Attached files
file | filename |
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EX-99.1 - EX-99.1 - WESCO INTERNATIONAL INC | l41366exv99w1.htm |
EX-10.2 - EX-10.2 - WESCO INTERNATIONAL INC | l41366exv10w2.htm |
8-K - FORM 8-K - WESCO INTERNATIONAL INC | l41366e8vk.htm |
Exhibit 10.1
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this
Amendment), dated as of December 16, 2010, is entered into among WESCO RECEIVABLES
CORP. (the Seller), WESCO DISTRIBUTION, INC. (the Servicer), the Purchasers
(each, a Purchaser) and Purchaser Agents (each, a Purchaser Agent) party
hereto, and PNC BANK, NATIONAL ASSOCIATION, as Administrator (the Administrator).
RECITALS
1. The Seller, the Servicer, each Purchaser, each Purchaser Agent and the Administrator are
parties to the Third Amended and Restated Receivables Purchase Agreement, dated as of April 13,
2009 (as amended through the date hereof, the Agreement).
2. Concurrently herewith, the Seller, the Servicer, each Purchaser and each Purchaser Agent
are entering into that certain Structuring Fee Letter (the Structuring Fee Letter), dated
as of the date hereof.
3. Concurrently herewith, the Seller, the Servicer and the Originators are entering into that
certain Eighth Amendment to Purchase and Sale Agreement (the Purchase and Sale Agreement
Amendment), dated as of the date hereof.
4. Concurrently herewith, the Seller, the Servicer, the Administrator, TVC Communications,
L.L.C. and Wells Fargo Bank, National Association are entering into that certain Deposit Account
Control Agreement (the Deposit Account Control Agreement), dated as of the date hereof.
5. The parties hereto desire to amend the Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein without definition
and that are defined in Exhibit I to the Agreement shall have the same meanings herein as
therein defined.
2. Amendments to the Agreement. The Agreement is hereby amended as follows:
(a) Section 6.1 of the Agreement is hereby amended by inserting the following
proviso at the end of the penultimate sentence thereof: provided, further,
however, no amendment or waiver of any provision of any Lock-Box Agreement or the
Lock-Box Schedule Letter Agreement shall require the consent of any Purchaser.
(b) The definition of Eligible Receivable set forth on Exhibit I to
the Agreement is hereby amended by (i) deleting the word and at the end of clause
(o) thereof, (ii) replacing the period . at the end of clause (p) thereof with
, and and (iii) adding the following new clause
(q) immediately following existing
clause (p) thereof:
(q) which (i) does not relate to the sale of any consigned goods or
finished goods which have incorporated any consigned goods into such
finished goods and (ii) is not owed to any Originator or the Seller as a
bailee or consignee for another Person;
(c) Clause (ii) of the definition of Excess Concentration set forth
on Exhibit I to the Agreement is hereby amended by deleting the percentage 1.00%
therein and substituting the percentage 3.00% therefor.
(d) The definition of Transaction Documents set forth on Exhibit I to
the Agreement is hereby replaced in its entirety with the following:
Transaction Documents means the Agreement, the Lock-Box
Agreements, the Lock-Box Schedule Letter Agreement, each Purchaser Group Fee
Letter, the Sale Agreement, the Intercreditor Agreement and all other
certificates, instruments, UCC financing statements, reports, notices,
agreements and documents executed or delivered under or in connection with
the Agreement or such other agreement, in each case as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with the Agreement.
(e) The following new defined terms are hereby added to Exhibit I to the
Agreement in appropriate alphabetical order:
Lock-Box Schedule Letter Agreement means that certain letter
agreement, dated as of December 16, 2010 and as amended from time to time,
among the Seller, the Servicer, the Administrator and each of the Purchasers
and Purchaser Agents party thereto, as amended.
Subject UCC has the meaning set forth in Section 1(u)
of Exhibit III to the Agreement.
(f) Section 1(u) of Exhibit III to the Agreement is hereby replaced in
its entirety with the following:
(u) None of the consignments, inventory financings, or other
arrangements covered by the financing statement specified in Schedule
VIII attached hereto (the Subject UCC) relates or will relate
to commingled goods or inventory the sale of which gives rise to any
Receivable. The secured party set forth on the Subject UCC does not have,
nor will it have, any Adverse Claim on, or with respect to, any Pool
Receivables or Related Assets.
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(g) Section 2(o) of Exhibit III to the Agreement is hereby replaced in
its entirety with the following:
(o) None of the consignments, inventory financings, or other
arrangements covered by the financing statement specified in the Subject UCC
relates or will relate to commingled goods or inventory the sale of which
gives rise to any Receivable. The secured party set forth on the Subject
UCC does not have, nor will it have, any Adverse Claim on, or with respect
to, any Pool Receivables or Related Assets.
