------------
-----------------------------------------------------------------------
LEVEL A Level B
-------------------------------------- --------------- ---------------
Applicable Unused Line Fee .50% .375%
Margin
-------------------------------------- --------------- ---------------
All adjustments in the Applicable Margins after August 1,
2002, shall be implemented quarterly on a prospective basis, for each calendar
month commencing at least 5 days after the date of delivery to Lenders of the
quarterly unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the
9
delivery of the Compliance Certificate, Borrower shall deliver to Agent and
Lenders a certificate, signed by its chief financial officer, setting forth in
reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins. Failure to deliver the Compliance Certificate within 5 days
of the required date of delivery shall, in addition to any other remedy provided
for in this Agreement, result in an increase in the Applicable Margins to the
highest level set forth in the foregoing grid, until the first day of the first
calendar month following the delivery of a Compliance Certificate demonstrating
that such an increase is not required. If a Default or an Event of Default has
occurred and is continuing at the time any reduction in the Applicable Margins
is to be implemented, that reduction shall be deferred until the first day of
the first calendar month following the date on which such Default or Event of
Default is waived or cured.
(b) If any payment on any Loan becomes due and payable on a
day other than a Business Day, the maturity thereof will be extended to the next
succeeding Business Day (except as set forth in the definition of LIBOR Period)
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis
and interest shall be made by Agent on the basis of a 360-day year, in each case
for the actual number of days occurring in the period for which such interest
and Fees are payable. The Index Rate is a floating rate determined for each day.
Each determination by Agent of an interest rate and Fees hereunder shall be
final, binding and conclusive on Borrower, absent manifest error.
(d) So long as an Event of Default has occurred and is
continuing under SECTION 8.1 (a), (h) OR (i), or so long as any other Default or
Event of Default has occurred and is continuing and at the election of Agent (or
upon the written request of Requisite Lenders) confirmed by written notice from
Agent to Borrower, the interest rates applicable to the Loans and the Letter of
Credit Fees shall be increased by two percentage points (2%) per annum above the
rates of interest or the rate of such Fees otherwise applicable hereunder
("DEFAULT RATE"), and all outstanding Obligations shall bear interest at the
Default Rate applicable to such Obligations. Interest and Letter of Credit Fees
at the Default Rate shall accrue from the initial date of such Default or Event
of Default until that Default or Event of Default is cured or waived and shall
be payable upon demand.
(e) Subject to the conditions precedent set forth in SECTION
2.2, Borrower shall have the option to (i) request that any Revolving Credit
Advance be made as a LIBOR Loan, (ii) convert at any time all or any part of
outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to
LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject to
payment of LIBOR breakage costs in accordance with SECTION 1.13(b) if such
conversion is made prior to the expiration of the LIBOR Period applicable
thereto, or (iv) continue all or any portion of any Loan (other than the Swing
Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period
and the succeeding LIBOR Period of that continued Loan shall commence on the
first day after the last day of the LIBOR Period of the Loan to be continued.
Any Loan or group of Loans having the same proposed LIBOR Period to be made or
continued as, or converted into, a LIBOR Loan must be in a minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of such amount. Any
such election must be made by 12:00 noon (New York time) on the 3rd Business Day
prior to (1) the date of any proposed Advance
10
which is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period
with respect to any LIBOR Loans to be continued as such, or (3) the date on
which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR
Period designated by Borrower in such election. If no election is received with
respect to a LIBOR Loan by 12:00 noon (New York time) on the 3rd Business Day
prior to the end of the LIBOR Period with respect thereto (or if a Default or an
Event of Default has occurred and is continuing or the additional conditions
precedent set forth in SECTION 2.2 shall not have been satisfied), that LIBOR
Loan shall be converted to an Index Rate Loan at the end of its LIBOR Period.
Borrower must make such election by notice to Agent in writing, by telecopy or
overnight courier. In the case of any conversion or continuation, such election
must be made pursuant to a written notice (a "NOTICE OF
CONVERSION/CONTINUATION") in the form of EXHIBIT 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this
SECTION 1.5, if a court of competent jurisdiction determines in a final order
that the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law (the "MAXIMUM LAWFUL RATE"), then so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder shall
be equal to the Maximum Lawful Rate; PROVIDED, HOWEVER, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had the
interest rate payable hereunder been (but for the operation of this paragraph)
the interest rate payable since the Closing Date as otherwise provided in this
Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of
interest and in the manner provided in SECTIONS 1.5(a) THROUGH (e), unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall be
calculated at a daily rate equal to the Maximum Lawful Rate divided by the
number of days in the year in which such calculation is made. If,
notwithstanding the provisions of this SECTION 1.5(f), a court of competent
jurisdiction shall finally determine that a Lender has received interest
hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent
permitted by applicable law, promptly apply such excess in the order specified
in SECTION 1.11 and thereafter shall refund any excess to Borrower or as a court
of competent jurisdiction may otherwise order.
(g) INTEREST ACT (CANADA). For purposes of disclosure pursuant
to the Interest Act (Canada), the annual rates of interest or fees to which the
rates of interest or fees provided in this Agreement and the other Loan
Documents (as stated herein or therein, as applicable, to be computed on the
basis of a 360 or 365 day year or any other period of time less than a calendar
year) are equivalent are the rates so determined multiplied by the actual number
of days in the applicable calendar year and divided by 360, 365 or such other
period of time, respectively.
11
1.6 ELIGIBLE ACCOUNTS.
All of the Accounts owned by WESCO-Canada and reflected in the
most recent Borrowing Base Certificate delivered by Borrower to Agent shall be
"ELIGIBLE ACCOUNTS" for purposes of this Agreement, except any Account to which
any of the exclusionary criteria set forth below applies. Agent shall have the
right to establish, modify or eliminate Reserves against Eligible Accounts from
time to time in its reasonable credit judgment. In addition, Agent reserves the
right, at any time and from time to time after the Closing Date, to adjust any
of the criteria set forth below, to establish new criteria and to adjust advance
rates with respect to Eligible Accounts, in its reasonable credit judgment,
subject to the approval of Supermajority Lenders in the case of adjustments, new
criteria, or changes in advance rates or the elimination of Reserves imposed as
of the Closing Date which have the effect of making more credit available (it
being understood that Agent may in its reasonable credit judgment eliminate
Reserves established by it in its reasonable credit judgment after the Closing
Date without the necessity of obtaining the approval of Supermajority Lenders or
Requisite Lenders). Borrower and the other Credit Parties hereby acknowledge and
agree that only Accounts owned by WESCO-Canada, and no Accounts owned by
Borrower or any other Credit Party, may constitute Eligible Accounts. Eligible
Accounts shall not include any Account of WESCO-Canada:
(a) that does not arise from the sale of goods or the
performance of services by WESCO-Canada in the ordinary course of its business;
(b) (i) upon which WESCO-Canada's right to receive payment is
not absolute or is contingent upon the fulfillment of any condition whatsoever
or (ii) as to which WESCO-Canada is not able to bring suit or otherwise enforce
its remedies against the Account Debtor through judicial process, or (iii) if
the Account represents a progress billing consisting of an invoice for goods
sold or used or services rendered pursuant to a contract under which the Account
Debtor's obligation to pay that invoice is subject to WESCO-Canada's completion
of further performance under such contract or is subject to the equitable lien
of a surety bond issuer;
(c) to the extent that any defense, counterclaim, setoff or
dispute is asserted as to such Account;
(d) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered and accepted by the applicable Account Debtor;
(e) with respect to which an invoice, reasonably acceptable to
Agent in form and substance, has not been sent to the applicable Account Debtor;
(f) that (i) is not owned by WESCO-Canada or (ii) is subject
to any right, claim, security interest or other interest of any other Person,
other than Liens in favor of Agent, on behalf of itself and Lenders, and Prior
Claims that are unregistered and that secure amounts that are not yet due and
payable;
12
(g) that arises from a sale to any director, officer, other
employee or Affiliate of any Credit Party, or to any entity that has any common
officer or director with any Credit Party;
(h) that is the obligation of an Account Debtor that is the
United States government or a political subdivision thereof, or any state,
county or municipality or department, agency or instrumentality thereof or that
is the Canadian government (Her Majesty in Right of Canada) or a political
subdivision thereof, or a department, agency or instrumentality thereof unless
Agent, in its sole discretion, has agreed to the contrary in writing and
WESCO-Canada, if necessary or desirable, has complied with respect to such
obligation with the Federal Assignment of Claims Act of 1940 (for Account
Debtors that are United States government or a political subdivision thereof) or
any applicable state, county or municipal law restricting the assignment thereof
(for Account Debtors that are a state, county, or municipality or department,
agency or instrumentality thereof) or WESCO-Canada, if necessary or desirable,
has complied with the Financial Administration Act (Canada) or any applicable
provincial or territorial statute or municipal ordinance of similar purpose with
respect to such obligation, as applicable, or any applicable statutes or
ordinances of similar purpose, with respect to such obligation, as applicable,
(i) that is the obligation of an Account Debtor located in a
country other than the United States (including all fifty states) or Canada
unless payment thereof is assured by a letter of credit assigned and delivered
to Agent, satisfactory to Agent as to form, amount and issuer; or is backed by
credit insurance or a bank guaranty acceptable to Agent in all respects.
(j) to the extent WESCO-Canada, Borrower, any other Credit
Party or any Subsidiary thereof is liable for goods sold or services rendered by
the applicable Account Debtor to WESCO-Canada, Borrower, any other Credit Party
or any Subsidiary thereof but only to the extent of the potential offset;
(k) that arises with respect to goods that are delivered on a
xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale
or other terms by reason of which the payment by the Account Debtor is or may be
conditional;
(l) that is in default; PROVIDED, THAT, without limiting the
generality of the foregoing, an Account shall be deemed in default upon the
occurrence of any of the following:
(i) the Account is not paid within the earlier of: 60 days
following its due date or 90 days following its original invoice date;
(ii) the Account Debtor obligated upon such Account
suspends business, makes a general assignment for the benefit of creditors or
fails to pay its debts generally as they come due; or
(iii) a petition is filed by or against any Account Debtor
obligated upon such Account under any bankruptcy law or any other United States
federal or state or, with
13
respect to Canada, Solvency Law or any other foreign receivership, insolvency
relief or other law or laws for the relief of debtors;
(m) that is the obligation of an Account Debtor if 50% or more
of the Dollar amount of all Accounts owing by that Account Debtor are ineligible
under the other criteria set forth in this SECTION 1.6;
(n) as to which Agent's Lien thereon, on behalf of itself and
Lenders, is not a first priority perfected Lien, subject only to Prior Claims
that are unregistered and that secure amounts that are not yet due and payable;
(o) as to which any of the representations or warranties in
the Loan Documents are untrue;
(p) to the extent such Account is evidenced by a judgment,
Instrument or Chattel Paper;
(q) to the extent such Account exceeds any credit limit
established by Agent, in its reasonable credit judgment;
(r) to the extent that such Account, together with all other
Accounts owing by such Account Debtor and its Affiliates as of any date of
determination exceed 10% of all Eligible Accounts;
(s) that is payable in any currency other than Dollars or
Canadian Dollars (to the extent properly converted into Dollars in the
applicable Borrowing Base Certificate in accordance herewith);
(t) to the extent such Account includes goods and services or
harmonized sales or other sales taxes; or
(u) that is otherwise unacceptable to Agent in its reasonable
credit judgment.
1.7 ELIGIBLE INVENTORY.
All of the inventory owned by the Borrower, WESCO-Canada,
WESCO Equity, or Herning and reflected in the most recent Borrowing Base
Certificate delivered by Borrower to Agent shall be "Eligible Inventory" for
purposes of this Agreement, except any Inventory to which any of the
exclusionary criteria set forth below applies. Agent shall have the right to
establish, modify, or eliminate Reserves against Eligible Inventory from time to
time in its reasonable credit judgment. In addition, Agent reserves the right,
at any time and from time to time after the Closing Date, to adjust any of the
criteria set forth below, to establish new criteria and to adjust advance rates
with respect to Eligible Inventory in its reasonable credit judgment, subject to
the approval of Supermajority Lenders in the case of adjustments, new criteria,
changes in advance rates or the elimination of Reserves imposed as of the
Closing Date which have the effect of making more credit available (it being
understood that Agent may in its reasonable credit judgment eliminate Reserves
established by it in its reasonable credit judgment
14
after the Closing Date without the necessity of obtaining the approval of
Supermajority Lenders or Requisite Lenders). The other Credit Parties hereby
acknowledge and agree that only Inventory owned by Borrower, WESCO-Canada, WESCO
Equity, or Herning, and no Inventory owned by any other Credit Party, may
constitute Eligible Inventory. Eligible Inventory shall not include any
Inventory of Borrower, WESCO-Canada, WESCO Equity, or Herning that:
(a) is not owned by Borrower, Herning, WESCO Equity, or
WESCO-Canada free and clear of all Liens and rights of any other Person
(including the rights of a purchaser that has made progress payments and the
rights of a surety that has issued a bond to assure Borrower's or WESCO-
Canada's performance with respect to that Inventory), except the Liens in favor
of Agent, on behalf of itself and Lenders, and in the case of Inventory of
WESCO-Canada, Prior Claims that are unregistered and that secure amounts that
are not yet due and payable;
(b) (i) other than as provided in CLAUSE (VI) below, is not
located on premises owned, leased or rented by Borrower, Herning, WESCO Equity
or WESCO-Canada and set forth in DISCLOSURE SCHEDULE (3.2) or (ii) is stored at
a leased location, unless Agent has given its prior consent thereto and unless
(x) a satisfactory landlord waiver has been delivered to Agent or (y) Reserves,
if determined in Agent's reasonable credit judgment, satisfactory to Agent have
been established with respect thereto, (iii) is stored with a bailee or
warehouseman unless a satisfactory, acknowledged bailee letter has been received
by Agent or, if determined in Agent's reasonable credit judgment, Reserves
satisfactory to Agent have been established with respect thereto, or (iv) is
located at an owned location subject to a mortgage (or similar lien under
applicable law) in favor of a lender other than Agent, unless a satisfactory
mortgagee waiver has been delivered to Agent or Reserves satisfactory to Agent
have been established with respect thereto, or (v) is located at any site if the
aggregate book value of Inventory at any such location is less than U.S.
$100,000 (or the Dollar Equivalent Amount thereof), or (vi) is located on
premises owned, leased or rented by a customer of Borrower, Herning or WESCO
Equity, unless Agent has given its prior consent thereto, such Inventory of
Borrower, Herning or WESCO Equity is clearly segregated from all Inventory of
such customer, all UCC filings deemed necessary or desirable by Agent have been
made, and a satisfactory collateral access agreement has been delivered to Agent
by such customer;
(c) is placed on consignment, except as expressly provided in
SECTION 1.7(b)(vi) (and subject to compliance with all of the requirements of
SECTION 1.7(b)(vi)), is located at any customer location, or is in transit, to
the extent the value of such Inventory consists of costs associated with
"freight- in" charges, if any, except for Inventory in transit between domestic
or Canadian locations of Credit Parties as to which Agent's Liens have been
perfected at origin and destination;
(d) is covered by a negotiable document of title, unless such
document has been delivered to Agent with all necessary endorsements, free and
clear of all Liens except those in favor of Agent and Lenders and, in the case
of WESCO-Canada, Prior Claims that are unregistered and that secure amounts that
are not yet due and payable;
(e) is excess, obsolete, unsalable, shopworn, seconds, damaged
or unfit for sale;
15
(f) consists of display items or packing or shipping
materials, manufacturing supplies, work-in-process Inventory or replacement
parts;
(g) consists of goods which have been returned by the buyer;
(h) is not of a type held for sale in the ordinary course of
Borrower's, Herning's, WESCO Equity's, or WESCO-Canada's business;
(i) is not subject to a first priority lien in favor of Agent
on behalf of itself and Lenders subject to Permitted Encumbrances;
(j) breaches any of the representations or warranties
pertaining to Inventory set forth in the Loan Documents;
(k) consists of any costs associated with "freight-in"
charges, warehouseman's salaries or any other item classified as "full
absorption";
(l) consists of Hazardous Materials or goods that can be
transported or sold only with licenses that are not readily available;
(m) is not covered by casualty insurance reasonably acceptable
to Agent;
(n) the value of which has not been converted into Dollars in
the applicable Borrowing Base Certificate in accordance herewith; or
(o) is otherwise unacceptable to Agent in its reasonable
credit judgment.
1.8 CASH MANAGEMENT SYSTEMS. On or prior to the Closing Date,
Borrower and WESCO-Canada will each establish and will each maintain until the
Termination Date, the cash management systems described in Annex C (the "Cash
Management Systems").
1.9 FEES.
(a) Borrower shall pay to GE Capital, individually, the Fees
specified in that certain fee letter of even date herewith between Borrower and
GE Capital (the "GE CAPITAL FEE LETTER"), at the times specified for payment
therein.
(b) As additional compensation for the Lenders, Borrower shall
pay to Agent, for the ratable benefit of such Lenders, in arrears, on the first
Business Day of each month prior to the Commitment Termination Date and on the
Commitment Termination Date, a Fee for Borrower's non-use of available funds in
an amount equal to the Applicable Unused Line Fee Margin per annum (calculated
on the basis of a 360 day year for actual days elapsed) multiplied by the
difference between (x) the Maximum Amount (as it may be reduced from time to
time) and (y) the average for the period of the daily closing balances of the
Revolving Loan outstanding during the period for which the such Fee is due.
16
(c) Borrower shall pay to Agent, for the ratable benefit of
Lenders, the Letter of Credit Fee as provided in ANNEX B.
1.10 RECEIPT OF PAYMENTS.
Borrower shall make each payment under this Agreement not
later than 2:30 p.m. (New York time) on the day when due in immediately
available funds in Dollars to the Collection Account. Payments received after
2:30 p.m. New York time on any Business Day or on a day that is not a Business
Day shall be deemed to have been received on the following Business Day. If
Agent receives any payment from or on behalf of any Credit Party in a currency
other than the currency in which an Obligation payable is denominated, Agent may
convert the payment (including the monetary proceeds of realization upon any
Collateral and any funds then held in a cash collateral account) into Dollars at
the exchange rate that Agent would be prepared to sell the currency received in
New York, New York on the Business Day immediately preceding the date of actual
payment. The Obligations shall be satisfied only to the extent of the amount
actually received by Agent upon such conversion.
1.11 APPLICATION AND ALLOCATION OF PAYMENTS.
(a) So long as no Default or Event of Default has occurred and
is continuing, (i) payments consisting of proceeds of Accounts or Inventory
received in the ordinary course of business shall be applied, first, to the
Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching
specific scheduled payments then due shall be applied to those scheduled
payments; (iii) voluntary prepayments shall be applied as determined by
Borrower, subject to the provisions of SECTION 1.3(a); and (iv) mandatory
prepayments shall be applied as set forth in SECTIONS 1.3(c) AND 1.3(d). All
payments and prepayments applied to a particular Loan shall be applied ratably
to the portion thereof held by each Lender as determined by its Pro Rata Share.
As to any other payment, and as to all payments made when a Default or Event or
Default has occurred and is continuing or following the Commitment Termination
Date, Borrower hereby irrevocably waives the right to direct the application of
any and all payments received from or on behalf of Borrower, and Borrower hereby
irrevocably agrees that Agent shall have the continuing exclusive right to apply
any and all such payments against the Obligations as Agent may deem advisable
notwithstanding any previous entry by Agent in the Loan Account or any other
books and records. In the absence of a specific determination by Agent with
respect thereto, payments in respect of the Obligations shall be applied to
amounts then due and payable in the following order: (1) to Fees and Agent's
expenses reimbursable hereunder; (2) to interest on the Swing Line Loan; (3) to
principal payments on the Swing Line Loan; (4) to interest on the Revolving
Loan; interest accrued as to each Revolving Loan; (5) to principal payments on
the Revolving Loan; (6) to provide cash collateral for Letter of Credit
Obligations in the manner described in ANNEX B and (7) to all other Obligations
including expenses of Lenders to the extent reimbursable under SECTION 11.3;
PROVIDED, HOWEVER, that any such payments consisting of proceeds of Canadian
property shall be applied to amounts that are due and payable in the following
order: (1) to Agent's expenses reimbursable hereunder; (2) to principal payments
on the Swing Line Loan; (3) to principal payments on the Revolving Loan; (4) to
Fees reimbursable hereunder; (5) to interest on the Swing Line Loan; (6) to
interest on the Revolving Loan; interest accrued as to each Revolving Loan; (7)
to provide cash collateral for Letter of Credit Obligations in the manner
17
described in ANNEX B and (8) to all other Obligations including expenses of
Lenders to the extent reimbursable under SECTION 11.3.
(b) Agent is authorized to, and at its sole election may,
charge to the Revolving Loan balance on behalf of Borrower and cause to be paid
all Fees, expenses, Charges, costs (including insurance premiums in accordance
with SECTION 5.4(a)) and interest and principal, other than principal of the
Revolving Loan, owing by Borrower under this Agreement or any of the other Loan
Documents if and to the extent Borrower fails to pay promptly any such amounts
as and when due, even if the amount of such charges would exceed Borrowing
Availability at such time. At Agent's option and to the extent permitted by law,
any charges so made shall constitute part of the Revolving Loan hereunder.
1.12 LOAN ACCOUNT AND ACCOUNTING.
Agent shall maintain a loan account (the "LOAN ACCOUNT") on
its books to record: all Advances, all payments made by Borrower, and all other
debits and credits as provided in this Agreement with respect to the Loans or
any other Obligations. All entries in the Loan Account shall be made in
accordance with Agent's customary accounting practices as in effect from time to
time. The balance in the Loan Account, as recorded on Agent's most recent
printout or other written statement, shall, absent demonstrable error, be
presumptive evidence of the amounts due and owing to Agent and Lenders by
Borrower; PROVIDED that any failure to so record or any error in so recording
shall not limit or otherwise affect Borrower's duty to pay the Obligations.
Agent shall render to Borrower a monthly accounting of transactions with respect
to the Loans setting forth the balance of the Loan Account for the immediately
preceding month. Unless Borrower notifies Agent in writing of any objection to
any such accounting (specifically describing the basis for such objection),
within 30 days after the date thereof, each and every such accounting shall,
absent demonstrable error, be deemed final, binding and conclusive on Borrower
in all respects as to all matters reflected therein. Only those items expressly
objected to in such notice shall be deemed to be disputed by Borrower.
Notwithstanding any provision herein contained to the contrary, any Lender may
elect (which election may be revoked) to dispense with the issuance of Notes to
that Lender and may rely on the Loan Account as evidence of the amount of
Obligations from time to time owing to it.
1.13 INDEMNITY.
(a) Each Credit Party that is a signatory hereto shall jointly
and severally indemnify and hold harmless each of Agent, Lenders and their
respective Affiliates, and each such Person's respective officers, directors,
employees, attorneys, agents and representatives (each, an "INDEMNIFIED
PERSON"), from and against any and all suits, actions, proceedings, claims,
damages, losses, liabilities and expenses (including reasonable attorneys' fees
and disbursements and other costs of investigation or defense, including those
incurred upon any appeal) that may be instituted or asserted against or incurred
by any such Indemnified Person as the result of credit having been extended,
suspended or terminated under this Agreement and the other Loan Documents and
the administration of such credit, and in connection with or arising out of the
transactions contemplated hereunder and thereunder and any actions or failures
to act in connection therewith, including any and all Environmental Liabilities
and legal costs and
18
expenses arising out of or incurred in connection with disputes between or among
ANY PARTIES to any of the Loan Documents (collectively, "INDEMNIFIED
LIABILITIES"); PROVIDED, that no such Credit Party shall be liable for any
indemnification to an Indemnified Person to the extent that any such suit,
action, proceeding, claim, damage, loss, liability or expense results from that
Indemnified Person's gross negligence or willful misconduct. NO INDEMNIFIED
PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT
HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A
RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the
terms provided herein, if (i) any LIBOR Loans are repaid in whole or in part
prior to the last day of any applicable LIBOR Period (whether that repayment is
made pursuant to any provision of this Agreement or any other Loan Document or
occurs as a result of acceleration, by operation of law or otherwise); (ii)
Borrower shall default in payment when due of the principal amount of or
interest on any LIBOR Loan; (iii) Borrower shall refuse to accept any borrowing
of, or shall request a termination of any borrowing, conversion into or
continuation of LIBOR Loans after Borrower has given notice requesting the same
in accordance herewith; or (iv) Borrower shall fail to make any prepayment of a
LIBOR Loan after Borrower has given a notice thereof in accordance herewith,
then Borrower shall indemnify and hold harmless each Lender from and against all
losses, costs and expenses resulting from or arising from any of the foregoing.
Such indemnification shall include any loss (including loss of margin) or
expense arising from the reemployment of funds obtained by it or from fees
payable to terminate deposits from which such funds were obtained. For the
purpose of calculating amounts payable to a Lender under this subsection, each
Lender shall be deemed to have actually funded its relevant LIBOR Loan through
the purchase of a deposit bearing interest at the LIBOR Rate in an amount equal
to the amount of that LIBOR Loan and having a maturity comparable to the
relevant LIBOR Period; PROVIDED, that each Lender may fund each of its LIBOR
Loans in any manner it sees fit, and the foregoing assumption shall be utilized
only for the calculation of amounts payable under this subsection. This covenant
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder. As promptly as practicable under the
circumstances, each Lender shall provide Borrower with its written calculation
of all amounts payable pursuant to this SECTION 1.13(b), and such calculation
shall be binding on the parties hereto unless Borrower shall object in writing
within 10 Business Days of receipt thereof, specifying the basis for such
objection in detail.
1.14 ACCESS.
Each Credit Party that is a party hereto shall, during normal
business hours, from time to time upon three (3) Business Day's prior notice to
the Borrower (attention: Treasurer); PROVIDED, HOWEVER, that after the
occurrence and during the continuance of a Default or Event of Default, no such
prior notice shall be required; as frequently as Agent determines to be
19
appropriate; (a) provide Agent and any of its officers, employees and agents
access to its properties, facilities, advisors and employees (including
officers) of each Credit Party and to the Collateral, (b) permit Agent, and any
of its officers, employees and agents, to inspect, audit and make extracts from
any Credit Party's books and records, and (c) permit Agent, and its officers,
employees and agents, to inspect, review, evaluate and make test verifications
and counts of the Accounts of WESCO-Canada, Inventory of any Credit Party and
other Collateral of any Credit Party. Absent a Default or Event of Default,
Borrower shall not be required to pay for (i) more than one (1) inventory
appraisal per year or (ii) more than two (2) collateral audits per year. If a
Default or Event of Default has occurred and is continuing or if access is
necessary to preserve or protect the Collateral as determined by the Agent, in
its reasonable credit judgment, each such Credit Party shall provide such access
to Agent and to each Lender at all times and without advance notice at
Borrower's expense. Furthermore, so long as any Event of Default has occurred
and is continuing, Borrower shall provide Agent and each Lender with access to
its suppliers and customers. Each Credit Party shall make available to Agent and
its counsel, as quickly as is possible under the circumstances, originals or
copies of all books and records that Agent may reasonably request. Each Credit
Party shall deliver any document or instrument necessary for Agent, as it may
from time to time request, to obtain records from any service bureau or other
Person that maintains records for such Credit Party, and shall maintain
duplicate records or supporting documentation on media, including computer tapes
and discs owned by such Credit Party. Agent will give Lenders at least 5 days'
prior written notice of regularly scheduled audits. Representatives of other
Lenders may accompany Agent's representatives on regularly scheduled audits at
no charge to Borrower.
1.15 TAXES.
(a) Any and all payments by Borrower hereunder or under the
Notes shall be made, in accordance with this SECTION 1.15, free and clear of and
without deduction for any and all present or future Taxes. If Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under the Notes, (i) the sum payable shall be increased as much as
shall be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this SECTION 1.15) Agent
or Lenders, as applicable, receive an amount equal to the sum they would have
received had no such deductions been made, (ii) Borrower shall make such
deductions, and (iii) Borrower shall pay the full amount deducted to the
relevant taxing or other authority in accordance with applicable law. Within 30
days after the date of any payment of Taxes, Borrower shall furnish to Agent the
original or a certified copy of a receipt evidencing payment thereof. Agent and
Lenders shall not be obligated to return or refund any amounts received pursuant
to this Section.
(b) Each Credit Party that is a signatory hereto shall
indemnify and, within 10 days of demand therefor, pay Agent and each Lender for
the full amount of Taxes (including any Taxes imposed by any jurisdiction on
amounts payable under this SECTION 1.15) paid by Agent or such Lender, as
appropriate, and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally asserted.
(c) Each Lender organized under the laws of a jurisdiction
outside the United States (a "FOREIGN LENDER") as to which payments to be made
under this Agreement or under the
20
Notes are exempt from United States withholding tax under an applicable statute
or tax treaty shall provide to Borrower and Agent a properly completed and
executed IRS Form W-8ECI or Form W-8BEN or other applicable form, certificate or
document prescribed by the IRS or the United States certifying as to such
Foreign Lender's entitlement to such exemption (a "CERTIFICATE OF EXEMPTION").
Any foreign Person that seeks to become a Lender under this Agreement shall
provide a Certificate of Exemption to Borrower and Agent prior to becoming a
Lender hereunder. No foreign Person may become a Lender hereunder if such Person
fails to deliver a Certificate of Exemption in advance of becoming a Lender.
1.16 CAPITAL ADEQUACY; INCREASED COSTS; ILLEGALITY.
(a) If any Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by any Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law), in each case, adopted after the Closing Date, from any
central bank or other Governmental Authority increases or would have the effect
of increasing the amount of capital, reserves or other funds required to be
maintained by such Lender and thereby reducing the rate of return on such
Lender's capital as a consequence of its obligations hereunder, then Borrower
shall from time to time upon demand by such Lender (with a copy of such demand
to Agent) pay to Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for such reduction. A certificate as to the
amount of that reduction and showing the basis of the computation thereof
submitted by such Lender to Borrower and to Agent shall, absent manifest error,
be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in
any law or regulation (or any change in the interpretation thereof) or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), in each case
adopted after the Closing Date, there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining any Loan, then
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to Agent), pay to Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower and
to Agent by such Lender, shall be conclusive and binding on Borrower for all
purposes, absent manifest error. Each Lender agrees that, as promptly as
practicable after it becomes aware of any circumstances referred to above which
would result in any such increased cost, the affected Lender shall, to the
extent not inconsistent with such Lender's internal policies of general
application, use reasonable commercial efforts to minimize costs and expenses
incurred by it and payable to it by Borrower pursuant to this SECTION 1.16(b).
(c) Notwithstanding anything to the contrary contained herein,
if the introduction of or any change in any law or regulation (or any change in
the interpretation thereof) shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender to agree
to make or to make or to continue to fund or maintain any LIBOR Loan, then,
unless that Lender is able to make or to continue to fund or to maintain such
LIBOR Loan at another branch or office of that Lender without, in that Lender's
opinion,
21
adversely affecting it or its Loans or the income obtained therefrom, on notice
thereof and demand therefor by such Lender to Borrower through Agent, (i) the
obligation of such Lender to agree to make or to make or to continue to fund or
maintain LIBOR Loans shall terminate and (ii) Borrower shall forthwith prepay in
full all outstanding LIBOR Loans owing to such Lender, together with interest
accrued thereon, UNLESS Borrower, within 5 Business Days after the delivery of
such notice and demand, converts all LIBOR Loans into Index Rate Loans.
(d) Within 15 days after receipt by Borrower of written notice
and demand from any Lender (an "AFFECTED LENDER") for payment of additional
amounts or increased costs as provided in SECTIONS 1.15(a), 1.16(a) OR 1.16(b),
Borrower may, at its option, notify Agent and such Affected Lender of its
intention to replace the Affected Lender. So long as no Default or Event of
Default has occurred and is continuing, Borrower, with the consent of Agent, may
obtain, at Borrower's expense, a replacement Lender ("REPLACEMENT LENDER") for
the Affected Lender, which Replacement Lender must be reasonably satisfactory to
Agent. If Borrower obtains a Replacement Lender within 90 days following notice
of its intention to do so, the Affected Lender must sell and assign its Loans
and Commitments to such Replacement Lender for an amount equal to the principal
balance of all Loans held by the Affected Lender and all accrued interest and
Fees with respect thereto through the date of such sale; PROVIDED, that Borrower
shall have reimbursed such Affected Lender for the additional amounts or
increased costs that it is entitled to receive under this Agreement through the
date of such sale and assignment. Notwithstanding the foregoing, Borrower shall
not have the right to obtain a Replacement Lender if the Affected Lender
rescinds its demand for increased costs or additional amounts within 15 days
following its receipt of Borrower's notice of intention to replace such Affected
Lender. Furthermore, if Borrower gives a notice of intention to replace and does
not so replace such Affected Lender within 90 days thereafter, Borrower's rights
under this SECTION 1.16(d) shall terminate and Borrower shall promptly pay all
increased costs or additional amounts demanded by such Affected Lender pursuant
to SECTIONS 1.15(a), 1.16(a) AND 1.16(b).
1.17 SINGLE LOAN.
All Loans to Borrower and all of the other Obligations of
Borrower arising under this Agreement and the other Loan Documents shall
constitute one general obligation of Borrower secured, until the Termination
Date, by all of the Collateral.
2. CONDITIONS PRECEDENT
2.1 CONDITIONS TO THE INITIAL LOANS.
No Lender shall be obligated to make any Loan or incur any
Letter of Credit Obligations on the Closing Date, or to take, fulfill, or
perform any other action hereunder, until the following conditions have been
satisfied or provided for in a manner satisfactory to Agent, or waived in
writing by Agent and Lenders:
(a) CREDIT AGREEMENT; LOAN DOCUMENTS. This Agreement or
counterparts hereof shall have been duly executed by, and delivered to,
Borrower, each other Credit Party, Agent and Lenders; and Agent shall have
received such documents, instruments, agreements and
22
legal opinions as Agent shall reasonably request in connection with the
transactions contemplated by this Agreement and the other Loan Documents,
including all those listed in the Closing Checklist attached hereto as ANNEX D,
each in form and substance reasonably satisfactory to Agent.
(b) REPAYMENT OF PRIOR LENDER OBLIGATIONS; SATISFACTION OF
OUTSTANDING L/CS. (i) Agent shall have received a fully executed original of a
pay-off letter reasonably satisfactory to Agent confirming that all of the Prior
Lender Obligations will be repaid in full from the proceeds of the initial
Revolving Credit Advance and all Liens upon any of the property of Borrower or
any of its Subsidiaries in favor of Prior Lender shall be terminated by Prior
Lender immediately upon such payment; and (ii) all letters of credit issued or
guaranteed by Prior Lender shall have been cash collateralized, supported by a
guaranty of Agent or supported by a Letter of Credit issued pursuant to ANNEX B,
as mutually agreed upon by Agent, Borrower and Prior Lender.
(c) APPROVALS. Agent shall have received (i) satisfactory
evidence that the Credit Parties have obtained all required consents and
approvals of all Persons including all requisite Governmental Authorities, to
the execution, delivery and performance of this Agreement and the other Loan
Documents and the consummation of the Related Transactions or (ii) an officer's
certificate in form and substance reasonably satisfactory to Agent affirming
that no such consents or approvals are required.
(d) OPENING AVAILABILITY. The Eligible Accounts of
WESCO-Canada and Eligible Inventory of Borrower, WESCO Equity, Herning and
WESCO-Canada supporting the initial Revolving Credit Advance and the initial
Letter of Credit Obligations incurred and the amount of the Reserves to be
established on the Closing Date shall be sufficient in value, as determined by
Agent, to provide Borrower with Borrowing Availability, after giving effect to
the initial Revolving Credit Advance, the incurrence of any initial Letter of
Credit Obligations and the consummation of the Related Transactions (on a pro
forma basis, with trade payables being paid currently and consistent with past
practices, and expenses and liabilities being paid in the ordinary course of
business and without acceleration of sales) of at least $50,000,000.
(e) PAYMENT OF FEES. Borrower shall have paid the Fees
required to be paid on the Closing Date in the respective amounts specified in
SECTION 1.9 (including, without limitation, the Fees specified in the GE Capital
Fee Letter), and shall have reimbursed Agent for all fees, costs and expenses of
closing presented as of the Closing Date.
(f) CAPITAL STRUCTURE: OTHER INDEBTEDNESS. The capital
structure of each Credit Party and the terms and conditions of all Indebtedness
of each Credit Party shall be acceptable to Agent in its sole discretion.
(g) DUE DILIGENCE. Agent shall have completed its business and
legal due diligence, including a Collateral audit and an Inventory appraisal
with results reasonably satisfactory to Agent. Without limiting the foregoing,
the corporate structure, capital structure, other debt instruments, material
contracts (including the Receivables Purchase Agreement), and
23
governing documents of Borrower, the other Credit Parties and their respective
Affiliates must be acceptable to Agent.
(h) PERMITTED RECEIVABLES FINANCING. Agent shall have reviewed
and the terms and conditions of the Permitted Receivables Financing, shall be
satisfied with such terms and conditions and shall have confirmed that the
Credit Parties are in compliance therewith, both before and after giving effect
to this Agreement, the transactions contemplated hereby, and the Related
Transactions and the transactions contemplated thereby.
(i) INTERCREDITOR AGREEMENT. Agent shall have received a fully
executed copy of the Intercreditor Agreement, which shall be in form and
substance satisfactory to Agent and its counsel.
(j) SUBORDINATED NOTES. Agent shall have reviewed the terms
and conditions of the Subordinated Notes and the indenture and other agreements,
instruments and documents relating thereto, shall be satisfied with all such
terms and conditions and shall have confirmed that the Credit Parties are in
compliance therewith, both before and after giving effect to this Agreement, the
transactions contemplated hereby and the Related Transactions and the
transactions contemplated thereby.
(k) INTEREST RATE SWAP AGREEMENTS. Agent shall have reviewed
the terms and conditions of the Swap Agreements and the other agreements,
instruments and documents relating thereto, shall be satisfied with all such
terms and conditions and shall have confirmed that the Credit Parties are in
compliance therewith, both before and after giving effect to this Agreement, the
transactions contemplated hereby and the Related Transactions and the
transactions contemplated thereby.
(l) TRI-CITY. Agent shall have received evidence satisfactory
to Agent that Tri-City shall have been merged with and into the Borrower, with
the Borrower being the surviving corporation, and that the corporate existence
of Tri-City shall have ceased, or that Tri-City shall otherwise have ceased to
exist.
(m) EBITDA. Holdings and its Subsidiaries shall have, on a
consolidated basis, EBITDA of at least $110,000,000 for the trailing twelve
month period ended January 31, 2002.
