================================================================================
WESCO RECEIVABLES CORP.
AND
WESCO DISTRIBUTION, INC.
AND
THE OTHER SELLERS NAMED HEREIN
-------------------------------
U.S. RECEIVABLES SALE AGREEMENT
-------------------------------
DATED AS OF JUNE 5, 1998
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS............................. 1
SECTION 1.01. CERTAIN DEFINED TERMS....................................... 1
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS............................... 6
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES.................... 7
SECTION 2.01. PURCHASE AND SALE OF RECEIVABLES............................ 7
SECTION 2.02. PURCHASE PRICE.............................................. 10
SECTION 2.03. PAYMENT OF PURCHASE PRICE................................... 10
SECTION 2.04. NO REPURCHASE............................................... 11
SECTION 2.05. REBATES, ADJUSTMENTS, RETURNS AND REDUCTIONS; MODIFICATIONS. 11
SECTION 2.06. LIMITED REPURCHASE OBLIGATION............................... 11
SECTION 2.07. OBLIGATIONS UNAFFECTED...................................... 12
SECTION 2.08. CERTAIN CHARGES............................................. 12
SECTION 2.09. CERTAIN ALLOCATIONS......................................... 12
SECTION 2.10. FURTHER ASSURANCES.......................................... 13
SECTION 2.11. PURCHASE OF SELLERS' INTEREST IN RECEIVABLES
AND RECEIVABLES PROPERTY................................. 13
ARTICLE III
CONDITIONS TO PURCHASES........................ 14
SECTION 3.01. CONDITIONS PRECEDENT TO COMPANY'S INITIAL PURCHASE.......... 14
SECTION 3.02. CONDITIONS PRECEDENT TO THE ADDITION OF A SELLER............ 16
SECTION 3.03. CONDITIONS PRECEDENT TO ALL THE COMPANY'S PURCHASES
OF RECEIVABLES........................................... 19
SECTION 3.04. CONDITION PRECEDENT TO EACH SELLER'S OBLIGATIONS............ 20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..................... 20
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE SELLERS............... 20
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE SELLERS RELATING TO THE
RECEIVABLES.............................................. 25
SECTION 4.03. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............... 25
ARTICLE V
GENERAL COVENANTS........................... 26
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE SELLERS........................ 26
SECTION 5.02. REPORTING REQUIREMENTS...................................... 32
-I-
PAGE
----
SECTION 5.03. NEGATIVE COVENANTS.......................................... 33
ARTICLE VI
PURCHASE TERMINATION EVENTS...................... 34
SECTION 6.01. PURCHASE TERMINATION EVENTS................................. 34
SECTION 6.02. ADDITIONAL REMEDIES......................................... 37
ARTICLE VII
INDEMNIFICATION; EXPENSES; COSTS.................... 37
SECTION 7.01. INDEMNITIES BY THE SELLERS.................................. 37
SECTION 7.02. INDEMNITIES BY THE COMPANY.................................. 39
ARTICLE VIII
SELLER NOTE .............................. 39
SECTION 8.01. SELLER NOTE................................................. 39
SECTION 8.02. RESTRICTIONS ON TRANSFER OF SELLER NOTE..................... 40
SECTION 8.03. AGGREGATE AMOUNT............................................ 40
ARTICLE IX
MISCELLANEOUS............................. 40
SECTION 9.01. AMENDMENT................................................... 40
SECTION 9.02. NOTICES, ETC................................................ 40
SECTION 9.03. NO WAIVER; REMEDIES......................................... 41
SECTION 9.04. SUCCESSORS AND ASSIGNS...................................... 41
SECTION 9.05. GOVERNING LAW............................................... 41
