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Exhibit 10.19
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of August 3, 2001 among WESCO DISTRIBUTION, INC., a Delaware corporation
and WESCO DISTRIBUTION-CANADA, INC., an Ontario corporation (collectively, the
"Borrowers"), WESCO INTERNATIONAL INC., a Delaware corporation (the "Parent")
and certain Subsidiaries of the Parent, as Guarantors, the Lenders party hereto
and BANK OF AMERICA, N.A. (formerly Bank of America National Trust and Savings
Association), as U.S. Administrative Agent for the Lenders (the "Administrative
Agent") and BANK OF AMERICA CANADA, as Canadian Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement (as defined below).
R E C I T A L S
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agents
entered into that certain Credit Agreement, dated as of June 29, 1999 (as
amended by that certain First Amendment to Credit Agreement dated as of October
29, 1999, that certain Second Amendment to Credit Agreement dated as of May 3,
2000, that certain Third Amendment to Credit Agreement, dated as of December 20,
2000, and as otherwise amended or modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrowers have requested that the Required Lenders agree
to certain changes to the Credit Agreement; and
WHEREAS, the Required Lenders are willing to agree to such changes to
the Credit Agreement subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
A G R E E M E N T
1. Existing Definitions.
(a) The definition of "Applicable Percentage" in Section 1.1
of the Credit Agreement is amended in its entirety to read as follows:
"Applicable Percentage" means the higher margin and/or fee as
calculated pursuant to the appropriate applicable percentages
corresponding to either the Leverage
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Ratio or the Adjusted Leverage Ratio in effect as of the most recent Calculation
Date as shown below:
----------- ---------------- -------------- --------------- -------------- ----------------- -----------------
Applicable
Percentage
Applicable Applicable for U.S.
Percentage Percentage Standby
for for Base Rate Letter of Applicable
Eurodollar Loans and Credit Fees Percentage for
Loans and Canadian and Canadian U.S. Trade Applicable
Pricing Bankers' Prime Rate Letter of Letters of Percentage for
Level Leverage Ratio Acceptances Loans Credit Fees Credit Commitment Fees
----------- ---------------- -------------- --------------- -------------- ----------------- -----------------
I <= 2.0 to 1.0 1.00% 0% 1.0% .50% .30%
II <= 2.5 to 1.0 1.25% .25% 1.25% .6125% .35%
but
> 2.0 to 1.0
III <= 3.25 to 1.0 1.50% .50% 1.50% .75% .40%
but
> 2.5 to 1.0
IV <= 4.0 to 1.0 1.75% .75% 1.75% .875% .45%
but
> 3.25 to 1.0
V > 4.0 to 1.0 2.00% 1.00% 2.00% 1.00% .50%
----------- ---------------- -------------- --------------- -------------- ----------------- -----------------
----------- ---------------- -------------- --------------- -------------- ----------------- -----------------
Applicable
Percentage
Applicable Applicable for U.S.
Percentage Percentage Standby
for for Base Rate Letter of Applicable
Eurodollar Loans and Credit Fees Percentage for
Loans and Canadian and Canadian U.S. Trade Applicable
Pricing Adjusted Bankers' Prime Rate Letter of Letters of Percentage for
Level Leverage Ratio Acceptances Loans Credit Fees Credit Commitment Fees
----------- ---------------- -------------- --------------- -------------- ----------------- -----------------
I < 4.0 to 1.0 1.50% .50% 1.50% .75% .35%
< 4.5 to 1.0
II but 1.75% .75% 1.75% .875% .40%
=> 4.0 to 1.0
<5.0 to 1 but
III => 4.5 to 1.0 2.00% 1.00% 2.00% 1.00% .50%
IV <5.50 to 1 but 2.25% 1.25% 2.25% 1.125% .50%
=> 5.0 to 1.0
V => 5.50 to 1.0 2.50% 1.50% 2.50% 1.25% .50%
----------- ---------------- -------------- --------------- -------------- ---------------- ------------------
The Applicable Percentage for Loans, Bankers' Acceptances, the
Letter of Credit Fees and the Commitment Fees shall, in each case, be
determined and adjusted quarterly on the date (each a "Calculation
Date") five Business Days after the date by which the U.S. Borrower is
required to provide the officer's certificate in accordance with the
provisions of Section 8.1(c); provided that the Applicable Percentage
for Loans, Bankers' Acceptances, the Letter of Credit Fees and the
Commitment Fees from August 3, 2001 until the Calculation Date
following the fiscal quarter ending September 30, 2001 shall be
determined by the higher margin and/or fee as determined by either the
Leverage Ratio or
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Adjusted Leverage Ratio as calculated as of August 3, 2001 (such
calculations to be described on an officer's certificate delivered by
the U.S. Borrower on or about such date) and, thereafter, the Pricing
Level shall be determined by the higher margin and/or fee as determined
by either the Leverage Ratio or Adjusted Leverage Ratio calculated as
of the most recent Calculation Date; and provided further that if the
U.S. Borrower fails to provide the officer's certificate required by
Section 8.1(c) on or before the most recent Calculation Date, the
Applicable Percentage for Loans, Bankers' Acceptances, the Letter of
Credit Fees and the Commitment Fees from such Calculation Date shall be
based on Pricing Level V for the Adjusted Leverage Ratio until such
time that an appropriate officer's certificate is provided whereupon
the Pricing Level shall be determined by the then current Leverage
Ratio or Adjusted Leverage Ratio. Each Applicable Percentage shall be
effective from one Calculation Date until the next Calculation Date.