2.2 FURTHER CONDITIONS TO EACH LOAN .
Except as otherwise expressly provided herein, no Lender shall
be obligated to fund any Advance, convert or continue any Loan as a LIBOR Loan
or incur any Letter of Credit Obligation, if, as of the date thereof:
(a) any representation or warranty by any Credit Party
contained herein or in any other Loan Document is untrue or incorrect as of such
date, except to the extent that such representation or warranty expressly
relates to an earlier date and except for changes therein expressly permitted or
expressly contemplated by this Agreement, and Agent or Requisite Lenders have
determined not to make such Advance, convert or continue any Loan as LIBOR
24
Loan or incur such Letter of Credit Obligation as a result of the fact that such
warranty or representation is untrue or incorrect;
(b) any event or circumstance having a Material Adverse Effect
has occurred since the date hereof as determined by Agent or Requisite Lenders,
and Agent or Requisite Lenders have determined not to make such Advance, convert
or continue any Loan as a LIBOR Loan or incur such Letter of Credit Obligation
as a result of the fact that such event or circumstance has occurred;
(c) (i) any Default or Event of Default has occurred and is
continuing or would result after giving effect to any Advance (or the incurrence
of any Letter of Credit Obligation), and Agent or Requisite Lenders shall have
determined not to make any Advance, convert or continue any Loan as a LIBOR Loan
or incur any Letter of Credit Obligation as a result of that Default or Event of
Default; or
(d) after giving effect to any Advance (or the incurrence of
any Letter of Credit Obligations), the outstanding principal amount of the
Revolving Loan would exceed the lesser of the Borrowing Base and the Maximum
Amount, in each case, less the then outstanding principal amount of the Swing
Line Loan.
The request and acceptance by Borrower of the proceeds of any Advance, the
incurrence of any Letter of Credit Obligations or the conversion or continuation
of any Loan into, or as, a LIBOR Loan shall be deemed to constitute, as of the
date thereof, (i) a representation and warranty by Borrower that the conditions
in this SECTION 2.2 have been satisfied and (ii) a reaffirmation by Borrower of
the granting and continuance of Agent's Liens, on behalf of itself and Lenders,
pursuant to the Collateral Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and to incur Letter of
Credit Obligations, the Credit Parties executing this Agreement, jointly and
severally, make the following representations and warranties to Agent and each
Lender with respect to all Credit Parties, each and all of which shall survive
the execution and delivery of this Agreement.
3.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each Credit Party (a) is a corporation, limited liability
company or limited partnership duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation or
organization set forth in DISCLOSURE SCHEDULE (3.1); (b) is duly qualified to
conduct business and is in good standing in each other jurisdiction where its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not result in
exposure to losses, damages or liabilities in excess of $500,000; (c) has the
requisite power and authority and the legal right to own, pledge, mortgage or
otherwise encumber and operate its properties, to lease the property it operates
under lease and to conduct its business as now, heretofore and proposed to be
conducted; (d) subject to specific representations regarding Environmental Laws,
has all material
25
licenses, permits, consents or approvals from or by, and has made all material
filings with, and has given all material notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct; (e) is in compliance with its charter and bylaws or
partnership or operating agreement, or partnership declaration and agreement as
applicable; and (f) subject to specific representations set forth herein
regarding ERISA, Environmental Laws, tax and other laws, is in compliance with
all applicable provisions of law, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
3.2 EXECUTIVE OFFICES, COLLATERAL LOCATIONS, FEIN.
As of the Closing Date, the current location of each Credit
Party's chief executive office (or applicable foreign equivalent), principal
place of business, domicile (within the meaning of the Quebec Civil Code), any
other offices and the warehouses and premises at which any Collateral is stored
or located are set forth in DISCLOSURE SCHEDULE (3.2), and, except as expressly
set forth in DISCLOSURE SCHEDULE (3.2), none of such locations has changed
within 12 months preceding the Closing Date. In addition, DISCLOSURE SCHEDULE
(3.2) lists the federal employer identification number (or applicable foreign
equivalent, if any) and state organizational identification number of each
Credit Party.
3.3 CORPORATE POWER, AUTHORIZATION, ENFORCEABLE OBLIGATIONS.
The execution, delivery and performance by each Credit Party
of the Loan Documents to which it is a party and the creation of all Liens
provided for therein: (a) are within such Person's power; (b) have been duly
authorized by all necessary corporate, limited liability company or limited
partnership action; (c) do not contravene any provision of such Person's
charter, bylaws or partnership or operating agreement or partnership declaration
and agreement as applicable; (d) do not violate any law or regulation, or any
order or decree of any court or Governmental Authority; (e) do not conflict with
or result in the breach or termination of, constitute a default under or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which such Person is a party or by which such Person or any of its property is
bound; (f) do not result in the creation or imposition of any Lien upon any of
the property of such Person other than those in favor of Agent, on behalf of
itself and Lenders, pursuant to the Loan Documents; and (g) do not require the
consent or approval of any Governmental Authority or any other Person, except
those referred to in SECTION 2.1(c), all of which will have been duly obtained,
made or complied with prior to the Closing Date. Each of the Loan Documents
shall be duly executed and delivered by each Credit Party that is a party
thereto and each such Loan Document shall constitute a legal, valid and binding
obligation of such Credit Party enforceable against it in accordance with its
terms.
3.4 FINANCIAL STATEMENTS AND PROJECTIONS.
Except for the Projections, all Financial Statements
concerning Holdings and its Subsidiaries that are referred to below have been
prepared in accordance with GAAP consistently applied throughout the periods
covered (except as disclosed therein and except, with respect to
26
unaudited Financial Statements, for the absence of footnotes and normal year-end
audit adjustments) and present fairly in all material respects the financial
position of the Persons covered thereby as at the dates thereof and the results
of their operations and cash flows for the periods then ended.
(a) FINANCIAL STATEMENTS. The following Financial Statements
attached hereto as DISCLOSURE SCHEDULE (3.4(a)) have been delivered on the date
hereof:
(i) The audited consolidated and consolidating balance
sheets at December 31, 1999 and 2000 and the related statements of income and
cash flows of Holdings and its Subsidiaries for the Fiscal Years then ended,
certified by PriceWaterhouse Coopers LLP.
(ii) The unaudited consolidated and consolidating balance
sheets at March 31, 2001, June 30, 2001 and September 30, 2001 and the related
statements of income and cash flows of Holdings and its Subsidiaries for the
Fiscal Quarters then ended.
(iii) The unaudited consolidated balance sheets at
November 30, 2001 and January 31, 2002 and the consolidated and consolidating
balance sheets at December 31, 2001 and the related statements of income and
cash flows of Holdings and its Subsidiaries for the months then ended.
(b) PRO FORMA. The Pro Forma delivered on the date hereof and
attached hereto as DISCLOSURE SCHEDULE (3.4(B)) was prepared by Borrower and
Holdings giving PRO FORMA effect to the Related Transactions, was based on the
unaudited consolidated balance sheets of Holdings and its Subsidiaries dated
January 31, 2002, and was prepared in accordance with GAAP, with only such
adjustments thereto as would be required in accordance with GAAP.
(c) PROJECTIONS. The Projections delivered on the date hereof
and attached hereto as DISCLOSURE SCHEDULE (3.4(C)) have been prepared by
Borrower and Holdings in light of the past operations of their businesses, but
including future payments of known contingent liabilities, and reflect
projections for the five (5) year period beginning on January 1, 2002 on a
quarter-by-quarter basis for the first year and on a year-by-year basis
thereafter. The Projections are based upon estimates and assumptions stated
therein, all of which each of Borrower and Holdings believes to be reasonable
and fair in light of current conditions and current facts known to Borrower and
Holdings and, as of the Closing Date, reflect Borrower's and Holdings' good
faith and reasonable estimates of the future financial performance of Borrower
and Holdings and of the other information projected therein for the period set
forth therein.
3.5 MATERIAL ADVERSE EFFECT.
Between November 30, 2001 and the Closing Date, (a) no Credit
Party has incurred any obligations, contingent or noncontingent liabilities,
liabilities for Charges, long-term leases or unusual forward or long-term
commitments that are not reflected in the Pro Forma or in the Financial
Statements identified in SECTION 3.4(a)(ii) AND (iii) and attached hereto as
part of DISCLOSURE SCHEDULE 3.4(a)) and that, alone or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, (b) no contract, lease
or other agreement or instrument has been
27
entered into by any Credit Party or has become binding upon any Credit Party's
assets and no law or regulation applicable to any Credit Party has been adopted
that has had or could reasonably be expected to have a Material Adverse Effect,
and (c) no Credit Party is in default and to the best of Borrower's knowledge no
third party is in default under any material contract, lease or other agreement
or instrument, that alone or in the aggregate could reasonably be expected to
have a Material Adverse Effect. Between November 30, 2001 and the Closing Date
no event has occurred, that alone or together with other events, could
reasonably be expected to have a Material Adverse Effect.
3.6 OWNERSHIP OF PROPERTY; LIENS.
As of the Closing Date, the real estate ("REAL ESTATE") listed
in DISCLOSURE SCHEDULE (3.6) constitutes all of the real property owned, leased,
subleased, or used by any Credit Party. Each Credit Party owns good and
marketable fee simple title to all of its owned Real Estate, and valid and
marketable leasehold interests in all of its leased Real Estate, all as
described on DISCLOSURE SCHEDULE (3.6), and copies of all such leases or a
summary of terms thereof reasonably satisfactory to Agent have been delivered to
Agent. DISCLOSURE SCHEDULE (3.6) further describes any Real Estate with respect
to which any Credit Party is a lessor, sublessor or assignor as of the Closing
Date. Each Credit Party also has good, valid and marketable title to, or valid
leasehold interests in, all of its personal property and assets. As of the
Closing Date, none of the properties and assets of any Credit Party are subject
to any Liens other than Permitted Encumbrances, and there are no facts,
circumstances or conditions known to any Credit Party that may result in any
Liens (including Liens arising under Environmental Laws) other than Permitted
Encumbrances. Each Credit Party has received all deeds, assignments, waivers,
consents, nondisturbance and attornment or similar agreements, bills of sale and
other documents, and has duly effected all recordings, filings and other actions
necessary to establish, protect and perfect such Credit Party's right, title and
interest in and to all such Real Estate and other properties and assets.
Disclosure Schedule (3.6) also describes any purchase options, rights of first
refusal or other similar contractual rights pertaining to any Real Estate. As of
the Closing Date, no portion of any Credit Party's Real Estate has suffered any
material damage by fire or other casualty loss that has not heretofore been
repaired and restored in all material respects to its original condition or
otherwise remedied. As of the Closing Date, all material permits required to
have been issued or appropriate to enable the Real Estate to be lawfully
occupied and used for all of the purposes for which it is currently occupied and
used have been lawfully issued and are in full force and effect.
3.7 LABOR MATTERS.
As of the Closing Date (a) no strikes or other material labor
disputes against any Credit Party are pending or, to any Credit Party's
knowledge, threatened; (b) hours worked by and payment made to employees of each
Credit Party comply with the Fair Labor Standards Act and each other federal,
state, local or foreign law applicable to such matters; (c) all payments due
from any Credit Party for employee health and welfare insurance and on account
of Canada Pension Plan and Quebec Pension Plan employer contributions, Canadian
workers compensation premiums, Canadian employment insurance premiums, and
employee vacation pay have been paid or accrued as a liability on the books of
such Credit Party; (d) except as set forth in
28
DISCLOSURE SCHEDULE (3.7), no Credit Party is a party to or bound by any
collective bargaining agreement, management agreement, consulting agreement,
employment agreement, bonus, restricted stock, stock option, or stock
appreciation plan or agreement or any similar plan, agreement or arrangement
(and true and complete copies of any agreements (or the form of any such
agreement) described on DISCLOSURE SCHEDULE (3.7) have been delivered to Agent);
(e) there is no organizing activity involving any Credit Party pending or, to
any Credit Party's knowledge, threatened by any labor union or group of
employees; (f) there are no representation proceedings pending or, to any Credit
Party's knowledge, threatened with the National Labor Relations Board (or
applicable equivalent or similar foreign organization) and no labor organization
or group of employees of any Credit Party has made a pending demand for
recognition; and (g) except as set forth in DISCLOSURE SCHEDULE (3.7), there are
no material complaints or charges against any Credit Party pending or, to the
knowledge of any Credit Party, threatened to be filed with any Governmental
Authority or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by any Credit
Party of any individual.
3.8 VENTURES, SUBSIDIARIES AND AFFILIATES; OUTSTANDING STOCK
AND INDEBTEDNESS.
Except as set forth in DISCLOSURE SCHEDULE (3.8), as of the
Closing Date, no Credit Party has any Subsidiaries, is engaged in any joint
venture or partnership with any other Person, or is an Affiliate of any other
Person. All of the issued and outstanding Stock of each Credit Party is owned by
each of the Stockholders and in the amounts set forth in DISCLOSURE SCHEDULE
(3.8). Except as set forth in DISCLOSURE SCHEDULE (3.8), there are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Credit Party may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any Stock or
other equity securities of its Subsidiaries. All outstanding Indebtedness and
Guaranteed Indebtedness of each Credit Party as of the Closing Date (except for
the Obligations) is described in SECTION 6.3 (including DISCLOSURE SCHEDULE
(6.3)). Holdings has not engaged in any trade or business that would not be
permitted by SECTION 6.20, and has no assets (except Stock of its two
Subsidiaries, Borrower and WESCO Finance) or any Indebtedness or Guaranteed
Indebtedness (except the Obligations). None of Borrower's non-Canadian foreign
Subsidiaries has any assets individually in excess of $15,000,000 (or the Dollar
Equivalent Amount thereof) or, in the aggregate for all non-Canadian foreign
Subsidiaries, in excess of $25,000,000 (or the Dollar Equivalent Amount
thereof). Other than as set forth in DISCLOSURE SCHEDULE 3.8, neither WESCO
Finance nor WESCO Finance Canada has engaged in any trade or business that would
not be permitted by SECTION 6.20, has any assets in excess of $250,000, other
than intercompany indebtedness owed to it and expressly permitted under SECTION
6.3(a), has any creditors other than a Credit Party, or has any Indebtedness or
Guaranteed Indebtedness (except the Obligations), other than intercompany
indebtedness expressly permitted under SECTION 6.3(a).
3.9 GOVERNMENT REGULATION.
No Credit Party is an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940. No
Credit Party is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, or any other federal or state statute
29
that restricts or limits its ability to incur Indebtedness or to perform its
obligations hereunder. The making of the Loans by Lenders to Borrower, the
incurrence of the Letter of Credit Obligations on behalf of Borrower, the
application of the proceeds thereof and repayment thereof and the consummation
of the Related Transactions will not violate any provision of any such statute
or any rule, regulation or order issued by the Securities and Exchange
Commission (or applicable foreign equivalent or similar regulatory body).
3.10 MARGIN REGULATIONS.
No Credit Party is engaged, nor will it engage, principally or
as one of its important activities, in the business of extending credit for the
purpose of "purchasing" or "carrying" any "margin stock" as such terms are
defined in Regulation U of the Federal Reserve Board as now and from time to
time hereafter in effect (such securities being referred to herein as "MARGIN
STOCK"). No Credit Party owns any Margin Stock, and none of the proceeds of the
Loans or other extensions of credit under this Agreement will be used, directly
or indirectly, for the purpose of purchasing or carrying any Margin Stock, for
the purpose of reducing or retiring any Indebtedness that was originally
incurred to purchase or carry any Margin Stock or for any other purpose that
might cause any of the Loans or other extensions of credit under this Agreement
to be considered a "purpose credit" within the meaning of Regulations T, U or X
of the Federal Reserve Board. No Credit Party will take or permit to be taken
any action that might cause any Loan Document to violate any regulation of the
Federal Reserve Board.
3.11 TAXES.
All tax returns, reports and statements, including information
returns, required by any Governmental Authority to be filed by any Credit Party
have been filed with the appropriate Governmental Authority and all Charges have
been paid prior to the date on which any fine, penalty, interest or late charge
may be added thereto for nonpayment thereof (or any such fine, penalty,
interest, late charge or loss has been paid), excluding Charges or other amounts
being contested in accordance with SECTION 5.2(b). Proper and accurate amounts
have been withheld by each Credit Party from its respective employees for all
periods in full and complete compliance with all applicable federal, state,
local and foreign laws and such withholdings have been timely paid to the
respective Governmental Authorities. DISCLOSURE SCHEDULE (3.11) sets forth as of
the Closing Date those taxable years for which any Credit Party's tax returns
are currently being audited by the IRS or any other applicable Governmental
Authority and any assessments or threatened assessments in connection with such
audit, or otherwise currently outstanding. Except as described in DISCLOSURE
SCHEDULE (3.11), no Credit Party has executed or filed with the IRS or any other
Governmental Authority any agreement or other document extending, or having the
effect of extending, the period for assessment or collection of any Charges.
None of the Credit Parties and their respective predecessors are liable for any
Charges: (a) under any agreement (including any tax sharing agreements) or (b)
to each Credit Party's knowledge, as a transferee. As of the Closing Date, no
Credit Party has agreed or been requested to make any adjustment under IRC
Section 481(a), by reason of a change in accounting method or otherwise, which
would have a Material Adverse Effect.
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3.12 ERISA.
(a) DISCLOSURE SCHEDULE (3.12) lists all Plans and separately
identifies all Pension Plans, including Title IV Plans, Multiemployer Plans,
ESOPs and Welfare Plans, including all Retiree Welfare Plans. Copies of all such
listed Plans, together with a copy of the latest IRS/DOL form 5500-series for
each such Plan, if applicable, have been delivered to Agent. Except with respect
to Multiemployer Plans, each Qualified Plan has been determined by the IRS to
qualify under Section 401 of the IRC, the trusts created thereunder have been
determined to be exempt from tax under the provisions of Section 501 of the IRC,
and nothing has occurred that would cause the loss of such qualification or
tax-exempt status. Each Plan is in material compliance with the applicable
provisions of ERISA and the IRC, including the timely filing of all reports
required under the IRC or ERISA, including the statement required by 29 CFR
Section 2520.104-23. Neither any Credit Party nor ERISA Affiliate has failed to
make any contribution or pay any amount due as required by either Section 412 of
the IRC or Section 302 of ERISA or the terms of any such Plan. Neither any
Credit Party nor ERISA Affiliate has engaged in a "prohibited transaction," as
defined in Section 406 of ERISA and Section 4975 of the IRC, in connection with
any Plan, that would subject any Credit Party to a material tax on prohibited
transactions imposed by Section 502(i) of ERISA or Section 4975 of the IRC.
(b) Except as set forth in DISCLOSURE SCHEDULE (3.12): (i) no
Title IV Plan has any Unfunded Pension Liability; (ii) no ERISA Event or event
described in Section 4062(e) of ERISA with respect to any Title IV Plan has
occurred or is reasonably expected to occur; (iii) there are no pending, or to
the knowledge of any Credit Party, threatened claims (other than claims for
benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary or sponsor of any Plan;
(iv) no Credit Party or ERISA Affiliate has incurred or reasonably expects to
incur any liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; (v) within the last five years no Title IV Plan of any
Credit Party or ERISA Affiliate has been terminated, whether or not in a
"standard termination" as that term is used in Section 404(b)(1) of ERISA, nor
has any Title IV Plan of any Credit Party or ERISA Affiliate (determined at any
time within the past five years) with Unfunded Pension Liabilities been
transferred outside of the "controlled group" (within the meaning of Section
4001(a)(14) of ERISA) of any Credit Party or ERISA Affiliate; (vi) except in the
case of any ESOP, Stock of all Credit Parties and their ERISA Affiliates makes
up, in the aggregate, no more than 10% of fair market value of the assets of any
Plan measured on the basis of fair market value as of the latest valuation date
of any Plan; and (vii) no liability under any Title IV Plan has been satisfied
with the purchase of a contract from an insurance company that is not rated AAA
by the Standard & Poor's Corporation or an equivalent rating by another
nationally recognized rating agency. The Canadian Pension Plans are duly
registered under the ITA and all other applicable laws which require
registration and no event has occurred which is reasonably likely to cause the
loss of such registered status. All obligations of WESCO-Canada (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with the Canadian Pension Plans and the funding
agreements therefor have been performed in a timely fashion. There have been no
improper withdrawals or applications of the assets of the Canadian Pension Plans
or the Canadian Benefit Plans. There are no outstanding material disputes
concerning the assets of the Canadian Pension Plans or the Canadian Benefit
Plans. Each of the Canadian Pension Plans is fully funded on a solvency basis
31
(using actuarial methods and assumptions which are consistent with the
valuations last filed with the applicable Governmental Authorities and which are
consistent with generally accepted actuarial principles). DISCLOSURE SCHEDULE
(3.12) lists all Canadian Benefit Plans and Canadian Pension Plans adopted by
any Credit Party.
3.13 NO LITIGATION.
No action, claim, lawsuit, demand, investigation or proceeding
is now pending or, to the knowledge of any Credit Party, threatened against any
Credit Party, before any Governmental Authority or before any arbitrator or
panel of arbitrators (collectively, "LITIGATION"), (a) that challenges any
Credit Party's right or power to enter into or perform any of its obligations
under the Loan Documents to which it is a party, or the validity or
enforceability of any Loan Document or any action taken thereunder, or (b) that
has a reasonable risk of being determined adversely to any Credit Party and
that, if so determined, could reasonably be expected to have a Material Adverse
Effect. Except as set forth on DISCLOSURE SCHEDULE (3.13), as of the Closing
Date there is no Litigation pending or threatened that seeks damages in excess
of $500,000 or injunctive relief against, or alleges criminal misconduct of, any
Credit Party.
3.14 BROKERS.
No broker or finder acting on behalf of any Credit Party or
Affiliate thereof brought about the obtaining, making or closing of the Loans or
the Related Transactions, and no Credit Party or Affiliate thereof has any
obligation to any Person in respect of any finder's or brokerage fees in
connection therewith.
3.15 INTELLECTUAL PROPERTY.
As of the Closing Date, each Credit Party owns or has rights
to use all Intellectual Property necessary to continue to conduct its business
as now or heretofore conducted by it or proposed to be conducted by it, and each
Patent, Design, Trademark, Copyright and License is listed, together with
application or registration numbers, as applicable, in DISCLOSURE SCHEDULE
(3.15). Each Credit Party conducts its business and affairs without infringement
of or interference with any Intellectual Property of any other Person in any
material respect. Except as set forth in DISCLOSURE SCHEDULE (3.15), no Credit
Party is aware of any infringement claim by any other Person with respect to any
Intellectual Property.
3.16 FULL DISCLOSURE.
No information contained in this Agreement, any of the other
Loan Documents, any Projections, Financial Statements or Collateral Reports or
other written reports from time to time delivered hereunder or any written
statement furnished by or on behalf of any Credit Party to Agent or any Lender
pursuant to the terms of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made. The Liens granted to
Agent, on behalf of itself and Lenders, pursuant to
32
the Collateral Documents will at all times be fully perfected first priority
Liens in and to the Collateral described therein, subject, as to priority,
only to Permitted Encumbrances.
3.17 ENVIRONMENTAL MATTERS.
(a) Except as set forth in DISCLOSURE SCHEDULE (3.17), as of
the Closing Date: (i) the Real Estate is free of contamination from any
Hazardous Material except for such contamination that would not adversely impact
the value or marketability of such Real Estate and that would not result in
Environmental Liabilities that could reasonably be expected to exceed $250,000;
(ii) no Credit Party has caused or suffered to occur any Release of Hazardous
Materials on, at, in, under, above, to, from or about any of its Real Estate;
(iii) the Credit Parties are and have been in compliance with all Environmental
Laws, except for such noncompliance that would not result in Environmental
Liabilities which could reasonably be expected to exceed $250,000; (iv) the
Credit Parties have obtained, and are in compliance with, all Environmental
Permits required by Environmental Laws for the operations of their respective
businesses as presently conducted or as proposed to be conducted, except where
the failure to so obtain or comply with such Environmental Permits would not
result in Environmental Liabilities that could reasonably be expected to exceed
$250,000, and all such Environmental Permits are valid, uncontested and in good
standing; (v) no Credit Party is involved in operations or knows of any facts,
circumstances or conditions, including any Releases of Hazardous Materials, that
are likely to result in any Environmental Liabilities of such Credit Party which
could reasonably be expected to exceed $250,000, and no Credit Party has
permitted any current or former tenant or occupant of the Real Estate to engage
in any such operations; (vi) there is no Litigation arising under or related to
any Environmental Laws, Environmental Permits or Hazardous Material that seeks
damages, penalties, fines, costs or expenses in excess of $250,000 or injunctive
relief against, or that alleges criminal misconduct by, any Credit Party; (vii)
no notice has been received by any Credit Party identifying it as a "potentially
responsible party" or requesting information under CERCLA or analogous state
statutes, and to the knowledge of the Credit Parties, there are no facts,
circumstances or conditions that may result in any Credit Party being identified
as a "potentially responsible party" under CERCLA or analogous state statutes;
and (viii) the Credit Parties have provided to Agent copies of all existing
environmental reports, reviews and audits and all written information pertaining
to actual or potential Environmental Liabilities, in each case relating to any
Credit Party.
(b) Each Credit Party hereby acknowledges and agrees that
Agent (i) is not now, and has not ever been, in control of any of the Real
Estate or any Credit Party's affairs, and (ii) does not have the capacity
through the provisions of the Loan Documents or otherwise to influence any
Credit Party's conduct with respect to the ownership, operation or management of
any of its Real Estate or compliance with Environmental Laws or Environmental
Permits.
3.18 INSURANCE.
DISCLOSURE SCHEDULE (3.18) lists all insurance policies of any
nature maintained, as of the Closing Date, for current occurrences by each
Credit Party.
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3.19 DEPOSIT AND DISBURSEMENT ACCOUNTS.
DISCLOSURE SCHEDULE (3.19) lists all banks and other financial
institutions at which any Credit Party maintains deposit or other accounts as of
the Closing Date, including any Disbursement Accounts, and such Schedule
correctly identifies the name, address and telephone number of each depository,
the name in which the account is held, a brief description of the purpose of the
account, and the complete account number therefor.
3.20 GOVERNMENT CONTRACTS.
Except as set forth in DISCLOSURE SCHEDULE (3.20), as of a
recent date prior to the Closing Date, no Credit Party is a party to any
contract or agreement with any Governmental Authority and no Credit Party's
Accounts are subject to the Federal Assignment of Claims Act (31 U.S.C. Section
3727), to the Financial Administration Act (Canada) or any similar state,
provincial, local or foreign law.
3.21 CUSTOMER AND TRADE RELATIONS.
As of the Closing Date, there exists no actual or, to the
knowledge of any Credit Party, threatened termination or cancellation of, or any
material adverse modification or change in: the business relationship of any
Credit Party with any customer or group of customers whose purchases during the
preceding 12 months caused them to be ranked among the ten largest customers of
such Credit Party; or the business relationship of any Credit Party with any
supplier material to its operations.
3.22 AGREEMENTS AND OTHER DOCUMENTS.
As of the Closing Date, each Credit Party has provided to
Agent or its counsel, on behalf of Lenders, accurate and complete copies (or
summaries) of all of the following agreements or documents to which it is
subject and each of which is listed in DISCLOSURE SCHEDULE (3.22): supply
agreements and purchase agreements not terminable by such Credit Party within 60
days following written notice issued by such Credit Party and involving
transactions in excess of $1,000,000 per annum; leases of Equipment having a
remaining term of one year or longer and requiring aggregate rental and other
payments in excess of $500,000 per annum; any license or permit held by the
Credit Parties, the absence of which could be reasonably likely to have a
Material Adverse Effect; instruments and documents evidencing any Indebtedness
or Guaranteed Indebtedness of such Credit Party and any Lien granted by such
Credit Party with respect thereto; and instruments and agreements evidencing the
issuance of any equity securities, warrants, rights or options to purchase
equity securities of such Credit Party.
3.23 SOLVENCY.
Both before and after giving effect to (a) the Loans and
Letter of Credit Obligations to be made or incurred on the Closing Date or such
other date as Loans and Letter of Credit Obligations requested hereunder are
made or incurred, (b) the disbursement of the proceeds of such Loans pursuant to
the instructions of Borrower, (c) the Refinancing and the
34
consummation of the other Related Transactions and (d) the payment and accrual
of all transaction costs in connection with the foregoing, each Credit Party is
and will be Solvent.
3.24 SUBORDINATED DEBT.
As of the Closing Date, Borrower has delivered to Agent a
complete and correct copy of the Subordinated Notes, including all schedules,
exhibits, amendments, supplements, modifications, assignments and all indentures
and other agreements, instruments and documents delivered pursuant thereto or in
connection therewith. Borrower has the corporate power and authority to incur
the Indebtedness evidenced by the Subordinated Notes. The subordination
provisions of the Subordinated Notes are enforceable against the holders of the
Subordinated Notes by Agent and Lenders. All Obligations, including the Letter
of Credit Obligations, constitute Senior Indebtedness and Designated Senior
Indebtedness entitled to the benefits of the subordination provisions contained
in the Subordinated Notes. Borrower acknowledges that Agent and each Lender are
entering into this Agreement and are extending the Commitments in reliance upon
the subordination provisions of the Subordinated Notes and this SECTION 3.24.
3.25 RENT.
All rent and other payments due and owing by any Credit Party
with respect to any property or other premises leased or otherwise rented by any
Credit Party have been paid in full other than rent and other payments being
contested in good faith in accordance with past practice in an aggregate
outstanding amount not to exceed $100,000 at any time; and each Credit Party is
current on all rent and other payments payable in respect of any property or
other premises leased or otherwise rented by such Credit Party other than rent
and other payments being contested in good faith in accordance with past
practice in an aggregate outstanding amount not to exceed $100,000 at any time
for all Credit Parties.
4. FINANCIAL STATEMENTS AND INFORMATION
4.1 REPORTS AND NOTICES.
(a) Each Credit Party executing this Agreement hereby agrees
that from and after the Closing Date and until the Termination Date, it shall
deliver to Agent or to Agent and Lenders, as required, the Financial Statements,
notices, Projections and other information at the times, to the Persons and in
the manner set forth in ANNEX E.
(b) Each Credit Party executing this Agreement hereby agrees
that from and after the Closing Date and until the Termination Date, it shall
deliver to Agent or to Agent and Lenders, as required, the various Collateral
Reports (including Borrowing Base Certificates in the form of EXHIBIT 4.1(b)) at
the times, to the Persons and in the manner set forth in ANNEX F.
4.2 COMMUNICATION WITH ACCOUNTANTS.
Each Credit Party executing this Agreement authorizes Agent
with the prior consent of Borrower, which consent shall not be unreasonably
withheld or delayed; PROVIDED, HOWEVER, that such consent shall not be required
so long as a Default or an Event of Default has
35
occurred and is continuing; to communicate directly with its independent
certified or chartered, as applicable, public accountants, including
PriceWaterhouse Coopers LLP, and authorizes and, at Agent's request, shall
instruct those accountants and advisors to disclose and make available to Agent
any and all Financial Statements and other material supporting financial
documents and material correspondence relating to any Credit Party (including
copies of any issued management letters) with respect to the business, financial
condition and other affairs of any Credit Party.
5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
and until the Termination Date:
5.1 MAINTENANCE OF EXISTENCE AND CONDUCT OF BUSINESS.
Each Credit Party shall: do or cause to be done all things
necessary to preserve and keep in full force and effect its existence
(corporate, partnership, limited liability company or otherwise) and its rights
and franchises; continue to conduct its business substantially as now conducted
or as otherwise permitted hereunder; at all times maintain, preserve and protect
all of its assets and properties used or useful in the conduct of its business,
and keep the same in good repair, working order and condition in all material
respects (taking into consideration ordinary wear and tear) and from time to
time make, or cause to be made, all necessary or appropriate repairs,
replacements and improvements thereto consistent with industry practices; and
transact business only in such corporate and trade names as are set forth in
DISCLOSURE SCHEDULE (5.1).
5.2 PAYMENT OF CHARGES.
(a) Subject to SECTION 5.2(b), each Credit Party shall pay and
discharge or cause to be paid and discharged promptly all Charges payable by it,
including (i) Charges imposed upon it, its income and profits, or any of its
property (real, personal or mixed) and all Charges with respect to tax, social
security and unemployment withholding with respect to its employees, (ii) lawful
claims for labor, materials, supplies and services or otherwise, and (iii) all
storage or rental charges payable to warehousemen and bailees, in each case,
before any thereof shall become past due.
(b) Each Credit Party may in good faith contest, by
appropriate proceedings, the validity or amount of any Charges, Taxes or claims
described in SECTION 5.2(a); PROVIDED, that (i) adequate reserves with respect
to such contest are maintained on the books of such Credit Party, in accordance
with GAAP; (ii) no Lien shall be imposed or otherwise arise to secure payment of
such Charges (other than payments to warehousemen and/or bailees) that is
superior to any of the Liens securing payment of the Obligations and such
contest is maintained and prosecuted continuously and with diligence and
operates to suspend collection or enforcement of such Charges, (iii) none of the
Collateral becomes subject to forfeiture or loss as a result of such contest,
(iv) such Credit Party shall promptly pay or discharge such contested Charges,
Taxes or claims and all additional charges, interest, penalties and expenses, if
any, and shall deliver to Agent evidence reasonably acceptable to Agent of such
compliance, payment or discharge, if such contest is terminated or discontinued
adversely to such Credit Party or the conditions set
36
forth in this SECTION 5.2(b) are no longer met, and (v) Agent has not advised
Borrower in writing that Agent reasonably believes that nonpayment or
nondischarge thereof could have or result in a Material Adverse Effect.
5.3 BOOKS AND RECORDS.
(a) Each Credit Party shall keep adequate books and records
with respect to its business activities in which proper entries, reflecting all
financial transactions, are made in accordance with GAAP and on a basis
consistent with the Financial Statements attached as DISCLOSURE SCHEDULE
(3.4(a)).
(b) WESCO-Canada shall maintain, or cause to be maintained, a
complete set of books and records with respect to its business at its chief
executive office in Ontario, Canada or at Borrower's chief executive office in
Pittsburgh, Pennsylvania.
5.4 INSURANCE; DAMAGE TO OR DESTRUCTION OF COLLATERAL.
(a) The Credit Parties shall, at their sole cost and expense,
maintain the policies of insurance described on DISCLOSURE SCHEDULE (3.18) as in
effect on the date hereof or otherwise in form and amounts and with insurers
reasonably acceptable to Agent. Such policies of insurance (or the loss payable
and additional insured endorsements delivered to Agent) shall contain provisions
pursuant to which the insurer agrees to provide 30 days prior written notice to
Agent in the event of any non-renewal, cancellation or amendment of any such
insurance policy. If any Credit Party at any time or times hereafter shall fail
to obtain or maintain any of the policies of insurance required above or to pay
all premiums relating thereto, Agent may at any time or times thereafter obtain
and maintain such policies of insurance and pay such premiums and take any other
action with respect thereto that Agent deems advisable. Agent shall have no
obligation to obtain insurance for any Credit Party or pay any premiums
therefor. By doing so, Agent shall not be deemed to have waived any Default or
Event of Default arising from any Credit Party's failure to maintain such
insurance or pay any premiums therefor. All sums so disbursed, including
reasonable attorneys' fees, court costs and other charges related thereto, shall
be payable on demand by Borrower to Agent and shall be additional Obligations
hereunder secured by the Collateral.
(b) Agent reserves the right at any time upon any change in
any Credit Party's risk profile (including any change in the product mix
maintained by any Credit Party or any laws affecting the potential liability of
such Credit Party) to require additional forms and limits of insurance to, in
Agent's opinion, adequately protect both Agent's and Lender's interests in all
or any portion of the Collateral and to ensure that each Credit Party is
protected by insurance in amounts and with coverage customary for its industry.
If reasonably requested by Agent, each Credit Party shall deliver to Agent from
time to time a report of a reputable insurance broker, selected by Borrower and
reasonably satisfactory to Agent, with respect to its insurance policies.
(c) Each Credit Party shall deliver to Agent, in form and
substance reasonably satisfactory to Agent, endorsements to (i) all "All Risk"
and business interruption insurance naming Agent, on behalf of itself and
Lenders, as loss payee, and (ii) all general liability and
37
other liability policies naming Agent, on behalf of itself and Lenders, as
additional insured. Each Credit Party irrevocably makes, constitutes and
appoints Agent (and all officers, employees or agents designated by Agent), so
long as any Default or Event of Default has occurred and is continuing or the
anticipated insurance proceeds exceed $1,000,000, as each Credit Party's true
and lawful agent and attorney-in-fact for the purpose of making, settling and
adjusting claims under such "All Risk" policies of insurance, endorsing the name
of each Credit Party on any check or other item of payment for the proceeds of
such "All Risk" policies of insurance and for making all determinations and
decisions with respect to such "All Risk" policies of insurance. Agent shall
have no duty to exercise any rights or powers granted to it pursuant to the
foregoing power-of- attorney. Borrower shall promptly notify Agent of any loss,
damage, or destruction to the Collateral in the amount of $500,000 or more,
whether or not covered by insurance. After deducting from such proceeds the
expenses, if any, incurred by Agent in the collection or handling thereof, Agent
may, at its option, apply such proceeds to the reduction of the Obligations in
accordance with SECTION 1.3(d), PROVIDED that in the case of insurance proceeds
pertaining to any Credit Party other than Borrower, such insurance proceeds
shall be applied to the Loans owing by Borrower, or permit or require each
Credit Party to use such money, or any part thereof, to replace, repair, restore
or rebuild the Collateral in a diligent and expeditious manner with materials
and workmanship of substantially the same quality as existed before the loss,
damage or destruction. Notwithstanding the foregoing, if the casualty giving
rise to such insurance proceeds could not reasonably be expected to have a
Material Adverse Effect and such insurance proceeds do not exceed $1,000,000 in
the aggregate, Agent shall permit the applicable Credit Party to replace,
restore, repair or rebuild the property; PROVIDED that if such Credit Party has
not completed or entered into binding agreements to complete such replacement,
restoration, repair or rebuilding within 180 days of such casualty, Agent may
apply such insurance proceeds to the Obligations in accordance with SECTION
1.3(d); PROVIDED further that in the case of insurance proceeds pertaining to
any Credit Party other than Borrower, such insurance proceeds shall be applied
to the Loans owing by Borrower. All insurance proceeds that are to be made
available to Borrower to replace, repair, restore or rebuild the Collateral
shall be applied by Agent to reduce the outstanding principal balance of the
Revolving Loan (which application shall not result in a permanent reduction of
the Revolving Loan Commitment) and upon such application, Agent shall establish
a Reserve against the Borrowing Base in an amount equal to the amount of such
proceeds so applied. All insurance proceeds made available to any Credit Party
that is not a Borrower to replace, repair, restore or rebuild Collateral shall
be deposited in a cash collateral account. Thereafter, such funds shall be made
available to such Credit Party to provide funds to replace, repair, restore or
rebuild the Collateral as follows: (i) Borrower shall request a Revolving Credit
Advance or release from the cash collateral account be made to Borrower or such
other Credit Party, as the case may be, in the amount requested to be released;
(ii) so long as the conditions set forth in SECTION 2.2 have been met, Lenders
shall make such Revolving Credit Advance or Agent shall release funds from the
cash collateral account; and (iii) in the case of insurance proceeds applied
against the Revolving Loan, the Reserve established with respect to such
insurance proceeds shall be reduced by the amount of such Revolving Credit
Advance. To the extent not used to replace, repair, restore or rebuild the
Collateral, such insurance proceeds shall be applied in accordance with SECTION
1.3(d); PROVIDED that in the case of insurance proceeds pertaining to any
Credit Party other than Borrower, such insurance proceeds shall be applied to
the Loans owing by Borrower.