(h) Schedule II to the Agreement is hereby deleted in its entirety.
(i) Schedule VI to the Agreement is hereby replaced in its entirety as attached
hereto.
(j) Schedule VIII attached hereto is hereby added to the Agreement as
Schedule VIII thereto.
(k) Each reference to Schedule II to the Agreement in the Agreement and in each
other Transaction Document and in any related document or agreement shall be deemed to be a
reference to the Lock-Box Schedule Letter Agreement, mutatis mutandis.
3. Representations and Warranties. The Seller and the Servicer hereby represent and
warrant to each of the parties hereto as follows:
(a) Representations and Warranties. The representations and warranties
contained in Exhibit III of the Agreement are true and correct as of the date
hereof.
(b) No Default. Both before and immediately after giving effect to this
Amendment and the transactions contemplated hereby, no Termination Event or Unmatured
Termination Event exists or shall exist.
4. Effect of Amendment. All provisions of the Agreement, as expressly amended and
modified by this Amendment shall remain in full force and effect. On and after the Effective Date
(as defined below), all references in the Agreement (or in any other Transaction Document) to this
Agreement, hereof, herein or words of similar effect referring to the Agreement shall be
deemed to be references to the Agreement as amended by this Amendment. This Amendment shall not be
deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement
other than as set forth herein.
5. Effectiveness. This Amendment shall become effective as of the date hereof (the
Effective Date) subject to the conditions precedent that (i) the Administrator receives
each of the following: (A) counterparts of this Amendment (whether by facsimile or otherwise)
executed by each of the other parties hereto, in form and substance satisfactory to the
Administrator in its sole discretion, (B) counterparts of the Structuring Fee Letter (whether by
facsimile or otherwise) executed by each of the parties thereto, in form and substance satisfactory
to the Administrator in its sole discretion, (C) counterparts of the Purchase and Sale Agreement
Amendment (whether by facsimile or otherwise) executed by each of the parties thereto, in form and
substance
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satisfactory to the Administrator in its sole discretion, (D) counterparts of the Deposit
Account Control Agreement (whether by facsimile or otherwise) executed by each of the parties
thereto, in form and substance satisfactory to the Administrator and the Seller in their sole
discretion, (E) a favorable opinion, in form and substance reasonably satisfactory to the
Administrator and each Purchaser Agent, of K&L Gates LLP, counsel for the Seller and the Servicer,
as to certain general corporate and enforceability matters and (F) such other agreements,
documents, instruments and opinions as the Administrator may request and (ii) the Structuring Fee
(under and as defined in the Structuring Fee Letter) shall have been paid in full in accordance
with the terms of the Structuring Fee Letter.
6. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute but one and the same instrument.
7. Governing Law; Jurisdiction.
7.1 THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
7.2 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK; AND, BY EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH OF THE PARTIES HERETO CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AMENDMENT OR ANY DOCUMENT RELATED HERETO.
EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
8. Section Headings. The various headings of this Amendment are included for
convenience only and shall not affect the meaning or interpretation of this Amendment, the
Agreement or any provision hereof or thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first
written above.
WESCO RECEIVABLES CORP. |
||||
By: | /s/ Daniel A. Brailer | |||
Name: | Daniel A. Brailer | |||
Title: | Treasurer |
WESCO DISTRIBUTION, INC., as Servicer |
||||
By: | /s/ Daniel A. Brailer | |||
Name: | Daniel A. Brailer | |||
Title: | Vice President and Treasurer | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-1
PNC BANK, NATIONAL ASSOCIATION, as Administrator |
||||
By: | /s/ William P. Falcon | |||
Name: | William P. Falcon | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-2
THE CONDUIT PURCHASERS AND THE PURCHASER AGENTS: MARKET STREET FUNDING LLC, as a Conduit Purchaser |
||||
By: | /s/ Doris J. Hearn | |||
Name: | Doris J. Hearn | |||
Title: | Vice President |
PNC BANK, NATIONAL ASSOCIATION, as Purchaser Agent for Market Street Funding LLC |
||||
By: | /s/ William P. Falcon | |||
Name: | William P. Falcon | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-3