Any adjustment in the Applicable Percentage shall be applicable to all
existing Loans, Bankers' Acceptances and Letters of Credit as well as
any new Loans made or Bankers' Acceptances or Letters of Credit issued.
The U.S. Borrower shall promptly deliver to the U.S.
Administrative Agent, at the address set forth on Schedule 12.1, at the
time the officer's certificate is required to be delivered by Section
8.1(c), information regarding any change in the Leverage Ratio or
Adjusted Leverage Ratio that would change the existing Pricing Level
pursuant to the preceding paragraph. The U.S. Administrative Agent
shall promptly advise the Canadian Administrative Agent of any such
change in the Pricing Level.
(b) The definition of "Permitted Acquisition" in Section 1.1
of the Credit Agreement is amended in its entirety to read as follows:
"Permitted Acquisition" means an Acquisition by a Credit Party
or any Subsidiary of a Credit Party for consideration no greater than
the fair market value of the Capital Stock or property acquired;
provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition constitutes Eligible Assets (or goodwill
associated therewith), (b) the U.S. Administrative Agent shall have
received all items in respect of the Capital Stock or property acquired
in such Acquisition (and/or the seller thereof) required to be
delivered by the terms of Section 8.10 and/or Section 8.13, (c) in the
case of an Acquisition of the Capital Stock of another Person, the
board of directors (or other comparable governing body) of such other
Person shall have duly approved such Acquisition, (d) the U.S. Borrower
shall have delivered to the U.S. Administrative Agent, prior to the
closing of such Acquisition, a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition, (i) the
Credit Parties are in compliance with all of the covenants set forth in
Section 8.2 and (ii) the Adjusted Leverage Ratio is less than 5.25 to
1.0, (e) the representations and warranties made by the Credit Parties
in any Credit Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (after
giving effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date, (f) the Borrower shall
have previously incurred at least $100,000,000 of subordinated
Indebtedness in accordance with the terms of Section 9.1(h), (g) the
consideration paid in the form of cash
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and/or assumed debt for any individual Acquisition shall not exceed
$25,000,000 and (h) the total consideration paid in the form of cash
and/or assumed debt for all such Acquisitions from August 3, 2001 until
the Maturity Date shall not exceed $50,000,000.
(c) The definition of "U.S. Revolving Committed Amount" in
Section 1.1 of the Credit Agreement is amended in its entirety to read
as follows:
"U.S. Revolving Committed Amount" means TWO HUNDRED FIFTY
MILLION DOLLARS ($250,000,000); provided that (a) the U.S. Revolving
Committed Amount may be reduced in accordance with Section 2.1(d)
(either voluntarily or as required by Sections 9.1(h) or 9.1(o)) and
(b) the U.S. Revolving Committed Amount shall be automatically reduced
by the following amounts on the following dates:
Amount of Reduction of U.S.
Date Revolving Committed Amount
---- --------------------------
January 1, 2002 $5,000,000
April 1, 2002 $5,000,000
July 1, 2002 $5,000,000
October 1, 2002 $12,500,000
January 1, 2003 $12,500,000
April 1, 2003 $12,500,000
July 1, 2003 $12,500,000
October 1, 2003 $12,500,000
January 1, 2004 $12,500,000
April 1, 2004 $10,000,000
2. New Definitions.
(a) A new definition of "Contemplated 2001 Subordinated Debt"
is added to Section 1.1 of the Credit Agreement in proper alphabetical
order to read as follows:
"Contemplated 2001 Subordinated Debt" means that certain
contemplated Indebtedness to be evidenced by the Senior Subordinated
Notes of the U.S. Borrower due 2008 with a coupon expected to be
approximately 10 1/8%, which are expected to be issued in August or
September 2001 and which will thereafter be subject to an exchange
offer for Senior Subordinated Notes with a coupon expected to be
approximately 10 1/8% that will be registered under the Securities Act
and which thereafter may be subject to a subsequent exchange offer for
9 1/8% Senior Subordinated Notes and an equalizing cash payment , each
of which exchange offers will be voluntary in that the holders thereof
will not be required to accept the offer.
3. Increases in U.S. Revolving Committed Amount. Section 2.1(e)
is deleted in its entirety.
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4. Financial Covenants.