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5.5 COMPLIANCE WITH LAWS.
Each Credit Party shall comply with all federal, state, local,
Canadian, provincial and foreign laws and regulations applicable to it,
including those relating to ERISA and labor matters and Environmental Laws and
Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.6 SUPPLEMENTAL DISCLOSURE.
From time to time as may be reasonably requested by Agent
(which request will not be made more frequently than once each year absent the
occurrence and continuance of a Default or an Event of Default), the Credit
Parties shall supplement each Disclosure Schedule hereto, or any representation
herein or in any other Loan Document, with respect to any matter hereafter
arising that, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in such Disclosure Schedule or as an
exception to such representation or that is necessary to correct any information
in such Disclosure Schedule or representation which has been rendered inaccurate
thereby (and, in the case of any supplements to any Disclosure Schedule, such
Disclosure Schedule shall be appropriately marked to show the changes made
therein); PROVIDED that (a) no such supplement to any such Disclosure Schedule
or representation shall amend, supplement or otherwise modify any Disclosure
Schedule or representation, or be or be deemed a waiver of any Default or Event
of Default resulting from the matters disclosed therein, except as consented to
by Agent and Requisite Lenders in writing, and (b) no supplement shall be
required or permitted as to representations and warranties that relate solely to
the Closing Date.
5.7 INTELLECTUAL PROPERTY.
Each Credit Party will conduct its business and affairs
without infringement of or interference with any Intellectual Property of any
other Person in any material respect.
5.8 ENVIRONMENTAL MATTERS.
Each Credit Party shall and shall cause each Person within its
control to: (a) conduct its operations and keep and maintain its Real Estate in
compliance with all Environmental Laws and Environmental Permits other than
noncompliance that could not reasonably be expected to have a Material Adverse
Effect; (b) implement any and all investigation, remediation, removal and
response actions that are appropriate or necessary to maintain the value and
marketability of the Real Estate or to otherwise comply with Environmental Laws
and Environmental Permits pertaining to the presence, generation, treatment,
storage, use, disposal, transportation or Release of any Hazardous Material on,
at, in, under, above, to, from or about any of its Real Estate; (c) notify Agent
promptly after such Credit Party becomes aware of any violation of Environmental
Laws or Environmental Permits or any Release on, at, in, under, above, to, from
or about any Real Estate that is reasonably likely to result in Environmental
Liabilities in excess of $250,000; and (d) promptly forward to Agent a copy of
any order, notice, request for information or any communication or report
received by
39
such Credit Party in connection with any such violation or Release or any other
matter relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in Environmental Liabilities in excess of
$250,000, in each case whether or not the Environmental Protection Agency or any
Governmental Authority has taken or threatened any action in connection with any
such violation, Release or other matter. If Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Laws or
Environmental Permits by any Credit Party or any Environmental Liability arising
thereunder, or a Release of Hazardous Materials on, at, in, under, above, to,
from or about any of its Real Estate, that, in each case, could reasonably be
expected to have a Material Adverse Effect, then each Credit Party shall, upon
Agent's written request (i) cause the performance of such environmental audits
including subsurface sampling of soil and groundwater, and preparation of such
environmental reports, at Borrower's expense, as Agent may from time to time
reasonably request, which shall be conducted by reputable environmental
consulting firms reasonably acceptable to Agent and shall be in form and
substance reasonably acceptable to Agent, and (ii) permit Agent or its
representatives to have access to all Real Estate for the purpose of conducting
such environmental audits and testing as Agent deems appropriate, including
subsurface sampling of soil and groundwater. Borrower shall reimburse Agent for
the costs of such audits and tests and the same will constitute a part of the
Obligations secured hereunder.
5.9 LANDLORDS' AGREEMENTS, MORTGAGEE AGREEMENTS, BAILEE
LETTERS AND REAL ESTATE PURCHASES.
Each Credit Party shall use all commercially reasonable
efforts to obtain a landlord's agreement, mortgagee agreement or bailee letter,
as applicable, from the lessor of each leased property, mortgagee of owned
property or bailee with respect to any warehouse, processor or converter
facility or other location where Collateral is stored or located as of the
Closing Date and as may be stored or located thereafter, which agreement or
letter shall contain a waiver or subordination of all Liens or claims that the
landlord, mortgagee or bailee may assert against the Collateral at that
location, and shall otherwise be reasonably satisfactory in form and substance
to Agent. With respect to such locations or warehouse space leased or owned
following the Closing Date (specifically excluding such locations or warehouse
space leased or owned as of the Closing Date), if Agent has not received a
landlord or mortgagee agreement or bailee letter as of the date such location is
acquired or leased, Borrower's, WESCO Equity's, Herning's or WESCO-Canada's
Eligible Inventory at that location shall, in Agent's discretion, be subject to
such Reserves as may be established by Agent in its reasonable credit judgment.
Each Credit Party shall use all commercially reasonable efforts to obtain a
collateral access agreement from each customer which has any Collateral of any
Credit Party located at its facilities (whether such facilities are owned or
leased by such customer), which agreement shall contain a waiver or
subordination of all Liens or claims that such customer may assert against the
Collateral, provide for a release of all Liens by any other party, if any,
provide for a consent and acknowledgment to the ownership and Lien of Borrower
and Lien of Agent, in its favor and on behalf of Lenders, in the Collateral,
provide for the segregation of all Collateral from any personal property or
other assets of such customer, provide for all such UCC filings deemed necessary
or desirable by Agent and shall otherwise be satisfactory in form and substance
to Agent. After the Closing Date, no real property or warehouse space shall be
leased by any Credit Party and no Inventory shall be shipped to a processor or
converter under arrangements established after the Closing
40
Date unless and until a satisfactory landlord agreement or bailee letter, as
appropriate, shall first have been obtained with respect to such location or
Agent, in its reasonable credit judgment, shall have established an appropriate
Reserve, if any. If Agent has not received a collateral access agreement with
respect to any customer location, Borrower's, WESCO Equity's, Herning's or
WESCO-Canada's Inventory at such customer location shall not be Eligible
Inventory and shall not be eligible for inclusion in any calculation of the
Borrowing Base or Borrowing Availability. Each Credit Party shall timely and
fully pay and perform its rent and other obligations under all leases and other
agreements with respect to each leased location or public warehouse where any
Collateral is or may be located. Agent reserves the right, in its discretion, to
establish Reserves acceptable to Agent, in its reasonable credit judgment with
respect to any leased property, any warehouse, processor or converter facility,
or any other location where Collateral is stored or located as of the Closing
Date or as may be acquired or leased thereafter. In no event shall any Inventory
stored or otherwise located at any customer location be considered Eligible
Inventory or be otherwise eligible for inclusion in any calculation of the
Borrowing Base or Borrowing Availability unless Agent shall have received a
collateral access agreement acceptable to it and any and all other actions
deemed necessary or desirable by Agent (e.g. UCC filings) shall have been taken.
5.10 COVENANTS REGARDING ACCOUNTS.
In the ordinary course of its business, each Credit Party
processes its Accounts in a manner such that (i) each payment received by such
Credit Party in respect of an Account is allocated to a specifically identified
invoice, which invoice corresponds to a particular Account owing to such Credit
Party and (ii) in the event that, at any time, less than 100% of the Account of
such Credit Party are included in a Permitted Receivables Financing, payments
received in respect of those Accounts included in a Permitted Receivables
Financing would be identifiable and separable from payments received in respect
of Accounts not so included in a Permitted Receivables Financing. WESCO-Canada
shall not at any time enter into a Permitted Receivables Financing or any other
similar financing or transaction.
5.11 CANADIAN PENSION AND BENEFIT PLANS.
(a) For each existing Canadian Pension Plan, each Credit Party
shall ensure that such plan retains its registered status under and is
administered in a timely manner in all material respects in accordance with the
applicable pension plan text, funding agreement, the ITA and all other
applicable laws.
(b) For each Canadian Pension Plan hereafter adopted by any
Credit Party which is required to be registered under the ITA or any other
applicable laws, that Credit Party shall use all commercially reasonable efforts
to seek and receive confirmation in writing from the applicable Governmental
Authorities to the effect that such plan is unconditionally registered under the
ITA and such other applicable laws.
(c) For each existing and hereafter adopted Canadian Pension
Plan and Canadian Benefit Plan, each Credit Party shall in a timely fashion
perform in all material respects
41
all obligations (including fiduciary, funding, investment and administration
obligations) required to be performed in connection with such plan and the
funding media therefor.
(d) Each Credit Party shall deliver to Agent if requested by
Agent, promptly after the filing thereof by any Credit Party with any applicable
Governmental Authority, (i) copies of each annual and other return, report or
valuation with respect to each Canadian Pension Plan; (ii) promptly after
receipt thereof, a copy of any direction, order, notice, ruling or opinion that
any Credit Party may receive from any applicable Governmental Authority with
respect to any Canadian Pension Plan; and (iii) notification within 30 days of
any increases having a cost to such Credit Party in excess of Canadian $250,000,
or the Dollar Equivalent Amount thereof, per annum, in the benefits of any
existing Canadian Pension Plan or Canadian Benefit Plan, or the establishment of
any new Canadian Pension Plan or Canadian Benefit Plan, or the commencement of
contributions to any such plan to which any Credit Party was not previously
contributing.
5.12 FURTHER ASSURANCES.
Each Credit Party executing this Agreement agrees that it
shall and shall cause each other Credit Party to, at such Credit Party's expense
and upon request of Agent, duly execute and deliver, or cause to be duly
executed and delivered, to Agent such further instruments and do and cause to be
done such further acts as may be necessary or proper in the reasonable opinion
of Agent to carry out more effectively the provisions and purposes of this
Agreement or any other Loan Document.
6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
until the Termination Date:
6.1 MERGERS, SUBSIDIARIES, ETC.
No Credit Party shall directly or indirectly, by operation of
law or otherwise, (a) form or acquire any Subsidiary, other than (i) the
formation of Subsidiaries in connection with Permitted Acquisitions (as defined
below) permitted by this SECTION 6.1 and (ii) the formation of non-domestic,
non- Canadian Subsidiaries, PROVIDED THAT following formation thereof pursuant
to this clause (ii), the representation and warranty contained in SECTION 3.8
shall remain true and correct; and PROVIDED THAT in the case of both clauses (i)
and (ii), the prior written consent of Agent shall have been obtained, or (b)
merge or amalgamate with, consolidate with, acquire all or substantially all of
the assets or Stock of, or otherwise combine with or acquire, any Person.
Notwithstanding the foregoing, Borrower and WESCO- Canada may acquire all or
substantially all of the assets or Stock of any Person (the "TARGET") (in each
case, a "PERMITTED ACQUISITION") subject to the satisfaction of each of the
following conditions:
(i) Agent shall receive at least 15 Business Days' prior
written notice of such proposed Permitted Acquisition, which notice shall
include a reasonably detailed description of such proposed Permitted
Acquisition;
42
(ii) such Permitted Acquisition shall only involve assets
located in the United States or Canada, or assets located in foreign,
non-Canadian locations having an aggregate value for all Permitted Acquisitions
consummated during the term of this Agreement not in excess of $3,000,000, and
comprising a business, or those assets of a business, of the type engaged in by
Borrower as of the Closing Date, and which business would not subject Agent or
any Lender to regulatory or third party approvals in connection with the
exercise of its rights and remedies under this Agreement or any other Loan
Documents other than approvals applicable to the exercise of such rights and
remedies with respect to Borrower prior to such Permitted Acquisition;
(iii) such Permitted Acquisition shall be consensual and
shall have been approved by the Target's board of directors;
(iv) no additional Indebtedness, Guaranteed Indebtedness,
contingent obligations or other liabilities shall be incurred, assumed or
otherwise be reflected on a consolidated balance sheet of Borrower and Target
after giving effect to such Permitted Acquisition, except (A) Loans made
hereunder, (B) ordinary course trade payables, accrued expenses and unsecured
Indebtedness of the Target to the extent no Default or Event of Default has
occurred and is continuing or would result after giving effect to such Permitted
Acquisition, (C)(x) earn-out payments in a maximum amount not to exceed
$5,000,000 in connection with any single Permitted Acquisition and in a maximum
aggregate amount for all Permitted Acquisitions not to exceed $10,000,000 in the
aggregate at any one time outstanding and (y) other earn-out payments, if any,
acceptable to Agent in its sole discretion; and (D) unsecured, subordinated
seller paper issued to a seller in connection with such a Permitted Acquisition;
PROVIDED, THAT (x) the aggregate principal amount of all such unsecured,
subordinated seller paper outstanding at any time during the term of this
Agreement shall not exceed $20,000,000 (regardless of whether such seller paper
was issued before or after the Closing Date and with the approximately
$5,600,000 of seller paper outstanding on the Closing Date being treated as a
usage of the foregoing $20,000,000 basket), (y) such seller paper shall be fully
subordinated to the Obligations in a manner and on terms and conditions
satisfactory to Agent and (z) the terms and conditions of such unsecured,
subordinated seller paper shall be otherwise satisfactory to Agent;
(v) the sum of all amounts payable (whether contingent or
otherwise) in connection with any single Permitted Acquisition (including all
transaction costs and all Indebtedness, liabilities and contingent obligations
incurred or assumed in connection therewith or otherwise reflected on a
consolidated balance sheet of Borrower and Target) (w) shall not exceed
$50,000,000, and PROVIDED, FURTHER, that, if the sum of all such amounts is
$50,000,000 or less, each of the conditions of clause (viii) below shall be
satisfied, (x) shall not exceed $75,000,000 and PROVIDED, FURTHER, that, if the
sum of all such amounts is greater than $50,000,000 but not greater than
$75,000,000, each of the conditions set forth in clause (ix) below shall be
satisfied, (y) shall not exceed $150,000,000 and PROVIDED, FURTHER, that, if the
sum of all such amounts is greater than $75,000,000 but not greater than
$150,000,000, each of the conditions set forth in clause (x) below shall be
satisfied, and (z) in any event shall not exceed $150,000,000;
43
(vi) the business and assets acquired in such Permitted
Acquisition shall be free and clear of all Liens, other than Permitted
Encumbrances and mortgages on real property already in existence prior to any
consideration of such proposed Permitted Acquisition;
(vii) at or prior to the closing of any Permitted
Acquisition, Agent will be granted a first priority perfected Lien (subject to
Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets
and Stock of the Target and Borrower, the other Credit Parties and the Target
shall have executed such documents and taken such actions as may be required by
Agent in connection therewith; PROVIDED, HOWEVER, that (1) the Agent shall not
be granted a Lien in accounts receivable to the extent and only to the extent
that such accounts receivable have been sold pursuant to the Permitted
Receivables Financing, (2) with respect to non-domestic, non-Canadian Permitted
Acquisitions, Agent shall not be granted any Lien or other security interest in
any non-domestic, non-Canadian asset or property, and (3) the foregoing shall
not require Borrower or any Credit Party to xxxxx x Xxxx in any leased or owned
in fee simple, real property acquired in a Permitted Acquisition;
(viii) if the sum of all amounts payable (whether
contingent or otherwise) in connection with any single Permitted Acquisition
shall not exceed $50,000,000, Borrower shall have delivered to Agent, at least 5
Business Days prior to the closing of any Permitted Acquisition, in form and
substance reasonably satisfactory to Agent:
(1) a pro forma consolidated balance sheet, income
statement and cash flow statement of Holdings and
its Subsidiaries (the "ACQUISITION PRO FORMA"),
based on recent financial statements, which shall
be complete and shall fairly present in all
material respects the assets, liabilities,
financial condition and results of operations of
Holdings and its Subsidiaries in accordance with
GAAP consistently applied, but taking into account
such Permitted Acquisition and the funding of all
Loans in connection therewith, and such Acquisition
Pro Forma shall reflect that (x) either (I)(i) on a
pro forma basis, Holdings and its Subsidiaries
would have had a Fixed Charge Coverage Ratio of
greater than or equal to 1.25 to 1.0 for the
trailing twelve month period reflected in the
Compliance Certificate most recently delivered to
Agent pursuant to ANNEX E prior to the consummation
of such Permitted Acquisition (after giving effect
to such Permitted Acquisition and all Loans funded
in connection therewith as if made on the first day
of such period), and (ii) average daily Borrowing
Availability for the 90-day period preceding the
consummation of such Permitted Acquisition would
have exceeded $25,000,000 on a pro forma basis
(after giving effect to such Permitted Acquisition
and all Loans funded in connection therewith as if
made on the first day of such period) and the
Acquisition Projections (as defined below) shall
reflect that
44
such Borrowing Availability of $25,000,000 shall
continue for at least 90 days after the
consummation of such Permitted Acquisition or (II)
average daily Borrowing Availability for the 90-day
period preceding the consummation of such Permitted
Acquisition would have exceeded $50,000,000 on a
pro forma basis (after giving effect to such
Permitted Acquisition and all Loans funded in
connection therewith as if made on the first day of
such period) and the Acquisition Projections (as
defined below) shall reflect that such Borrowing
Availability of $50,000,000 shall continue for at
least 90 days after the consummation of such
Permitted Acquisition and (y) on a pro forma basis,
no Event of Default has occurred and is continuing
or would result after giving effect to such
Permitted Acquisition and Borrower would have been
in compliance with the financial covenants set
forth in ANNEX G for the trailing twelve month
period reflected in the Compliance Certificate most
recently delivered to Agent pursuant to ANNEX E
prior to the consummation of such Permitted
Acquisition (after giving effect to such Permitted
Acquisition and all Loans funded in connection
therewith as if made on the first day of such
period);
(2) if the sum of all amounts payable (whether
contingent or otherwise) in connection with such
Permitted Acquisition is in excess of $10,000,000,
updated versions of the most recently delivered
Projections covering the one (1) year period
commencing on the date of such Permitted
Acquisition and otherwise prepared in accordance
with the Projections (the "ACQUISITION
PROJECTIONS") and based upon historical financial
data of a recent date satisfactory to Agent, taking
into account such Permitted Acquisition; and
(3) a certificate of the chief financial officer of
Holdings and Borrower to the effect that: (w)
Borrower (after taking into consideration all
rights of contribution and indemnity Borrower has
against Holdings and each other Subsidiary of
Holdings) will be Solvent upon the consummation of
the Permitted Acquisition; (x) the Acquisition Pro
Forma fairly presents the financial condition of
Holdings and Borrower (on a consolidated basis) as
of the date thereof after giving effect to the
Permitted Acquisition; (y) the Acquisition
Projections are reasonable estimates of the future
financial performance of Holdings and Borrower
subsequent to the date thereof based upon the
historical performance of Holdings, Borrower and
the Target and show that Holdings
45
and Borrower shall continue to be in compliance
with the financial covenants set forth in ANNEX G
for the one-year period thereafter; and (z)
Holdings and Borrower has completed their due
diligence investigation with respect to the Target
and such Permitted Acquisition, which investigation
was conducted in a manner similar to that which
would have been conducted by a prudent purchaser of
a comparable business and the results of which
investigation were delivered to Agent and Lenders;
(ix) if the sum of all amounts payable (whether
contingent or otherwise) in connection with any single Permitted Acquisition is
greater than $50,000,000, but not greater than $75,000,000, Borrower shall have
delivered to Agent, at least 5 Business Days prior to the closing of any
Permitted Acquisition, in form and substance reasonably satisfactory to Agent:
(1) the Acquisition Pro Forma, based on recent
financial statements, which shall be complete and
shall fairly present in all material respects the
assets, liabilities, financial condition and
results of operations of Holdings and its
Subsidiaries in accordance with GAAP consistently
applied, but taking into account such Permitted
Acquisition and the funding of all Loans in
connection therewith, and such Acquisition Pro
Forma shall reflect that (x)(i) on a pro forma
basis, Holdings and its Subsidiaries would have had
a Fixed Charge Coverage Ratio of greater than or
equal to 1.1 to 1.0 for the trailing twelve month
period reflected in the Compliance Certificate most
recently delivered to Agent pursuant to ANNEX E
prior to the consummation of such Permitted
Acquisition (after giving effect to such Permitted
Acquisition and all Loans funded in connection
therewith as if made on the first day of such
period), and (ii) average daily Borrowing
Availability for the 90-day period preceding the
consummation of such Permitted Acquisition would
have exceeded $100,000,000 on a pro forma basis
(after giving effect to such Permitted Acquisition
and all Loans funded in connection therewith as if
made on the first day of such period) and the
Acquisition Projections (as defined below) shall
reflect that such Borrowing Availability of
$100,000,000 shall continue for at least 90 days
after the consummation of such Permitted
Acquisition and (y) on a pro forma basis, no Event
of Default has occurred and is continuing or would
result after giving effect to such Permitted
Acquisition and Borrower would have been in
compliance with the financial covenants set forth
in ANNEX G for the trailing twelve
46
month period reflected in the Compliance
Certificate most recently delivered to Agent
pursuant to ANNEX E prior to the consummation of
such Permitted Acquisition (after giving effect to
such Permitted Acquisition and all Loans funded in
connection therewith as if made on the first day of
such period);
(2) updated versions of the most recently delivered
Projections covering the one (1) year period
commencing on the date of such Permitted
Acquisition and otherwise prepared in accordance
with the Projections (the "Acquisition
Projections") and based upon historical financial
data of a recent date satisfactory to Agent, taking
into account such Permitted Acquisition;
(3) a certificate of the chief financial officer of
Holdings and Borrower to the effect that: (w)
Borrower (after taking into consideration all
rights of contribution and indemnity Borrower has
against Holdings and each other Subsidiary of
Holdings) will be Solvent upon the consummation of
the Permitted Acquisition; (x) the Acquisition Pro
Forma fairly presents the financial condition of
Holdings and Borrower (on a consolidated basis) as
of the date thereof after giving effect to the
Permitted Acquisition; (y) the Acquisition
Projections are reasonable estimates of the future
financial performance of Holdings and Borrower
subsequent to the date thereof based upon the
historical performance of Holdings, Borrower and
the Target and show that Holdings and Borrower
shall continue to be in compliance with the
financial covenants set forth in ANNEX G for the
one-year period thereafter; and (z) Holdings and
Borrower has completed their due diligence
investigation with respect to the Target and such
Permitted Acquisition, which investigation was
conducted in a manner similar to that which would
have been conducted by a prudent purchaser of a
comparable business and the results of which
investigation were delivered to Agent and Lenders;
(x) if the sum of all amounts payable (whether
contingent or otherwise) in connection with any single Permitted Acquisition is
greater than $75,000,000 but not greater than $150,000,000, Borrower shall have
delivered to Agent, at least 5 Business Days prior to the closing of any
Permitted Acquisition, in form and substance reasonably satisfactory to Agent:
(1) the Acquisition Pro Forma, based on recent
financial statements, which shall be complete and
shall fairly present
47
in all material respects the assets, liabilities,
financial condition and results of operations of
Holdings and its Subsidiaries in accordance with
GAAP consistently applied, but taking into account
such Permitted Acquisition and the funding of all
Loans in connection therewith, and such Acquisition
Pro Forma shall reflect that (x)(i) on a pro forma
basis, Holdings and its Subsidiaries would have had
a Fixed Charge Coverage Ratio of greater than or
equal to 1.1 to 1.0 for the trailing twelve month
period reflected in the Compliance Certificate most
recently delivered to Agent pursuant to ANNEX E
prior to the consummation of such Permitted
Acquisition (after giving effect to such Permitted
Acquisition and all Loans funded in connection
therewith as if made on the first day of such
period), and (ii) average daily Borrowing
Availability for the 90-day period preceding the
consummation of such Permitted Acquisition would
have exceeded $150,000,000 on a pro forma basis
(after giving effect to such Permitted Acquisition
and all Loans funded in connection therewith as if
made on the first day of such period) and the
Acquisition Projections (as defined below) shall
reflect that such Borrowing Availability of
$150,000,000 shall continue for at least 90 days
after the consummation of such Permitted
Acquisition and (y) on a pro forma basis, no Event
of Default has occurred and is continuing or would
result after giving effect to such Permitted
Acquisition and Borrower would have been in
compliance with the financial covenants set forth
in ANNEX G for the trailing twelve month period
reflected in the Compliance Certificate most
recently delivered to Agent pursuant to ANNEX E
prior to the consummation of such Permitted
Acquisition (after giving effect to such Permitted
Acquisition and all Loans funded in connection
therewith as if made on the first day of such
period);
(2) updated versions of the most recently delivered
Projections covering the one (1) year period
commencing on the date of such Permitted
Acquisition and otherwise prepared in accordance
with the Projections (the "Acquisition
Projections") and based upon historical financial
data of a recent date satisfactory to Agent, taking
into account such Permitted Acquisition; and
(3) a certificate of the chief financial officer of
Holdings and Borrower to the effect that: (w)
Borrower (after taking into consideration all
rights of contribution and indemnity
48
Borrower has against Holdings and each other
Subsidiary of Holdings) will be Solvent upon the
consummation of the Permitted Acquisition; (x) the
Acquisition Pro Forma fairly presents the financial
condition of Holdings and Borrower (on a
consolidated basis) as of the date thereof after
giving effect to the Permitted Acquisition; (y) the
Acquisition Projections are reasonable estimates of
the future financial performance of Holdings and
Borrower subsequent to the date thereof based upon
the historical performance of Holdings, Borrower
and the Target and show that Holdings and Borrower
shall continue to be in compliance with the
financial covenants set forth in ANNEX G for the
one-year period thereafter; and (z) Holdings and
Borrower has completed their due diligence
investigation with respect to the Target and such
Permitted Acquisition, which investigation was
conducted in a manner similar to that which would
have been conducted by a prudent purchaser of a
comparable business and the results of which
investigation were delivered to Agent and Lenders;
and
(xi) at least 10 Business Days prior to the closing date
of such Permitted Acquisition, Agent shall have received all copies of (or
drafts thereof which shall be in substantially final form) the acquisition
agreement and all related agreements and instruments, including, without
limitation, all seller paper to be issued in connection with such Permitted
Acquisition, and all opinions, certificates, lien search results and other
documents reasonably requested by Agent, including, without limitation, those
specified in SECTION 5.9, all of which shall be in form and substance
satisfactory to Agent; and
(xii) at the time of such Permitted Acquisition and
after giving effect thereto, no Default or Event of Default has occurred and is
continuing.
Notwithstanding the foregoing, neither the Accounts nor the Inventory of the
Target shall be included in Eligible Accounts and Eligible Inventory without the
prior determination by Agent that such Accounts and Inventory are acceptable for
inclusion as Eligible Accounts and Eligible Inventory, based on such field
examinations, collateral audits, appraisals and other analysis, if any, as Agent
deems appropriate, copies of which field examinations, collateral audits,
appraisals and other analyses shall be provided to Lenders.
6.2 INVESTMENTS; LOANS AND ADVANCES.
Except as otherwise expressly permitted by this SECTION 6, no
Credit Party shall make or permit to exist any investment in, or make, accrue or
permit to exist loans or advances of money to, any Person, through the direct or
indirect lending of money, holding of securities or otherwise, except that: (a)
Borrower and WESCO-Canada may hold investments comprised of notes payable, or
stock or other securities issued by Account Debtors to Borrower or WESCO-Canada,
as the case may be, pursuant to negotiated agreements with respect to settlement
of such
49
Account Debtor's Accounts in the ordinary course of business, so long as
the aggregate amount of such Accounts so settled by Borrower and WESCO- Canada
does not exceed $5,000,000 (in the case of WESCO-Canada, determined on the basis
of the Dollar Equivalent Amount thereof); (b) each Credit Party may maintain its
existing investments in its Subsidiaries as of the Closing Date; (c) Borrower
may consummate a Permitted Acquisition pursuant to the terms and conditions of
SECTION 6.1 hereof; (d) investments made after the Closing Date in Subsidiaries
of Borrower that are domiciled outside the United States and Canada in an
aggregate amount outstanding at any time that when added to the then outstanding
amount of Indebtedness permitted pursuant to SECTION 6.3(a)(xiii) does not
exceed $2,500,000; and (e) so long as no Default or Event of Default has
occurred and is continuing and so long as average daily Borrowing Availability
for the 90-day period preceding such investment is at least $10,000,000 and such
Borrowing Availability of at least $10,000,000 shall continue for at least 90
days after giving effect to such investment, Borrower may make investments, so
long as any Loan is outstanding and if average daily Borrowing Availability for
the 90-day period preceding such investment would have exceeded $25,000,000 and
such Borrowing Availability of at least $25,000,000 shall continue for at least
90 days after giving effect to such investment, in an outstanding amount not to
exceed $25,000,000 at any time, so long as any Loan is outstanding and if
average daily Borrowing Availability for the 90-day period preceding such
investment is at least $10,000,000 but less than $25,000,000 and such Borrowing
Availability of at least $10,000,000 but less than $25,000,000 shall continue
for at least 90 days after giving effect to such investment, in an outstanding
amount not to exceed $10,000,000 at any time, and, if no Loan is then
outstanding, in such amounts as Borrower may elect, in (i) marketable direct
obligations issued or unconditionally guaranteed by the United States of America
or any agency thereof maturing within one year from the date of acquisition
thereof, (ii) commercial paper maturing no more than one year from the date of
creation thereof and currently having one of the two highest ratings obtainable
from either Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc.,
(iii) certificates of deposit maturing no more than one year from the date of
creation thereof issued by commercial banks incorporated under the laws of the
United States of America, each having combined capital, surplus and undivided
profits of not less than $300,000,000 and having a senior unsecured rating of
"A" or better by a nationally recognized rating agency (an "A RATED BANK"), (iv)
time deposits maturing no more than 30 days from the date of creation thereof
with A Rated Banks and (v) mutual funds that invest solely in one or more of the
investments described in CLAUSES (i) THROUGH (iv) above.
6.3 INDEBTEDNESS.
(a) No Credit Party shall create, incur, assume or permit to
exist any Indebtedness, except (without duplication):
(i) Indebtedness secured by purchase money security
interests and Capital Leases permitted in SECTION 6.7(c);
(ii) The Loans and the other Obligations;
50
(iii) Unfunded pension fund and other employee benefit
plan obligations and liabilities to the extent they are permitted to remain
unfunded under applicable law;
(iv) Existing Indebtedness described in DISCLOSURE
SCHEDULE (6.3) and refinancings thereof or amendments or modifications thereof
that do not have the effect of increasing the principal amount thereof or
changing the amortization thereof (other than to extend the same) and that are
otherwise on terms and conditions no less favorable to any Credit Party, Agent
or any Lender, as determined by Agent, than the terms of the Indebtedness being
refinanced, amended or modified;
(v) Indebtedness specifically permitted under SECTION 6.1;
(vi) Indebtedness pursuant to the Permitted Receivables
Financing;
(vii) Indebtedness in respect of Borrower's obligations to
Xxxxxx Brothers and Bank of New York in connection with their respective Swap
Agreements as in effect on the Closing Date in an aggregate amount for both such
Swap Agreements not to exceed $15,000,000 and, to the extent that Borrower
elects to do so, in its sole discretion, Letters of Credit issued under the
Agreement supporting such Indebtedness;
(viii) Indebtedness consisting of intercompany loans and
advances made by Borrower to any other Credit Party that is a domestic Guarantor
(other than Holdings) or by any domestic Guarantor to Borrower; PROVIDED, that:
(A) Borrower shall have executed and delivered to each such domestic Guarantor,
and each such domestic Guarantor shall have executed and delivered to Borrower,
on the Closing Date, a demand note (collectively, with the demand notes referred
to in clause (ix) below, the "INTERCOMPANY NOTES") to evidence any and all such
intercompany Indebtedness owing at any time by Borrower to such domestic
Guarantor or by such domestic Guarantor to Borrower, which Intercompany Notes
shall be in form and substance satisfactory to Agent and shall be pledged and
delivered to Agent pursuant to the applicable Pledge Agreement or Security
Agreement as additional collateral security for the Obligations; (B) Borrower
shall record all intercompany transactions on its books and records in a manner
satisfactory to Agent; (C) the obligations of Borrower under any such
Intercompany Notes shall be subordinated to the Obligations of Borrower
hereunder in a manner reasonably satisfactory to Agent; (D) at the time any such
intercompany loan or advance is made by Borrower and after giving effect
thereto, Borrower shall be Solvent; (E) no Default or Event of Default would
occur and be continuing after giving effect to any such proposed intercompany
loan; (F) other than as set forth on DISCLOSURE SCHEDULE (6.3) with respect to
CDW Realco, Inc., WESCO Finance and WESCO Equity, the aggregate balance of all
such intercompany loans owing to Borrower by all such domestic Guarantors shall
not exceed $20,000,000 at any one time outstanding; and (G) the recipient of any
such intercompany loans shall be creditworthy as determined by Agent;
(ix) Indebtedness consisting of intercompany loans and
advances made by Borrower to WESCO Finance, by WESCO Finance to WESCO Finance
Canada and by WESCO Finance Canada to WESCO-Canada; PROVIDED, that (A) any
amounts so loaned or
51
advanced by Borrower to WESCO Finance are immediately in turn so loaned or
advanced by WESCO Finance to WESCO Finance Canada and are immediately in turn so
loaned or advanced by WESCO Finance Canada to WESCO-Canada; (B) the proceeds of
any payments by WESCO-Canada to WESCO Finance Canada in respect of such loans or
advances made to WESCO-Canada are immediately paid by WESCO Finance Canada to
WESCO Finance in respect of the loans or advances made by WESCO Finance to WESCO
Finance Canada and are immediately in turn paid by WESCO Finance to Borrower in
respect of the loans or advances made by Borrower to WESCO Finance; (C) WESCO
Finance shall have executed and delivered to Borrower, WESCO Finance Canada
shall have executed and delivered to WESCO Finance and WESCO-Canada shall have
executed and delivered to WESCO Finance Canada, in each instance on the Closing
Date, a demand note (collectively, with the demand notes referred to in clause
(viii) above, the "INTERCOMPANY NOTES") to evidence any and all such
intercompany Indebtedness owing at any time, which Intercompany Notes shall be
in form and substance satisfactory to Agent and shall be pledged and delivered
to Agent pursuant to the applicable Pledge Agreement or Security Agreement as
additional collateral security for the Obligations; (D) Borrower, WESCO Finance,
WESCO Finance Canada and WESCO-Canada shall each record all intercompany
transactions on their respective books and records in a manner satisfactory to
Agent; (E) the obligation of WESCO Finance, WESCO Finance Canada and
WESCO-Canada under the respective Intercompany Notes issued by them shall be
subordinated to the Obligations hereunder and under the other Loan Documents in
a manner satisfactory to Agent; (F) at the time any such intercompany loan or
advance is made and after giving effect thereto, each of Borrower, WESCO
Finance, WESCO Finance Canada and WESCO-Canada shall be Solvent; (G) no Default
or Event of Default would occur and be continuing after giving effect to any
such proposed intercompany loan; (H) the aggregate balance of all such
intercompany loans and advances made by Borrower to WESCO Finance shall not
exceed $50,000,000 or the Dollar Equivalent Amount thereof at any one time
outstanding, by WESCO Finance to WESCO-Finance Canada shall not exceed
$50,000,000 or the Dollar Equivalent Amount thereof and by WESCO Finance Canada
to WESCO-Canada shall not exceed $50,000,000 or the Dollar Equivalent Amount
thereof; (I) the recipient of any such intercompany loans shall be creditworthy,
as determined by Agent and (J) to the extent required by applicable law, all
such loans and advances shall bear interest and all applicable withholdings
shall be deducted and remitted to the applicable Governmental Authority when due
and payable;
(x) Indebtedness secured by mortgages on real estate owned
in fee simple by Borrower, Herning or WESCO-Canada; PROVIDED, THAT, (A) such
Indebtedness is not secured by any Lien on any asset (real, personal or mixed)
of Borrower or any other Credit Party other than by mortgages on real estate
owned in fee simple by Borrower, Herning or WESCO-Canada and up to an aggregate
of $5,000,000 of Fixtures and Equipment; (B) the maximum aggregate amount of
such Indebtedness outstanding at any time shall not exceed $75,000,000, as such
$75,000,000 basket may be reduced by any usage thereof in connection with
mortgages permitted by SECTION 6.7(e); (C) Borrower shall have delivered to
Agent, at least 5 Business Days prior to incurrence of any such Indebtedness, in
form and substance and with supporting detail reasonably satisfactory to Agent:
(1) (x)(I) a certification of its Chief Financial
Officer, in form and substance satisfactory, to Agent,
that actual
52
average daily Borrowing Availability for the 90-day
period preceding the incurrence of such proposed
Indebtedness exceeded $30,000,000 and (II) the
Indebtedness Projections (as defined below) shall
reflect that average daily Borrowing Availability of
at least $30,000,000 shall continue for at least 90
days after the incurrence of such Indebtedness and (y)
no Default or Event of Default has occurred and is
continuing or would result after giving effect to the
incurrence of such Indebtedness and on a pro forma
basis Borrower would have been in compliance with the
financial covenants set forth in ANNEX G for the four
quarter period reflected in the Compliance Certificate
most recently delivered to Agent pursuant to ANNEX E
(after giving effect to the incurrence of such
proposed Indebtedness as if made on the first day of
such period); and
(2) an updated version of the Projections most
recently delivered by Borrower to Agent and Lenders
pursuant to ANNEX E of this Agreement which shall
cover the one (1) year period commencing on the date
of the incurrence of such proposed Indebtedness and be
prepared in accordance with the Projections so
previously delivered and shall take into account the
incurrence of such proposed Indebtedness on and as of
the date of its proposed incurrence (the "INDEBTEDNESS
PROJECTIONS");
(D) the entire net proceeds of any such incurrence of Indebtedness are applied
to prepay the Obligations in accordance with SECTION 1.3(b)(ii); (E) mortgagee
waivers satisfactory to Agent have been delivered to Agent for each property
subject to such a mortgage or Reserves satisfactory to Agent have been
established; and (F) Borrower and the other Credit Parties shall have provided
to Agent all such agreements, documents, financials and other information as
Agent may reasonably request in connection with such proposed incurrence of
mortgage Indebtedness and all such agreements, documents, financials and other
information shall be in form and substance satisfactory to Agent;
(xi) unsecured Indebtedness in an aggregate
outstanding amount not to exceed $20,000,000 incurred in the ordinary course of
business, consistent with past practices, comprised of surety bonds issued to
support bid or performance obligations of a Credit Party;
(xii) Indebtedness consisting of intercompany loans and
advances made following the Closing Date by Borrower to Subsidiaries of Borrower
that are domiciled outside the United States and Canada in an aggregate amount
outstanding at any time that when added to the then outstanding amount of
investments permitted pursuant to SECTION 6.2(d) does not exceed $2,500,000;
53
(xiii) unsecured Indebtedness provided by third-party
financial institutions and incurred by Subsidiaries of Borrower that are
domiciled outside the United States and Canada not to exceed in the aggregate
$3,000,000 (or the Dollar Equivalent Amount thereof) at any one time
outstanding;
(xiv) Indebtedness arising from Hedging Agreements entered
into with a Lender in the ordinary course of business and not for speculative
purposes in the aggregate outstanding amount for all such Indebtedness in
existence at any time during the term of this Agreement not to exceed
$15,000,000;
(xv) unsecured guaranties not to exceed in the aggregate
$3,000,000, at any one time outstanding, of loans from any Lender to senior
managers of Holdings and Borrower; PROVIDED, THAT, (A) such loans are made to
such senior manager for purposes of financing such senior manager's purchases of
Holdings' common Stock and (B) Borrower shall have determined in its reasonable
discretion that the senior manager to whom such Lender is making such loan is
creditworthy and capable of repaying such loan to such Lender on his or her own;
(xvi) Indebtedness incurred pursuant to an additional
issuance of Subordinated Notes in an additional aggregate amount not to exceed
$100,000,000 PROVIDED, THAT (A) the terms and conditions of such additional
issuance of Subordinated Notes shall be identical to the terms and conditions of
the Subordinated Notes outstanding on the Closing Date (other than with respect
to maturity, which shall be at least one year following the Commitment
Termination Date, and interest, which shall be at then market rates), (B)
without limiting the generality of clause (A), the indenture, notes and other
agreements and documents governing such additional Subordinated Notes shall be
identical to the indenture, notes and other agreements and documents governing
the Subordinated Notes outstanding on the Closing Date (other than with respect
to maturity, which shall be at least one year following the Commitment
Termination Date and interest, which shall be at then market rates), and (C) the
entire net proceeds of the issuance of such additional Subordinated Notes are
applied against the then outstanding Loans and the Revolving Loan Commitment is
correspondingly permanently reduced on a dollar for dollar basis;
(xvii) Indebtedness comprised of unsecured, subordinated
seller paper expressly permitted to be incurred and outstanding under SECTION
6.1 in an outstanding amount not to exceed $20,000,000 at any time during the
term of this Agreement; and
(xviii) other unsecured, subordinated unsecured
Indebtedness up to $5,000,000 in the aggregate at any one time outstanding.