SECTION 9.06. WAIVER OF JURY TRIAL........................................ 42
SECTION 9.07. JURISDICTION; CONSENT TO SERVICE OF PROCESS................. 42
SECTION 9.08. INTEGRATION................................................. 43
SECTION 9.09. CAPTIONS AND CROSS REFERENCES............................... 43
SECTION 9.10. EXECUTION IN COUNTERPARTS................................... 43
SECTION 9.11. NO PETITION IN BANKRUPTCY................................... 43
SECTION 9.12. ADDITION OF SELLERS......................................... 43
SECTION 9.13. TREATMENT OF SELLERS OTHER THAN WESCO; TERMINATION THEREOF.. 43
SECTION 9.14. TERMINATION................................................. 44
EXHIBIT A FORM OF SELLER NOTE
EXHIBIT B FORM OF ADDITIONAL SELLER SUPPLEMENT
EXHIBIT C FORM OF UCC CERTIFICATE
SCHEDULE 1 SELLERS' AUTHORIZED OFFICERS
-II-
PAGE
----
SCHEDULE 2 LOCATION OF EACH SELLER'S CHIEF EXECUTIVE OFFICE
SCHEDULE 3 LOCKBOX BANKS, THE LOCKBOX PROCESSORS, AND ELIGIBLE
SEGREGATED ACCOUNT BANKS
SCHEDULE 4 ADDRESS FOR NOTICE TO SERVICER
SCHEDULE 5 SELLER TRADE NAMES
SCHEDULE 6 DEFINITION OF DISCOUNTED PERCENTAGE
SCHEDULE 7 ERISA MATTERS
SCHEDULE 8 FORM OF FINANCIAL STATEMENT NOTE
SCHEDULE 9 FORM OF GENERAL LEGEND
-III-
U.S. RECEIVABLES SALE AGREEMENT
THIS U.S. RECEIVABLES SALE AGREEMENT DATED AS OF JUNE 5, 1998 (THIS
"AGREEMENT"), IS AMONG WESCO DISTRIBUTION, INC., A DELAWARE CORPORATION
("WESCO"), WESCO EQUITY CORPORATION, A DELAWARE CORPORATION ("EQUITY CORP.");
WESCO AND EQUITY CORP., BEING COLLECTIVELY REFERRED TO HEREIN AS THE "SELLERS"
AND INDIVIDUALLY AS A "SELLER"), WESCO RECEIVABLES CORP., A DELAWARE CORPORATION
(THE "COMPANY") AND WESCO, IN ITS CAPACITY AS SERVICER (THE "SERVICER").
W I T N E S S E T H:
WHEREAS, THE SELLERS INTEND TO SELL RECEIVABLES AND RECEIVABLES
PROPERTY (BOTH AS HEREINAFTER DEFINED) TO THE COMPANY ON THE TERMS AND SUBJECT
TO THE CONDITIONS SET FORTH IN THIS AGREEMENT;
WHEREAS, THE COMPANY DESIRES TO PURCHASE RECEIVABLES AND RECEIVABLES
PROPERTY FROM THE SELLERS ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH
IN THIS AGREEMENT;
WHEREAS, THE SELLERS AND THE COMPANY DESIRE THE TRANSFER OF
RECEIVABLES AND RECEIVABLES PROPERTY FROM THE SELLERS TO THE COMPANY TO BE A
TRUE SALE PROVIDING THE COMPANY WITH THE FULL BENEFITS OF OWNERSHIP OF THE
RECEIVABLES; AND
WHEREAS, TO OBTAIN THE NECESSARY FUNDS TO PURCHASE SUCH RECEIVABLES
AND RECEIVABLES PROPERTY, THE COMPANY HAS ENTERED INTO THE POOLING AGREEMENT (AS
HEREINAFTER DEFINED);
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE MUTUAL
COVENANTS AND AGREEMENTS CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. UNLESS OTHERWISE DEFINED
HEREIN, CAPITALIZED TERMS WHICH ARE USED HEREIN SHALL HAVE THE MEANINGS ASSIGNED
TO SUCH TERMS IN SECTION 1.1 OF THE POOLING AGREEMENT, AMONG THE COMPANY, THE
SERVICER AND THE TRUSTEE. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS (SUCH MEANINGS TO BE EQUALLY APPLICABLE TO BOTH THE
SINGULAR AND PLURAL FORMS OF THE TERMS DEFINED):
"ADDITIONAL SELLER SUPPLEMENT" MEANS AN INSTRUMENT SUBSTANTIALLY IN
THE FORM OF EXHIBIT B HERETO PURSUANT TO WHICH A SUBSIDIARY OF WESCO BECOMES A
SELLER PARTY HERETO.
2
"AUTHORIZED OFFICERS" MEANS THOSE OFFICERS OF THE SELLERS DESIGNATED
IN SCHEDULE 1 HERETO (OR IN SUCH OTHER SCHEDULE AS MAY BE DELIVERED BY THE
SELLERS TO THE OTHER PARTIES HERETO FROM TIME TO TIME) AS DULY AUTHORIZED TO
EXECUTE AND DELIVER THIS AGREEMENT AND ANY INSTRUMENTS OR DOCUMENTS IN
CONNECTION HEREWITH ON BEHALF OF THE SELLERS AND TO TAKE, FROM TIME TO TIME, ALL
OTHER ACTIONS ON BEHALF OF THE SELLERS IN CONNECTION HEREWITH.
"CLOSING DATE" MEANS THE DATE OF THE INITIAL ISSUANCE OF THE
INVESTOR CERTIFICATES.
"CODE" SHALL MEAN THE INTERNAL REVENUE CODE OF 1986, AND REGULATIONS
PROMULGATED THEREUNDER OR ANY SUCCESSOR STATUTE AND RELATED REGULATIONS.