(a) Section 8.2(a) of the Credit Agreement is amended in its entirety
to read as follows:
(a) Adjusted Leverage Ratio. The Adjusted Leverage Ratio, as
of the last day of each fiscal quarter of the Credit Parties, for the
twelve month period ending on such date, shall be less than or equal to
the ratio shown below for the period corresponding thereto:
Period Ratio
------ -----
From July 1, 2001 6.75 to 1.0
through September 30, 2001
From October 1, 2001 6.50 to 1.0
through December 31, 2001
From January 1, 2002 6.00 to 1.0
through June 30, 2002
From July 1, 2002 5.75 to 1.0
through December 31, 2002
From January 1, 2003 5.25 to 1.0
through June 30, 2003
From July 1, 2003 5.00 to 1.0
through December 31, 2003
From January 1, 2004 4.75 to 1.0
and thereafter
(b) Section 8.2(b) of the Credit Agreement is amended in its entirety
to read as follows:
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the last day of each fiscal quarter of the Credit Parties, for the
twelve month period ending on such date, shall be greater than or equal
to the ratio shown below for the period corresponding thereto:
Period Ratio
------ -----
From July 1, 2001 1.85 to 1.0
through September 30, 2001
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From October 1, 2001 2.00 to 1.0
through June 30, 2002
From July 1, 2002 2.15 to 1.0
through June 30, 2003
From July 1, 2003 2.25 to 1.0
and thereafter
(c) Section 8.2(c) of the Credit Agreement is amended in its entirety
to read as follows:
(c) Working Capital Ratio. The ratio of (i) Working Capital to
(ii) Adjusted Total Senior Debt (the "Working Capital Ratio") shall, at
all times, be greater than or equal to the ratio shown below for the
period corresponding thereto:
Period Ratio
------ -----
From August 3, 2001 1.75 to 1.0
through September 30, 2002
From October 1, 2002 2.00 to 1.0
and thereafter
provided that, if the Borrower incurs $100,000,000 or more of
subordinated Indebtedness in accordance with Section 9.1(h), the
Working Capital Ratio shall thereafter, at all times, be greater than
or equal to 2.00 to 1.0.
5. Indebtedness. Section 9.1(h) of the Credit Agreement is
amended in its entirety to read as follows:
(h) other subordinated Indebtedness; provided that (i) the
aggregate amount of such other subordinated Indebtedness consisting of
the Contemplated 2001 Subordinated Debt does not exceed $175,000,000
and the aggregate amount of all such other subordinated Indebtedness
(including the Contemplated 2001 Subordinated Debt) does not exceed
$200,000,000, in each case at any one time outstanding (in addition to
the Indebtedness referred to in subsection (g) above); (ii) such
Indebtedness is unsecured; (iii) the loan documentation with respect to
such Indebtedness shall not contain covenants or default provisions
relating to any Credit Party or any of its Subsidiaries that are more
restrictive than the covenants and default provisions contained in the
Credit Documents; (iv) the scheduled maturity of all principal with
respect to such Indebtedness is subsequent to the Maturity Date, (v)
the other terms of, and the documentation evidencing, such Indebtedness
are reasonably acceptable to the U.S. Administrative Agent and (vi)
simultaneously with the incurrence of such subordinated Indebtedness,
the Borrower
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provides notice under Section 2.1(d) that it is permanently reducing
the U.S. Revolving Committed Amount by (x) in the case of the
Contemplated 2001 Subordinated Indebtedness, (1) 25% of the dollar
amount of the net proceeds up to $150,000,000 received by the Credit
Parties in connection with such subordinated Indebtedness and (2) 100%
of the dollar amount of the net proceeds in excess of $150,000,000
received by the Credit Parties in connection with such subordinated
Indebtedness, and (y) in the case of any other subordinated
Indebtedness permitted pursuant to this Section 9.1(h), 100% of the
dollar amount of the net proceeds received by the Credit Parties in
connection with such subordinated Indebtedness.
6. Restricted Payments. Section 9.8 of the Credit Agreement is
amended in its entirety to read as follows:
9.8 RESTRICTED PAYMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly, (a) declare or pay any dividends or make any other distribution
upon any shares of its Capital Stock of any class (other than dividends payable
solely in the same class of Capital Stock) or (b) purchase, redeem or otherwise
acquire or retire to make any provisions for redemption, acquisition or
retirement of any shares of its Capital Stock of any class or any warrants or
options to purchase any such shares; provided that (i) any Subsidiary of a
Borrower may pay dividends to its parent, (ii) a Borrower may pay dividends to
the Parent to allow for the payment of (A) taxes, (B) dividends permitted
pursuant to the following clause (iii) and (C) customary fees and expenses of
the Parent in the ordinary course, and (iii) as long as (A) no Default or Event
of Default has occurred and is continuing (or would be caused thereby) and (B)
the Adjusted Leverage Ratio as of the end of the Parent's most recently ended
fiscal quarter was less than 5.25 to 1.0 as demonstrated in the officer's
certificate previously delivered by the U.S. Borrower in connection with such
fiscal quarter pursuant to Section 8.1(c) (or, if such certificate is not yet
delivered and not yet required under Section 8.1(c), as demonstrated in an
officer's certificate delivered by the U.S. Borrower to the U.S. Administrative
Agent prior to the payment of any such dividend containing calculations of the
Adjusted Leverage Ratio substantially similar to those required pursuant to
Exhibit 8.1(c)), the Parent may pay dividends in an amount not to exceed, in the
aggregate, 25% of cumulative Net Income earned after June 30, 1999.