(b) No Credit Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest
or other amount payable in respect of any Indebtedness, other than (i) the
Obligations; (ii) Indebtedness secured by a Permitted Encumbrance if the asset
securing such Indebtedness has been sold or otherwise disposed of in accordance
with SECTIONS 6.8(b) OR (c); (iii) Indebtedness permitted by SECTION 6.3(a)(iv)
upon any refinancing thereof in accordance with SECTION 6.3(a)(iv); (iv)
intercompany Indebtedness
54
permitted by SECTIONS 6.3(a)(vii) and (viii); and (v) permitted purchases of
Subordinated Notes pursuant to and in compliance with SECTION 6.14(g) hereof.
6.4 EMPLOYEE LOANS AND AFFILIATE TRANSACTIONS.
(a) No Credit Party shall enter into or be a party to any
transaction with any other Credit Party or any Affiliate thereof except in the
ordinary course of and pursuant to the reasonable requirements of such Credit
Party's business and upon fair and reasonable terms that are no less favorable
to such Credit Party than would be obtained in a comparable arm's length
transaction with a Person not an Affiliate of such Credit Party. In addition, if
any such transaction or series of related transactions involves payments in
excess of $1,000,000 in the aggregate, the terms of these transactions must be
disclosed in advance to Agent and Lenders. All such transactions existing as of
the date hereof are described in DISCLOSURE SCHEDULE (6.4(a)).
(b) No Credit Party shall enter into any lending or borrowing
transaction with any directors, officers of employees of any Credit Party,
except loans to its respective officers and employees on an arm's-length basis
in the ordinary course of business consistent with past practices for travel and
entertainment expenses, relocation costs and similar purposes up to a maximum of
$50,000 to any officer or employee and up to a maximum of $400,000 in the
aggregate at any one time outstanding.
6.5 CAPITAL STRUCTURE AND BUSINESS.
No Credit Party shall (a) make any changes in any of its
business objectives, purposes or operations that could in any way adversely
affect the repayment of the Loans or any of the other Obligations or could
reasonably be expected to have or result in a Material Adverse Effect, (b) make
any change in its capital structure as described in DISCLOSURE SCHEDULE (3.8),
including the issuance or sale of any shares of Stock, warrants or other
securities convertible into Stock or any revision of the terms of its
outstanding Stock; provided, that Holdings may issue or sell its Stock for cash
so long as (i) the proceeds thereof are applied in prepayment of the Obligations
as required by SECTION 1.3(b)(iii), and (ii) no Change of Control occurs after
giving effect thereto, or (c) amend its charter or bylaws, unanimous shareholder
agreement, declaration of partnership or partnership agreement in a manner that
would adversely affect Agent or Lenders or such Credit Party's duty or ability
to repay the Obligations. No Credit Party shall engage in any business other
than the businesses currently engaged in by it or reasonably related thereto.
6.6 GUARANTEED INDEBTEDNESS.
No Credit Party shall create, incur, assume or permit to exist
any Guaranteed Indebtedness except (a) by endorsement of instruments or items of
payment for deposit to the general account of any Credit Party, (b) for
Guaranteed Indebtedness incurred for the benefit of any other Credit Party if
the primary obligation is expressly permitted by this Agreement other than
Indebtedness, if any, of a Target existing at the time such Target is acquired
and (c) for Guaranteed Indebtedness incurred pursuant to the management loan
guaranty program as described in and permitted by (but only to the extent
permitted by) SECTION 6.3(xv).
55
6.7 LIENS.
No Credit Party shall create, incur, assume or permit to exist
any Lien on or with respect to its Accounts or any of its other properties or
assets (whether now owned or hereafter acquired) except for (a) Permitted
Encumbrances; (b) Liens in existence on the date hereof and summarized on
DISCLOSURE SCHEDULE (6.7) securing Indebtedness described on DISCLOSURE SCHEDULE
(6.3) and permitted refinancings, extensions and renewals thereof, including
extensions or renewals of any such Liens; provided that the principal amount so
secured is not increased and the Lien does not attach to any other property; (c)
Liens created after the date hereof by conditional sale or other title retention
agreements (including Capital Leases) or in connection with purchase money
Indebtedness with respect to Equipment and Fixtures acquired by any Credit Party
in the ordinary course of business, involving the incurrence of an aggregate
amount of purchase money Indebtedness and Capital Lease Obligations of not more
than $4,500,000 outstanding at any one time for all such Liens (PROVIDED that
such Liens attach only to the assets subject to such purchase money debt and
such Indebtedness is incurred within 20 days following such purchase and does
not exceed 100% of the purchase price of the subject assets); (d) Liens, if any,
in connection with and arising at or after the time of the transfer of Accounts
by Borrower pursuant to the Permitted Receivables Financing; (e) Liens
consisting of mortgages on real estate owned in fee simple by Borrower, Herning
or WESCO-Canada in favor of Xxxxxx Brothers and Bank of New York supporting
Borrower's respective obligations to them in connection with the two Swap
Agreements permitted under SECTION 6.3(a)(viii); provided that, (i) such
mortgage(s) shall be treated as a usage of the $75,000,000 basket permitted by
SECTION 6.4(x) and (ii) a mortgagee waiver satisfactory to Agent has been
delivered to Agent for each property subject to such a mortgage or Reserves
satisfactory to Agent have been established; (f) silent Liens on a last-out
basis in the Collateral as provided for in the Security Agreement in favor of
any Lender supporting Borrower's obligations to such Lender in connection with
any Hedging Agreements permitted under SECTION 6.3(a)(xiv); and (g) Liens
comprised of mortgages on real property owned in fee simple and security
interests in Fixtures and Equipment related to such mortgaged real property in
connection with Indebtedness expressly permitted under SECTION 6.3(a)(x),
including, without limitation, Section 6.3(a)(x)(A). In addition, other than as
provided in the Permitted Receivables Financing, no Credit Party shall become a
party to any agreement, note, indenture or instrument, or take any other action,
that would prohibit the creation of a Lien on any of its properties or other
assets in favor of Agent, on behalf of itself and Lenders, as additional
collateral for the Obligations, except operating leases, Capital Leases or
Licenses which prohibit Liens upon the assets that are subject thereto.
6.8 SALE OF STOCK AND ASSETS.
No Credit Party shall sell, transfer, convey, assign or
otherwise dispose of any of its properties or other assets, including the Stock
of any of its Subsidiaries (whether in a public or a private offering or
otherwise) or any of its Accounts, other than (a) the sale of Inventory in the
ordinary course of business, (b) the sale, transfer, conveyance or other
disposition by a Credit Party of Equipment or Fixtures that are obsolete or no
longer used or useful in such Credit Party's business and having a book value
not exceeding $1,000,000 in any single transaction or $5,000,000 in the
aggregate in any Fiscal Year, (c) other Equipment and Fixtures having a value
not exceeding $250,000 in any single transaction or $500,000 in the aggregate in
any Fiscal Year,
56
(d) the true sale by the Borrower of Accounts pursuant to the Permitted
Receivables Financing, and (e) the sale for consideration comprised solely of
cash, (i) of Borrower's Xxxxx Electric facility in Phoenix, Arizona to
non-affiliates on an arms-length basis and (ii) sales in the ordinary course of
business consistent with past practices, of real property owned in fee simple by
a Credit Party having a value not exceeding $1,000,000 in any single transaction
or $5,000,000 in the aggregate in any Fiscal Year; PROVIDED, THAT, the entire
net proceeds therefrom shall be applied to prepay the Loans (without any
corresponding reduction in the Revolving Loan Commitment). With respect to any
disposition of assets or other properties permitted pursuant to CLAUSES (b) AND
(c) above, subject to SECTION 1.3(b), Agent agrees on reasonable prior written
notice to release its Lien on such assets or other properties in order to permit
the applicable Credit Party to effect such disposition and shall execute and
deliver to Borrower, at Borrower's expense, appropriate UCC-3 termination
statements and other releases as reasonably requested by Borrower.
6.9 ERISA.
No Credit Party shall, or shall cause or permit any ERISA
Affiliate to, cause or permit to occur an event that could result in the
imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of
ERISA or cause or permit to occur an ERISA Event to the extent such ERISA Event
could reasonably be expected to have a Material Adverse Effect.
6.10 FINANCIAL COVENANTS.
At any time that excess Borrowing Availability is less than
Fifty Million Dollars ($50,000,000), Borrower shall not breach or fail to comply
with any of the Financial Covenants.
6.11 HAZARDOUS MATERIALS.
No Credit Party shall cause or permit a Release of any
Hazardous Material on, at, in, under, above, to, from or about any of the Real
Estate where such Release would (a) violate in any respect, or form the basis
for any Environmental Liabilities under, any Environmental Laws or Environmental
Permits or (b) otherwise adversely impact the value or marketability of any of
the Real Estate or any of the Collateral, other than such violations or
Environmental Liabilities that could not reasonably be expected to have a
Material Adverse Effect.
6.12 SALE-LEASEBACKS.
No Credit Party shall engage in any sale-leaseback, synthetic
lease or similar transaction involving any of its assets.
6.13 CANCELLATION OF INDEBTEDNESS.
No Credit Party shall cancel any claim or debt owing to it,
except for reasonable consideration negotiated on an arm's-length basis and in
the ordinary course of its business consistent with past practices.
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6.14 RESTRICTED PAYMENTS.
No Credit Party shall make any Restricted Payment, except (a)
intercompany loans and advances among Borrower, Guarantors and other
Subsidiaries of Borrower to the extent, and solely to the extent, expressly
permitted by SECTION 6.3, (b) dividends and distributions by Subsidiaries of
Borrower paid to Borrower (either directly or indirectly through another
Subsidiary), (c) employee loans permitted under SECTION 6.4(b), (d) payments of
principal and interest pursuant to Intercompany Notes issued in accordance with
SECTION 6.3; (e) scheduled payments of interest with respect to Subordinated
Debt, PROVIDED, that no Default or Event of Default has occurred and is
continuing or would result after giving effect to any Restricted Payment
pursuant to this CLAUSE (e), (f) dividends and distributions in the ordinary
course of business in accordance with past practices from Borrower to Holdings
solely to enable Holdings to pay its ordinary course expenses (e.g., reasonable
legal and accounting expenses, directors' and officers' insurance premiums and
director's fees and out-of-pocket reasonable costs and expenses), PROVIDED, that
(i) no Default or Event of Default has occurred and is continuing or would
result after giving effect to any Restricted Payment pursuant to CLAUSE (f), and
(ii) the aggregate amount of all such dividends and distributions from Borrower
to Holdings pursuant to this CLAUSE (f) shall not exceed $1,000,000 in any
Fiscal Year; (g) payments in connection with the repurchase of either Holdings'
publicly traded Common Stock or the Subordinated Notes; PROVIDED, that (i) no
Default or Event of Default has occurred and is continuing or would result after
giving effect to any Restricted Payment pursuant to this CLAUSE (g), and (ii)
Borrower shall have either (I)(i) demonstrated to Agent's satisfaction that
Holdings and its Subsidiaries on a consolidated basis and after giving pro forma
effect to such Restricted Payment have a Fixed Charge Coverage Ratio of greater
than or equal to 1.25 to 1.0 for the four quarter period reflected in the
Compliance Certificate most recently delivered to Agent and Lenders pursuant to
ANNEX E of this Agreement (after giving effect to such Restricted Payment as if
made on the first day of such period) and (ii) average daily Borrowing
Availability for the 90-day period preceding the making of such Restricted
Payment of more than $25,000,000 on a pro forma basis (after giving effect to
such Restricted Payment as if made on the first day of such period) and shall
have projected average daily Borrowing Availability of more than $25,000,000 for
at least 90 days after the making of such Restricted Payment or (II) average
daily Borrowing Availability for the 90-day period preceding the making of such
Restricted Payment of more than $50,000,000 on a pro forma basis (after giving
effect to such Restricted Payment as if made on the first day of such period)
and shall have projected average daily Borrowing Availability of more than
$50,000,000 for at least 90 days after the making of such Restricted Payment;
and (h) dividends and distributions from Borrower to Holdings in an amount equal
to Holdings' then due and payable in cash consolidated, combined or unitary
income tax liabilities; PROVIDED, that no Default or Event of Default has
occurred and is continuing or would result after giving effect to any Restricted
Payment pursuant to this CLAUSE (h).
6.15 CHANGE OF CORPORATE NAME OR LOCATION; CHANGE OF FISCAL
YEAR.
No Credit Party shall (a) change its corporate name, trade
name or partnership name, (b) change its jurisdiction of incorporation or
formation; or (c) change its chief executive office, principal place of
business, domicile (within the meaning of the Quebec Civil Code), corporate
offices or warehouses or locations at which Collateral is held or stored, or the
location
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of its records concerning the Collateral, in each case without at least 30 days
prior written notice to Agent and after Agent's written acknowledgment that any
reasonable action requested by Agent in connection therewith, including to
continue the perfection of any Liens in favor of Agent, on behalf of itself and
Lenders, in any Collateral, has been completed or taken, and PROVIDED that any
such new location shall be in the continental United States or Canada. Without
limiting the foregoing, no Credit Party shall change its name, identity,
corporate structure or jurisdiction of incorporation or formation in any manner
that might make any financing or continuation statement filed in connection
herewith seriously misleading within the meaning of Section 9-402(7) of the Code
or any other then applicable provision of the Code or materially misleading
within the meaning of any applicable law except upon prior written notice to
Agent and Lenders and after Agent's written acknowledgment that any reasonable
action requested by Agent in connection therewith, including to continue the
perfection of any Liens in favor of Agent, on behalf of Agent and Lenders, in
any Collateral, has been completed or taken. No Credit Party shall change its
Fiscal Year.
6.16 NO IMPAIRMENT OF INTERCOMPANY TRANSFERS.
No Credit Party shall directly or indirectly enter into or
become bound by any agreement, instrument, indenture or other obligation (other
than this Agreement and the other Loan Documents) that could directly or
indirectly restrict, prohibit or require the consent of any Person with respect
to the payment of dividends or distributions or the making or repayment of
intercompany loans by a Subsidiary of Borrower to Borrower.
6.17 NO SPECULATIVE TRANSACTIONS.
No Credit Party shall engage in any transaction involving
commodity options, futures contracts or similar transactions, except solely to
hedge against fluctuations in the prices of commodities owned or purchased by it
and the values of foreign currencies receivable or payable by it and interest
swaps, caps or collars.
6.18 LEASES; REAL ESTATE PURCHASES.
No Credit Party shall enter into any operating lease for
Equipment or Real Estate, if the aggregate of all such operating lease payments
payable in any Fiscal Month for all Credit Parties on a consolidated basis would
exceed $4,500,000.
6.19 CHANGES RELATING TO SUBORDINATED DEBT; MATERIAL
CONTRACTS.
(a) No Credit Party shall change or amend the terms of any
Subordinated Debt (or any indenture or other agreement, instrument or document
in connection therewith), including, without limitation, any of the Subordinated
Notes, if the effect of such amendment is to: (a) increase the interest rate on
such Subordinated Debt; (b) change the dates upon which payments of principal or
interest are due on such Subordinated Debt other than to extend such dates; (c)
change any default or event of default other than to delete or make less
restrictive any default provision therein, or add any covenant with respect to
such Subordinated Debt; (d) change the redemption or prepayment provisions of
such Subordinated Debt other than to extend
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the dates therefor or to reduce the premiums payable in connection therewith;
(e) grant any security or collateral to secure payment of such Subordinated
Debt; or (f) change or amend any other term if such change or amendment would
increase the obligations of the Credit Party thereunder or confer additional
rights on the holder of such Subordinated Debt in a manner adverse to any Credit
Party, Agent or any Lender; PROVIDED, HOWEVER, THAT, notwithstanding the
foregoing, Borrower may issue up to an additional $100,000,000 in principal
amount of Subordinated Notes so long as such issuance is in compliance with the
terms of SECTION 6.3, SECTION 1.3(b) and the other provisions of this Agreement.
(b) No Credit Party shall change or amend the terms of any
Swap Agreement or any agreement, instrument or document relating thereto,
without the prior written consent of Agent.
6.20 HOLDINGS, WESCO FINANCE AND WESCO FINANCE CANADA.
(a) Holdings shall not engage in any trade or business other
than incident to its ownership of the Stock of Borrower and WESCO Finance, own
any assets other than the Stock of Borrower and WESCO Finance or incur any
Indebtedness or Guaranteed Indebtedness other than the Obligations.
(b) WESCO Finance shall not engage in any trade or business
other than as contemplated in SECTION 6.3, incident to its ownership of the
general partnership interests in WESCO Finance Canada and as set forth in
DISCLOSURE SCHEDULE 6.20(b), own any assets other than general partnership
interests in WESCO Finance Canada and as set forth in DISCLOSURE SCHEDULE
6.20(b) or incur any Indebtedness or Guaranteed Indebtedness other than the
Obligations and as expressly permitted under SECTION 6.3.
(c) WESCO Finance Canada shall not engage in any trade or
business other than as contemplated in SECTION 6.3 and as set forth on SCHEDULE
6.20(c), own any assets other than as set forth on SCHEDULE 6.20(c) or incur any
Indebtedness or Guaranteed Indebtedness other than the Obligations and as
expressly permitted under SECTION 6.3.
6.21 NEGATIVE PLEDGE.
No Credit Party shall enter into or suffer to exist or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any of
its real property assets, other than as expressly permitted in this Agreement.
6.22 NON-CANADIAN FOREIGN SUBSIDIARIES.
Neither Borrower nor any other Credit Party shall permit any
of Borrower's non-Canadian, foreign Subsidiaries to individually have assets and
properties in excess of $15,000,000 (or the Dollar Equivalent Amount thereof)
or, in the aggregate for all non-Canadian foreign Subsidiaries, to have
aggregate assets and properties in excess of $25,000,000.
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7. TERM
7.1 TERMINATION.
The financing arrangements contemplated hereby shall be in
effect until the Commitment Termination Date, and the Loans and all other
Obligations shall be automatically due and payable in full on such date.
7.2 SURVIVAL OF OBLIGATIONS UPON TERMINATION OF FINANCING
ARRANGEMENTS.
Except as otherwise expressly provided for in the Loan
Documents, no termination or cancellation (regardless of cause or procedure) of
any financing arrangement under this Agreement shall in any way affect or impair
the obligations, duties and liabilities of the Credit Parties or the rights of
Agent and Lenders relating to any unpaid portion of the Loans or any other
Obligations, due or not due, liquidated, contingent or unliquidated or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is required after the Commitment Termination
Date. Except as otherwise expressly provided herein or in any other Loan
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon the Credit Parties, and all rights of Agent
and each Lender, all as contained in the Loan Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; PROVIDED, that the
provisions of SECTION 11, the payment obligations under SECTIONS 1.15 AND 1.16,
and the indemnities contained in the Loan Documents shall survive the
Termination Date.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1 EVENTS OF DEFAULT.
The occurrence of any one or more of the following events
(regardless of the reason therefor) shall constitute an "EVENT OF DEFAULT"
hereunder:
(a) Borrower (i) fails to make any payment of principal of, or
interest on, or Fees owing in respect of, the Loans or any of the other
Obligations when due and payable, or (ii) fails to pay or reimburse Agent or
Lenders for any expense reimbursable hereunder or under any other Loan Document
within 10 days following Agent's demand for such reimbursement or payment of
expenses.
(b) Any Credit Party fails or neglects to perform, keep or
observe any of the provisions of SECTIONS 1.4, 1.8, 5.4(a), 5.11, OR 6, or any
of the provisions set forth in ANNEXES C OR G, respectively.
(c) Borrower fails or neglects to perform, keep or observe any
of the provisions of SECTION 4 or any provisions set forth in ANNEXES E OR F,
respectively, and the same shall remain unremedied for 3 days or more.
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(d) Any Credit Party fails or neglects to perform, keep or
observe any other provision of this Agreement or of any of the other Loan
Documents (other than any provision embodied in or covered by any other clause
of this SECTION 8.1) and the same shall remain unremedied for 30 days or more.
(e) A default or breach occurs under any other agreement,
document or instrument to which any Credit Party is a party that is not cured
within any applicable grace period therefor, and such default or breach (i)
involves the failure to make any payment when due in respect of any Indebtedness
or Guaranteed Indebtedness (other than the Obligations) of any Credit Party in
excess of $2,500,000 in the aggregate (including (x) undrawn committed or
available amounts and (y) amounts owing to all creditors under any combined or
syndicated credit arrangements), or (ii) causes, or permits any holder of such
Indebtedness or Guaranteed Indebtedness of $2,500,000 or a trustee to cause,
Indebtedness or Guaranteed Indebtedness or a portion thereof in excess of in the
aggregate to become due prior to its stated maturity or prior to its regularly
scheduled dates of payment, or cash collateral to be demanded in respect
thereof, in each case, regardless of whether such default is waived, or such
right is exercised, by such holder or trustee.
(f) Any information contained in any Borrowing Base
Certificate is untrue or incorrect in any respect or any representation or
warranty herein or in any Loan Document or in any written statement, report,
financial statement or certificate (other than a Borrowing Base Certificate)
made or delivered to Agent or any Lender by any Credit Party is untrue or
incorrect in any material respect as of the date when made or deemed made.
(g) Assets of any Credit Party with a fair market value of
$250,000 or more are attached, seized, levied upon or subjected to a writ or
distress warrant, or come within the possession of any interim receiver,
receiver, receiver and manager, trustee, custodian or assignee for the benefit
of creditors of any Credit Party and such condition continues for 30 days or
more.
(h) A case or proceeding is commenced against any Credit Party
seeking a decree or order in respect of such Credit Party (i) under the
Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or
other similar law, including, without limitation, any Insolvency Law, (ii)
appointing a custodian, interim receiver, receiver, receiver and manager,
liquidator, assignee, trustee or sequestrator (or similar official) for such
Credit Party or for any substantial part of any such Credit Party's assets, or
(iii) ordering the winding-up or liquidation of the affairs of such Credit
Party, and such case or proceeding shall remain undismissed or unstayed for 60
days or more or a decree or order granting the relief sought in such case or
proceeding by a court of competent jurisdiction.
(i) Any Credit Party (i) files a petition (or similar
proceeding, including an application for a stay order or filing of a proposal or
notice of intention to file a proposal) seeking relief under the Bankruptcy Code
or any other applicable federal, state or foreign bankruptcy or other similar
law, including, without limitation, any Insolvency Law, (ii) consents to or
fails to contest in a timely and appropriate manner to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian, interim receiver, receiver,
receiver and manager, liquidator, assignee, trustee or sequestrator (or similar
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official) for such Credit Party or for any substantial part of any such Credit
Party's assets, (iii) makes an assignment for the benefit of creditors, or (iv)
takes any action in furtherance of any of the foregoing, or (v) admits in
writing its inability to, or is generally unable to, pay its debts as such debts
become due or otherwise is insolvent.
(j) A final judgment or judgments for the payment of money in
excess of $250,000 in the aggregate at any time are outstanding against one or
more of the Credit Parties and the same are not, within 30 days after the entry
thereof, discharged or execution thereof stayed or bonded pending appeal, or
such judgments are not discharged prior to the expiration of any such stay.
(k) Any material provision of any Loan Document for any reason
ceases to be valid, binding and enforceable in accordance with its terms (or any
Credit Party shall challenge the enforceability of any Loan Document or shall
assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms),
or any Lien created under any Loan Document ceases to be a valid and perfected
first priority Lien (except as otherwise permitted herein or therein) in any of
the Collateral purported to be covered thereby.
(l) Any Change of Control occurs.
(m) Any event occurs, whether or not insured or insurable, as
a result of which revenue-producing activities cease or are substantially
curtailed at any facility or facilities of any Credit Party generating more than
5% of the consolidated revenues of Holdings and its Subsidiaries for the Fiscal
Year preceding such event and such cessation or curtailment continues for more
than 20 days.
(n) The occurrence of any Termination Event (as defined in the
Permitted Receivables Financing documents) or of any other similar event or
occurrence under the Permitted Receivables Financing or the documents entered
into in connection therewith.
8.2 REMEDIES.
(a) If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of the Requisite Lenders
shall), without notice, suspend the Revolving Loan facility with respect to
additional Advances and/or the incurrence of additional Letter of Credit
Obligations, whereupon any additional Advances and additional Letter of Credit
Obligations shall be made or incurred in Agent's sole discretion (or in the sole
discretion of the Requisite Lenders, if such suspension occurred at their
direction) so long as such Default or Event of Default is continuing. If any
Default or Event of Default has occurred and is continuing, Agent may (and at
the written request of Requisite Lenders shall), without notice except as
otherwise expressly provided herein, increase the rate of interest applicable to
the Loans and the Letter of Credit Fees to the Default Rate.
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(b) If any Event of Default has occurred and is continuing,
Agent may (and at the written request of the Requisite Lenders shall), without
notice: (i) terminate the Revolving Loan facility with respect to further
Advances or the incurrence of further Letter of Credit Obligations; (ii) declare
all or any portion of the Obligations, including all or any portion of any Loan
to be forthwith due and payable, and require that the Letter of Credit
Obligations be cash collateralized as provided in ANNEX B, all without
presentment, demand, protest or further notice of any kind, all of which are
expressly waived by Borrower and each other Credit Party; or (iii) exercise any
rights and remedies provided to Agent under the Loan Documents or at law or
equity, including all remedies provided under the Code; PROVIDED, that upon the
occurrence of an Event of Default specified in SECTIONS 8.1(h) OR (i), the
Revolving Loan facility shall be immediately terminated and all of the
Obligations, including the Revolving Loan, shall become immediately due and
payable without declaration, notice or demand by any Person.
8.3 WAIVERS BY CREDIT PARTIES.
Except as otherwise provided for in this Agreement or by
applicable law, each Credit Party waives: (a) presentment, demand and protest
and notice of presentment, dishonor, notice of intent to accelerate, notice of
acceleration, protest, default, nonpayment, maturity, release, compromise,
settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any
time held by Agent on which any Credit Party may in any way be liable, and
hereby ratifies and confirms whatever Agent may do in this regard, (b) all
rights to notice and a hearing prior to Agent's taking possession or control of,
or to Agent's replevy, attachment or levy upon, the Collateral or any bond or
security that might be required by any court prior to allowing Agent to exercise
any of its remedies, and (c) the benefit of all valuation, appraisal, marshaling
and exemption laws.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 ASSIGNMENT AND PARTICIPATIONS.
(a) Subject to the terms of this SECTION 9.1, any Lender may
make an assignment to a Qualified Assignee of, or sale of participations in, at
any time or times, the Loan Documents, Loans, Letter of Credit Obligations and
any Commitment or any portion thereof or interest therein, including any
Lender's rights, title, interests, remedies, powers or duties thereunder. Any
assignment by a Lender shall: (i) require the consent of Agent and, so long as
no Default or Event of Default has occurred and is continuing, the Borrower,
which consent shall not be unreasonably withheld or delayed with respect to a
Qualified Assignee and the execution of an assignment agreement (an "ASSIGNMENT
AGREEMENT" substantially in the form attached hereto as EXHIBIT 9.1(a) and
otherwise in form and substance reasonably satisfactory to, and acknowledged by,
Agent; (ii) be conditioned on such assignee Lender representing to the assigning
Lender and Agent that it is purchasing the applicable Loans to be assigned to it
for its own account, for investment purposes and not with a view to the
distribution thereof; (iii) after giving effect to any such partial assignment,
the assignee Lender shall have Commitments in an amount at least equal to
$5,000,000 and the assigning Lender shall have retained Commitments in an amount
at least equal to $5,000,000; and (iv) include a payment to Agent of an
assignment fee of $3,500. In the case of an assignment by a Lender under this
SECTION 9.1, the assignee shall
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have, to the extent of such assignment, the same rights, benefits and
obligations as all other Lenders hereunder. The assigning Lender shall be
relieved of its obligations hereunder with respect to its Commitments or
assigned portion thereof from and after the date of such assignment. Borrower
hereby acknowledges and agrees that any assignment shall give rise to a direct
obligation of Borrower to the assignee and that the assignee shall be considered
to be a "Lender". In all instances, each Lender's liability to make Loans
hereunder shall be several and not joint and shall be limited to such Lender's
Pro Rata Share of the applicable Commitment. In the event Agent or any Lender
assigns or otherwise transfers all or any part of the Obligations, Agent or any
such Lender shall so notify Borrower and Borrower shall, upon the request of
Agent or such Lender, execute new Notes in exchange for the Notes, if any, being
assigned. Notwithstanding the foregoing provisions of this SECTION 9.1(a), any
Lender may at any time pledge the Obligations held by it and such Lender's
rights under this Agreement and the other Loan Documents to a Federal Reserve
Bank, and any lender that is an investment fund may assign the Obligations held
by it and such Lender's rights under this Agreement and the other Loan Documents
to another investment fund managed by the same investment advisor; PROVIDED,
that no such pledge to a Federal Reserve Bank shall release such Lender from
such Lender's obligations hereunder or under any other Loan Document. Any
foreign Person that seeks to become a Lender under this Agreement shall provide
a Certificate of Exemption to Borrower and Agent prior to becoming a Lender
hereunder. No foreign Person may become a Lender hereunder if such Person fails
to deliver a Certificate of Exemption in advance of becoming a Lender.
(b) Any participation by a Lender of all or any part of its
Commitments shall be made with the understanding that all amounts payable by
Borrower hereunder shall be determined as if that Lender had not sold such
participation, and that the holder of any such participation shall not be
entitled to require such Lender to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Loan in which such holder
participates, (ii) any extension of the scheduled amortization of the principal
amount of any Loan in which such holder participates or the final maturity date
thereof, and (iii) any release of all or substantially all of the Collateral
(other than in accordance with the terms of this Agreement, the Collateral
Documents or the other Loan Documents). Solely for purposes of SECTIONS 1.13,
1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall
give rise to a direct obligation of Borrower to the participant and the
participant shall be considered to be a "Lender". Except as set forth in the
preceding sentence neither Borrower nor any other Credit Party shall have any
obligation or duty to any participant. Neither Agent nor any Lender (other than
the Lender selling a participation) shall have any duty to any participant and
may continue to deal solely with the Lender selling a participation as if no
such sale had occurred.
(c) Except as expressly provided in this SECTION 9.1, no
Lender shall, as between Borrower and that Lender, or Agent and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in, all or
any part of the Loans, the Notes or other Obligations owed to such Lender.
(d) Each Credit Party executing this Agreement shall assist
any Lender permitted to sell assignments or participations under this SECTION
9.1 as reasonably required to
65
enable the assigning or selling Lender to effect any such assignment or
participation, including the execution and delivery of any and all agreements,
notes and other documents and instruments as shall be requested and the
preparation of informational materials for, and the participation of management
in meetings with, potential assignees or participants. Each Credit Party
executing this Agreement shall certify the correctness, completeness and
accuracy of all descriptions of the Credit Parties and their respective affairs
contained in any selling materials provided by it and all other information
provided by it and included in such materials, except that any Projections
delivered by Borrower shall only be certified by Borrower as having been
prepared by Borrower in compliance with the representations contained in SECTION
3.4(c).
(e) A Lender may furnish any information concerning Credit
Parties in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided that
such Lender shall obtain from assignees or participants confidentiality
covenants substantially equivalent to those contained in SECTION 11.8.
(f) So long as no Event of Default has occurred and is
continuing, no Lender shall assign or sell participations in any portion of its
Loans or Commitments to a potential Lender or participant, if, as of the date of
the proposed assignment or sale, the assignee Lender or participant would be
subject to capital adequacy or similar requirements under SECTION 1.16(a),
increased costs under SECTION 1.16(b), an inability to fund LIBOR Loans under
SECTION 1.16(c), or withholding taxes in accordance with SECTION 1.15(a).
(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle
(an "SPC"), identified as such in writing by the Granting Lender to Agent and
Borrower, the option to provide to Borrower all or any part of any Loans that
such Granting Lender would otherwise be obligated to make to Borrower pursuant
to this Agreement; PROVIDED THAT (i) nothing herein shall constitute a
commitment by any SPC to make any Loan; and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if such Loan were made by such
Granting Lender. No SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Lender). Any SPC may (i) with notice to, but without the prior written
consent of, Borrower and Agent and after paying any processing fee therefor
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by Borrower and Agent) providing
liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This SECTION 9.1(g) may not be amended without the
prior written consent of each Granting Lender, all or any of whose Loans are
being funded by an SPC at the time of such amendment. For the avoidance of
doubt, the Granting Lender shall for all purposes, including without limitation,
the approval of any amendment or waiver of any provision of any Loan Document or
the obligation to pay any amount otherwise payable by the Granting Lender under
the Loan Documents, continue to be the Lender of record hereunder.
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9.2 APPOINTMENT OF AGENT.
GE Capital is hereby appointed to act on behalf of all Lenders
as Agent under this Agreement and the other Loan Documents. The provisions of
this Section 9.2 are solely for the benefit of Agent and Lenders and no Credit
Party nor any other Person shall have any rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and duties under this
Agreement and the other Loan Documents, Agent shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for any Credit
Party or any other Person. Agent shall have no duties or responsibilities except
for those expressly set forth in this Agreement and the other Loan Documents.
The duties of Agent shall be mechanical and administrative in nature and Agent
shall not have, or be deemed to have, by reason of this Agreement, any other
Loan Document or otherwise a fiduciary relationship in respect of any Lender.
Except as expressly set forth in this Agreement and the other Loan Documents,
Agent shall not have any duty to disclose, and shall not be liable for failure
to disclose, any information relating to any Credit Party or any of their
respective Subsidiaries or any Account Debtor that is communicated to or
obtained by GE Capital or any of its Affiliates in any capacity. Neither Agent
nor any of its Affiliates nor any of their respective officers, directors,
employees, agents or representatives shall be liable to any Lender for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document, or in connection herewith or therewith, except for damages caused by
its or their own gross negligence or willful misconduct.
Without limiting any of the foregoing provisions in favor of
Agent, for the purposes of holding any security granted by any Credit Party
pursuant to the laws of the Province of Quebec, including any deed of hypothec,
debenture, bond or other title of indebtedness and debenture or bond pledge
agreements, Agent is hereby appointed to act as the Person holding the power of
attorney (fonde de pouvoir) pursuant to article 2692 of the Civil Code of Quebec
to act on behalf of each present and future Lender. Each party hereto agrees
that, notwithstanding Section 32 of an Act respecting the Special Powers of
Legal Persons (Quebec), Agent may, as the Person holding the power of attorney
of the Lenders, acquire and or be the pledgee of any debentures, bonds or other
titles of indebtedness secured by any hypothec granted by any Credit Party to
the Agent pursuant to the laws of the Province of Quebec.
If Agent shall request instructions from Requisite Lenders,
Supermajority Lenders or all affected Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Loan
Document, then Agent shall be entitled to refrain from such act or taking such
action unless and until Agent shall have received instructions from Requisite
Lenders, Requisite Lenders, Supermajority Lenders, or all affected Lenders, as
the case may be, and Agent shall not incur liability to any Person by reason of
so refraining. Agent shall be fully justified in failing or refusing to take any
action hereunder or under any other Loan Document (a) if such action would, in
the opinion of Agent, be contrary to law or the terms of this Agreement or any
other Loan Document, (b) if such action would, in the opinion of Agent, expose
Agent to Environmental Liabilities or (c) if Agent shall not first be
indemnified to its satisfaction against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from
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acting hereunder or under any other Loan Document in accordance with the
instructions of Requisite Lenders, Supermajority Lenders or all affected
Lenders, as applicable.