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Conduit Purchaser |
||||
By: | /s/ William P. Rutkowski | |||
Name: | William P. Rutkowski | |||
Title: | Vice President | |||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Purchaser Agent for Wells Fargo Bank, National Association |
||||
By: | /s/ William P. Rutkowski | |||
Name: | William P. Rutkowski | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-4
FIFTH THIRD BANK, as a Conduit Purchaser |
||||
By: | /s/ Andrew D. Jones | |||
Name: | Andrew D. Jones | |||
Title: | Vice President |
FIFTH THIRD BANK, as Purchaser Agent for Fifth Third Bank |
||||
By: | /s/ Andrew D. Jones | |||
Name: | Andrew D. Jones | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-5
U.S. BANK NATIONAL ASSOCIATION, as a Conduit Purchaser |
||||
By: | /s/ Matthew Kasper | |||
Name: | Matthew Kasper | |||
Title: | Relationship Manager |
U.S. BANK NATIONAL ASSOCIATION, as Purchaser Agent for U.S. Bank National Association |
||||
By: | /s/ Matthew Kasper | |||
Name: | Matthew Kasper | |||
Title: | Relationship Manager | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-6
THE PRIVATEBANK AND TRUST COMPANY, as a Conduit Purchaser |
||||
By: | /s/ Mark H. Veach | |||
Name: | Mark H. Veach | |||
Title: | Managing Director |
THE PRIVATEBANK AND TRUST COMPANY, as Purchaser Agent for The PrivateBank and Trust Company |
||||
By: | /s/ Mark H. Veach | |||
Name: | Mark H. Veach | |||
Title: | Managing Director | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-7
THE HUNTINGTON NATIONAL BANK, as a Conduit Purchaser |
||||
By: | /s/ W. Christopher Kohler | |||
Name: | W. Christopher Kohler | |||
Title: | Senior Vice President |
THE HUNTINGTON NATIONAL BANK, as Purchaser Agent for The Huntington National Bank |
||||
By: | /s/ W. Christopher Kohler | |||
Name: | W. Christopher Kohler | |||
Title: | Senior Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-8
THE RELATED COMMITTED PURCHASERS: PNC BANK, NATIONAL ASSOCIATION, as a Related Committed Purchaser for Market Street Funding LLC |
||||
By: | /s/ David B. Thayer | |||
Name: | David B. Thayer | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-9
FIFTH THIRD BANK, as a Related Committed Purchaser for Fifth Third Bank |
||||
By: | /s/ Andrew D. Jones | |||
Name: | Andrew D. Jones | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-10
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Related Committed Purchaser for Wells Fargo Bank, National Association |
||||
By: | /s/ William P. Rutkowski | |||
Name: | William P. Rutkowski | |||
Title: | Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-11
U.S. BANK NATIONAL ASSOCIATION, as a Related Committed Purchaser for U.S. Bank National Association |
||||
By: | /s/ Matthew Kasper | |||
Name: | Matthew Kasper | |||
Title: | Relationship Manager | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-12
THE PRIVATEBANK AND TRUST COMPANY, as a Related Committed Purchaser for The PrivateBank and Trust Company |
||||
By: | /s/ Mark H. Veach | |||
Name: | Mark H. Veach | |||
Title: | Managing Director | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-13
THE HUNTINGTON NATIONAL BANK, as a Related Committed Purchaser for The Huntington National Bank |
||||
By: | /s/ W. Christopher Kohler | |||
Name: | W. Christopher Kohler | |||
Title: | Senior Vice President | |||
THIRD AMENDMENT
TO WESCO 3RD A&R RPA
TO WESCO 3RD A&R RPA
S-14
SCHEDULE VI
COMMITMENTS
PNC BANK, NATIONAL ASSOCIATION,
as a Related Committed Purchaser for Market Street Funding LLC
as a Related Committed Purchaser for Market Street Funding LLC
Commitment: $135,000,000
FIFTH THIRD BANK,
as a Related Committed Purchaser for Fifth Third Bank
as a Related Committed Purchaser for Fifth Third Bank
Commitment: $78,750,000
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Related Committed Purchaser for Wells Fargo Bank, National Association
as a Related Committed Purchaser for Wells Fargo Bank, National Association
Commitment: $135,000,000
U.S. BANK NATIONAL ASSOCIATION,
as a Related Committed Purchaser for U.S. Bank National Association
as a Related Committed Purchaser for U.S. Bank National Association
Commitment: $39,375,000
THE PRIVATEBANK AND TRUST COMPANY,
as a Related Committed Purchaser for The PrivateBank and Trust Company
as a Related Committed Purchaser for The PrivateBank and Trust Company
Commitment: $22,500,000
THE HUNTINGTON NATIONAL BANK,
as a Related Committed Purchaser for The Huntington National Bank
as a Related Committed Purchaser for The Huntington National Bank
Commitment: $39,375,000
Schedule VI-1
SCHEDULE VIII
SUBJECT UCC
Debtor | Secured Party | Filing Location | Filing Data | |||
TVC Communications,
L.L.C.
|
CommScope, Inc. of North Carolina | Delaware Department of State | Initial Filing # 2009 1997995 |
|||
U.C.C. Filing Section | Filed 6/23/2009 |
Schedule VIII-1