7. Limitations on Consensual Encumbrances. Clause (iii) of the
proviso in Section 9.11 of the Credit Agreement is amended in its entirety to
read as follows:
(iii) the Subordinated Debt Indenture as in effect on the Closing Date and any
similar provision in the documentation evidencing Permitted Subordinated
Refinancing Debt or any other subordinated Indebtedness permitted pursuant to
Section 9.1(h)
8. No Other Negative Pledges. The last parenthetical of Section
9.12 of the Credit Agreement is amended in its entirety to read as follows:
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(it being understood and agreed by the parties hereto that the Subordinated Debt
Indenture to which the U.S. Borrower is a party contains such restrictions with
respect to additional subordinated debt and that the Permitted Subordinated
Refinancing Debt and/or any other subordinated Indebtedness permitted pursuant
to Section 9.1(h) may contain similar restrictions)
9. Changes to Subordinated Indebtedness. The last sentence of
Section 9.13 of the Credit Agreement is amended in its entirety to read as
follows:
Notwithstanding the above, no Credit Party will (i) amend, modify or waive any
of the terms and conditions of the Subordinated Debt, any Permitted Subordinated
Refinancing Debt or any other subordinated Indebtedness permitted pursuant to
Section 9.1(h) without the prior written consent of the Required Lenders, other
than amendments or waivers to the indentures or other documents related to the
Subordinated Debt or the Contemplated 2001 Subordinated Debt relating to the
exchange offers referenced in the definition of Contemplated 2001 Subordinated
Debt and reasonably necessary in connection therewith, (ii) make an offer to
make any voluntary or optional principal payments with respect to the
Subordinated Debt, any Permitted Subordinated Refinancing Debt or any other
subordinated Indebtedness permitted pursuant to Section 9.1(h), other than the
exchange offers referenced in the definition of Contemplated 2001 Subordinated
Debt, (iii) redeem or offer to redeem any of the Subordinated Debt, any
Permitted Subordinated Refinancing Debt or any other subordinated Indebtedness
permitted pursuant to Section 9.1(h) or (iv) deposit any funds intended to
discharge or defease any or all of the Subordinated Debt, any Permitted
Subordinated Refinancing Debt or any other subordinated Indebtedness permitted
pursuant to Section 9.1(h).
10. Events of Default. Section 10.1(l) of the Credit Agreement is
amended in its entirety to read as follows:
(l) Subordinated Debt. The holders of the Subordinated Debt, any
Permitted Subordinated Refinancing Debt or any other subordinated Indebtedness
permitted pursuant to Section 9.1(h) assert (or any Governmental Authority
determines) that (i) the Loans do not constitute Senior Indebtedness (as defined
in the Subordinated Debt, any Permitted Subordinated Refinancing Debt or any
other subordinated Indebtedness permitted pursuant to Section 9.1(h)) or (ii)
the obligations of the U.S. Borrower with respect to the Subordinated Debt, any
Permitted Subordinated Refinancing Debt or any other subordinated Indebtedness
permitted pursuant to Section 9.1(h) are not fully subordinate to the repayment
of the Loans and all other amounts owing under the Credit Documents.
11. Exhibits. Exhibits 8.1(c) and 12.3(b) to the Credit Agreement
are replaced in their entirety with the exhibits attached hereto.
12. Conditions Precedent. This Amendment shall not be effective
until the following conditions have been satisfied or waived by the Lenders:
(a) Receipt by the Agents of copies of this Amendment duly
executed by the Borrowers, the Guarantors and the Required Lenders.
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(b) Receipt by the Agents of a certificate of the corporate
secretary of the Borrower certifying as to resolutions of the Board of
Directors of the U.S. Borrower approving and adopting this Amendment
and the transactions contemplated herein and authorizing the execution,
delivery and performance hereof.
(c) Receipt by the Agents of an opinion or opinions from
counsel to the U.S. Borrower relating to this Amendment and the
transactions contemplated herein, in form and substance satisfactory to
the Agents, addressed to the Agents on behalf of the Lenders and dated
as of the date hereof.
(d) The payment by the U.S. Borrower of (i) an amendment fee
in an amount equal to 0.15% of the aggregate amount of the Commitments
(as reduced pursuant to this Amendment) of those Lenders who execute
and deliver this Amendment on or before the date hereof, to be shared
pro rata among such Lenders in accordance with their respective Total
Facility Commitment Percentages, (ii) all fees owing to the Agents in
accordance with that certain Fee Letter between the U.S. Borrower and
the Agents of even date herewith, and (iii) the reasonable
out-of-pocket expenses of the Agents in connection with the
negotiation, preparation, execution and delivery of this Amendment and
the other transactions contemplated herein, including, without
limitation, reasonable legal fees and expenses.
13. Ratification of Credit Agreement. The term "Credit Agreement"
as used in each of the Credit Documents shall hereafter mean the Credit
Agreement as amended by this Amendment. Except as herein specifically agreed,
the Credit Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms. The Credit Parties hereby reaffirm the
Liens granted in favor of the Lenders pursuant to the Collateral Documents.