9.3 AGENT'S RELIANCE, ETC.
Neither Agent nor any of its Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement or the other Loan Documents, except for damages caused by its or
their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, Agent: (a) may treat the payee of any Note as the
holder thereof until Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form reasonably satisfactory to Agent; (b)
may consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement or the other Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Loan Documents on the part of any Credit Party or to
inspect the Collateral (including the books and records) of any Credit Party;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; and (f) shall incur no liability under or in respect of this
Agreement or the other Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy, telegram,
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
9.4 GE CAPITAL AND AFFILIATES.
With respect to its Commitments hereunder, GE Capital shall
have the same rights and powers under this Agreement and the other Loan
Documents as any other Lender and may exercise the same as though it were not
Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include GE Capital in its individual capacity. GE Capital and its
Affiliates may lend money to, invest in, and generally engage in any kind of
business with, any Credit Party, any of their Affiliates and any Person who may
do business with or own securities of any Credit Party or any such Affiliate,
all as if GE Capital were not Agent and without any duty to account therefor to
Lenders. GE Capital and its Affiliates may accept fees and other consideration
from any Credit Party for services in connection with this Agreement or
otherwise without having to account for the same to Lenders. Each Lender
acknowledges the potential conflict of interest between GE Capital as a Lender
holding disproportionate interests in the Loans and GE Capital as Agent.
9.5 LENDER CREDIT DECISION.
Each Lender acknowledges that it has, independently and
without reliance upon Agent or any other Lender and based on the Financial
Statements referred to in SECTION 3.4(a)
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and such other documents and information as it has deemed appropriate, made its
own credit and financial analysis of the Credit Parties and its own decision to
enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement. Each Lender acknowledges the potential conflict of interest of
each other Lender as a result of Lenders holding disproportionate interests in
the Loans, and expressly consents to, and waives any claim based upon, such
conflict of interest.
9.6 INDEMNIFICATION.
Lenders agree to indemnify Agent (to the extent not reimbursed
by Credit Parties and without limiting the obligations of Borrower hereunder),
ratably according to their respective Pro Rata Shares, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against Agent in any way relating to
or arising out of this Agreement or any other Loan Document or any action taken
or omitted to be taken by Agent in connection therewith; PROVIDED, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence or willful misconduct. Without limiting
the foregoing, each Lender agrees to reimburse Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and each other Loan Document,
to the extent that Agent is not reimbursed for such expenses by Credit Parties.
9.7 SUCCESSOR AGENT.
Agent may resign at any time by giving not less than 30 days'
prior written notice thereof to Lenders and Borrower. Upon any such resignation,
the Requisite Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Requisite Lenders and shall
have accepted such appointment within 30 days after the resigning Agent's giving
notice of resignation, then the resigning Agent may, on behalf of Lenders,
appoint a successor Agent, which shall be a Lender, if a Lender is willing to
accept such appointment, or otherwise shall be a commercial bank or financial
institution or a subsidiary of a commercial bank or financial institution if
such commercial bank or financial institution is organized under the laws of the
United States of America or of any State thereof and has a combined capital and
surplus of at least $300,000,000. If no successor Agent has been appointed
pursuant to the foregoing, within 30 days after the date such notice of
resignation was given by the resigning Agent, such resignation shall become
effective and the Requisite Lenders shall thereafter perform all the duties of
Agent hereunder until such time, if any, as the Requisite Lenders appoint a
successor Agent as provided above. Any successor Agent appointed by Requisite
Lenders hereunder shall be subject to the approval of Borrower, such approval
not to be unreasonably withheld or delayed; PROVIDED that such approval shall
not be required if a Default or an Event of Default has occurred and is
continuing. Upon the acceptance of any appointment as Agent
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hereunder by a successor Agent, such successor Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the resigning
Agent. Upon the earlier of the acceptance of any appointment as Agent hereunder
by a successor Agent or the effective date of the resigning Agent's resignation,
the resigning Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents, except that any indemnity rights or
other rights in favor of such resigning Agent shall continue. After any
resigning Agent's resignation hereunder, the provisions of this SECTION 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was acting as Agent under this Agreement and the other Loan Documents.
9.8 SETOFF AND SHARING OF PAYMENTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default and subject to
SECTION 9.9(f), each Lender is hereby authorized at any time or from time to
time, without notice to any Credit Party or to any other Person, any such notice
being hereby expressly waived, to offset and to appropriate and to apply any and
all balances held by it at any of its offices for the account of Borrower or any
Guarantor (regardless of whether such balances are then due to Borrower or any
Guarantor) and any other properties or assets at any time held or owing by that
Lender or that holder to or for the credit or for the account of Borrower or any
Guarantor against and on account of any of the Obligations that are not paid
when due. Any Lender exercising a right of setoff or otherwise receiving any
payment on account of the Obligations in excess of its Pro Rata Share thereof
shall purchase for cash (and the other Lenders or holders shall sell) such
participations in each such other Lender's or holder's Pro Rata Share of the
Obligations as would be necessary to cause such Lender to share the amount so
offset or otherwise received with each other Lender or holder in accordance with
their respective Pro Rata Shares, (other than offset rights exercised by any
Lender with respect to SECTIONS 1.13, 1.15 OR 1.16). Each Lender's obligation
under this SECTION 9.8 shall be in addition to and not in limitation of its
obligations to purchase a participation in an amount equal to its Pro Rata Share
of the Swing Line Loans under SECTION 1.1. Borrower and each Guarantor agrees,
to the fullest extent permitted by law, that (a) any Lender may exercise its
right to offset with respect to amounts in excess of its Pro Rata Share of the
Obligations and may sell participations in such amounts so offset to other
Lenders and holders and (b) any Lender so purchasing a participation in the
Loans made or other Obligations held by other Lenders or holders may exercise
all rights of offset, bankers' lien, counterclaim or similar rights with respect
to such participation as fully as if such Lender or holder were a direct holder
of the Loans and the other Obligations in the amount of such participation.
Notwithstanding the foregoing, if all or any portion of the offset amount or
payment otherwise received is thereafter recovered from the Lender that has
exercised the right of offset, the purchase of participations by that Lender
shall be rescinded and the purchase price restored without interest.
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9.9 ADVANCES; PAYMENTS; NON-FUNDING LENDERS; INFORMATION;
ACTIONS IN CONCERT.
(a) ADVANCES; PAYMENTS.
(i) Lenders shall refund or participate in the Swing Line
Loan in accordance with CLAUSES (iii) AND (iv) of SECTION 1.1(b). If the Swing
Line Lender declines to make a Swing Line Loan or if Swing Line Availability is
zero, Agent shall notify Lenders, promptly after receipt of a Notice of
Revolving Advance and in any event prior to 1:00 p.m. (New York time) on the
date such Notice of Revolving Advance is received, by telecopy, telephone or
other similar form of transmission. Each Lender shall make the amount of such
Lender's Pro Rata Share of such Revolving Credit Advance available to Agent in
same day funds by wire transfer to Agent's account as set forth in ANNEX H not
later than 3:00 p.m. (New York time) on the requested funding date, in the case
of an Index Rate Loan and not later than 11:00 a.m. (New York time) on the
requested funding date in the case of a LIBOR Loan. After receipt of such wire
transfers (or, in the Agent's sole discretion, before receipt of such wire
transfers), subject to the terms hereof, Agent shall make the requested
Revolving Credit Advance to Borrower. All payments by each Lender shall be made
without setoff, counterclaim or deduction of any kind.
(ii) On the 2nd Business Day of each calendar week or more
frequently at Agent's election (each, a "SETTLEMENT DATE"), Agent shall advise
each Lender by telephone, or telecopy of the amount of such Lender's Pro Rata
Share of principal, interest and Fees paid for the benefit of Lenders with
respect to each applicable Loan. Provided that each Lender has funded all
payments and Advances required to be made by it and purchased all participations
required to be purchased by it under this Agreement and the other Loan Documents
as of such Settlement Date, Agent shall pay to each Lender such Lender's Pro
Rata Share of principal, interest and Fees paid by Borrower since the previous
Settlement Date for the benefit of such Lender on the Loans held by it. To the
extent that any Lender (a "Non-Funding Lender") has failed to fund all such
payments and Advances or failed to fund the purchase of all such participations,
Agent shall be entitled to set off the funding short-fall against that
Non-Funding Lender's Pro Rata Share of all payments received from Borrower. Such
payments shall be made by wire transfer to such Lender's account (as specified
by such Lender in ANNEX H or the applicable Assignment Agreement) not later than
2:00 p.m. (New York time) on the next Business Day following each Settlement
Date.
(b) AVAILABILITY OF LENDER'S PRO RATA SHARE. Agent may assume
that each Lender will make its Pro Rata Share of each Revolving Credit Advance
available to Agent on each funding date. If such Pro Rata Share is not, in fact,
paid to Agent by such Lender when due, Agent will be entitled to recover such
amount on demand from such Lender without setoff, counterclaim or deduction of
any kind. If any Lender fails to pay the amount of its Pro Rata Share forthwith
upon Agent's demand, Agent shall promptly notify Borrower and Borrower shall
immediately repay such amount to Agent. Nothing in this SECTION 9.9(b) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to
require Agent to advance funds on behalf of any Lender or to relieve any Lender
from its obligation to fulfill its Commitments hereunder or to prejudice any
rights that Borrower may have against any Lender as a result of any
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default by such Lender hereunder. To the extent that Agent advances funds to
Borrower on behalf of any Lender and is not reimbursed therefor on the same
Business Day as such Advance is made, Agent shall be entitled to retain for its
account all interest accrued on such Advance until reimbursed by the applicable
Lender.
(c) RETURN OF PAYMENTS.
(i) If Agent pays an amount to a Lender under this
Agreement in the belief or expectation that a related payment has been or will
be received by Agent from Borrower and such related payment is not received by
Agent, then Agent will be entitled to recover such amount from such Lender on
demand without setoff, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount
received by Agent under this Agreement must be returned to Borrower or paid to
any other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other Loan
Document, Agent will not be required to distribute any portion thereof to any
Lender. In addition, each Lender will repay to Agent on demand any portion of
such amount that Agent has distributed to such Lender, together with interest at
such rate, if any, as Agent is required to pay to Borrower or such other Person,
without setoff, counterclaim or deduction of any kind.
(d) NON-FUNDING LENDERS. The failure of any Non-Funding Lender
to make any Revolving Credit Advance or any payment required by it hereunder, or
to purchase any participation in any Swing Line Loan to be made or purchased by
it on the date specified therefor shall not relieve any other Lender (each such
other Lender, an "OTHER LENDER") of its obligations to make such Advance or
purchase such participation on such date, but neither any Other Lender nor Agent
shall be responsible for the failure of any Non-Funding Lender to make an
Advance, purchase a participation or make any other payment required hereunder.
Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender
shall not have any voting or consent rights under or with respect to any Loan
Document or constitute a "Lender" or a "Lender" (or be included in the
calculation of "Requisite Lenders" or "Supermajority Lenders" hereunder) for any
voting or consent rights under or with respect to any Loan Document. At
Borrower's request, Agent or a Person acceptable to Agent shall have the right
with Agent's consent and in Agent's sole discretion (but shall have no
obligation) to purchase from any Non-Funding Lender, and each Non- Funding
Lender agrees that it shall, at Agent's request, sell and assign to Agent or
such Person, all of the Commitments of that Non-Funding Lender for an amount
equal to the principal balance of all Loans held by such Non-Funding Lender and
all accrued interest and fees with respect thereto through the date of sale,
such purchase and sale to be consummated pursuant to an executed Assignment
Agreement.
(e) DISSEMINATION OF INFORMATION. Agent shall use reasonable
efforts to provide Lenders with any notice of Default or Event of Default
received by Agent from, or delivered by Agent to, any Credit Party, with notice
of any Event of Default of which Agent has actually become aware and with notice
of any action taken by Agent following any Event of Default, and, regardless of
whether a Default or Event of Default is in existence, copies of any collateral
audits and appraisals as Agent may have conducted; provided, that Agent shall
not be
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liable to any Lender for any failure to do so, except to the extent that such
failure is attributable to Agent's gross negligence or willful misconduct.
(f) ACTIONS IN CONCERT. Anything in this Agreement to the
contrary notwithstanding, each Lender hereby agrees with each other Lender that
no Lender shall take any action to protect or enforce its rights arising out of
this Agreement or the Notes (including exercising any rights of setoff) without
first obtaining the prior written consent of Agent or Requisite Lenders, it
being the intent of Lenders that any such action to protect or enforce rights
under this Agreement and the Notes shall be taken in concert and at the
direction or with the consent of Agent or Requisite Lenders.
9.10 SYNDICATION AGENT AND DOCUMENTATION AGENT.
The parties hereto acknowledge and agree that no Person shall
have, by reason of its designation as Syndication Agent or Documentation Agent,
any power, duty, responsibility or liability whatsoever under this Agreement or
any other Loan Document.
10. SUCCESSORS AND ASSIGNS
10.1 SUCCESSORS AND ASSIGNS.
This Agreement and the other Loan Documents shall be binding
on and shall inure to the benefit of each Credit Party, Agent, Lenders and their
respective successors and assigns (including, in the case of any Credit Party, a
debtor-in-possession on behalf of such Credit Party), except as otherwise
provided herein or therein. No Credit Party may assign, transfer, hypothecate or
otherwise convey its rights, benefits, obligations or duties hereunder or under
any of the other Loan Documents without the prior express written consent of
Agent and Lenders. Any such purported assignment, transfer, hypothecation or
other conveyance by any Credit Party without the prior express written consent
of Agent and Lenders shall be void. The terms and provisions of this Agreement
are for the purpose of defining the relative rights and obligations of each
Credit Party, Agent and Lenders with respect to the transactions contemplated
hereby and no Person shall be a third party beneficiary of any of the terms and
provisions of this Agreement or any of the other Loan Documents.
11. MISCELLANEOUS
11.1 COMPLETE AGREEMENT; MODIFICATION OF AGREEMENT.
The Loan Documents constitute the complete agreement between
the parties with respect to the subject matter thereof and may not be modified,
altered or amended except as set forth in SECTION 11.2. Any letter of interest,
proposal letter, commitment letter, fee letter (other than the GE Capital Fee
Letter) or confidentiality agreement between any Credit Party and Agent or any
Lender or any of their respective Affiliates, predating this Agreement and
relating to a financing of substantially similar form, purpose or effect shall
be superseded by this Agreement.
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11.2 AMENDMENTS AND WAIVERS.
(a) Except for actions expressly permitted to be taken by
Agent, no amendment, modification, termination or waiver of any provision of
this Agreement or any other Loan Document, or any consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Agent and Borrower, and by Requisite Lenders,
Supermajority Lenders or all affected Lenders, as applicable. Except as set
forth in CLAUSES (b) AND (c) below, all such amendments, modifications,
terminations or waivers requiring the consent of any Lenders shall require the
written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or
consent with respect to any provision of this Agreement that increases the
percentage advance rates set forth in the definition of the Borrowing Base, or
that makes less restrictive the nondiscretionary criteria for exclusion from
Eligible Accounts and Eligible Inventory set forth in SECTIONS 1.6 AND 1.7,
shall be effective unless the same shall be in writing and signed by Agent,
Supermajority Lenders and Borrower.
(c) No amendment, modification, termination or waiver shall,
unless in writing and signed by Agent and each Lender directly affected thereby:
(i) increase the principal amount of any Lender's Commitment (which action shall
be deemed only to affect those Lenders whose Commitments are increased and may
be approved by Requisite Lenders, including those lenders whose Commitments are
increased); (ii) reduce the principal of, rate of interest on or Fees payable
with respect to any Loan or Letter of Credit Obligations of any affected Lender;
(iii) extend any scheduled payment date (other than payment dates of mandatory
prepayments under SECTION 1.3(b)(ii) AND (iii)) or final maturity date of the
principal amount of any Loan of any affected Lender; (iv) waive, forgive, defer,
extend or postpone any payment of interest or Fees as to any affected Lender;
(v) release any Guaranty or, except as otherwise permitted herein or in the
other Loan Documents, release, or permit any Credit Party to sell or otherwise
dispose of, any Collateral with a value exceeding $20,000,000 in the aggregate
(which action shall be deemed to directly affect all Lenders); (vi) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Loans that shall be required for Lenders or any of them to take any action
hereunder; and (vii) amend or waive this SECTION 11.2 or the definitions of the
terms "Requisite Lenders" or "Supermajority Lenders" insofar as such definitions
affect the substance of this SECTION 11.2. Furthermore, no amendment,
modification, termination or waiver affecting the rights or duties of Agent or
L/C Issuer under this Agreement or any other Loan Document shall be effective
unless in writing and signed by Agent or L/C Issuer, as the case may be, in
addition to Lenders required hereinabove to take such action. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No amendment,
modification, termination or waiver shall be required for Agent to take
additional Collateral pursuant to any Loan Document. No amendment, modification,
termination or waiver of any provision of any Note shall be effective without
the written concurrence of the holder of that Note. No notice to or demand on
any Credit Party in any case shall entitle such Credit Party or any other Credit
Party to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this SECTION 11.2 shall be binding upon each holder
of the Notes at the time outstanding and each future holder of the Notes.
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(d) If, in connection with any proposed amendment,
modification, waiver or termination (a "PROPOSED CHANGE"):
(i) requiring the consent of all affected Lenders, the
consent of Requisite Lenders is obtained, but the consent of other Lenders whose
consent is required is not obtained (any such Lender whose consent is not
obtained as described in this CLAUSE (i) and in CLAUSE L(ii) below being
referred to as a "NON-CONSENTING LENDER"), or
(ii) requiring the consent of Supermajority Lenders, the
consent of Requisite Lenders is obtained, but the consent of Supermajority
Lenders is not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower's request
Agent, or a Person reasonably acceptable to Agent, shall have the right with
Agent's consent and in Agent's sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Lenders, and such Non-Consenting Lenders agree
that they shall, upon Agent's request, sell and assign to Agent or such Person,
all of the Commitments of such Non-Consenting Lenders for an amount equal to the
principal balance of all Loans held by the Non-Consenting Lenders and all
accrued interest and Fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement.
(e) Upon payment in full in cash and performance of all of the
Obligations (other than indemnification Obligations), termination of the
Commitments and a release of all claims against Agent and Lenders, and so long
as no suits, actions proceedings, or claims are pending or threatened against
any Indemnified Person asserting any damages, losses or liabilities that are
Indemnified Liabilities, Agent shall deliver to Borrower termination statements,
mortgage releases and other documents necessary or appropriate to evidence the
termination of the Liens securing payment of the Obligations.
11.3 FEES AND EXPENSES.
Borrower shall reimburse (i) Agent for all fees, costs and
expenses (including the reasonable fees and expenses of all of its counsel,
advisors, consultants and auditors) and (ii) Agent (and, with respect to CLAUSES
(c), (d) AND (e) below, all Lenders) for all fees, costs and expenses, including
the reasonable fees, costs and expenses of counsel or other advisors (including
environmental and management consultants and appraisers) incurred in connection
with the negotiation and preparation of the Loan Documents and incurred in
connection with:
(a) the forwarding to Borrower or any other Person on behalf
of Borrower by Agent of the proceeds of any Loan;
(b) any amendment, modification or waiver of, or consent with
respect to, or termination of, any of the Loan Documents or Related Transactions
Documents or advice in connection with the syndication and administration of the
Loans made pursuant hereto or its rights hereunder or thereunder;
(c) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Agent, any Lender, Borrower or any other Person
and whether as a party, witness or
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otherwise) in any way relating to the Collateral, any of the Loan Documents or
any other agreement to be executed or delivered in connection herewith or
therewith, including any litigation, contest, dispute, suit, case, proceeding or
action, and any appeal or review thereof, in connection with a case commenced by
or against any Credit Party or any other Person that may be obligated to Agent
by virtue of the Loan Documents, including any such litigation, contest,
dispute, suit, proceeding or action arising in connection with any work-out or
restructuring of the Loans during the pendency of one or more Events of Default;
PROVIDED that in the case of reimbursement of counsel for Lenders other than
Agent, such reimbursement shall be limited to one counsel for all such Lenders;
PROVIDED, further, that no Person shall be entitled to reimbursement under this
clause (c) in respect of any litigation, contest, dispute, suit, proceeding or
action to the extent any of the foregoing results from such Person's gross
negligence or willful misconduct;
(d) any attempt to enforce any remedies of Agent or any Lender
against any or all of the Credit Parties or any other Person that may be
obligated to Agent or any Lender by virtue of any of the Loan Documents,
including any such attempt to enforce any such remedies in the course of any
work- out or restructuring of the Loans during the pendency of one or more
Events of Default; PROVIDED, that in the case of reimbursement of counsel for
Lenders other than Agent, such reimbursement shall be limited to one counsel for
all such Lenders;
(e) any workout or restructuring of the Loans during the
pendency of one or more Events of Default; and
(f) efforts to (i) monitor the Loans or any of the other
Obligations, (ii) evaluate, observe or assess any of the Credit Parties or their
respective affairs, and (iii) verify, protect, evaluate, assess, appraise,
collect, sell, liquidate or otherwise dispose of any of the Collateral;
including, as to each of CLAUSES (a) THROUGH (f) above, all reasonable
attorneys' and other professional and service providers' fees arising from such
services and other advice, assistance or other representation, including those
in connection with any appellate proceedings, and all expenses, costs, charges
and other fees incurred by such counsel and others in connection with or
relating to any of the events or actions described in this SECTION 11.3, all of
which shall be payable, on demand, by Borrower to Agent. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
fees, costs and expenses of accountants, environmental advisors, appraisers,
investment bankers, management and other consultants and paralegals; court costs
and expenses; photocopying and duplication expenses; court reporter fees, costs
and expenses; long distance telephone charges; air express charges; telegram or
telecopy charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal or
other advisory services. Notwithstanding the foregoing provisions of this
SECTION 11.3, absent a Default or Event of Default Borrower shall not be
required to pay for (i) more than one inventory appraisal per year or (ii) more
than two collateral audits per year.
11.4 NO WAIVER.
Agent's or any Lender's failure, at any time or times, to
require strict performance by the Credit Parties of any provision of this
Agreement or any other Loan Document shall not
76
waive, affect or diminish any right of Agent or such Lender thereafter to demand
strict compliance and performance herewith or therewith. Any suspension or
waiver of an Event of Default shall not suspend, waive or affect any other Event
of Default whether the same is prior or subsequent thereto and whether the same
or of a different type. Subject to the provisions of SECTION 11.2, none of the
undertakings, agreements, warranties, covenants and representations of any
Credit Party contained in this Agreement or any of the other Loan Documents and
no Default or Event of Default by any Credit Party shall be deemed to have been
suspended or waived by Agent or any Lender, unless such waiver or suspension is
by an instrument in writing signed by an officer of or other authorized employee
of Agent and the applicable required Lenders and directed to Borrower specifying
such suspension or waiver.
11.5 REMEDIES.
Agent's and Lenders' rights and remedies under this Agreement
shall be cumulative and nonexclusive of any other rights and remedies that Agent
or any Lender may have under any other agreement, including the other Loan
Documents, by operation of law or otherwise. Recourse to the Collateral shall
not be required.
11.6 SEVERABILITY.
Wherever possible, each provision of this Agreement and the
other Loan Documents shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Agreement or any
other Loan Document shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement or such other Loan Document.
11.7 CONFLICT OF TERMS.
Except as otherwise provided in this Agreement or any of the
other Loan Documents by specific reference to the applicable provisions of this
Agreement, if any provision contained in this Agreement conflicts with any
provision in any of the other Loan Documents, the provision contained in this
Agreement shall govern and control.
11.8 CONFIDENTIALITY.
Agent and each Lender agree to use commercially reasonable
efforts (equivalent to the efforts Agent or such Lender applies to maintain the
confidentiality of its own confidential information) to maintain as confidential
all confidential information provided to them by the Credit Parties and
designated as confidential for a period of 2 years following receipt thereof,
except that Agent and each Lender may disclose such information (a) to Persons
employed or engaged by Agent or such Lender in evaluating, approving,
structuring or administering the Loans and the Commitments; (b) to any bona fide
assignee or participant or potential assignee or participant that has agreed to
comply with the covenant contained in this SECTION 11.8 (and any such bona fide
assignee or participant or potential assignee or participant may disclose such
information to Persons employed or engaged by them as described in CLAUSE (a)
ABOVE); (c) as
77
required or requested by any Governmental Authority or reasonably
believed by Agent or such Lender to be compelled by any court decree, subpoena
or legal or administrative order or process; (d) as, on the advise of Agent's or
such Lender's counsel, is required by law; (e) in connection with the exercise
of any right or remedy under the Loan Documents or in connection with any
Litigation to which Agent or such Lender is a party; or (f) that ceases to be
confidential through no fault of Agent or any Lender.
11.9 GOVERNING LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. EACH CREDIT PARTY HEREBY CONSENTS AND
AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX
XXXX, XXX XXXX SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN THE CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED,
THAT AGENT, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY
AND; PROVIDED, FURTHER THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE
TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT.
EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY
WAIVES ANY OBJECTION THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN
ANNEX I OF THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER
DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
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11.10 NOTICES.
Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other parties, or whenever any of the parties desires to give or serve upon any
other parties any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be deemed to have been validly served, given or
delivered (a) upon the earlier of actual receipt and 3 Business Days after
deposit in the United States Mail, registered or certified mail, return receipt
requested, with proper postage prepaid, (b) upon transmission, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States Mail as otherwise provided in this SECTION 11.10); (c) 1 Business
Day after deposit with a reputable overnight courier with all charges prepaid or
(d) when delivered, if hand-delivered by messenger, all of which shall be
addressed to the party to be notified and sent to the address or facsimile
number indicated in ANNEX I or to such other address (or facsimile number) as
may be substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to any Person
(other than Borrower or Agent) designated in ANNEX I to receive copies shall in
no way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
11.11 SECTION TITLES.
The Section titles and Table of Contents contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
11.12 COUNTERPARTS.
This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement.
11.13 WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
00
XXXXXXXXX, XXXXX XXXXX, XXXXXXX AND ANY CREDIT PARTY ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO.
11.14 PRESS RELEASES AND RELATED MATTERS.
Each Credit Party executing this Agreement agrees that neither
it nor its Affiliates will in the future issue any press releases or other
public disclosure using the name of GE Capital or its affiliates or referring to
this Agreement, the other Loan Documents or the Related Transactions Documents
without at least 2 Business Days' prior notice to GE Capital and without the
prior written consent of GE Capital unless (and only to the extent that) such
Credit Party or Affiliate is required to do so under law and then, in any event,
such Credit Party or Affiliate will consult with GE Capital before issuing such
press release or other public disclosure. Each Credit Party consents to the
publication by Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this Agreement.
Agent or such Lender shall provide a draft of any such tombstone or similar
advertising material to each Credit Party for review and comment prior to the
publication thereof. Agent reserves the right to provide to industry trade
organizations information necessary and customary for inclusion in league table
measurements. Each Credit Party executing this Agreement agrees that neither it
nor its Affiliates will in the future issue any press release or public
disclosure (other than Securities and Exchange Commission filings required to be
made by law) using the name of any Lender (other than as provided above with
respect to GE Capital) without the prior consent of such Lender.
11.15 REINSTATEMENT.
This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against (or similar
proceeding be instituted by or against) Borrower or any other Credit Party for
liquidation or reorganization, should any Credit Party become insolvent or make
an assignment for the benefit of any creditor or creditors or should an interim
receiver, receiver, receiver and manager or trustee be appointed for all or any
significant part of any Credit Party's assets, and shall continue to be
effective or to be reinstated, as the case may be, if at any time payment and
performance of the Obligations, or any part thereof, is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee of the Obligations, whether as a "voidable preference,"
"fraudulent conveyance," or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
11.16 ADVICE OF COUNSEL.
Each of the parties represents to each other party hereto that
it has discussed this Agreement and, specifically, the provisions of SECTIONS
11.9 AND 11.13, with its counsel.
80
11.17 NO STRICT CONSTRUCTION.
The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
11.18 JUDGMENT CURRENCY.
(a) If, for the purpose of obtaining or enforcing judgment against any
Credit Party in any court in any jurisdiction, it becomes necessary to convert
into any other currency (such other currency being hereinafter in this SECTION
11.18 referred to as the "JUDGMENT CURRENCY") an amount due under any Loan
Document in any currency (the "OBLIGATION CURRENCY") other than the Judgment
Currency, the conversion shall be made at the rate of exchange prevailing on the
Business Day immediately preceding (i) the date of actual payment of the amount
due, in the case of any proceeding in the courts of any jurisdiction that will
give effect to such conversion being made on such date, or (ii) the date on
which the judgment is given, in the case of any proceeding in the courts of any
other jurisdiction (the applicable date as of which such conversion is made
pursuant to this SECTION 11.18 being hereinafter in this SECTION 11.18 referred
to as the "JUDGMENT CONVERSION DATE").
(b) If, in the case of any proceeding in the court of any
jurisdiction referred to in SECTION 11.18(a), there is a change in the rate of
exchange prevailing between the Judgment Conversion Date and the date of actual
receipt for value of the amount due, the applicable Credit Party shall pay such
additional amount (if any, but in any event not a lesser amount) as may be
necessary to ensure that the amount actually received in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of the Judgment Currency stipulated in the judgment or judicial
order at the rate of exchange prevailing on the Judgment Conversion Date. Any
amount due from a Credit Party under SECTION 11.18(b) shall be due as a separate
debt and shall not be affected by judgment being obtained for any other amounts
due under or in respect of any of the Loan Documents.
(c) The term "rate of exchange" in this Section 11.18 means
the rate of exchange at which the Agent would, on the relevant date at or about
12:00 noon (New York time), be prepared to sell the Obligation Currency against
the Judgment Currency.
11.19 DESIGNATED SENIOR INDEBTEDNESS.
Holdings and Borrower hereby specifically designate the
Indebtedness evidenced by this Agreement and the other Loan Documents
(specifically including all Obligations) as "Senior Indebtedness" and
"Designated Senior Indebtedness" for all purposes, including, without
limitation, for purposes of any indenture evidencing or otherwise governing the
Notes or any other Subordinated Debt, including, without limitation, any
additional Subordinated Notes issued in compliance with the provisions of
SECTION 6.3(a)(xvi).
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IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first written above. BORROWER:
WESCO DISTRIBUTION, INC.
By: /s/ Xxxxxxx X. Van Oss
---------------------------------------------
Name: Xxxxxxx X. Van Oss
-------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------
82
The following Persons are signatories to this Agreement in
their capacity as Credit Parties and not as Borrowers.
WESCO INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Van Oss
----------------------------------------------
Name: Xxxxxxx X. Van Oss
--------------------------------------------
Title: Vice President and Chief Financial Officer
--------------------------------------------
WESCO FINANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Vice President and Treasurer
--------------------------------------------
CDW REALCO, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Secretary
--------------------------------------------
HERNING ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Van Oss
----------------------------------------------
Name: Xxxxxxx X. Van Oss
--------------------------------------------
Title: Vice President and Chief Financial Officer
--------------------------------------------
WESCO NIGERIA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Secretary and Treasurer
--------------------------------------------
WESCO EQUITY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Treasurer
--------------------------------------------
83
WESCO CANADA FINANCE LIMITED
PARTNERSHIP
By: WESCO EQUITY CORPORATION,
its General Partner
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Treasurer
----------------------------------
WESCO DISTRIBUTION-CANADA, INC.
By: /s/ Xxxxxxx X. Van Oss
----------------------------------------------
Name: Xxxxxxx X. Van Oss
--------------------------------------------
Title: Vice President and Chief Financial Officer
--------------------------------------------
84
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: Xxxxxxx Xxxxxxxxx
----------------------------------------------
Duly Authorized Signatory
85
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Syndication Agent and Lender
By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
----------------------------------
86
FLEET CAPITAL CORPORATION,
as Documentation Agent and Lender
By: /s/ Xxxx Gestzof
----------------------------------------------
Name: Xxxx Gestzof
--------------------------------------------
Title: Senior Vice President
--------------------------------------------
87
CITIZENS BUSINESS CREDIT COMPANY, a division of
Citizens Leasing, Inc., a Rhode Island corporation,
as Lender
By: /s/ Xxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxx X. Xxxx
--------------------------------------------
Title: Vice President
--------------------------------------------
88
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------------
Title: Senior Vice President
--------------------------------------------
89
LASALLE BUSINESS CREDIT, INC.,
as Lender
By: /s/Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------------
Title: Vice President
--------------------------------------------
90
FIRST COMMONWEALTH BANK t/a NBOC BANK,
as Lender
By: /s/ Xxxx X. Oris
----------------------------------------------
Name: Xxxx X. Oris
--------------------------------------------
Title: Vice President
--------------------------------------------
91
ANNEX A (RECITALS)
--------
TO
CREDIT AGREEMENT
----------------
DEFINITIONS
-----------
Capitalized terms used in the Loan Documents shall have
(unless otherwise provided elsewhere in the Loan Documents) the following
respective meanings and all references to Sections, Exhibits, Schedules or
Annexes in the following definitions shall refer to Sections, Exhibits,
Schedules or Annexes of or to the Agreement:
"ACCOUNT DEBTOR" means any Person who may become obligated to
any Credit Party under, with respect to, or on account of, an Account, Chattel
Paper or General Intangibles (including a payment intangible).
"ACCOUNTING CHANGES" has the meaning ascribed thereto in ANNEX
G.
"ACCOUNTS" means all "accounts," as such term is defined in
the Code, and all "claims", as such term is defined in the Quebec Civil Code,
now owned or hereafter acquired by any Credit Party, including (a) all accounts
receivable, other receivables, book debts and other forms of obligations (other
than forms of obligations evidenced by Chattel Paper, or Instruments),
(including any such obligations that may be characterized as an account or
contract right under the Code), (b) all of each Credit Party's rights in, to and
under all purchase orders or receipts for goods or services, (c) all of each
Credit Party's rights to any goods represented by any of the foregoing
(including unpaid sellers' rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or repossessed goods), (d)
all rights to payment due to any Credit Party for property sold, leased,
licensed, assigned or otherwise disposed of, for a policy of insurance issued or
to be issued, for a secondary obligation incurred or to be incurred, for energy
provided or to be provided, for the use or hire of a vessel under a charter or
other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection with
any other transaction (whether or not yet earned by performance on the part of
such Credit Party), (e) all health care insurance receivables and (f) all
collateral security of any kind, given by any Account Debtor or any other Person
with respect to any of the foregoing.
"ADVANCE" means any Revolving Credit Advance or Swing Line
Advance, as the context may require.
"AFFILIATE" means, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially, or as a
trustee, guardian or other fiduciary, 10% or more of the Stock having ordinary
voting power in the election of directors of such Person, (b) each Person that
controls, is controlled by or is under common control with such Person, (c) each
of such Person's officers, directors, joint venturers and partners and (d) in
the case of Borrower, the immediate family members, spouses and lineal
descendants of individuals who are Affiliates of Borrower. For the purposes of
this definition, "CONTROL" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its
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management or policies, whether through the ownership of voting securities, by
contract or otherwise; PROVIDED, HOWEVER, that the term "AFFILIATE" shall
specifically exclude Agent and each Lender.
"AGENT" means GE Capital in its capacity as Agent for Lenders
or its successor appointed pursuant to SECTION 9.7.
"AGREEMENT" means the Credit Agreement by and among Borrower,
the other Credit Parties party thereto, GE Capital, as Agent and Lender and the
other Lenders from time to time party thereto, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"APPENDICES" has the meaning ascribed to it in the recitals to
the Agreement.
"APPLICABLE L/C MARGIN" means the per annum fee, from time to
time in effect, payable with respect to outstanding Letter of Credit Obligations
as determined by reference to SECTION 1.5(a).
"APPLICABLE MARGINS" means collectively the Applicable L/C
Margin, the Applicable Unused Line Fee Margin, the Applicable Revolver Index
Margin and the Applicable Revolver LIBOR Margin.
"APPLICABLE REVOLVER INDEX MARGIN" means the per annum
interest rate margin from time to time in effect and payable in addition to the
Index Rate applicable to the Revolving Loan, as determined by reference to
SECTION 1.5(a).
"APPLICABLE REVOLVER LIBOR MARGIN" means the per annum
interest rate from time to time in effect and payable in addition to the LIBOR
Rate applicable to the Revolving Loan, as determined by reference to SECTION
1.5(a).
"APPLICABLE UNUSED LINE FEE MARGIN" means the per annum fee,
from time to time in effect, payable in respect of Borrower's non-use of
committed funds pursuant to SECTION 1.9(b), which fee is determined by reference
to SECTION 1.5(a).
"ASSIGNMENT AGREEMENT" has the meaning ascribed to it in
SECTION 9.1(a).
"BANK OF NEW YORK" means The Bank of New York, a banking
organization duly organized and existing under the laws of the State of New
York.
"BANKRUPTCY CODE" means the provisions of Title 11 of the
United States Code, 11 U.S.C. Section 101 et seq.
"BLOCKED ACCOUNTS" has the meaning ascribed to it in ANNEX C.
"BORROWER" has the meaning ascribed thereto in the preamble to
the Agreement.
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"BORROWER PLEDGE AGREEMENT" means the Pledge Agreement of even
date herewith executed by Borrower in favor of Agent, on behalf of itself and
Lenders, pledging all Stock of its Subsidiaries, if any, and all Intercompany
Notes owing to or held by it.
"BORROWING AVAILABILITY" means as of any date of determination
the lesser of (i) the Maximum Amount and (ii) the Borrowing Base, in each case,
LESS the sum of the Revolving Loan and Swing Line Loan then outstanding;
provided that an Overadvance in accordance with SECTION 1.1(a)(iii) may cause
the Revolving Loan and Swing Line Loan to exceed the Borrowing Base by the
amount of such permitted Overadvance.
"BORROWING BASE" means, as of any date of determination by
Agent, from time to time, an amount equal to the sum at such time of:
(a) up to 85% of the book value of WESCO-Canada's then
Eligible Accounts at such time; and
(b) the lesser of:
(i) up to 65% of the book value of Borrower's, WESCO
Equity's, Hernings' and WESCO-Canada's then Eligible Inventory valued
at the lower of cost (determined on a first-in, first-out basis) or
market; or
(ii) up to 85% of the appraised then Net Orderly
Liquidation Value of Borrower's, WESCO Equity's, Hernings' and
WESCO-Canada's Eligible Inventory,
in each case, less any Reserves established by Agent at such time.
"BORROWING BASE CERTIFICATE" means a certificate to be
executed and delivered from time to time by Borrower in the form attached to the
Agreement as EXHIBIT 4.1(b).
"XXXXXXXX ACQUISITION AGREEMENT" means that certain Asset
Purchase Agreement, dated as of September 11, 1998, between Xxxxxxxx Supply
Company, Inc. and Borrower and as in effect on the Closing Date.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday
or a day on which banks are required or permitted to be closed in the State of
New York and in reference to LIBOR Loans shall mean any such day that is also a
LIBOR Business Day.