14. Authority/Enforceability. Each of the Credit Parties, the
Agents and the Lenders party hereto represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
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15. No Default. Each Credit Party represents and warrants to the
Lenders that (a) the representations and warranties of the Credit Parties set
forth in Section 7 of the Credit Agreement are true and correct as of the date
hereof, (b) no event has occurred and is continuing which constitutes a Default
or an Event of Default, and (c) it has no claims, counterclaims, offsets,
credits or defenses to its obligations under the Credit Documents or to the
extent it has any they are hereby released in consideration of the Required
Lenders entering into this Amendment.
16. No Conflicts. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions contemplated herein, nor
performance of and compliance with the terms and provisions hereof by the Credit
Parties will (a) violate, contravene or conflict with any provision of its
respective articles or certificate of incorporation, bylaws or other
organizational or governing document, (b) violate, contravene or conflict with
any law, rule, regulation, order, writ, judgment, injunction, decree or permit
applicable to any Credit Party, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any material
indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which a Credit Party is a party or by which it or its
properties may be bound or (d) result in or require the creation of any Lien
upon or with respect to a Credit Party's properties.
17. Counterparts/Telecopy. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered.
18. General Release. In consideration of the Required Lenders
entering into this Amendment, the Credit Parties hereby release the Agents, the
Lenders and the Agents' and the Lenders' respective officers, employees,
representatives, agents, counsel and directors from any and all actions, causes
of action, claims, demands, damages and liabilities of whatever kind or nature,
in law or in equity, now known or unknown, suspected or unsuspected to the
extent that any of the foregoing arises from any action or failure to act under
the Credit Agreement or any of the other Credit Documents on or prior to the
date hereof.
19. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[remainder of page intentionally left blank]
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Signature pages to Fourth Amendment
to WESCO Credit Agreement
Each of the parties hereto has caused a counterpart of this Amendment
to be duly executed and delivered as of the date first above written.
U.S. BORROWER: WESCO DISTRIBUTION, INC.,
------------- a Delaware corporation
By: /s/ STEPHEN A. VAN OSS
------------------------------------------------
Name: Stephen A. Van Oss
----------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------------
CANADIAN BORROWER: WESCO DISTRIBUTION-CANADA, INC.,
----------------- an Ontario corporation
By: /s/ STEPHEN A. VAN OSS
------------------------------------------------
Name: Stephen A. Van Oss
----------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------------
GUARANTORS: WESCO INTERNATIONAL, INC.,
---------- a Delaware corporation
By: /s/ STEPHEN A. VAN OSS
------------------------------------------------
Name: Stephen A. Van Oss
----------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------------
CDW REALCO, INC.,
a Delaware corporation
By: /s/ DANIEL A. BRAILER
------------------------------------------------
Name: Daniel A. Brailer
----------------------------------------------
Title: Corporate Secretary
---------------------------------------------
WESCO EQUITY CORPORATION,
a Delaware corporation
By: /s/ STEPHEN A. VAN OSS
------------------------------------------------
Name: Stephen A. Van Oss
----------------------------------------------
Title: President
---------------------------------------------
WESCO FINANCE CORP.,
a Delaware corporation
By: /s/ DANIEL A. BRAILER
------------------------------------------------
Name: Daniel A. Brailer
----------------------------------------------
Title: Vice President and Treasurer
---------------------------------------------
12
Signature pages to Fourth Amendment
to WESCO Credit Agreement
WESCO NIGERIA, INC. F/K/A
WESCO - AZERBAIJAN, INC.,
a Delaware corporation
By: /s/ DANIEL A. BRAILER
------------------------------------------------
Name: Daniel A. Brailer
----------------------------------------------
Title: Corporate Secretary
---------------------------------------------
HERNING ENTERPRISES, INC.,
a Delaware corporation
By: /s/ STEPHEN A. VAN OSS
------------------------------------------------
Name: Stephen A. Van Oss
----------------------------------------------
Title: Corporate Secretary
---------------------------------------------
13
Signature pages to Fourth Amendment
to WESCO Credit Agreement
ACKNOWLEDGED BY: BANK OF AMERICA, N.A., formerly Bank of
--------------- America National Trust and Savings Association,
in its capacity as the U.S. Administrative Agent
By: /s/ PAULA Z. KRAMP
--------------------------------------------------
Name: Paula Z. Kramp
------------------------------------------------
Title: Managing Director
-----------------------------------------------
BANK OF AMERICA CANADA, in its capacity
as Canadian Administrative Agent
By: /s/ NELSON LAN
--------------------------------------------------
Name: Nelson Lan
------------------------------------------------
Title: Vice President
-----------------------------------------------
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Signature pages to Fourth Amendment
to WESCO Credit Agreement
LENDERS: BANK OF AMERICA, N.A., formerly Bank of
------- America National Trust and Savings Association,
individually in its capacity as a U.S. Lender, the
U.S. Issuing Lender and the U.S. Swingline Lender
By: /s/ PAULA Z. KRAMP
--------------------------------------------------
Name: Paula Z. Kramp
------------------------------------------------
Title: Managing Director
-----------------------------------------------
BANK OF AMERICA CANADA,
in its capacity as a Canadian Lender, the Canadian
Administrative Agent, the Canadian Issuing Lender
and the Canadian Swingline Lender
By: /s/ DONALD R. CHUNG
--------------------------------------------------
Name: Donald R. Chung
------------------------------------------------
Title: Vice President, Corporate Investment Banking
-----------------------------------------------
15
Signature pages to Fourth Amendment
to WESCO Credit Agreement
ABN AMRO BANK N.V.
By: /s/ NANCY W. LANZONI
--------------------------------------------------
Name: Nancy W. Lanzoni
------------------------------------------------
Title: Group Vice President
-----------------------------------------------
By: /s/ JULIETTE MOUND
--------------------------------------------------
Name: Juliette Mound
------------------------------------------------
Title: Vice President
-----------------------------------------------
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Signature pages to Fourth Amendment
to WESCO Credit Agreement
FLEET NATIONAL BANK
By: /s/ PETER J. CAHILL
--------------------------------------------------
Name: Peter J. Cahill
------------------------------------------------
Title: Managing Director
-----------------------------------------------
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Signature pages to Fourth Amendment
to WESCO Credit Agreement
BANK OF HAWAII
By: /s/ DONNA R. PARKER
--------------------------------------------------
Name: Donna R. Parker
------------------------------------------------
Title: Vice President
-----------------------------------------------
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Signature pages to Fourth Amendment
to WESCO Credit Agreement
THE BANK OF NEW YORK
By: /s/ WALTER C. PARELLI
--------------------------------------------------
Name: Walter C. Parelli
------------------------------------------------
Title: Vice President
-----------------------------------------------
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Signature pages to Fourth Amendment
to WESCO Credit Agreement
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ASHBY
--------------------------------------------------
Name: F.C.H. Ashby
------------------------------------------------
Title: Senior Manager Loan Operations
-----------------------------------------------
20
Signature pages to Fourth Amendment
to WESCO Credit Agreement
BANK ONE, MICHIGAN
By: /s/ PATRICK F. DUNPHY
--------------------------------------------------
Name: Patrick F. Dunphy
------------------------------------------------
Title: Director, Capital Markets
-----------------------------------------------
21
Signature pages to Fourth Amendment
to WESCO Credit Agreement
THE CHASE MANHATTAN BANK
By: /s/ WILLIAM J. CAGGIANO
--------------------------------------------------
Name: William J. Caggiano
------------------------------------------------
Title: Managing Director
-----------------------------------------------
22
Signature pages to Fourth Amendment
to WESCO Credit Agreement
THE CHASE MANHATTAN BANK, TORONTO BRANCH
By: /s/ CHRISTINE CHAN
--------------------------------------------------
Name: Christine Chan
------------------------------------------------
Title: Authorized Representative
-----------------------------------------------
By: /s/ RALPH KERN
--------------------------------------------------
Name: Ralph Kern
------------------------------------------------
Title: Authorized Representative
-----------------------------------------------
23
Signature pages to Fourth Amendment
to WESCO Credit Agreement
COMERICA BANK
By: /s/ ROBERT P. WILSON
--------------------------------------------------
Name: Robert P. Wilson
------------------------------------------------
Title: Assistant Vice President
-----------------------------------------------
24
Signature pages to Fourth Amendment
to WESCO Credit Agreement
THE FUJI BANK, LIMITED
By: /s/ JOHN D. DOYLE
--------------------------------------------------
Name: John D. Doyle
------------------------------------------------
Title: Vice President and Manager
-----------------------------------------------
25
Signature pages to Fourth Amendment
to WESCO Credit Agreement
SYNDICATED LOAN FUNDING TRUST
BY: LEHMAN COMMERCIAL PAPER INC. NOT IN
ITS INDIVIDUAL CAPACITY BUT SOLELY AS
ASSET MANAGER
By: /s/ G. ANDREW KEITH
--------------------------------------------------
Name: G. Andrew Keith
Title: Authorized Signatory
26
Signature pages to Fourth Amendment
to WESCO Credit Agreement
MELLON BANK, N.A.
By: /s/ MARK LATTERNER
--------------------------------------------------
Name: Mark Latterner
------------------------------------------------
Title: Vice President
-----------------------------------------------
27
Signature pages to Fourth Amendment
to WESCO Credit Agreement
MERITA BANK PLC
By: /s/ MICHAEL J. MAHER
--------------------------------------------------
Name: Michael J. Maher
------------------------------------------------
Title: Senior Vice President
-----------------------------------------------
By: /s/ GARRY WEISS
--------------------------------------------------
Name: Garry Weiss
------------------------------------------------
Title: Vice President
-----------------------------------------------
28
Signature pages to Fourth Amendment
to WESCO Credit Agreement
NATIONAL BANK OF CANADA
By: /s/ DONALD P. HADDAD
--------------------------------------------------
Name: Donald P. Haddad
------------------------------------------------
Title: Vice President
-----------------------------------------------
By: /s/ G.B. KNELL
--------------------------------------------------
Name: G.B. Knell
------------------------------------------------
Title: Vice President
-----------------------------------------------
29
Signature pages to Fourth Amendment
to WESCO Credit Agreement
PNC BANK, NATIONAL ASSOCIATION
By: /s/ BRUCE G. SHEARER
--------------------------------------------------
Name: Bruce G. Shearer
------------------------------------------------
Title: Vice President
-----------------------------------------------
30
Signature pages to Fourth Amendment
to WESCO Credit Agreement
THE TORONTO-DOMINION BANK
By: /s/ JILL HALL
--------------------------------------------------
Name: Jill Hall
------------------------------------------------
Title: Manager - Credit Administration
-----------------------------------------------
31
Signature pages to Fourth Amendment
to WESCO Credit Agreement
TORONTO DOMINION (TEXAS), INC.