"CANADIAN BENEFIT PLANS" means all employee benefit plans of
any nature or kind whatsoever that are not Canadian Pension Plans and are
maintained or contributed to by any Credit Party having employees in Canada and
does not include the Canada Pension Plan, the Quebec Pension Plan, Canadian
Employment Insurance or any plan of a substantially similar nature, which is
maintained by the Government of Canada or any Canadian Provincial Government.
"CANADIAN DOLLARS" means lawful currency of Canada.
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"CANADIAN PENSION PLANS" means each plan which is considered
to be a pension plan for the purposes of any applicable pension benefits
standards statute and/or regulation in Canada established, maintained or
contributed to by any Credit Party for its employees or former employees and
does not include the Canada Pension Plan or the Quebec Pension Plan which is
maintained by the Government of Canada or the Government of Quebec,
respectively.
"CAPITAL EXPENDITURES" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of Indebtedness) by
such Person during any measuring period for any fixed assets or improvements or
for replacements, substitutions or additions thereto, that have a useful life of
more than one year and that are required to be capitalized under GAAP.
"CAPITAL LEASE" means, with respect to any Person, any lease
of any property (whether real, personal or mixed) by such Person as lessee that,
in accordance with GAAP, would be required to be classified and accounted for as
a capital lease on a balance sheet of such Person.
"CAPITAL LEASE OBLIGATION" means, with respect to any Capital
Lease of any Person, the amount of the obligation of the lessee thereunder that,
in accordance with GAAP, would appear on a balance sheet of such lessee in
respect of such Capital Lease.
"CASH COLLATERAL ACCOUNT" has the meaning ascribed to it ANNEX
B.
"CASH EQUIVALENTS" has the meaning ascribed to it in ANNEX B.
"CASH MANAGEMENT SYSTEMS" has the meaning ascribed to it in
SECTION 1.8.
"CHANGE OF CONTROL" means any of the following: (a) any person
or group of persons (within the meaning of the Securities Exchange Act of 1934)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 30% or more of the issued and outstanding shares of
capital Stock of Holdings having the right to vote for the election of directors
of Holdings under ordinary circumstances; provided, however, that,
notwithstanding the foregoing, The Cypress Group may increase its ownership of
shares of Holdings common Stock after the Closing Date so long as Holdings'
common Stock continues to be listed for trading on The New York Stock Exchange;
(b) during any period of twelve consecutive calendar months, individuals who at
the beginning of such period constituted the board of directors of Holdings
(together with any new directors whose election by the board of directors of
Holdings or whose nomination for election by the Stockholders of Holdings was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason other
than death or disability to constitute a majority of the directors then in
office; (c) Holdings ceases to own and control
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all of the economic and voting rights associated with all of the outstanding
capital Stock of Borrower or any other Subsidiary; (d) Borrower ceases to own
and control all of the economic and voting rights associated with all of the
outstanding capital Stock of any of its Subsidiaries; or (e) WESCO Finance and
WESCO Equity cease to own and control all of the economic and voting rights
associated with all of the outstanding capital stock of WESCO Finance Canada or
(f) the occurrence of any Change of Control under any indenture, note or other
agreement, instrument or document relating to any of the Subordinated Notes or
any other Subordinated Debt.
"CHARGES" means all federal, state, county, city, municipal,
local, foreign or other governmental taxes (including taxes owed to the PBGC at
the time due and payable), levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c)
the employees, payroll, income, capital or gross receipts of any Credit Party,
(d) any Credit Party's ownership or use of any properties or other assets, or
(e) any other aspect of any Credit Party's business.
"CHATTEL PAPER" means any "chattel paper," as such term is
defined in the Code, including electronic chattel paper, now owned or hereafter
acquired by any Credit Party.
"CLOSING DATE" means March __, 2002.
"CLOSING CHECKLIST" means the schedule, including all
appendices, exhibits or schedules thereto, listing certain documents and
information to be delivered in connection with the Agreement, the other Loan
Documents and the transactions contemplated thereunder, substantially in the
form attached hereto as ANNEX D.
"CODE" means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of New York; PROVIDED, that
to the extent that the Code is used to define any term herein or in any Loan
Document and such term is defined differently in different Articles or Divisions
of the Code, the definition of such term contained in Article or Division 9
shall govern; PROVIDED FURTHER, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Agent's or any Lender's Lien on any Collateral is
governed by the Uniform Commercial Code or such foreign personal property
security laws as enacted and in effect in a jurisdiction other than the State of
New York, the term "CODE" shall mean the Uniform Commercial Code or such foreign
personal property security laws as enacted and in effect in such other
jurisdiction solely for purposes of the provisions thereof relating to such
attachment, perfection, priority or remedies and for purposes of definitions
related to such provisions; and PROVIDED FURTHER, that if such foreign personal
property security laws do not contain a definition that is used in another Loan
Document, the definition that is used in such other Loan Document shall have the
meaning given to it in the Code as though the references to the words "or such
foreign personal property security laws" in the second proviso of this
definition do not exist.
"COLLATERAL" means the property covered by the Security
Agreement and the other Collateral Documents and any other property, real or
personal, tangible or intangible, now existing or hereafter acquired, that may
at any time be or become subject to a security interest or Lien in favor of
Agent, on behalf of itself and Lenders, to secure the Obligations.
"COLLATERAL DOCUMENTS" means the Security Agreements, the
Pledge Agreements, the Deeds of Hypothec, the Pledges of Debenture, the
Guaranties, the Patent Security Agreement,
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the Trademark Security Agreement, the Copyright Security Agreement and all
similar agreements entered into guaranteeing payment of, or granting a Lien upon
property as security for payment of, the Obligations.
"COLLATERAL REPORTS" means the reports with respect to the
Collateral referred to in ANNEX F.
"COLLECTION ACCOUNT" means that certain account of Agent,
account number 000-000-00 in the name of Agent at Bankers Trust Company in New
York, New York ABA No. 021 001 033, or such other account as may be specified in
writing by Agent as the "Collection Account."
"COMMITMENT TERMINATION DATE" means the earliest of (a) March
__, 2007, (b) the date of termination of Lenders' obligations to make Advances
and to incur Letter of Credit Obligations or permit existing Loans to remain
outstanding pursuant to SECTION 8.2(b), and (c) the date of indefeasible
prepayment in full by Borrower of the Loans and the cancellation and return (or
stand-by guarantee) of all Letters of Credit or the cash collateralization of
all Letter of Credit Obligations pursuant to ANNEX B, and the permanent
reduction of the Commitments to zero dollars ($0).
"COMMITMENTS" means (a) as to any Lender, the aggregate of
such Lender's Revolving Loan Commitment (including without duplication the Swing
Line Lender's Swing Line Commitment as a subset of its Revolving Loan
Commitment) as set forth on ANNEX J to the Agreement or in the most recent
Assignment Agreement executed by such Lender and (b) as to all Lenders, the
aggregate of all Lenders' Revolving Loan Commitments (including without
duplication the Swing Line Lender's Swing Line Commitment as a subset of its
Revolving Loan Commitment), which aggregate commitment shall be Two Hundred and
Ninety Million Dollars ($290,000,000) on the Closing Date, as to each of CLAUSES
(a) AND (b), as such Commitments may be reduced, amortized or adjusted from time
to time in accordance with the Agreement.
"COMPLIANCE CERTIFICATE" has the meaning ascribed to it in
ANNEX E.
"CONCENTRATION ACCOUNT" has the meaning ascribed to it in
ANNEX C.
"CONTRACTS" means all "contracts," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, in any event,
including all contracts, undertakings, or agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or interest, including
any agreement relating to the terms of payment or the terms of performance of
any Account.
"CONTROL LETTER" means a letter agreement between Agent and
(i) the issuer of uncertificated securities with respect to uncertificated
securities in the name of any Credit Party, (ii) a securities intermediary with
respect to securities, whether certificated or uncertificated, securities
entitlements and other financial assets held in a securities account in the name
of any Credit Party, (iii) a futures commission merchant or clearing house, as
applicable, with respect to commodity accounts and commodity contracts held by
any Credit Party, whereby, among other
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things, the issuer, securities intermediary or futures commission merchant
disclaims any security interest in the applicable financial assets, acknowledges
the Lien of Agent, on behalf of itself and Lenders, on such financial assets,
and agrees to follow the instructions or entitlement orders of Agent without
further consent by the affected Credit Party.
"COPYRIGHT LICENSE" means any and all rights now owned or
hereafter acquired by any Credit Party under any written agreement granting any
right to use any Copyright or Copyright registration.
"COPYRIGHT SECURITY AGREEMENTS" means the Copyright Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"COPYRIGHTS" means all of the following now owned or hereafter
adopted or acquired by any Credit Party: (a) all copyrights and General
Intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political
subdivision thereof, and (b) all reissues, extensions or renewals thereof.
"CREDIT PARTIES" means Holdings, Borrower, WESCO Finance,
WESCO Finance Canada, WESCO-Canada and each of their respective Subsidiaries.
"DEBENTURE PLEDGE AGREEMENTS" means the various pledges of
debentures securing the Obligations, executed by one or more Credit Parties in
favor of Agent, on behalf of Agent and the Lenders.
"DEBENTURES" means the debentures executed and issued to
Agent, on behalf of Agent and the Lenders, by one or more Credit Parties under
the Deeds of Hypothec.
"DEEDS OF HYPOTHEC" means the various deeds of hypothec
securing the Obligations, executed by one or more Credit Parties in favor of
Agent, on behalf of Agent and the Lenders.
"DEFAULT" means any event that, with the passage of time or
notice or both, would, unless cured or waived, become an Event of Default.
"DEFAULT RATE" has the meaning ascribed to it in SECTION
1.5(d).
"DEPOSIT ACCOUNTS" means all "deposit accounts" as such term
is defined in the Code, now or hereafter held in the name of any Credit Party.
"DESIGN LICENSE" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right to use any
Design.
"DESIGNS" means the following now owned or hereafter acquired
by any Credit Party: (a) all industrial designs, design patents and other
designs now owned or existing or
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hereafter adopted or acquired, all registrations and recordings thereof and all
applications in connection therewith, including, without limitation, all
registrations, recordings and applications in the Canadian Industrial Designs
Office or any similar office in any country and all records thereof and (b) all
reissues, extensions or renewals thereof.
"DISBURSEMENT ACCOUNTS" has the meaning ascribed to it in
ANNEX C.
"DISCLOSURE SCHEDULES" means the Schedules prepared by
Borrower and denominated as DISCLOSURE SCHEDULES (1.4) THROUGH (6.7) in the
Index to the Agreement.
"DOCUMENTS" means all "documents," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located.
"DOLLAR EQUIVALENT AMOUNT" of any currency means (i) the
amount of such currency if such currency is Dollars or (ii) the equivalent
amount in Dollars of such amount of any other currency, if such currency is any
currency other than Dollars, calculated on the basis of the arithmetical mean
for the buy and sell spot rates of exchange quoted to Agent for such currency in
New York at approximately 11:00 a.m. New York time on such date, rounded up to
the nearest amount of such currency as determined by Agent.
"DOLLARS" or "$" means lawful currency of the United States of
America or the Dollar Equivalent Amount, as applicable.
"EBITDA" means, with respect to any Person for any fiscal
period, without duplication, an amount equal to (a) consolidated net income of
such Person for such period, determined in accordance with GAAP, MINUS (b) the
sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, (iv) any aggregate net gain (but not any
aggregate net loss) during such period arising from the sale, exchange or other
disposition of capital assets by such Person (including any fixed assets,
whether tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets and all securities), and (v) any other non-cash
gains that have been added in determining consolidated net income, in each case
to the extent included in the calculation of consolidated net income of such
Person for such period in accordance with GAAP, but without duplication, PLUS
(c) the sum of (i) any provision for income taxes, (ii) Interest Expense, (iii)
loss from non-cash extraordinary items for such period, (iv) the amount of
non-cash charges (including depreciation, amortization and non-cash charges
associated with the impairment of goodwill) for such period, (v) amortized debt
discount for such period, and (vi) the amount of any deduction to consolidated
net income as the result of any grant to any members of the management of such
Person of any Stock, in each case to the extent included in the calculation of
consolidated net income of such Person for such period in accordance with GAAP,
but without duplication. For purposes of this definition, the following items
shall be excluded in determining consolidated net income of a Person: (1) the
income (or deficit) of any other Person accrued prior to the date it became a
Subsidiary of, or was merged or consolidated into, such Person or any of such
Person's Subsidiaries; (2) the income (or deficit) of any other Person (other
than a Subsidiary) in which such Person has an ownership interest, except to the
extent any such income has actually been received by such Person in the form of
cash dividends or distributions; (3) the undistributed earnings of any
Subsidiary of such Person to
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the extent that the declaration or payment of dividends or similar distributions
by such Subsidiary is not at the time permitted by the terms of any contractual
obligation or requirement of law applicable to such Subsidiary; (4) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of income accrued during such period;
(5) any write-up of any asset; (6) any net gain from the collection of the
proceeds of life insurance policies; (7) any net gain arising from the
acquisition of any securities, under GAAP, of such Person, (8) in the case of a
successor to such Person by consolidation or merger or as a transferee of its
assets, any earnings of such successor prior to such consolidation, merger or
transfer of assets, and (9) any deferred credit representing the excess of
equity in any Subsidiary of such Person at the date of acquisition of such
Subsidiary over the cost to such Person of the investment in such Subsidiary.
"ELIGIBLE ACCOUNTS" has the meaning ascribed to it in SECTION
1.6 of the Agreement.
"ELIGIBLE INVENTORY" has the meaning ascribed to it in SECTION
1.7 of the Agreement.
"ENVIRONMENTAL LAWS" means all applicable federal, state,
local and foreign laws, statutes, ordinances, codes, rules, standards,
orders-in-council and regulations, now or hereafter in effect, and any
applicable judicial or administrative interpretation thereof, including any
applicable judicial or administrative order, consent decree, order or judgment,
imposing liability or standards of conduct for or relating to the regulation and
protection of human health, safety, the environment and natural resources
(including ambient air, surface water, groundwater, wetlands, land surface or
subsurface strata, wildlife, aquatic species and vegetation). Environmental Laws
include the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. Section 9601 ET SEQ.) ("CERCLA"); the Hazardous Materials
Transportation Authorization Act of 1994 (49 U.S.C. Section 5101 ET SEQ.); the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 ET
SEQ.); the Solid Waste Disposal Act (42 U.S.C. Section 6901 ET SEQ.); the Toxic
Substance Control Act (15 U.S.C. Section 2601 ET SEQ.); the Clean Air Act (42
U.S.C. Section 7401 ET SEQ.); the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 ET SEQ.); the Occupational Safety and Health Act (29 U.S.C. Section
651 ET SEQ.); and the Safe Drinking Water Act (42 U.S.C. Section 300(f) ET
SEQ.), and any and all regulations promulgated thereunder, and all analogous
state, local and foreign counterparts or equivalents and any transfer of
ownership notification or approval statutes.
"ENVIRONMENTAL LIABILITIES" means, with respect to any Person,
all liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all reasonable fees, disbursements and expenses of counsel, experts
and consultants), fines, penalties, sanctions and interest incurred as a result
of or related to any claim, suit, action, investigation, proceeding or demand by
any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute or common law, including any arising under
or related to any Environmental Laws, Environmental Permits, or in connection
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with any Release or threatened Release or presence of a Hazardous Material
whether on, at, in, under, from or about or in the vicinity of any real or
personal property.
"ENVIRONMENTAL PERMITS" means all permits, licenses,
authorizations, certificates, approvals or registrations required by any
Governmental Authority under any Environmental Laws.
"EQUIPMENT" means all "equipment," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located
and, in any event, including all such Credit Party's machinery and equipment,
including processing equipment, conveyors, machine tools, data processing and
computer equipment, including embedded software and peripheral equipment and all
engineering, processing and manufacturing equipment, office machinery,
furniture, materials handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade
fixtures and fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all
substitutes for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any regulations promulgated thereunder.
"ERISA AFFILIATE" means, with respect to any Credit Party, any
trade or business (whether or not incorporated) that, together with such Credit
Party, are treated as a single employer within the meaning of Sections 414(b),
(c), (m) or (o) of the IRC.
"ERISA EVENT" means, with respect to any Credit Party or any
ERISA Affiliate, (a) any event described in Section 4043(c) of ERISA with
respect to a Title IV Plan; (b) the withdrawal of any Credit Party or ERISA
Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of any Credit Party or any ERISA
Affiliate from any Multiemployer Plan; (d) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a termination
under Section 4041 of ERISA; (e) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any Credit
Party or ERISA Affiliate to make when due required contributions to a
Multiemployer Plan or Title IV Plan unless such failure is cured within 30 days;
(g) any other event or condition that might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the
imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245
of ERISA; or (i) the loss of a Qualified Plan's qualification or tax exempt
status; or (j) the termination of a Plan described in Section 4064 of ERISA.
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"ESOP" means a Plan that is intended to satisfy the
requirements of Section 4975(e)(7) of the IRC.
"EVENT OF DEFAULT" has the meaning ascribed to it in SECTION
8.1.
"FAIR LABOR STANDARDS ACT" means the Fair Labor Standards Act,
29 U.S.C. Section 201 et seq.
"FEDERAL FUNDS RATE" means, for any day, a floating rate equal
to the weighted average of the rates on overnight federal funds transactions
among members of the Federal Reserve System, as determined by Agent in its sole
discretion, which determination shall be final, binding and conclusive (absent
manifest error).
"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System.
"FEES" means any and all fees payable to Agent or any Lender
pursuant to the Agreement or any of the other Loan Documents.
"FINANCIAL COVENANTS" means the financial covenants set forth
in ANNEX G.
"FINANCIAL STATEMENTS" means the consolidated and
consolidating income statements, statements of cash flows and balance sheets of
Borrower and Holdings delivered in accordance with SECTION 3.4 and ANNEX E.
"FISCAL MONTH" means any of the monthly accounting periods of
Borrower.
"FISCAL QUARTER" means any of the quarterly accounting periods
of Borrower and Holdings, ending on March 31, June 30, September 30 and December
31 of each year.
"FISCAL YEAR" means any of the annual accounting periods of
Borrower ending on December 31 of each year.
"FIXED CHARGES" means, with respect to any Person for any
fiscal period, (a) the aggregate of all cash Interest Expense paid or accrued
during such period, plus (b) scheduled payments of principal with respect to
Indebtedness during such period, plus (c) cash payments in respect of earn out
agreements, plus (d) Capital Expenditures during such period (PROVIDED, HOWEVER,
THAT up to $2,500,000 of net cash proceeds from any sales of real property
during such period permitted pursuant to, and consummated in accordance with the
terms and conditions of, this Agreement shall be excluded so long as such net
cash proceeds are used to make Capital Expenditures), plus (e) cash dividends or
other cash distributions paid, payable or declared in respect of equity
interests during such period, plus (f) cash Taxes paid or payable during such
period plus (g) any cash paid or payable in connection with a repurchase of
either Holdings' publicly traded Common Stock or the Subordinated Notes in a
transaction permitted by SECTION 6.14(g). For greater certainty, it is
understood and agreed that cash payments made at closing in connection with
Permitted Acquisitions completed in compliance with SECTION 6.1(a) shall not
constitute Fixed Charges.
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"FIXED CHARGE COVERAGE RATIO" means, with respect to any
Person for any fiscal period, the ratio of EBITDA to Fixed Charges.
"FIXTURES" means all "fixtures" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party.
"FUNDED DEBT" means, with respect to any Person, without
duplication, all Indebtedness for borrowed money evidenced by notes, bonds,
debentures, or similar evidences of Indebtedness that by its terms matures more
than one year from, or is directly or indirectly renewable or extendible at such
Person's option under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of more than one year from the
date of creation thereof, and specifically including Capital Lease Obligations,
current maturities of long-term debt, revolving credit and short-term debt
extendible beyond one year at the option of the debtor, and also including, in
the case of Borrower, the Obligations and, without duplication, Guaranteed
Indebtedness consisting of guaranties of Funded Debt of other Persons.
"GAAP" means generally accepted accounting principles in the
United States of America, consistently applied, as such term is further defined
in ANNEX G to the Agreement.
"GE CAPITAL" means General Electric Capital Corporation, a
Delaware corporation.
"GE CAPITAL FEE LETTER" means that certain letter, dated as of
even date herewith, between GE Capital and Borrower with respect to certain Fees
to be paid from time to time by Borrower to GE Capital.
"GENERAL INTANGIBLES" means all "general intangibles," as such
term is defined in the Code, now owned or hereafter acquired by any Credit
Party, including all right, title and interest that such Credit Party may now or
hereafter have in or under any Contract, all payment intangibles, customer
lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor
and reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark License), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights, all
liability, life, key man and business interruption insurance, and all unearned
premiums), uncertificated securities, choses in action, deposit, checking and
other bank accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of such
Credit Party or any computer bureau or service company from time to time acting
for such Credit Party.
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"GOODS" means all "goods" as defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, including embedded
software to the extent included in "goods" as defined in the Code, manufactured
homes, standing timber that is cut and removed for sale and unborn young of
animals.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, province, territory or other political subdivision thereof, and any
agency, department or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"GUARANTEED INDEBTEDNESS" means, as to any Person, any
obligation of such Person guaranteeing, providing comfort or otherwise
supporting any Indebtedness, lease, dividend, or other obligation ("PRIMARY
OBLIGATION") of any other Person (the "PRIMARY OBLIGOR") in any manner,
including any obligation or arrangement of such Person to (a) purchase or
repurchase any such primary obligation, (b) advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency or any balance sheet condition of the primary obligor, (c)
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, (d) protect the beneficiary of such
arrangement from loss (other than product warranties given in the ordinary
course of business) or (e) indemnify the owner of such primary obligation
against loss in respect thereof. The amount of any Guaranteed Indebtedness at
any time shall be deemed to be an amount equal to the lesser at such time of (x)
the stated or determinable amount of the primary obligation in respect of which
such Guaranteed Indebtedness is incurred and (y) the maximum amount for which
such Person may be liable pursuant to the terms of the instrument embodying such
Guaranteed Indebtedness, or, if not stated or determinable, the maximum
reasonably anticipated liability (assuming full performance) in respect thereof.
"GUARANTIES" means, collectively, the Holdings Guaranty, each
Subsidiary Guaranty and any other guaranty executed by any Guarantor in favor of
Agent and Lenders in respect of the Obligations.
"GUARANTORS" means Holdings and each domestic or Canadian
Subsidiary of Borrower (excluding WESCO Receivables), including, without
limitation, WESCO Finance, WESCO Finance Canada, WESCO-Canada, Herning, WESCO
Equity, and each other Person, if any, that executes a guaranty or other similar
agreement in favor of Agent, for itself and the ratable benefit of Lenders, in
connection with the transactions contemplated by the Agreement and the other
Loan Documents.
"HAZARDOUS MATERIAL" means any substance, material or waste
that is regulated by, or forms the basis of liability now or hereafter under,
any Environmental Laws, including any material or substance that is (a) defined
as a "solid waste," "hazardous waste," "hazardous material," "hazardous
substance," "dangerous good," "extremely hazardous waste," "restricted hazardous
waste," "pollutant," "contaminant," "hazardous constituent," "special waste,"
"toxic substance" or other similar term or phrase under any Environmental Laws,
or (b) petroleum or
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any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB's),
or any radioactive substance.
"HEDGING AGREEMENTS" means any non-speculative interest rate
protection agreements, foreign currency exchange agreements, commodity futures
agreements or other non-speculative interest or exchange rate hedging agreements
entered into in the ordinary course of business.
"HERNING" means Herning Enterprises, Inc.
"HOLDINGS" has the meaning ascribed thereto in the recitals to
the Agreement.
"HOLDINGS GUARANTY" means the guaranty of even date herewith
executed by Holdings in favor of Agent and Lenders.
"HOLDINGS PLEDGE AGREEMENT" means the Pledge Agreement of even
date herewith executed by Holdings in favor of Agent, on behalf of itself and
Lenders, pledging all Stock of Borrower and Holdings other Subsidiaries and all
Intercompany Notes owing to or held by it.
"INDEBTEDNESS" means, with respect to any Person, without
duplication (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property payment for which is deferred 6 months or
more, but excluding obligations to trade creditors incurred in the ordinary
course of business that are unsecured and not overdue by more than 6 months
unless being contested in good faith, (b) all reimbursement and other
obligations with respect to letters of credit, bankers' acceptances and surety
bonds, whether or not matured, (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations and the present
value (discounted at the Index Rate as in effect on the Closing Date) of future
rental payments under all synthetic leases, (f) all obligations of such Person
under commodity purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all obligations of
such Person under any foreign exchange contract, currency swap agreement,
interest rate swap, cap or collar agreement or other similar agreement or
arrangement designed to alter the risks of that Person arising from fluctuations
in currency values or interest rates, in each case whether contingent or
matured, (h) all Indebtedness referred to above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property or other assets (including accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, and (i) the
Obligations.
"INDEMNIFIED LIABILITIES" has the meaning ascribed to it in
SECTION 1.13.
"INDEMNIFIED PERSON" has the meaning ascribed to it in SECTION
1.13.
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"INDEX RATE" means, for any day, a floating rate equal to the
higher of (i) the rate publicly quoted from time to time by THE WALL STREET
JOURNAL as the "base rate on corporate loans posted by at least 75% of the
nation's 30 largest banks" (or, if THE WALL STREET JOURNAL ceases quoting a base
rate of the type described, the highest per annum rate of interest published by
the Federal Reserve Board in Federal Reserve statistical release H.15 (519)
entitled "Selected Interest Rates" as the Bank prime loan rate or its
equivalent), and (ii) the Federal Funds Rate plus 50 basis points per annum.
Each change in any interest rate provided for in the Agreement based upon the
Index Rate shall take effect at the time of such change in the Index Rate.
"INDEX RATE LOAN" means a Loan or portion thereof bearing
interest by reference to the Index Rate.
"INSOLVENCY LAW" means either of the Bankruptcy and Insolvency
Act (Canada) and the Companies' Creditors Arrangement Act (Canada), each as now
and hereafter in effect, any successors to such statutes and any other
applicable insolvency or other similar law of any Canadian jurisdiction
including, without limitation, any law of any Canadian federal or provincial
jurisdiction permitting a debtor to obtain a stay or a compromise of the claims
of its creditors against it.
"INSTRUMENTS" means all "instruments," as such term is defined
in the Code, now owned or hereafter acquired by any Credit Party, wherever
located, and, in any event, including all certificated securities, all
certificates of deposit, and all promissory notes and other evidences of
indebtedness, other than instruments that constitute, or are a part of a group
of writings that constitute, Chattel Paper.
"INTELLECTUAL PROPERTY" means any and all Licenses, Patents,
Copyrights, Trademarks, Designs and the goodwill associated with such
Trademarks.
"INTERCOMPANY NOTES" has the meaning ascribed to it in SECTION
6.3.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor
Agreement, dated as of the date hereof, by and between Agent, Borrower, WESCO
Receivables Corp., and PNC Bank, National Association as Administrator under the
Receivables Purchase Agreement, which Intercreditor Agreement shall be in form
and substance satisfactory to the Agent.
"INTEREST EXPENSE" means, with respect to any Person for any
fiscal period, interest expense (whether cash or non-cash) of such Person
determined in accordance with GAAP for the relevant period ended on such date,
including, without limitation, interest expense with respect to any Funded Debt
of such Person, interest expense for the relevant period that has been
capitalized on the balance sheet of such Person and interest equivalent expense
associated with the Permitted Receivables Financing.
"INTEREST PAYMENT DATE" means (a) as to any Index Rate Loan,
the first Business Day of each month to occur while such Loan is outstanding,
and (b) as to any LIBOR Loan, the last day of the applicable LIBOR Period;
PROVIDED, that in the case of any LIBOR Period greater than three months in
duration, interest shall be payable at three month intervals and on the last
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day of such LIBOR Period; and PROVIDED FURTHER that, in addition to the
foregoing, each of (x) the date upon which all of the Commitments have been
terminated and the Loans have been paid in full and (y) the Commitment
Termination Date shall be deemed to be an "INTEREST PAYMENT DATE" with respect
to any interest that has then accrued under the Agreement.
"INVENTORY" means all "inventory," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located,
and in any event including inventory, merchandise, goods and other personal
property that are held by or on behalf of any Credit Party for sale or lease or
are furnished or are to be furnished under a contract of service, or that
constitute raw materials, work in process, finished goods, returned goods, or
materials or supplies of any kind, nature or description used or consumed or to
be used or consumed in such Credit Party's business or in the processing,
production, packaging, promotion, delivery or shipping of the same, including
all supplies and embedded software.
"INVESTMENT PROPERTY" means all "investment property" as such
term is defined in the Code now owned or hereafter acquired by any Credit Party,
wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities account
and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all commodity accounts
held by any Credit Party.
"IRC" means the Internal Revenue Code of 1986, as amended, and
all regulations promulgated thereunder.
"IRS" means the Internal Revenue Service.
"ITA" means the Income Tax Act (Canada) as the same may, from
time to time, be in effect.
"L/C ISSUER" has the meaning ascribed to it in ANNEX B.
"L/C SUBLIMIT" has the meaning ascribed to in it ANNEX B.
"XXXXXX BROTHERS" means Xxxxxx Brothers Special Financing,
Inc.
"LENDERS" means GE Capital, the other Lenders named on the
signature pages of the Agreement, and, if any such Lender shall decide to assign
all or any portion of the Obligations, such term shall include any assignee of
such Lender.
"LETTER OF CREDIT FEE" has the meaning ascribed to it in ANNEX
B.
"LETTER OF CREDIT OBLIGATIONS" means all outstanding
obligations incurred by Agent and Lenders at the request of Borrower, whether
direct or indirect, contingent or
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otherwise, due or not due, in connection with the issuance of Letters of Credit
by Agent or another L/C Issuer or the purchase of a participation as set forth
in ANNEX B with respect to any Letter of Credit. The amount of such Letter of
Credit Obligations shall equal the maximum amount that may be payable by Agent
or Lenders thereupon or pursuant thereto.
"LETTER-OF-CREDIT RIGHTS" means letter-of-credit rights as
such term is defined in the Code, now owned or hereafter acquired by any Credit
Party, including rights to payment or performance under a letter of credit,
whether or not such Credit Party, as beneficiary, has demanded or is entitled to
demand payment or performance.
"LETTERS OF CREDIT" means documentary or standby letters of
credit issued for the account of Borrower by any L/C Issuer, and bankers'
acceptances issued by Borrower, for which Agent and Lenders have incurred Letter
of Credit Obligations.
"LIBOR BUSINESS DAY" means a Business Day on which banks in
the City of London are generally open for interbank or foreign exchange
transactions.
"LIBOR LOAN" means a Loan or any portion thereof bearing
interest by reference to the LIBOR Rate.
"LIBOR PERIOD" means, with respect to any LIBOR Loan, each
period commencing on a LIBOR Business Day selected by Borrower pursuant to the
Agreement and ending seven days or one, two, three or six months thereafter, as
selected by Borrower's irrevocable notice to Agent as set forth in SECTION
1.5(e); PROVIDED, that the foregoing provision relating to LIBOR Periods is
subject to the following:
(a) if any LIBOR Period would otherwise end on a day that is
not a LIBOR Business Day, such LIBOR Period shall be extended to the
next succeeding LIBOR Business Day unless the result of such extension
would be to carry such LIBOR Period into another calendar month in
which event such LIBOR Period shall end on the immediately preceding
LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond the
Commitment Termination Date shall end 2 LIBOR Business Days prior to
such date;
(c) any LIBOR Period that begins on the last LIBOR Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR
Period) shall end on the last LIBOR Business Day of a calendar month;
(d) in the case of any LIBOR Period ending seven days
thereafter, all Lenders shall have consented thereto; and
(e) Borrower shall select LIBOR Periods so that there shall be
no more than 10 separate LIBOR Loans in existence at any one time.
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"LIBOR RATE" means for each LIBOR Period, a rate of interest
determined by Agent equal to:
(a) the offered rate for deposits in United States Dollars for
the applicable LIBOR Period that appears on Telerate Page 3750 as of
11:00 a.m. (London time), on the second full LIBOR Business Day next
preceding the first day of such LIBOR Period (unless such date is not a
Business Day, in which event the next succeeding Business Day will be
used); divided by
(b) a number equal to 1.0 MINUS the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is 2 LIBOR Business Days prior
to the beginning of such LIBOR Period (including basic, supplemental,
marginal and emergency reserves under any regulations of the Federal
Reserve Board or other Governmental Authority having jurisdiction with
respect thereto, as now and from time to time in effect) for
Eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Federal Reserve Board that are
required to be maintained by a member bank of the Federal Reserve
System.
If such interest rates shall cease to be available from
Telerate News Service, the LIBOR Rate shall be determined from such
financial reporting service or other information as shall be mutually
acceptable to Agent and Borrower.
"LICENSE" means any Copyright License, Patent License, Design
License, Trademark License or other license of rights or interests now held or
hereafter acquired by any Credit Party.
"LIEN" means any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the Code or comparable law of any jurisdiction).
"LITIGATION" has the meaning ascribed to it in SECTION 3.13.
"LOAN ACCOUNT" has the meaning ascribed to it in SECTION 1.12.
"LOAN DOCUMENTS" means the Agreement, the Notes, the
Debentures, the Collateral Documents, the Master Standby Agreement, the Master
Documentary Agreement, the Intercreditor Agreement, any intercreditor agreement
entered into with Xxxxxx Brothers or Bank of New York relating to the respective
Swap Agreements, and all other agreements, instruments, documents and
certificates identified in the Closing Checklist executed and delivered to, or
in favor of, Agent or any Lenders and including all other pledges, powers of
attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Credit Party, or any employee of any Credit Party, and delivered
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to Agent or any Lender in connection with the Agreement or the transactions
contemplated thereby. Any reference in the Agreement or any other Loan Document
to a Loan Document shall include all appendices, exhibits or schedules thereto,
and all amendments, restatements, supplements or other modifications thereto,
and shall refer to the Agreement or such Loan Document as the same may be in
effect at any and all times such reference becomes operative.
"LOANS" means the Revolving Loan and the Swing Line Loan.
"LOCK BOXES" has the meaning ascribed to it in ANNEX C.
"MARGIN STOCK" has the meaning ascribed to it in SECTION 3.10.
"MASTER DOCUMENTARY AGREEMENT" means the Master Agreement for
Documentary Letters of Credit dated as of the Closing Date between Borrower, as
Applicant, and GE Capital, as Issuer.
"MASTER STANDBY AGREEMENT" means the Master Agreement for
Standby Letters of Credit dated as of the Closing Date between Borrower, as
Applicant, and GE Capital, as Issuer.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, prospects or financial or other condition
of (i) Borrower, (ii) WESCO-Canada or (iii) the Credit Parties taken as a whole,
(b) Borrower's ability to pay any of the Loans or any of the other Obligations
in accordance with the terms of the Agreement, (c) the Collateral or Agent's
Liens, on behalf of itself and Lenders, on the Collateral or the priority of
such Liens, or (d) Agent's or any Lender's rights and remedies under the
Agreement and the other Loan Documents. Without limiting the generality of the
foregoing, any event or occurrence adverse to one or more Credit Parties which
results or could reasonably be expected to result in costs and/or liabilities in
excess of the $15,000,000 shall constitute a Material Adverse Effect.
"MAXIMUM AMOUNT" means, as of any date of determination, an
amount equal to the Revolving Loan Commitment of all Lenders as of that date.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA, and to which any Credit Party or ERISA Affiliate
is making, is obligated to make or has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of them.
"NET ORDERLY LIQUIDATION VALUE" shall have the meaning
ascribed to the term "Net Liquidation Value" (Net Recovery, OLV) in the
appraisal report dated February, 2002 prepared by Hilco Appraisal Services LLC,
as the same may updated at Agent's request from time to time by Hilco Appraisal
Services LLC, or such more recent appraisal report from such other firm as Agent
may select.
"NET WORTH" means, with respect to any Person as of any date
of determination, the book value of the assets of such Person, MINUS the sum of
(a) reserves applicable thereto, and (b) all of such Person's liabilities on a
consolidated basis (including accrued and deferred income taxes), all as
determined in accordance with GAAP.
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"NON-FUNDING LENDER" has the meaning ascribed to it in SECTION
9.9(a)(ii).
"NOTES" means, collectively, the Revolving Notes and the Swing
Line Note.
"NOTICE OF CONVERSION/CONTINUATION" has the meaning ascribed
to it in SECTION 1.5(e).
"NOTICE OF REVOLVING CREDIT ADVANCE" has the meaning ascribed
to it in SECTION 1.1(a).
"OBLIGATIONS" means all loans, advances, debts, liabilities
and obligations, for the performance of covenants, tasks or duties or for
payment of monetary amounts (whether or not such performance is then required or
contingent, or such amounts are liquidated or determinable) owing by any Credit
Party to Agent or any Lender, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by
any note, agreement or other instrument, arising under the Agreement or any of
the other Loan Documents. This term includes all principal, interest (including
all interest that accrues after the commencement of any case or proceeding by or
against any Credit Party in bankruptcy, whether or not allowed in such case or
proceeding), Fees, Charges, expenses, attorneys' fees and any other sum
chargeable to any Credit Party under the Agreement or any of the other Loan
Documents.
"OVERADVANCE" has the meaning ascribed to it in SECTION
1.1(a)(iii).
"PATENT LICENSE" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right with respect
to any invention on which a Patent is in existence.
"PATENT SECURITY AGREEMENTS" means the Patent Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"PATENTS" means all of the following in which any Credit Party
now holds or hereafter acquires any interest: (a) all letters patent of the
United States or any other country, all registrations and recordings thereof,
and all applications for letters patent of the United States or of any other
country, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means a Plan described in Section 3(2) of
ERISA.
"PERMITTED ENCUMBRANCES" means the following encumbrances: (a)
Liens for taxes or assessments or other governmental Charges not yet due and
payable or which are being contested in accordance with SECTION 5.2(b); (b)
pledges or deposits of money securing statutory obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation (excluding Liens under ERISA); (c) pledges or deposits of
money securing bids, tenders, contracts (other than contracts for the payment of
money) or
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leases to which any Credit Party is a party as lessee made in the ordinary
course of business; (d) inchoate and unperfected workers', mechanics' or similar
liens arising in the ordinary course of business, so long as such Liens attach
only to Equipment, Fixtures and/or Real Estate; (e) carriers', warehousemen's,
suppliers' or other similar possessory liens arising in the ordinary course of
business and securing liabilities in an outstanding aggregate amount not in
excess of $250,000 at any time; (f) deposits securing, or in lieu of, surety,
appeal or customs bonds in proceedings to which any Credit Party is a party; (g)
any attachment or judgment lien not constituting an Event of Default under
SECTION 8.1(j); (h) zoning restrictions, easements, licenses, or other
restrictions on the use of any Real Estate or other minor irregularities in
title (including leasehold title) thereto, so long as the same do not materially
impair the use, value, or marketability of such Real Estate; (i) presently
existing or hereafter created Liens in favor of Agent, on behalf of Lenders; (j)
Liens expressly permitted under CLAUSES (b) AND (c) of SECTION 6.7 of the
Agreement and (k) to the extent not included in CLAUSES (a), (d) AND (e) of this
definition, Prior Claims that are unregistered and secure amounts that are not
yet due and payable.
"PERMITTED RECEIVABLES FINANCING" means a transaction entered
into pursuant to and in accordance with the Receivables Sale Agreement and the
Receivables Purchase Agreement and the other agreements, instruments and
documents executed in connection therewith.
"PERSON" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, public benefit corporation,
other entity or government (whether federal, state, county, city, municipal,
local, foreign, or otherwise, including any instrumentality, division, agency,
body or department thereof).
"PLAN" means, at any time, an "employee benefit plan," as
defined in Section 3(3) of ERISA, that any Credit Party or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any Credit Party.
"PLEDGE AGREEMENTS" means the Borrower Pledge Agreement, the
Holdings Pledge Agreement, and any other pledge agreement entered into on or
after the Closing Date by any Credit Party (as required by the Agreement or any
other Loan Document).
"PPSA" means the Personal Property Security Act in force in
the Province of Ontario; provided, that in the event that, by reason of
mandatory provisions of law, the validity, perfection and effect of perfection
or non-perfection of a security interest or other applicable Lien is governed by
other personal property security laws, the term "PPSA" means such other personal
property security laws.
"PRIOR CLAIMS" means all Liens arising under applicable
Canadian federal or provincial law (in contrast with Liens voluntarily granted)
which rank or are capable of ranking prior to or pari passu with Agent's
security interests (or similar Liens under applicable Canadian federal or
provincial laws), against all or part of the Collateral, including for amounts
owing for employee source deductions, goods and services taxes, sales taxes,
Quebec corporate income
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taxes, municipal taxes, workers' compensation, pension fund obligations,
Canadian withholding tax deducted from interest, fees and other consideration
paid in respect of credit made available or agreed to be made available to WESCO
Finance Canada or WESCO Canada and not yet remitted to the Canada Customs and
Revenue Agency or other applicable governmental authorities, and overdue rents;
it being agreed that Prior Claims shall not include any of the foregoing arising
under any applicable law other than Canadian federal or provincial law.
"PRIOR LENDER" means Bank of America, N.A. and Bank of America
Canada.
"PRIOR LENDER OBLIGATIONS" means any and all obligations of
the Borrower and WESCO-Canada to the Prior Lender.
"PROCEEDS" means "proceeds," as such term is defined in the
Code, including (a) any and all proceeds of any insurance, indemnity, warranty
or guaranty payable to any Credit Party from time to time with respect to any of
the Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to any Credit Party from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any Person acting under
color of governmental authority), (c) any claim of any Credit Party against
third parties (i) for past, present or future infringement of any Patent or
Patent License, or (ii) for past, present or future infringement or dilution of
any Copyright, Copyright License, Trademark or Trademark License, or for injury
to the goodwill associated with any Trademark or Trademark License, (d) any
recoveries by any Credit Party against third parties with respect to any
litigation or dispute concerning any of the Collateral including claims arising
out of the loss or nonconformity of, interference with the use of, defects in,
or infringement of rights in, or damage to, Collateral, (e) all amounts
collected on, or distributed on account of, other Collateral, including
dividends, interest, distributions and Instruments with respect to Investment
Property and pledged Stock, and (f) any and all other amounts, rights to payment
or other property acquired upon the sale, lease, license, exchange or other
disposition of Collateral and all rights arising out of Collateral.
"PRO FORMA" means the unaudited consolidated and consolidating
balance sheet of Holdings and its Subsidiaries as of December 31, 2001 after
giving PRO FORMA effect to the Related Transactions.
"PROJECTIONS" means Holdings' and Borrower's forecasted
consolidated and consolidating: (a) balance sheets; (b) profit and loss
statements; (c) cash flow statements; and (d) capitalization statements, all
prepared on a Subsidiary by Subsidiary or division-by-division basis, if
applicable, and otherwise consistent with the historical Financial Statements of
Holdings and Borrower, together with appropriate supporting details and a
statement of underlying assumptions.
"PRO RATA SHARE" means with respect to all matters relating to
any Lender (a) with respect to the Revolving Loan, the percentage obtained by
dividing (i) the Revolving Loan Commitment of that Lender by (ii) the aggregate
Revolving Loan Commitments of all Lenders, (b) with respect to all Loans, the
percentage obtained by dividing (i) the aggregate Commitments of that Lender by
(ii) the aggregate Commitments of all Lenders, and (c) with respect to all Loans
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on and after the Commitment Termination Date, the percentage obtained by
dividing (i) the aggregate outstanding principal balance of the Loans held by
that Lender, by (ii) the outstanding principal balance of the Loans held by all
Lenders.
"QUALIFIED PLAN" means a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the IRC.
"QUALIFIED ASSIGNEE" means (a) any Lender, any Affiliate of
any Lender and, with respect to any Lender that is an investment fund that
invests in commercial loans, any other investment fund that invests in
commercial loans and that is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor, and (b) any
commercial bank, savings and loan association or savings bank or any other
entity which is an "accredited investor" (as defined in Regulation D under the
Securities Act) which extends credit or buys loans as one of its businesses,
including insurance companies, mutual funds, lease financing companies and
commercial finance companies, in each case, which has a rating of BBB or higher
from S&P and a rating of Baa2 or higher from Xxxxx'x at the date that it becomes
a Lender and which, through its applicable lending office, is capable of lending
to Borrower without the imposition of any withholding or similar taxes; provided
that no Person determined by Agent to be acting in the capacity of a vulture
fund or distressed debt purchaser shall be a Qualified Assignee and no Person or
Affiliate of such Person (other than a Person that is already a Lender) holding
Subordinated Debt or Stock issued by any Credit Party shall be a Qualified
Assignee.
"RATABLE SHARE" has the meaning ascribed to it in SECTION
1.1(b).
"REAL ESTATE" has the meaning ascribed to it in SECTION 3.6.
"RECEIVABLES PURCHASE AGREEMENT" means that certain Amended
and Restated Receivables Purchase Agreement, dated as of September 28, 1999,
among WESCO Receivables Corp., Borrower, the purchasers party thereto and PNC
Bank, National Association, as Administrator, as amended to the date of this
Agreement, and as it may be further amended, restated, modified or supplemented,
so long as the Intercreditor Agreement remains in full force and effect.
"RECEIVABLES SALE AGREEMENT" means that certain Purchase and
Sale Agreement, dated as of June 30, 1999, among Borrower, the originator named
therein and WESCO Receivables Corp., as amended to the date of this Agreement
and as it may be further amended, restated, modified or supplemented, so long as
the Intercreditor Agreement remains in full force and effect.
"REFINANCING" means the repayment in full by Borrower of the
Prior Lender Obligations on the Closing Date.
"REFUNDED SWING LINE LOAN" has the meaning ascribed to it in
SECTION 1.1(b)(iii).
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"RELATED TRANSACTIONS" means the initial borrowing under the
Revolving Loan on the Closing Date, the Refinancing, the payment of all fees,
costs and expenses associated with all of the foregoing and the execution and
delivery of all of the Related Transactions Documents.
"RELATED TRANSACTIONS DOCUMENTS" means the Loan Documents and
the Intercreditor Agreement, and all other agreements, instruments, certificates
or documents executed in connection with the Related Transactions.
"RELEASE" means any release, threatened release, spill,
emission, leaking, pumping, pouring, emitting, emptying, escape, injection,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of
Hazardous Material in the indoor or outdoor environment, including the movement
of Hazardous Material through or in the air, soil, surface water, ground water
or property.
"REQUISITE LENDERS" means Lenders having (a) more than 50% of
the Commitments of all Lenders, or (b) if the Commitments have been terminated,
more than 50% of the aggregate outstanding amount of the Loans.
"RESERVES" means, with respect to the Borrowing Base (a)
reserves established by Agent from time to time against Eligible Inventory
pursuant to SECTION 5.9, (b) reserves established pursuant to SECTION 5.4(c),
and (c) such other reserves against Eligible Accounts, Eligible Inventory or
Borrowing Availability that Agent may, in its reasonable credit judgment,
establish from time to time. Without limiting the generality of the foregoing,
Reserves established to ensure the payment of accrued Interest Expenses, Prior
Claims and or Indebtedness shall be deemed to be a reasonable exercise of
Agent's credit judgment.
"RESTRICTED PAYMENT" means, with respect to any Credit Party
(a) the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other property or
assets in respect of Stock; (b) any payment on account of the purchase,
redemption, defeasance, sinking fund or other retirement of such Credit Party's
Stock or any other payment or distribution made in respect thereof, either
directly or indirectly; (c) any payment or prepayment of principal of, premium,
if any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment
and any claim for rescission with respect to, any Subordinated Debt; (d) any
payment made to redeem, purchase, repurchase or retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire Stock
of such Credit Party now or hereafter outstanding; (e) any payment of a claim
for the rescission of the purchase or sale of, or for material damages arising
from the purchase or sale of, any shares of such Credit Party's Stock or of a
claim for reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission; (f) any payment, loan,
contribution, or other transfer of funds or other property to any Stockholder of
such Credit Party other than payment of compensation in the ordinary course of
business to Stockholders who are employees of such Credit Party; and (g) any
payment of management fees (or other fees of a similar nature) by such Credit
Party to any Stockholder of such Credit Party or its Affiliates.
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"RETIREE WELFARE PLAN" means, at any time, a Welfare Plan that
provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant's termination of employment,
other than continuation coverage provided pursuant to Section 4980B of the IRC
and at the sole expense of the participant or the beneficiary of the
participant.
"REVOLVING CREDIT ADVANCE" has the meaning ascribed to it in
SECTION 1.1(a)(i).
"REVOLVING LOAN" means, at any time, the sum of (i) the
aggregate amount of Revolving Credit Advances outstanding to Borrower PLUS (ii)
the aggregate Letter of Credit Obligations incurred on behalf of Borrower.
Unless the context otherwise requires, references to the outstanding principal
balance of the Revolving Loan shall include the outstanding balance of Letter of
Credit Obligations.
"REVOLVING LOAN COMMITMENT" means (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances or incur
Letter of Credit Obligations as set forth on ANNEX J to the Agreement or in the
most recent Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate commitment of all Lenders to make Revolving Credit
Advances or incur Letter of Credit Obligations, which aggregate commitment shall
be Two Hundred and Ninety Million Dollars ($290,000,000) on the Closing Date, as
such amount may be adjusted, if at all, from time to time in accordance with the
Agreement.
"REVOLVING NOTE" has the meaning ascribed to it in SECTION
1.1(a)(ii).
"SECURED OBLIGATIONS" shall mean, collectively, the
Obligations and obligations of Borrower to any Lender under Hedging Agreements
expressly permitted under the terms of the Agreement, including, without
limitation, SECTION 6.3(a)(xiv).
"SECURITY AGREEMENT" means, collectively, the Security
Agreement of even date herewith entered into by and among Agent, on behalf of
itself and Lenders, and each domestic Credit Party that is a signatory thereto
and the Security Agreement of even date herewith entered into by and among
Agent, on behalf of itself and Lenders, and each Canadian Credit Party that is a
signatory thereto.
"SOFTWARE" means all "software" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, other than software
embedded in any category of goods, including all computer programs and all
supporting information provided in connection with a transaction related to any
program.
"SOLVENT" means, (1) with respect to any Person, other than
with respect to Canada, a Person subject to Insolvency Law, on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person; (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (c) such Person
does not intend to, and
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does not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature; and (d) such Person is not
engaged in a business or transaction, and is not about to engage in a business
or transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities (such as
litigation, guaranties and pension plan liabilities) at any time shall be
computed as the amount that, in light of all the facts and circumstances
existing at the time, represents the amount that can be reasonably be expected
to become an actual or matured liability and (2) with respect to Canada, any
Person that is subject to Insolvency Law on a particular date, that on such date
(a) the property of such Person is, at fair valuation, sufficient, or if
disposed of at a fairly conducted sale under legal process, sufficient to enable
payment of all its obligations, due and accruing due, (b) such Person is able,
in all circumstances, to meet its obligations as they generally become due; and
(c) such Person has not ceased paying its current obligations in the ordinary
course of business as they generally become due.
"STOCK" means all shares, options, warrants, general or
limited partnership interests, membership interests or other equivalents
(regardless of how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934).
"STOCKHOLDER" means, with respect to any Person, each holder
of Stock of such Person.
"SUBORDINATED DEBT" means the Indebtedness of Borrower
evidenced by the Subordinated Notes and any other Indebtedness of any Credit
Party subordinated to the Obligations in a manner and form satisfactory to Agent
and Lenders in their sole discretion, as to right and time of payment and as to
any other rights and remedies thereunder.
"SUBORDINATED NOTES" means those certain 9 1/8% Subordinated
Notes due 2008 issued by Borrower in an aggregate original principal amount of
$300,000,000, together with those certain 9 1/8% Subordinated Notes due 2008
issued by Borrower in an aggregate original principal amount of $100,000,000.
"SUBSIDIARY" means, with respect to any Person, (a) any
corporation of which an aggregate of more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of 50% or more of such Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership or limited liability
company in which such Person and/or one or more Subsidiaries of such Person
shall have an interest (whether in the form of voting or participation in
profits or capital contribution) of more than 50% or of which any such Person is
a general partner or may exercise the powers of a
A-26
general partner. Unless the context otherwise requires, each reference to a
Subsidiary shall be a reference to a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty of even
date herewith executed by WESCO Financial and each Subsidiary of Borrower party
thereto in favor of Agent, on behalf of itself and Lenders.
"SUPERMAJORITY LENDERS" means Lenders having (a) 75% or more
of the Revolving Loan Commitments of all Lenders, or (b) if the Revolving Loan
Commitments have been terminated, 75% or more of the aggregate outstanding
amount of the Revolving Loan (with the Swing Line Loan being attributed to the
Lender making such Loan) and Letter of Credit Obligations.
"SUPPORTING OBLIGATIONS" means all supporting obligations as
such term is defined in the Code, including letters of credit and guaranties
issued in support of Accounts, Chattel Paper, Documents, General Intangibles,
Instruments, or Investment Property.
"SWAP AGREEMENTS" means that certain ISDA Master Agreement
(Multicurrency - Cross Border) with Xxxxxx Brothers, and all confirmations and
other documents executed in connection therewith, and that certain ISDA Master
Agreement with Bank of New York, and all confirmations and other documents
executed in connection therewith.
"SWING LINE ADVANCE" has the meaning ascribed to it in SECTION
1.1(b)(i).
"SWING LINE AVAILABILITY" has the meaning ascribed to it in
SECTION 1.1(b)(i).
"SWING LINE COMMITMENT" means, as to the Swing Line Lender,
the commitment of the Swing Line Lender to make Swing Line Advances as set forth
on ANNEX J to the Agreement, which commitment constitutes a subfacility of the
Revolving Loan Commitment of the Swing Line Lender.
"SWING LINE LENDER" means GE Capital.
"SWING LINE LOAN" means at any time, the aggregate amount of
Swing Line Advances outstanding to Borrower.
"SWING LINE NOTE" has the meaning ascribed to it in SECTION
1.1(b)(ii).
"TAXES" means taxes, levies, imposts, deductions, Charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on or measured by the net income or capital of the Agent or a Lender by the
jurisdictions under the laws of which Agent and Lenders are organized or conduct
business or any political subdivision thereof.
"TERMINATION DATE" means the date on which (a) the Loans have
been indefeasibly repaid in full, (b) all other Obligations under the Agreement
and the other Loan Documents have been completely discharged, (c) all Letter of
Credit Obligations have been cash collateralized,
A-27
cancelled or backed by standby letters of credit in accordance with ANNEX B, and
(d) Borrower shall not have any further right to borrow any monies under the
Agreement.
"TITLE IV PLAN" means a Pension Plan (other than a
Multiemployer Plan), that is covered by Title IV of ERISA, and that any Credit
Party or ERISA Affiliate maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of them.
"TRADEMARK SECURITY AGREEMENTS" means the Trademark Security
Agreements made in favor of Agent, on behalf of Lenders, by each applicable
Credit Party.
"TRADEMARK LICENSE" means rights under any written agreement
now owned or hereafter acquired by any Credit Party granting any right to use
any Trademark.
"TRADEMARKS" means all of the following now owned or hereafter
adopted or acquired by any Credit Party: (a) all trademarks, trade names,
corporate names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature (whether
registered or unregistered), all registrations and recordings thereof, and all
applications in connection therewith, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any state or territory thereof, or any
other country or any political subdivision thereof; (b) all reissues, extensions
or renewals thereof; and (c) all goodwill associated with or symbolized by any
of the foregoing.
"TRI-CITY" means Tri-City Electric Supply Company, Inc., a
Mississippi corporation.
"UNFUNDED PENSION LIABILITY" means, at any time, the aggregate
amount, if any, of the sum of (a) the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, all determined as of the most recent valuation date for each such
Title IV Plan using the actuarial assumptions for funding purposes in effect
under such Title IV Plan, and (b) for a period of 5 years following a
transaction which might reasonably be expected to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by any
Credit Party or any ERISA Affiliate as a result of such transaction.
"UNIFORM COMMERCIAL CODE JURISDICTION" means any jurisdiction
that had adopted all or substantially all of Article 9 as contained in the 2000
Official Text of the Uniform Commercial Code, as recommended by the National
Conference of Commissioners on Uniform State Laws and the American Law
Institute, together with any subsequent amendments or modifications to the
Official Text.
"WELFARE PLAN" means a Plan described in Section 3(i) of
ERISA.
Rules of construction with respect to accounting terms used in
the Agreement or the other Loan Documents shall be as set forth in ANNEX G. All
other undefined terms contained
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in any of the Loan Documents shall, unless the context indicates otherwise, have
the meanings provided for by the Code as in effect in the State of New York to
the extent the same are used or defined therein. Unless otherwise specified,
references in the Agreement or any of the Appendices to a Section, subsection or
clause refer to such Section, subsection or clause as contained in the
Agreement. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Agreement as a whole, including all Annexes,
Exhibits and Schedules, as the same may from time to time be amended, restated,
modified or supplemented, and not to any particular section, subsection or
clause contained in the Agreement or any such Annex, Exhibit or Schedule.
Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter genders. The words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; the word "or" is not exclusive; references to Persons include their
respective successors and assigns (to the extent and only to the extent
permitted by the Loan Documents) or, in the case of governmental Persons,
Persons succeeding to the relevant functions of such Persons; and all references
to statutes and related regulations shall include any amendments of the same and
any successor statutes and regulations. Whenever any provision in any Loan
Document refers to the knowledge (or an analogous phrase) of any Credit Party,
such words are intended to signify that such Credit Party has actual knowledge
or awareness of a particular fact or circumstance or that such Credit Party, if
it had exercised reasonable diligence, would have known or been aware of such
fact or circumstance.
A-29
ANNEX B (SECTION 1.2)
TO
CREDIT AGREEMENT
----------------
LETTERS OF CREDIT
-----------------
(a) ISSUANCE. Subject to the terms and conditions of the
Agreement, Agent and Lenders agree to incur, from time to time prior to the
Commitment Termination Date, upon the request of Borrower and for Borrower's
account, Letter of Credit Obligations by causing Letters of Credit to be issued
by GE Capital or a Subsidiary thereof or a bank or other legally authorized
Person selected by or acceptable to Agent in its sole discretion (each, an "L/C
ISSUER") for Borrower's account and guaranteed by Agent; PROVIDED, that if the
L/C Issuer is a Lender, then such Letters of Credit shall not be guaranteed by
Agent but rather each Lender shall, subject to the terms and conditions
hereinafter set forth, purchase (or be deemed to have purchased) risk
participations in all such Letters of Credit issued with the written consent of
Agent, as more fully described in paragraph (b)(ii) below. The aggregate amount
of all such Letter of Credit Obligations shall not at any time exceed the least
of (i) Twenty-five Million Dollars ($25,000,000) (the "L/C SUBLIMIT"), and (ii)
the Maximum Amount less the aggregate outstanding principal balance of the
Revolving Credit Advances and the Swing Line Loan, and (iii) the Borrowing Base
less the aggregate outstanding principal balance of the Revolving Credit
Advances and the Swing Line Loan. No such Letter of Credit shall have an expiry
date that is more than one year following the date of issuance thereof, unless
otherwise determined by Agent in its sole discretion, and neither Agent nor
Lenders shall be under any obligation to incur Letter of Credit Obligations in
respect of, or purchase risk participations in, any Letter of Credit having an
expiry date that is later than the Commitment Termination Date.
(b)(i) ADVANCES AUTOMATIC; PARTICIPATIONS. In the event that
Agent or any Lender shall make any payment on or pursuant to any Letter of
Credit Obligation, such payment shall then be deemed automatically to constitute
a Revolving Credit Advance under SECTION 1.1(A) of the Agreement regardless of
whether a Default or Event of Default has occurred and is continuing and
notwithstanding Borrower's failure to satisfy the conditions precedent set forth
in SECTION 2, and each Lender shall be obligated to pay its Pro Rata Share
thereof in accordance with the Agreement. The failure of any Lender to make
available to Agent for Agent's own account its Pro Rata Share of any such
Revolving Credit Advance or payment by Agent under or in respect of a Letter of
Credit shall not relieve any other Lender of its obligation hereunder to make
available to Agent its Pro Rata Share thereof, but no Lender shall be
responsible for the failure of any other Lender to make available such other
Lender's Pro Rata Share of any such payment.
(ii) If it shall be illegal or unlawful for Borrower to
incur Revolving Credit Advances as contemplated by paragraph (b)(i) above
because of an Event of Default described in SECTIONS 8.1(h) OR (i) or otherwise
or if it shall be illegal or unlawful for any Lender to be deemed to have
assumed a ratable share of the reimbursement obligations owed to an L/C Issuer,
or if the L/C Issuer is a Lender, then (i) immediately and without further
action whatsoever, each Lender shall be deemed to have irrevocably and
unconditionally purchased
B-1
from Agent (or such L/C Issuer, as the case may be) an undivided interest and
participation equal to such Lender's Pro Rata Share (based on the Revolving Loan
Commitments) of the Letter of Credit Obligations in respect of all Letters of
Credit then outstanding and (ii) thereafter, immediately upon issuance of any
Letter of Credit, each Lender shall be deemed to have irrevocably and
unconditionally purchased from Agent (or such L/C Issuer, as the case may be) an
undivided interest and participation in such Lender's Pro Rata Share (based on
the Revolving Loan Commitments) of the Letter of Credit Obligations with respect
to such Letter of Credit on the date of such issuance. Each Lender shall fund
its participation in all payments or disbursements made under the Letters of
Credit in the same manner as provided in the Agreement with respect to Revolving
Credit Advances.
(c) CASH COLLATERAL. (i) If Borrower is required to provide
cash collateral for any Letter of Credit Obligations pursuant to the Agreement
prior to the Commitment Termination Date, Borrower will pay to Agent for the
ratable benefit of itself and Lenders cash or cash equivalents acceptable to
Agent ("CASH EQUIVALENTS") in an amount equal to 105% of the maximum amount then
available to be drawn under each applicable Letter of Credit outstanding. Such
funds or Cash Equivalents shall be held by Agent in a cash collateral account
(the "CASH COLLATERAL ACCOUNT") maintained at a bank or financial institution
acceptable to Agent. The Cash Collateral Account shall be in the name of
Borrower and shall be pledged to, and subject to the control of, Agent, for the
benefit of Agent and Lenders, in a manner satisfactory to Agent. Borrower hereby
pledges and grants to Agent, on behalf of itself and Lenders, a security
interest in all such funds and Cash Equivalents held in the Cash Collateral
Account from time to time and all proceeds thereof, as security for the payment
of all amounts due in respect of the Letter of Credit Obligations and other
Obligations, whether or not then due. The Agreement, including this ANNEX B,
shall constitute a security agreement under applicable law.
(ii) If any Letter of Credit Obligations, whether or not then
due and payable, shall for any reason be outstanding on the Commitment
Termination Date, Borrower shall either (A) provide cash collateral therefor in
the manner described above, or (B) cause all such Letters of Credit and
guaranties thereof, if any, to be canceled and returned, or (C) deliver a
stand-by letter (or letters) of credit in guarantee of such Letter of Credit
Obligations, which stand-by letter (or letters) of credit shall be of like tenor
and duration (plus 30 additional days) as, and in an amount equal to 105% of the
aggregate maximum amount then available to be drawn under, the Letters of Credit
to which such outstanding Letter of Credit Obligations relate and shall be
issued by a Person, and shall be subject to such terms and conditions, as are be
satisfactory to Agent in its sole discretion.
(iii) From time to time after funds are deposited in the Cash
Collateral Account by Borrower, whether before or after the Commitment
Termination Date, Agent may apply such funds or Cash Equivalents then held in
the Cash Collateral Account to the payment of any amounts, and in such order as
Agent may elect, as shall be or shall become due and payable by Borrower to
Agent and Lenders with respect to such Letter of Credit Obligations of Borrower
and, upon the satisfaction in full of all Letter of Credit Obligations of
Borrower, to any other Obligations then due and payable.
B-2
(iv) Neither Borrower nor any Person claiming on behalf of or
through Borrower shall have any right to withdraw any of the funds or Cash
Equivalents held in the Cash Collateral Account, except that upon the
termination of all Letter of Credit Obligations and the payment of all amounts
payable by Borrower to Agent and Lenders in respect thereof, any funds remaining
in the Cash Collateral Account shall be applied to other Obligations then due
and owing and upon payment in full of such Obligations, any remaining amount
shall be paid to Borrower or as otherwise required by law. Interest earned on
deposits in the Cash Collateral Account shall be for the account of Agent.
(d) FEES AND EXPENSES. Borrower agrees to pay to Agent for the
benefit of Lenders, as compensation to such Lenders for Letter of Credit
Obligations incurred hereunder, (i) all costs and expenses incurred by Agent or
any Lender on account of such Letter of Credit Obligations, and (ii) for each
month during which any Letter of Credit Obligation shall remain outstanding, a
fee (the "LETTER OF CREDIT FEE") in an amount equal to the Applicable L/C Margin
from time to time in effect multiplied by the maximum amount available from time
to time to be drawn under the applicable Letter of Credit. Such fee shall be
paid to Agent for the benefit of the Lenders in arrears, on the first day of
each month and on the Commitment Termination Date. In addition, Borrower shall
pay to any L/C Issuer, on demand, such fees (including all per annum fees),
charges and expenses of such L/C Issuer in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued.
(e) REQUEST FOR INCURRENCE OF LETTER OF CREDIT OBLIGATIONS.
Borrower shall give Agent at least 2 Business Days' prior written notice
requesting the incurrence of any Letter of Credit Obligation. The notice shall
be accompanied by the form of the Letter of Credit (which shall be acceptable to
the L/C Issuer) and a completed Application for Standby Letter of Credit or
Application and Agreement for Documentary Letter of Credit or Application for
Documentary Letter of Credit as applicable in the form Exhibit B-1 or B-2 or B-3
attached hereto. Notwithstanding anything contained herein to the contrary,
Letter of Credit applications by Borrower and approvals by Agent and the L/C
Issuer may be made and transmitted pursuant to electronic codes and security
measures mutually agreed upon and established by and among Borrower, Agent and
the L/C Issuer.
(f) OBLIGATION ABSOLUTE. The obligation of Borrower to
reimburse Agent and Lenders for payments made with respect to any Letter of
Credit Obligation shall be absolute, unconditional and irrevocable, without
necessity of presentment, demand, protest or other formalities, and the
obligations of each Lender to make payments to Agent with respect to Letters of
Credit shall be unconditional and irrevocable. Such obligations of Borrower and
Lenders shall be paid strictly in accordance with the terms hereof under all
circumstances including the following:
(i) any lack of validity or enforceability of any Letter of
Credit or the Agreement or the other Loan Documents or any other
agreement;
(ii) the existence of any claim, setoff, defense or other
right that Borrower or any of its Affiliates or any Lender may at any
time have against a beneficiary or any
B-3
transferee of any Letter of Credit (or any Persons or entities for whom
any such transferee may be acting), Agent, any Lender, or any other
Person, whether in connection with the Agreement, the Letter of Credit,
the transactions contemplated herein or therein or any unrelated
transaction (including any underlying transaction between Borrower or
any of its Affiliates and the beneficiary for which the Letter of
Credit was procured);
(iii) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by Agent (except as otherwise expressly provided
in paragraph (g)(ii)(C) below) or any L/C Issuer under any Letter of
Credit or guaranty thereof against presentation of a demand, draft or
certificate or other document that does not comply with the terms of
such Letter of Credit or such guaranty;
(v) any other circumstance or event whatsoever, that is
similar to any of the foregoing; or
(vi) the fact that a Default or an Event of Default has
occurred and is continuing.
(g) INDEMNIFICATION; NATURE OF LENDERS' DUTIES. (i) In
addition to amounts payable as elsewhere provided in the Agreement, Borrower
hereby agrees to pay and to protect, indemnify, and save harmless Agent and each
Lender from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees and
allocated costs of internal counsel) that Agent or any Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or guaranty thereof, or (B) the failure of Agent or any Lender
seeking indemnification or of any L/C Issuer to honor a demand for payment under
any Letter of Credit or guaranty thereof as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority, in each case other than to the extent
solely as a result of the gross negligence or willful misconduct of Agent or
such Lender (as finally determined by a court of competent jurisdiction).
(ii) As between Agent and any Lender and Borrower, Borrower
assumes all risks of the acts and omissions of, or misuse of any Letter of
Credit by beneficiaries of any Letter of Credit. In furtherance and not in
limitation of the foregoing, to the fullest extent permitted by law neither
Agent nor any Lender shall be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document issued by any
party in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any Letter of Credit to comply fully with
conditions required in order to demand payment under such Letter of Credit;
PROVIDED, that in the case of any payment by Agent under any Letter of Credit or
guaranty
B-4
thereof, Agent shall be liable to the extent such payment was made solely as a
result of its gross negligence or willful misconduct (as finally determined by a
court of competent jurisdiction) in determining that the demand for payment
under such Letter of Credit or guaranty thereof complies on its face with any
applicable requirements for a demand for payment under such Letter of Credit or
guaranty thereof; (D) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they may be in cipher; (E) errors in interpretation of technical
terms; (F) any loss or delay in the transmission or otherwise of any document
required in order to make a payment under any Letter of Credit or guaranty
thereof or of the proceeds thereof; (G) the credit of the proceeds of any
drawing under any Letter of Credit or guaranty thereof; and (H) any consequences
arising from causes beyond the control of Agent or any Lender. None of the above
shall affect, impair, or prevent the vesting of any of Agent's or any Lender's
rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to
expand any waivers, covenants or indemnities made by Borrower in favor of any
L/C Issuer in any letter of credit application, reimbursement agreement or
similar document, instrument or agreement between Borrower and such L/C Issuer,
including an Application and Agreement for Documentary Letter of Credit or a
Master Documentary Agreement and a Master Standby Agreement entered into with
Agent.
B-5
ANNEX C (SECTION 1.8)
TO
CREDIT AGREEMENT
----------------
CASH MANAGEMENT SYSTEM
----------------------
I. DOMESTIC CASH MANAGEMENT
Borrower, WESCO Finance and WESCO Finance Canada shall, and
shall cause each of Borrower's domestic Subsidiaries to, establish and maintain
the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination
Date, Borrower shall (i) at Agent's discretion, following consultation with
Borrower, establish lock boxes ("LOCK BOXES") or blocked accounts ("BLOCKED
ACCOUNTS") at one or more of the banks set forth in DISCLOSURE SCHEDULE (3.19),
and (ii) deposit and cause WESCO Finance, WESCO Finance Canada and Borrower's
domestic Subsidiaries to deposit or cause to be deposited promptly, and in any
event no later than the first Business Day after the date of receipt thereof,
all cash, checks, drafts or other similar items of payment relating to or
constituting payments made in respect of any and all Collateral (but
specifically excluding Accounts sold in a true sale by Borrower or one of
Borrower's domestic Subsidiaries pursuant to the Permitted Receivables Financing
and all proceeds and products of such Accounts) into one or more Blocked
Accounts in Borrower's, WESCO Finance's, WESCO Finance Canada's or any such
Subsidiary's name, as appropriate, and at a bank identified in DISCLOSURE
SCHEDULE (3.19) (each, a "RELATIONSHIP BANK"). On or before the Closing Date,
Borrower shall have established a concentration account in its name (the
"CONCENTRATION ACCOUNT") at the bank that shall be designated as the
Concentration Account bank for Borrower in DISCLOSURE SCHEDULE (3.19) (the
"CONCENTRATION ACCOUNT BANK") which bank shall be reasonably satisfactory to
Agent.
(b) Borrower, WESCO Finance and WESCO Finance Canada may
maintain, in their respective own names, an account (each a "DISBURSEMENT
ACCOUNT" and, collectively, the "DISBURSEMENT ACCOUNTS") at a bank acceptable to
Agent. Agent shall, from time to time, deposit proceeds of Revolving Credit
Advances and Swing Line Advances made to Borrower pursuant to SECTION 1.1 for
use by Borrower in accordance with the provisions of SECTION 1.4 into Borrower's
Disbursement Account. WESCO Finance shall, from time to time, deposit proceeds
of loans made to it by Borrower in accordance with SECTION 6.3(ix) into WESCO
Finance's Disbursement Account pending WESCO Finance's lending of such amounts
to WESCO Finance Canada. WESCO Finance Canada shall, from time to time, deposit
proceeds of loans made to it by WESCO Finance in accordance with Section 6.3(ix)
into a WESCO Finance Canada Disbursement Account pending WESCO Finance Canada's
lending of such amounts to WESCO Canada.
(c) On or before the Closing Date, the Concentration Account
Bank, each bank where a Disbursement Account is maintained and all other
Relationship Banks, shall have
C-1
entered into tri-party blocked account agreements with Agent, for the benefit of
itself and Lenders, and Borrower, WESCO Finance, WESCO Finance Canada and
Borrower's domestic Subsidiaries, as applicable, in form and substance
reasonably acceptable to Agent, which shall become operative on or prior to the
Closing Date. Each such blocked account agreement shall provide, among other
things, that (i) all items of payment deposited in such account and proceeds
thereof deposited in the Concentration Account are held by such bank as agent or
bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank
executing such agreement has no rights of setoff or recoupment or any other
claim against such account, as the case may be, other than for payment of its
service fees and other charges directly related to the administration of such
account and for returned checks or other items of payment, and (iii) from and
after the Closing Date (A) with respect to banks at which a Blocked Account is
maintained, such bank agrees, from and after the receipt of a notice (an
"ACTIVATION NOTICE") from Agent (which Activation Notice may be given by Agent
at any time at which a Default or Event of Default has occurred and is
continuing (an "ACTIVATION Event")), to forward immediately all amounts in each
Blocked Account to the Concentration Account Bank and to commence the process of
daily sweeps from each such Blocked Account into the Concentration Account and
(B) with respect to the Concentration Account Bank, such bank agrees from and
after the receipt of an Activation Notice from Agent upon the occurrence of an
Activation Event, to immediately forward all amounts received in the
Concentration Account to the Collection Account through daily sweeps from such
Concentration Account into the Collection Account. From and after the date Agent
has delivered an Activation Notice to any bank with respect to any Blocked
Account(s), neither Borrower nor WESCO Finance nor WESCO Finance Canada shall,
and shall not cause or permit any domestic Subsidiary of Borrower to, accumulate
or maintain cash in Disbursement Accounts or payroll accounts as of any date of
determination in excess of checks outstanding against such accounts as of that
date and amounts necessary to meet minimum balance requirements. In addition,
following delivery of an Activation Notice, all amounts received in the
Concentration Account from the Canadian Concentration Account (as such term is
defined below) shall immediately be forwarded by the Borrower into the
Collection Account through daily sweeps from the Concentration Account into the
Collection Account.
(d) Notwithstanding any other provision of this ANNEX C, until
such time as the Permitted Receivables Financing has been terminated and all
obligations thereunder repaid, each of Agent, Lenders, Borrower and the other
Credit Parties acknowledges and agrees that, except as set forth in the
Intercreditor Agreement, neither Agent nor any Lender shall have any interest in
any lock box or bank account or other asset or property of WESCO Receivables
Corp. and shall not take any action whatsoever with respect to any lockbox or
bank account of WESCO Receivables Corp. or impose any requirements to create any
new lock box or bank account for WESCO Receivables Corp.
(e) So long as no Default or Event of Default has occurred and
is continuing, Borrower may amend DISCLOSURE SCHEDULE (3.19) to add or replace a
Relationship Bank, Lock Box or Blocked Account or to replace the Concentration
Account or any Disbursement Account; PROVIDED, that (i) Agent shall have
consented in writing in advance to the opening of such account or Lock Box with
the relevant bank and (ii) prior to the time of the opening of such account or
Lock Box, Borrower, WESCO Finance, WESCO Finance Canada or Borrower's
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domestic Subsidiary, as applicable, and such bank shall have executed and
delivered to Agent a tri-party blocked account agreement, in form and substance
reasonably satisfactory to Agent. Each of Borrower, WESCO Finance, WESCO Finance
Canada and Borrower's domestic Subsidiaries shall close any of its accounts (and
establish replacement accounts in accordance with the foregoing sentence)
promptly and in any event within 30 days following notice from Agent that the
creditworthiness of any bank holding an account is no longer acceptable in
Agent's reasonable judgment, or as promptly as practicable and in any event
within 60 days following notice from Agent that the operating performance, funds
transfer or availability procedures or performance with respect to accounts or
Lock Boxes of the bank holding such accounts or Agent's liability under any
tri-party blocked account agreement with such bank is no longer acceptable in
Agent's reasonable judgment.
(f) The Lock Boxes, Blocked Accounts, Disbursement Accounts
and the Concentration Account shall be cash collateral accounts, with all cash,
checks and other similar items of payment in such accounts securing payment of
the Loans and all other Obligations, and in which Borrower, WESCO Finance, WESCO
Finance Canada and each domestic Subsidiary of Borrower party to the Security
Agreement shall have granted a Lien to Agent, on behalf of itself and Lenders,
pursuant to the Security Agreement.
(g) All amounts deposited in the Collection Account shall be
deemed received by Agent in accordance with SECTION 1.10.