By: /s/ JILL HALL
--------------------------------------------------
Name: Jill Hall
------------------------------------------------
Title: Vice President
-----------------------------------------------
32
Exhibit 8.1(c)
to Credit Agreement
FORM OF
OFFICER'S CERTIFICATE
TO: BANK OF AMERICA, N.A., as U.S. Administrative Agent
Agency Management #10831
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Gary Flieger
BANK OF AMERICA CANADA, as Canadian Administrative Agent
5681 Simcoe Plaza, 27th Floor
200 Front Street W
Toronto, Ontario
Canada M5V3L2
Attn: Medina Sales de Andrade
RE: Credit Agreement dated as of June 29, 1999 among WESCO
Distribution, Inc., a Delaware corporation (the "U.S.
Borrower"), WESCO Distribution-Canada, Inc., an Ontario
corporation (the "Canadian Borrower"), WESCO International,
Inc., a Delaware corporation (the "Parent") and certain
Subsidiaries of the Parent, as Guarantors, the Lenders (as
defined therein), Bank of America, N.A. (formerly Bank of
America National Trust and Savings Association), as U.S.
Administrative Agent and U.S. Swingline Lender, Bank of
America Canada, as Canadian Administrative Agent and Canadian
Swingline Lender, and the Issuing Lenders (as defined therein)
(as the same may be amended, modified, extended or restated
from time to time, the "Credit Agreement")
DATE : _____________, ____
_______________________________________________________________________________
Pursuant to the terms of the Credit Agreement, I, ___________________,
Chief Financial Officer of WESCO DISTRIBUTION, INC., hereby certify on behalf of
the Credit Parties that, as of the quarter/year ending ____________, _______,
the statements below are accurate and complete in all material respects (all
capitalized terms used herein unless otherwise defined shall have the meanings
set forth in the Credit Agreement):
33
a. Attached hereto as Schedule 1 are calculations (calculated
as of the date of the financial statements referred to in paragraph c.
below) (i) demonstrating compliance by the Credit Parties with the
financial covenants contained in Section 8.2 of the Credit Agreement
and the restriction on dividends contained in Section 9.8 of the Credit
Agreement and (ii) as are necessary to determine the Applicable
Percentage.
b. No Default or Event of Default exists under the Credit
Agreement, except as indicated on a separate page attached hereto,
together with an explanation of the action taken or proposed to be
taken by the Borrowers with respect thereto.
c. The quarterly/annual financial statements for the fiscal
quarter/year ended __________ which accompany this certificate fairly
present in all material respects the financial condition of the Parent
and its Subsidiaries and have been prepared in accordance with GAAP
(and, in the case of any quarterly financial statements, subject to
changes resulting from audit and normal year-end audit adjustments).
WESCO DISTRIBUTION, INC.
a Delaware corporation
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
2
34
SCHEDULE 1 TO OFFICER'S CERTIFICATE
I. A. Compliance with Section 8.2(a):
Adjusted Leverage Ratio
1. Adjusted Total Debt $___________
2. EBITDA (see Exhibit A attached hereto) $___________
3. Adjusted Leverage Ratio (Line 1 / Line 2) _____:______
Maximum Allowed: Line A.3 shall be less than
or equal to:
Period Ratio
------ -----
From July 1, 2001 6.75 to 1.0
through September 30, 2001
From October 1, 2001 6.50 to 1.0
through December 31, 2001
From January 1, 2002 6.00 to 1.0
through June 30, 2002
From July 1, 2002 5.75 to 1.0
through December 31, 2002
From January 1, 2003 5.25 to 1.0
through June 30, 2003
From July 1, 2003 5.00 to 1.0
through December 31, 2003
From January 1, 2004 4.75 to 1.0
and thereafter
B. Compliance with Section 8.2(b):
Interest Coverage Ratio
1. EBITDA (see Exhibit A attached hereto) $__________
2. Interest Expense $__________
35
3. Interest Coverage Ratio (Line 1/ Line 2) ______:_____
Maximum Allowed: Line B.3 shall be greater than
or equal to:
Period Ratio
------ -----
From July 1, 2001 1.85 to 1.0
through September 30, 2001
From October 1, 2001 2.00 to 1.0
through June 30, 2002
From October 1, 2002 2.15 to 1.0
through June 30, 2003
From July 1, 2003 2.25 to 1.0
and thereafter
C. Compliance with Section 8.2(c):
Working Capital Ratio
1. Working Capital $___________
2. Adjusted Total Senior Debt $___________
3. Working Capital Ratio (Line 1 / Line 2) ______:______
Period Ratio
------ -----
From August 3, 2001 1.75 to 1.0
through September 30, 2002
From October 1, 2001 and thereafter 2.00 to 1.0
D. Compliance with Section 9.8: Dividends
1. Cumulative Net Income earned after [6/30/99] $____________
2. Line 1 multiplied by 25% $____________
3. Amount of dividends paid since [6/30/99] $____________
2
36
4. Amount Available for new dividends
(Line 2 - Line 3 if Adjusted Leverage
Ratio is less than 5.25 to 1.0; otherwise 0) $____________
E. Calculation of Leverage Ratio for determining the "Applicable
Percentage"
1. Adjusted Funded Debt $____________