(h) Borrower and each other Credit Party shall and shall cause
its Affiliates, officers, employees, agents, directors or other Persons acting
for or in concert with Borrower, WESCO Finance, WESCO Finance Canada or any
domestic Subsidiary of Borrower (each a "RELATED PERSON"), to hold in trust for
Agent, for the benefit of itself and Lenders, all checks, cash and other items
of payment received by Borrower, WESCO Finance, WESCO Finance Canada, any
domestic Subsidiary of Borrower or any such Related Person. Borrower, WESCO
Finance, WESCO Finance Canada, each domestic Subsidiary of Borrower and each
Related Person thereof acknowledges and agrees that all cash, checks or other
items of payment constituting proceeds of Collateral are part of the Collateral.
All proceeds of the sale or other disposition of any Collateral, shall be
deposited directly into Blocked Accounts. Notwithstanding the foregoing or any
other provision of this ANNEX C, proceeds of Accounts sold in a true sale by
Borrower or one of Borrower's domestic Subsidiaries pursuant to the Permitted
Receivables Financing shall not be deposited and applied in a Blocked Account,
but rather shall be deposited and applied in accordance with the terms of the
Permitted Receivables Financing (subject to the terms of the Intercreditor
Agreement).
II. CANADIAN CASH MANAGEMENT
WESCO-Canada shall, and shall cause its Canadian Subsidiaries,
if any, to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination
Date, WESCO-Canada shall (i) at Agent's discretion following consultation with
Borrower, establish lock boxes ("CANADIAN LOCK BOXES") or blocked accounts
("CANADIAN BLOCKED ACCOUNTS") at one or more of
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the banks set forth in DISCLOSURE SCHEDULE (3.19), and (ii) deposit and cause
its Canadian Subsidiaries, if any, to deposit or cause to be deposited promptly,
and in any event no later than the first Business Day after the date of receipt
thereof, all cash, checks, drafts or other similar items of payment relating to
or constituting payments made in respect of any and all Collateral (whether or
not otherwise delivered to a Lock Box) into one or more Blocked Accounts in
WESCO-Canada's or any such Canadian Subsidiary's name, as appropriate, and at a
bank identified in DISCLOSURE SCHEDULE (3.19) (each, a "CANADIAN RELATIONSHIP
BANK"). On or before the Closing Date, WESCO-Canada shall have established a
concentration account in its name (the "CANADIAN CONCENTRATION ACCOUNT") at the
bank that shall be designated as the Concentration Account bank for WESCO-Canada
in DISCLOSURE SCHEDULE (3.19) (the "CANADIAN CONCENTRATION ACCOUNT BANK") which
bank shall be reasonably satisfactory to Agent.
(b) WESCO-Canada may maintain, in its name, accounts (each a
"Canadian Disbursement Account" and collectively, the "CANADIAN DISBURSEMENT
ACCOUNTS") at a bank acceptable to Agent into which WESCO-Canada may deposit
proceeds of loans made to it by WESCO Finance Canada in accordance with SECTION
6.3(ix).
(c) On or before the Closing Date (or such later date as Agent
shall consent to in writing), the Canadian Concentration Account Bank, each bank
where a Canadian Disbursement Account is located, and all other Canadian
Relationship Banks, shall have entered into tri-party blocked account agreements
with Agent, for the benefit of itself and Lenders, and WESCO-Canada and its
Canadian Subsidiaries, if any, as applicable, in form and substance reasonably
acceptable to Agent, which shall become operative on or prior to the Closing
Date. Each such blocked account agreement shall provide, among other things,
that (i) all items of payment deposited in such account and proceeds thereof
deposited in the Canadian Concentration Account are held by such bank as agent
or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the
bank executing such agreement has no rights of setoff or recoupment or any other
claim against such account, as the case may be, other than for payment of its
service fees and other charges directly related to the administration of such
account and other accounts of WESCO-Canada maintained with such bank, for the
amount of any required adjustments due to clerical or calculation errors
directly related to such accounts and for returned checks or other items of
payment, and (iii) from and after the Closing Date (A) with respect to banks at
which a Canadian Blocked Account is maintained, such bank agrees, from and after
the receipt of an Activation Notice from Agent (which Activation Notice may be
given by Agent at any time at which an Activation Event has occurred), to
forward immediately all amounts in each Canadian Blocked Account to the Canadian
Concentration Account Bank and to commence the process of daily sweeps from such
Canadian Blocked Account into the Canadian Concentration Account and (B) with
respect to the Canadian Concentration Account Bank, such bank agrees from and
after the receipt of an Activation Notice from Agent upon the occurrence of an
Activation Event, to immediately forward all amounts received in the Canadian
Concentration Account to the Concentration Account through daily sweeps from the
Canadian Concentration Account into the Concentration Account. From and after
the date Agent has delivered an Activation Notice to any bank with respect to
any Canadian Blocked Account(s), WESCO-Canada shall not, nor shall it cause or
permit any Subsidiary thereof to, accumulate or maintain cash in Canadian
Disbursement Accounts or payroll accounts as of any date of determination in
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excess of checks outstanding against such accounts as of that date and amounts
necessary to meet minimum balance requirements.
(d) So long as no Default or Event of Default has occurred and
is continuing, Borrower may amend DISCLOSURE SCHEDULE (3.19) to add or replace a
Canadian Relationship Bank, Canadian Lock Box or Canadian Blocked Account or to
replace the Canadian Concentration Account or any Canadian Disbursement Account
Distribution; PROVIDED, that (i) Agent shall have consented in writing in
advance to the opening of such account or Canadian Lock Box with the relevant
bank and (ii) prior to the time of the opening of such account or Canadian Lock
Box, WESCO-Canada or its Subsidiary, as applicable, and such bank shall have
executed and delivered to Agent a tri-party blocked account agreement, in form
and substance reasonably satisfactory to Agent. WESCO-Canada and each of its
Subsidiaries, if any, shall close any of its accounts (and establish replacement
accounts in accordance with the foregoing sentence) promptly and in any event
within 30 days following notice from Agent that the creditworthiness of any bank
holding an account is no longer acceptable in Agent's reasonable judgment, or as
promptly as practicable and in any event within 60 days following notice from
Agent that the operating performance, funds transfer or availability procedures
or performance with respect to accounts or Canadian Lock Boxes of the bank
holding such accounts or Agent's liability under any tri-party blocked account
agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Canadian Lock Boxes, Canadian Blocked Accounts,
Canadian Disbursement Accounts and the Canadian Concentration Account shall be
cash collateral accounts, with all cash, checks and other similar items of
payment in such accounts securing payment of the Loans and all other
Obligations, and in which WESCO-Canada and each Subsidiary thereof, if any,
shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to
the Security Agreement.
(f) WESCO-Canada shall and shall cause its Canadian
Affiliates, officers, employees, agents, directors or other Canadian Persons
acting for or in concert with Borrower (each a "CANADIAN RELATED PERSON") to (i)
hold in trust for Agent, for the benefit of itself and Lenders, all checks, cash
and other items of payment received by WESCO-Canada, any Canadian Subsidiary or
any such Canadian Related Person, and (ii) within 1 Business Day after receipt
by WESCO-Canada, any Canadian Subsidiary or any such Related Person of any
checks, cash or other items of payment, deposit the same into a Canadian Blocked
Account. WESCO-Canada, each Canadian Subsidiary, if any, and each Canadian
Related Person acknowledges and agrees that all cash, checks or other items of
payment constituting proceeds of Collateral are part of the Collateral. All
proceeds of the sale or other disposition of any Canadian Collateral shall be
deposited directly into Canadian Blocked Accounts.
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ANNEX D (SECTION 2.1(a))
TO
CREDIT AGREEMENT
----------------
CLOSING CHECKLIST
-----------------
In addition to, and not in limitation of, the conditions
described in SECTION 2.1 of the Agreement, pursuant to SECTION 2.1(a), the
following items must be received by Agent in form and substance satisfactory to
Agent on or prior to the Closing Date (each capitalized term used but not
otherwise defined herein shall have the meaning ascribed thereto in ANNEX A to
the Agreement):
A. APPENDICES. All Appendices to the Agreement, in form
and substance satisfactory to Agent.
B. REVOLVING NOTES AND SWING LINE NOTE. Duly executed
originals of the Revolving Notes and Swing Line Note for each applicable Lender,
dated the Closing Date.
C. SECURITY AGREEMENT. Duly executed originals of the
Security Agreement, the Canadian Security Agreements, the Deeds of Hypothec, the
Debentures and the Pledges of Debentures dated the Closing Date, and all
instruments, documents and agreements executed pursuant thereto.
D. INSURANCE. Satisfactory evidence that the insurance
policies required by SECTION 5.4 are in full force and effect, together with
appropriate evidence showing loss payable and/or additional insured clauses or
endorsements, as requested by Agent, in favor of Agent, on behalf of Lenders.
E. SECURITY INTERESTS AND CODE FILINGS. (a) Evidence
satisfactory to Agent that Agent (for the benefit of itself and Lenders) has a
valid and perfected first priority security interest (or similar lien under
applicable law) in the Collateral, including (i) such documents duly executed by
each Credit Party (including financing statements under the Code and other
applicable documents under the laws of any jurisdiction with respect to the
perfection or publication of Liens) as Agent may request in order to perfect its
security interests or, in the case of Quebec, publish its other Liens in the
Collateral and (ii) copies of Code search reports listing all effective
financing statements (or similar instruments under applicable law) that name any
Credit Party as debtor, together with, in the case of searches conducted in the
United States, copies of such financing statements, none of which shall cover
the Collateral, except for those relating to the Prior Lender Obligations (all
of which shall be terminated on the Closing Date), and acknowledgements from
those Persons having filed financing statements under the PPSA without
adequately limiting the scope of their Collateral acknowledging that their
security interests do not cover the Collateral.
(b) Evidence satisfactory to Agent, including copies, of
all UCC-1 and other financing statements filed in favor of any Credit Party with
respect to each location, if any, at which Inventory may be consigned.
D-1
(c) Control Letters from (i) all issuers of uncertificated
securities and financial assets held by Borrower, (ii) all securities
intermediaries with respect to all securities accounts and securities
entitlements of Borrower, and (iii) all futures commission agents and clearing
houses with respect to all commodities contracts and commodities accounts held
by Borrower.
F. PAYOFF LETTER; TERMINATION STATEMENTS. Copies of a duly
executed payoff letter, in form and substance reasonably satisfactory to Agent,
by and between all parties to the Prior Lender loan documents evidencing
repayment in full of all Prior Lender Obligations, together with (a) UCC-3 or
other appropriate termination statements (or similar instruments under
applicable law), in form and substance satisfactory to Agent, manually signed by
the Prior Lender, or, in the case of UCC-3 termination statements, with written
authorization, in form and substance satisfactory to Agent, from the Prior
Lender to file all such UCC-3 termination statements, releasing all liens of
Prior Lender upon any of the personal property of each Credit Party, and (b)
termination of all blocked account agreements, bank agency agreements or other
similar agreements or arrangements or arrangements in favor of Prior Lender or
relating to the Prior Lender Obligations.
G. INTELLECTUAL PROPERTY SECURITY AGREEMENTS. Duly executed
originals of Trademark Security Agreements, Copyright Security Agreements and
Patent Security Agreements, each dated the Closing Date and signed by each
Credit Party which owns Trademarks, Copyrights and/or Patents, as applicable,
all in form and substance reasonably satisfactory to Agent, together with all
instruments, documents and agreements executed pursuant thereto.
H. HOLDINGS GUARANTY. Duly executed originals of the Holdings
Guaranty, dated the Closing Date, and all documents, instruments and agreements
executed pursuant thereto.
I. SUBSIDIARY GUARANTIES. Guaranties executed by each direct
and indirect domestic or Canadian Subsidiary of Holdings and Borrower, other
than WESCO Receivables, in favor of Agent, for the benefit of Agent and Lenders.
J. INITIAL BORROWING BASE CERTIFICATE. Duly executed originals
of an initial Borrowing Base Certificate from Borrower, dated the Closing Date,
reflecting information concerning Eligible Accounts, Eligible Inventory and
Prior Claims as of a date not more than 35 days prior to the Closing Date.
K. INITIAL NOTICE OF REVOLVING CREDIT ADVANCE. Duly executed
originals of a Notice of Revolving Credit Advance, dated the Closing Date, with
respect to the initial Revolving Credit Advance to be requested by Borrower on
the Closing Date.
L. LETTER OF DIRECTION. Duly executed originals of a letter of
direction from Borrower addressed to Agent, on behalf of itself and Lenders,
with respect to the disbursement on the Closing Date of the proceeds of the
initial Revolving Credit Advance.
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M. CASH MANAGEMENT SYSTEM; BLOCKED ACCOUNT AGREEMENTS.
Evidence satisfactory to Agent that, as of the Closing Date, Cash Management
Systems complying with ANNEX C to the Agreement have been established and are
currently being maintained in the manner set forth in such ANNEX C, together
with copies of duly executed tri-party blocked account and lock box agreements,
reasonably satisfactory to Agent, with the banks as required by ANNEX C.
N. CHARTER AND GOOD STANDING. For each Credit Party, such
Person's (a) charter or declaration of partnership, as applicable, and all
amendments thereto, (b) good standing certificates (or similar certificates
under applicable law) (including verification of tax status for all Domestic
Credit Parties) in its jurisdiction of formation and (c) good standing
certificates (or similar certificates under applicable law) (including
verification of tax status for all Domestic Credit Parties) and certificates of
qualification to conduct business in each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
each dated a recent date prior to the Closing Date and certified by the
applicable Secretary of State or other applicable authorized Governmental
Authority.
O. BYLAWS AND RESOLUTIONS. For each Credit Party, (a) such
Person's bylaws, together with all amendments thereto, (b) resolutions of such
Person's Board of Directors, approving and authorizing the execution, delivery
and performance of the Loan Documents to which such Person is a party and the
transactions to be consummated in connection therewith, and (c) each such
Person's partnership agreement and unanimous shareholder agreement (if any),
each certified as of the Closing Date by such Person's corporate secretary or an
assistant secretary as being in full force and effect without any modification
or amendment.
P. INCUMBENCY CERTIFICATES. For each Credit Party, signature
and incumbency certificates of the officers of each such Person executing any of
the Loan Documents, certified as of the Closing Date by such Person's corporate
secretary or an assistant secretary as being true, accurate, correct and
complete.
Q. OPINIONS OF COUNSEL. Duly executed originals of opinions of
Xxxxxxxxxxx & Xxxxxxxx LLP and Blake, Xxxxxxx & Xxxxxxx, LLP, each as counsel
for the Credit Parties, together with any local counsel opinions reasonably
requested by Agent, each in form and substance reasonably satisfactory to Agent
and its counsel, dated the Closing Date, and each accompanied by a letter
addressed to such counsel from the Credit Parties, authorizing and directing
such counsel to address its opinion to Agent, on behalf of Lenders, and to
include in such opinion an express statement to the effect that Agent and
Lenders are authorized to rely on such opinion.
R. PLEDGE AGREEMENTS. Duly executed originals of each of the
Pledge Agreements accompanied by (as applicable) (a) share certificates
representing all of the outstanding Stock being pledged pursuant to such Pledge
Agreement and stock or share transfer powers for such share certificates
executed in blank (b) the original Intercompany Notes and other instruments
evidencing Indebtedness being pledged pursuant to such Pledge Agreement, duly
endorsed in blank and (c) irrevocable shareholder resolutions of Borrower
authorizing all
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transfers of the shares of WESCO-Canada pursuant to the Pledge Agreement to
which Borrower is party.
S. ACCOUNTANTS' LETTER. A letter from the Credit Parties to
their independent auditors authorizing the independent certified public
accountants of the Credit Parties to communicate with Agent consistent with this
Agreement.
T. APPOINTMENT OF AGENT FOR SERVICE. An appointment of CT
Corporation as each Credit Party's agent for service of process in the State of
New York.
U. SOLVENCY CERTIFICATE. The Credit Parties shall deliver to
Agent for the benefit of Lenders a solvency certificate satisfactory in form and
substance to Agent and Lenders and issued by their respective chief executive
officers and chief financial officers.
V. FEE LETTER. Duly executed originals of the GE Capital Fee
Letter.
W. OFFICER'S CERTIFICATE. Agent shall have received duly
executed originals of a certificate of the Chief Executive Officer and Chief
Financial Officer of Holdings and Borrower, dated the Closing Date, stating
that, since November 30, 2001 (a) no event or condition has occurred or is
existing which could reasonably be expected to have a Material Adverse Effect;
(b) there has been no material adverse change in the industry in which Borrower
operates; (c) no Litigation has been commenced which, if successful, would have
a Material Adverse Effect or could challenge any of the transactions
contemplated by the Agreement and the other Loan Documents; (d) there have been
no Restricted Payments made by any Credit Party; and (e) there has been no
material increase in liabilities, liquidated or contingent, and no material
decrease in assets of Holdings, Borrower or any of their respective
Subsidiaries.
X. WAIVERS. Agent, on behalf of Lenders, shall have received
landlord waivers and consents, bailee letters and mortgagee agreements in form
and substance satisfactory to Agent, in each case as required pursuant to
SECTION 5.9.
Y. INTERCREDITOR AGREEMENT. Agent and Lenders shall have
received the Intercreditor Agreement, in form and substance satisfactory to
Agent, in its sole discretion.
Z. APPRAISALS. Agent and Lenders shall have received the
appraisal reports of Hilco Appraisal Services LLC which shall be in form and
substance, and contain valuations of Borrower's Inventory, WESCO Equity's
Inventory, Herning's Inventory and WESCO-Canada's Inventory, satisfactory to
Agent and Lenders.
AA. AUDITED FINANCIALS; FINANCIAL CONDITION. Agent shall have
received the Financial Statements, Projections and other materials set forth in
SECTION 3.4, certified by Borrower's Chief Financial Officer, in each case in
form and substance satisfactory to Agent, and Agent shall be satisfied, in its
sole discretion, with all of the foregoing. Agent shall have further received a
certificate of the Chief Executive Officer and the Chief Financial Officer of
Holdings and Borrower, based on such Pro Forma and Projections, to the effect
that (a) Holdings and Borrower will each be Solvent upon the consummation of the
transactions contemplated herein; (b) the Pro Forma fairly presents the
financial condition of Holdings and Borrower as of the date
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thereof after giving effect to the transactions contemplated by the Loan
Documents; (c) the Projections are based upon estimates and assumptions stated
therein, all of which Holdings and Borrower believe to be reasonable and fair in
light of current conditions and current facts known to Holdings and Borrower
and, as of the Closing Date, reflect Holdings and Borrower's good faith and
reasonable estimates of their respective future financial performance and of the
other information projected therein for the period set forth therein; (d)
containing such other statements with respect to the solvency of Holdings and
Borrower and the other Credit Parties and matters related thereto as Agent shall
request.
BB. MASTER STANDBY AGREEMENT. A Master Agreement for Standby
Letters of Credit between Borrower and GE Capital.
CC. MASTER DOCUMENTARY AGREEMENT. A Master Agreement for
Documentary Letters of Credit between Borrower and GE Capital.
DD. OTHER DOCUMENTS. Such other certificates, documents and
agreements respecting any Credit Party as Agent may, in its sole discretion,
request.
D-5
ANNEX E (SECTION 4.1(a))
TO
CREDIT AGREEMENT
----------------
FINANCIAL STATEMENTS AND PROJECTIONS -- REPORTING
-------------------------------------------------
Borrower shall deliver or cause to be delivered to Agent or to
Agent and Lenders, as indicated, the following:
(a) MONTHLY FINANCIALS. To Agent for distribution to the
Lenders, within 30 days after the end of each Fiscal Month, consolidated
financial information regarding Holdings and its Subsidiaries, certified by the
Chief Financial Officer of Holdings, consisting of consolidated (i) unaudited
balance sheets as of the close of such Fiscal Month and the related statements
of income and cash flows for that portion of the Fiscal Year ending as of the
close of such Fiscal Month; and (ii) unaudited statements of income and cash
flows for such Fiscal Month, setting forth in comparative form the figures for
the corresponding period in the prior year, all prepared in accordance with GAAP
(subject to normal quarterly and year-end adjustments). Such financial
information shall be accompanied by the certification of the Chief Financial
Officer of Holdings that (i) such financial information presents fairly in
accordance with GAAP (subject to normal quarterly and year-end adjustments) the
financial position and results of operations of Holdings and its Subsidiaries,
on a consolidated basis, in each case as at the end of such Fiscal Month and for
that portion of the Fiscal Year then ended and (ii) any other information
presented is true, correct and complete in all material respects and that there
was no Default or Event of Default in existence as of such time or, if a Default
or Event of Default shall have occurred and be continuing, describing the nature
thereof and all efforts undertaken to cure such Default or Event of Default.
(b) QUARTERLY FINANCIALS. To Agent for distribution to the
Lenders, within 45 days after the end of each Fiscal Quarter, (unaudited)
consolidated and (unaudited) consolidating financial information regarding
Holdings and its Subsidiaries, certified by the Chief Financial Officer of
Holdings, including (i) unaudited balance sheets as of the close of such Fiscal
Quarter and the related statements of income and cash flow for that portion of
the Fiscal Year ending as of the close of such Fiscal Quarter; (ii) unaudited
statements of income and cash flows for such Fiscal Quarter, in each case
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the Projections for such Fiscal
Year, all prepared in accordance with GAAP (subject to normal year-end
adjustments); and (iii) a summary of the outstanding balance of all Intercompany
Notes, all other intercompany loans and advances and all intercompany
investments as of the last day of the Fiscal Quarter. Such financial information
shall be accompanied by (A) a statement in reasonable detail (each, a
"COMPLIANCE CERTIFICATE") showing the calculations used in determining
compliance with each of the Financial Covenants that is tested on a quarterly
basis, if required, and (B) the certification of the Chief Financial Officer of
Borrower that (i) such financial information presents fairly in accordance with
GAAP (subject to normal year-end adjustments) the financial position, results of
operations and statements of cash flows of Holdings and its Subsidiaries, on
both a consolidated and consolidating basis, as at the end of such Fiscal
Quarter and for that portion of the Fiscal
E-1
Year then ended, (ii) any other information presented is true, correct and
complete in all material respects and that there was no Default or Event of
Default in existence as of such time or, if a Default or Event of Default has
occurred and is continuing, describing the nature thereof and all efforts
undertaken to cure such Default or Event of Default. In addition, Holdings shall
deliver to Agent and Lenders, within 45 days after the end of each Fiscal
Quarter, a management discussion and analysis as filed by Holdings with the
Securities and Exchange Commission.
(c) OPERATING PLAN. To Agent for distribution to the Lenders,
as soon as available, but not later than 45 days after the end of each Fiscal
Year, an annual operating plan for Holdings, as certified by the Chief Financial
Officer of Holdings, for the following Fiscal Year, which (i) includes a
statement of all of the material assumptions on which such plan is based, (ii)
includes quarterly balance sheets, income statements and statements of cash flow
for the following year and (iii) integrates sales, gross profits, operating
expenses, operating profit, cash flow projections and Borrowing Availability
projections, all prepared on the same basis and in similar detail as that on
which operating results are reported (and in the case of cash flow projections,
representing management's good faith estimates of future financial performance
based on historical performance), and including plans for Capital Expenditures.
(d) ANNUAL AUDITED FINANCIALS. To Agent for distribution to
the Lenders, within 90 days after the end of each Fiscal Year, audited Financial
Statements for Holdings and its Subsidiaries on a consolidated and (unaudited)
consolidating basis, consisting of balance sheets and statements of income and
retained earnings and cash flows, setting forth in comparative form in each case
the figures for the previous Fiscal Year, which Financial Statements shall be
prepared in accordance with GAAP and certified without qualification, by an
independent certified public accounting firm of national standing or otherwise
acceptable to Agent. Such Financial Statements shall be accompanied by (i) a
statement prepared in reasonable detail showing the calculations used in
determining compliance with each of the Financial Covenants, if then applicable,
(ii) a report from such accounting firm to the effect that, in connection with
their audit examination, nothing has come to their attention to cause them to
believe that a Default or Event of Default has occurred (or specifying those
Defaults and Events of Default that they became aware of), it being understood
that such audit examination extended only to accounting matters and that no
special investigation was made with respect to the existence of Defaults or
Events of Default, (iii) the annual letters to such accountants in connection
with their audit examination detailing contingent liabilities and material
litigation matters, and (iv) the certification of the Chief Executive Officer or
Chief Financial Officer of Holdings that all such Financial Statements present
fairly in accordance with GAAP the financial position, results of operations and
statements of cash flows of Holdings and its Subsidiaries on a consolidated and
consolidating basis, as at the end of such Fiscal Year and for the period then
ended, and that there was no Default or Event of Default in existence as of such
time or, if a Default or Event of Default has occurred and is continuing,
describing the nature thereof and all efforts undertaken to cure such Default or
Event of Default.
(e) MANAGEMENT LETTERS. To Agent for distribution to the
Lenders, within 5 Business Days after receipt thereof by any Credit Party,
copies of all management letters, exception reports or similar material letters
or reports received by such Credit Party from its independent certified public
accountants.
E-2
(f) DEFAULT NOTICES. To Agent for distribution to the Lenders,
as soon as practicable, and in any event within 5 Business Days after an
executive officer of Borrower has actual knowledge of the existence of any
Default, Event of Default or other event that has had a Material Adverse Effect,
telephonic or telecopied notice specifying the nature of such Default or Event
of Default or other event, including the anticipated effect thereof, which
notice, if given telephonically, shall be promptly confirmed in writing on the
next Business Day.
(g) SEC FILINGS AND PRESS RELEASES. To Agent for distribution
to the Lenders promptly upon their becoming available, copies of: (i) all
Financial Statements, reports, notices and proxy statements made publicly
available by any Credit Party to its security holders; (ii) all regular and
periodic reports and all registration statements and prospectuses, if any, filed
by any Credit Party with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority; and
(iii) all press releases and other statements made available by any Credit Party
to the public concerning material changes or developments in the business of any
such Person.
(h) SUBORDINATED DEBT, PERMITTED RECEIVABLES FINANCING AND
EQUITY NOTICES. To Agent, as soon as practicable, copies of all written notices
(including, without limitation, any amendments, waivers or other modifications)
given or received by any Credit Party with respect to the Permitted Receivables
Financing or any Subordinated Debt or Stock of such Person, and, within 2
Business Days after any Credit Party obtains knowledge of any matured or
unmatured breach, default or event of default with respect to a Permitted
Receivables Financing or any Subordinated Debt, notice of such breach, default
or event of default.
(i) SUPPLEMENTAL SCHEDULES. To Agent, supplemental
disclosures, if any, required by SECTION 5.6.
(j) LITIGATION. To Agent in writing, promptly upon learning
thereof, notice of any Litigation commenced or threatened against any Credit
Party that (i) seeks damages in excess of $1,000,000, (ii) seeks injunctive
relief, (iii) is asserted or instituted against any Plan, its fiduciaries or its
assets or against any Credit Party or ERISA Affiliate in connection with any
Plan, (iv) alleges criminal misconduct by any Credit Party, (v) alleges the
violation of any law regarding, or seeks remedies in connection with, any
Environmental Liabilities; or (vi) involves any product recall.
(k) INSURANCE NOTICES. To Agent, disclosure of losses or
casualties required by SECTION 5.4.
(l) LEASE DEFAULT NOTICES. To Agent, within 5 Business Days
after receipt thereof, copies of (i) any and all payment default and other
material default notices received under or with respect to any leased location
or public warehouse where Collateral is located, and (ii) such other notices or
documents as Agent may reasonably request.
(m) LEASE AMENDMENTS. To Agent, within 5 Business Days after
receipt thereof, copies of all material amendments to any real estate leases,
but without any requirement to deliver lease renewals entered into in the
ordinary course of business.
E-3
(n) MANAGEMENT LOAN PROGRAM. To Agent, within 45 days after
the end of each Fiscal Quarter, a report, in detail and form and substance
satisfactory to Agent, with respect to all guaranties provided by any Credit
Party with respect to loans provided to senior management by any Lender in
respect of loans so provided to enable senior management to purchase shares of
common Stock of Holdings.
(o) OTHER DOCUMENTS. To Agent for distribution to Lenders,
such other financial and other information respecting any Credit Party's
business or financial condition as Agent or any Lender through Agent shall, from
time to time, reasonably request.
E-4
ANNEX F (SECTION 4.1(b))
TO
CREDIT AGREEMENT
COLLATERAL REPORTS
Borrower shall deliver or cause to be delivered the following:
(a) To Agent, upon its request, and in any event no less
frequently than noon New York time, 10 Business Days after the end of each
Fiscal Month (together with a copy of all or any part of the following reports
requested by any Lender in writing after the Closing Date), each of the
following reports, each of which shall be prepared by the Borrower as of the
last day of the immediately preceding Fiscal Month or the date 2 days prior to
the date of any such request:
(i) a Borrowing Base Certificate with respect to Borrower,
WESCO Equity, Herning and WESCO-Canada, accompanied by such supporting
detail and documentation as shall be requested by Agent in its
reasonable discretion;
(ii) with respect to Borrower, WESCO Equity, Herning and
WESCO-Canada, a summary of Inventory by location and type with a
supporting perpetual Inventory report, in each case accompanied by such
supporting detail and documentation as shall be requested by Agent in
its reasonable discretion; and
(iii) with respect to WESCO-Canada, a monthly trial balance
showing Accounts outstanding aged from invoice date as follows: 1 to 30
days, 31 to 60 days, 61 to 90 days and 91 days or more, accompanied by
such supporting detail and documentation as shall be requested by Agent
in its reasonable discretion.
(b) To Agent, on a monthly basis so long as then excess
Borrowing Availability is greater than $25,000,000 and, if then excess Borrowing
Availability is $25,000,000 or less, on a weekly basis, or at such more frequent
intervals as Agent may request from time to time (together with a copy of all or
any part of such delivery requested by any Lender in writing after the Closing
Date), collateral reports with respect to Borrower, WESCO Equity, , Herning and
WESCO-Canada, including all additions and reductions (cash and non-cash) with
respect to Accounts of WESCO-Canada, in each case accompanied by such supporting
detail and documentation as shall be requested by Agent in its reasonable
discretion each of which shall be prepared by the Borrower as of the last day of
the immediately preceding week or the date 2 days prior to the date of any
request.
(c) To Agent, at the time of delivery of each of the monthly
Financial Statements delivered pursuant to ANNEX E:
(i) a reconciliation of the perpetual inventory to
the most recent Borrowing Base Certificate, general ledger and monthly
Financial Statements delivered
F-1
pursuant to ANNEX E, in each case accompanied by such supporting detail
and documentation as shall be requested by Agent in its reasonable
discretion; and
(ii) at Agent's reasonable request, an aging of
accounts payable and a reconciliation of that accounts payable aging to
Borrower's, WESCO Equity's, Hernings' and WESCO-Canada's general ledger
and monthly Financial Statements delivered pursuant to ANNEX E, in each
case accompanied by such supporting detail and documentation as shall
be requested by Agent in its reasonable discretion;
(d) To Agent, at the time of delivery of each of the quarterly
Financial Statements delivered pursuant to ANNEX E, a list of any applications
for the registration of any Patent, Trademark or Copyright filed by any Credit
Party with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in the prior Fiscal Quarter;
(e) Borrower, at its own expense, shall deliver to Agent the
results of each physical verification, if any, that Borrower, WESCO Equity,
Herning, WESCO-Canada or any of their Subsidiaries may in their discretion have
made, or caused any other Person to have made on their behalf, of all or any
portion of their Inventory (and, if a Default or an Event of Default has
occurred and be continuing, Borrower shall, upon the request of Agent, conduct,
and deliver the results of, all such physical verifications as Agent may
require);
(f) Borrower, at its own expense, shall deliver to Agent all
such asset appraisals as Agent may request at any time after the occurrence and
during the continuance of a Default or an Event of Default, such appraisals to
be conducted by an appraiser, and in form and substance reasonably satisfactory
to Agent;
(g) Borrower, at its own expense, shall deliver to Agent, at
the time of delivery of the quarterly Financial Statements pursuant to ANNEX E,
a report detailing any and all outstanding Intercompany Notes, including
specifying the parties thereto and amounts outstanding, together with a
certification that the borrower under such Intercompany Notes has deducted
withholding tax exigible on any payments made in connection therewith, has
remitted such amounts when due and payable, and if paid, evidence of payment, or
if not yet due and payable, a certification of the amount due, which shall be
fully reserved for in the Borrowing Base Certificate; and
(h) Such other reports, statements and reconciliations with
respect to the Borrowing Base or Collateral or Obligations of any or all Credit
Parties as Agent shall from time to time request in its reasonable discretion.
F-2
ANNEX G (SECTION 6.10)
TO
CREDIT AGREEMENT
----------------
FINANCIAL COVENANTS
-------------------
At any time Borrowing Availability is less than $50,000,000,
Borrower shall not breach or fail to comply with any of the following financial
covenants, each of which shall be calculated in accordance with GAAP
consistently applied:
(a) MAXIMUM CAPITAL EXPENDITURES. Borrower and its Subsidiaries on a
consolidated basis shall not make Capital Expenditures during any Fiscal Year
that exceed $25,000,000 in the aggregate; provided, however, that amounts
permitted to be expended in any one Fiscal Year that are not expended during
such Fiscal Year (not including any amount permitted to be carried forward from
a prior Fiscal Year) shall be permitted to be expended in, but only in, the next
subsequent Fiscal Year.
(b) MINIMUM FIXED CHARGE COVERAGE RATIO. Holdings and its Subsidiaries
shall have on a consolidated basis at the end of each Fiscal Quarter, a Fixed
Charge Coverage Ratio for the 12-month period then ended of not less than 1.1 to
1.0.
Unless otherwise specifically provided herein, any accounting
term used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP consistently applied. That certain items or computations
are explicitly modified by the phrase "in accordance with GAAP" shall in no way
be construed to limit the foregoing. If any "Accounting Changes" (as defined
below) occur and such changes result in a change in the calculation of the
financial covenants, standards or terms used in the Agreement or any other Loan
Document, then Borrower, Agent and Lenders agree to enter into negotiations in
order to amend such provisions of the Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
Borrower's and its Subsidiaries' financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made;
PROVIDED, however, that the agreement of Requisite Lenders to any required
amendments of such provisions shall be sufficient to bind all Lenders.
"ACCOUNTING CHANGES" means (i) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants (or successor thereto or any agency with similar functions), (ii)
changes in accounting principles concurred in by Borrower's certified public
accountants; (iii) purchase accounting adjustments under A.P.B. 16 or 17 and
EITF 88-16, and the application of the accounting principles set forth in FASB
109, including the establishment of reserves pursuant thereto and any subsequent
reversal (in whole or in part) of such reserves; and (iv) the reversal of any
reserves established as a result of purchase accounting adjustments. If Agent,
Borrower and Requisite Lenders agree upon the required amendments, then after
appropriate amendments have been executed and the underlying Accounting Change
with respect thereto has been implemented, any reference to GAAP contained in
the Agreement or in any other Loan Document shall, only to the extent of
G-1
such Accounting Change, refer to GAAP, consistently applied after giving effect
to the implementation of such Accounting Change. If Agent, Borrower and
Requisite Lenders cannot agree upon the required amendments within 30 days
following the date of implementation of any Accounting Change, then all
Financial Statements delivered and all calculations of financial covenants and
other standards and terms in accordance with the Agreement and the other Loan
Documents shall be prepared, delivered and made without regard to the underlying
Accounting Change. For purposes of SECTION 8.1, a breach of a Financial Covenant
contained in this ANNEX G shall be deemed to have occurred as of any date of
determination by Agent or as of the last day of any specified measurement
period, regardless of when the Financial Statements reflecting such breach are
delivered to Agent.
G-2
ANNEX H (SECTION 1.1(d))
TO
CREDIT AGREEMENT
----------------
LENDERS' WIRE TRANSFER INFORMATION
Name: General Electric Capital Corporation
Bank: Bankers Trust Company
New York, New York
ABA #: 000000000
Account #: 00000000
Account Name: GECC/CAF Depository
Reference: CFC CFN 4657
Name: The CIT Group/Business Credit, Inc.
Bank: Chase Manhattan Bank, NY
ABA #: 000000000
Account #: 000-0-00000
Account Name: The CIT Group/Business Credit, Inc.
Reference: Wesco Distribution, Inc.
Name: Fleet Capital Corporation
Bank: Fleet National Bank
ABA #: 000000000
Account #: 9369337536
Account Name: Fleet Capital Corporation
Reference: Wesco Distribution, Inc.
Name: Citizens Business Credit Company
Bank: Citizens Bank
ABA #: 000000000
Account #: 1101011812
Reference: Wesco Distribution
Name: PNC Bank, National Association
Bank: PNC Bank
ABA #: 0312076707
Account #: 196039957830
Reference: Wesco Distribution
H-1
Name: LaSalle Business Credit, Inc.
Bank: LaSalle National Bank
ABA #: 000000000
Account #: 00-0000-0
Account Name: LaSalle Business Credit, Inc.
Reference: Wesco Distribution
Name: First Commonwealth Bank t/a NBOC Bank
Bank: First Commonwealth Bank t/a NBOC Bank
ABA #: 000000000
Account #: 0000000-68203
Account Name: Wesco Distribution, Inc.
H-2
ANNEX I (SECTION 11.10)
TO
CREDIT AGREEMENT
----------------
NOTICE ADDRESSES
----------------
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: WESCO Distribution, Account Manager
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
AND
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel-Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(B) If to Borrower, at
WESCO Distribution, Inc.
Commerce Court, Suite 000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
I-1
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Lenders:
The CIT Group/Business Credit
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Fleet Capital Corporation
00000 Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Citizens Business Credit Company
Suite 000
Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Bob Beer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
PNC Bank, National Association
One PNC Plaza - 6th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
LaSalle Business Credit, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
First Commonwealth Bank t/a NBOC Bank
654 Philadelphia Street
1st Floor, Corporate Banking
Xxxxxxx, XX 00000
I-2
Attention: Xxxx X. Oris
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
I-3
ANNEX J (FROM ANNEX A - COMMITMENT DEFINITION)
TO
CREDIT AGREEMENT
----------------
Revolving Swing Line
Lenders: Commitment Commitment
------- ---------- ----------
General Electric Capital Corporation $100,000,000 $20,000,000
The CIT Group/Business Credit, Inc. $ 50,000,000 $0
Fleet Capital Corporation $ 50,000,000 $0
Citizens Business Credit Company $ 25,000,000 $0
PNC Bank, National Association $ 25,000,000 $0
LaSalle Business Credit, Inc. $ 25,000,000 $0
First Commonwealth Bank t/a NBOC Bank $ 15,000,000 $0
J-1