2. EBITDA (see Exhibit A attached hereto) $____________
3. Leverage Ratio (Line 1 / Line 2) ______:______
3
37
Exhibit A
to Schedule 1
to Exhibit 8.1(c)
Calculation Schedule to Officer's Certificate
As of __________________
Twelve
1. EBITDA: Months Quarter Quarter Quarter Quarter
Ended Ended Ended Ended Ended
------ ------- ------- ------- -------
Net Income _______ _______ _______ _______ _______
- Extraordinary Gains/
Losses _______ _______ _______ _______ _______
+ Interest Expense _______ _______ _______ _______ _______
+ Taxes _______ _______ _______ _______ _______
+ Depreciation _______ _______ _______ _______ _______
+ Amortization _______ _______ _______ _______ _______
+ Non-recurring cash charges
incurred between 10/1/00 and
12/31/00 in an amount not to
exceed $7,000,000 _______ _______ _______ _______ _______
= EBITDA _______ _______ _______ _______ _______
4
38
Exhibit 12.3(b)
to Credit Agreement
FORM OF
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment") is dated as of the
Effective Date set forth below and is entered into by and between [Insert name
of Assignor] (the "Assignor") and [Insert name of Assignee] (the "Assignee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set
forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, Letters of Credit and
Swing Line Loans) (the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/Approved
Fund(1)]
3. Borrower(s): Wesco Distribution, Inc.
Wesco Distribution-Canada, Inc.
4. Administrative Agent: Bank of America, N.A., as the U.S. Administrative
Agent under the Credit Agreement; and Bank of America
Canada, as the Canadian Administrative Agent under
the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of June 29, 1999 among
WESCO DISTRIBUTION, INC., a Delaware corporation, as
U.S. Borrower, WESCO DISTRIBUTION-CANADA, INC., an
Ontario corporation, as Canadian Borrower, WESCO
INTERNATIONAL, INC., a Delaware corporation (the
"Parent") and certain subsidiaries of the Parent, as
Guarantors, the Lenders parties thereto, BANK OF
AMERICA, N.A., as U.S. Administrative Agent and U.S.
Swingline Lender, BANK OF AMERICA CANADA, as Canadian
Administrative Agent and Canadian Swingline Lender,
and the Issuing Lenders
--------
(1) Select as applicable.
39
6. Assigned Interest:
------------------------------ ------------------------------- ----------------------------- --------------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders Assigned Commitment/Loans(2)
----------------- --------------- -------- ----------------
_____________(3) $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
------------------------------ ------------------------------- ----------------------------- --------------------------
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
----------------
(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(3) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Loan Commitment", etc.).
40
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and](4) Accepted:
BANK OF AMERICA, N.A.,
as a U.S. Administrative Agent, a U.S. Issuing Lender
and U.S. Swingline Lender
By: _________________________________
Title:
BANK OF AMERICA CANADA,
as Canadian Administrative Agent, Canadian
Issuing Lender and Canadian Swingline Lender
By: _________________________________
Title:
----------------
(4) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
41
[Consented to:](5)
WESCO DISTRIBUTION, INC.
By: _________________________________
Title:
WESCO DISTRIBUTION-CANADA, INC.
By: _________________________________
Title:
THE CHASE MANHATTAN BANK,
as a U.S. Issuing Lender
By: _________________________________
Title:
----------------
(5) To be added only if the consent of the Borrower and/or other parties (e.g.
Swing Line Lender, L/C Issuer) is required by the terms of the Credit
Agreement.
42
ANNEX 1 TO ASSIGNMENT AGREEMENT
STANDARD TERMS AND CONDITIONS
FOR ASSIGNMENT AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Credit Documents"), or any collateral thereunder,
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Credit Document or
(iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 8.1(a) or (b) thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision,
and (v) if it is a Foreign Lender, attached hereto is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor 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 the Credit Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
1.3 Assignee's Address for Notices, etc. Attached hereto as
Schedule 1 is all contact information, address, account and other administrative
information relating to the Assignee.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
3. General Provisions. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument.
43
Delivery of an executed counterpart of a signature page of this Assignment by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment. This Assignment shall be governed by, and construed in
accordance with, the law of the State of New York.
44
SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)