"COLLECTIONS" SHALL MEAN ALL COLLECTIONS, INCLUDING THE AGGREGATE
UNCLEARED FUNDS AMOUNT, AND ALL AMOUNTS RECEIVED IN RESPECT OF THE RECEIVABLES,
INCLUDING RECOVERIES, SELLER REPURCHASE PAYMENTS, SELLER ADJUSTMENT PAYMENTS,
SERVICER INDEMNIFICATION AMOUNTS PAID BY THE SERVICER AND ANY OTHER PAYMENTS
RECEIVED IN RESPECT OF DILUTION ADJUSTMENTS, TOGETHER WITH ALL COLLECTIONS
RECEIVED IN RESPECT OF THE RELATED PROPERTY IN THE FORM OF CASH, CHECKS, WIRE
TRANSFERS OR ANY OTHER FORM OF CASH PAYMENT, AND ALL PROCEEDS OF RECEIVABLES AND
COLLECTIONS THEREOF (INCLUDING, WITHOUT LIMITATION, COLLECTIONS CONSTITUTING AN
ACCOUNT OR GENERAL INTANGIBLE OR EVIDENCED BY A NOTE, INSTRUMENT, LETTER OF
CREDIT, SECURITY, CONTRACT, SECURITY AGREEMENT, CHATTEL PAPER OR OTHER EVIDENCE
OF INDEBTEDNESS OR SECURITY, WHATEVER IS RECEIVED UPON THE SALE, EXCHANGE,
COLLECTION OR OTHER DISPOSITION OF, OR ANY INDEMNITY, WARRANTY OR GUARANTY
PAYABLE IN RESPECT OF, THE FOREGOING AND ALL "PROCEEDS", AS DEFINED IN SECTION
9-306 OF THE UCC AS IN EFFECT IN THE STATE OF NEW YORK, OF THE FOREGOING).
"CONTRACT" MEANS A CONTRACT BETWEEN ANY SELLER AND ANY PERSON
PURSUANT TO OR UNDER WHICH SUCH PERSON SHALL BE OBLIGATED TO MAKE PAYMENTS TO
SUCH SELLER.
"DISCOUNTED PERCENTAGE" HAS THE MEANING SPECIFIED IN SCHEDULE 6
HERETO.
"EARLY TERMINATION" SHALL HAVE THE MEANING SPECIFIED IN SECTION
6.01.
"EFFECTIVE DATE" MEANS (I) WITH RESPECT TO EACH SELLER ON THE DATE
HEREOF, THE DATE HEREOF AND (II) WITH RESPECT TO EACH SUBSIDIARY OF WESCO ADDED
AS A SELLER PURSUANT TO SECTION 9.12, THE SELLER ADDITION DATE WITH RESPECT TO
EACH SUCH SUBSIDIARY.
"EXCLUDED RECEIVABLE" MEANS RECEIVABLES (WITHOUT GIVING EFFECT TO
THE EXCLUSION OF EXCLUDED RECEIVABLES FROM THE DEFINITION THEREOF) (I) OWED BY
OBLIGORS NOT RESIDENT IN THE UNITED STATES, WHICH ARE DENOMINATED IN A CURRENCY
OTHER THAN U.S. DOLLARS, (II) OWED TO A SELLER BY A VENDOR OF MERCHANDISE TO
SUCH SELLER, WHICH RELATES TO THE MERCHANDISE SOLD BY SUCH VENDOR OR PROMOTIONAL
PROGRAMS OF SUCH VENDOR OR (III) ORIGINATED BY THE NEW YORK CITY BRANCH, THE
FIFE BRANCH AND THE TAMPA MAJOR PROJECTS BRANCH, IDENTIFIED ON WESCO'S SYSTEM AS
BRANCH NOS. 1225, 7147 AND 3840, RESPECTIVELY.
"ERISA AFFILIATE" SHALL MEAN, WITH RESPECT TO ANY PERSON, ANY TRADE
OR BUSINESS (WHETHER OR NOT INCORPORATED) THAT IS A MEMBER OF A GROUP OF WHICH
SUCH PERSON IS A MEMBER AND WHICH IS TREATED AS A SINGLE EMPLOYER UNDER SECTION
414 OF THE INTERNAL REVENUE CODE.
3
"INSOLVENCY EVENT" WITH RESPECT TO THE SELLER, SHALL MEAN THE
OCCURRENCE OF ANY ONE OR MORE OF THE PURCHASE TERMINATION EVENTS SPECIFIED IN
SUBSECTION 6.01(G).
"LIEN" SHALL MEAN, WITH RESPECT TO ANY ASSET, (A) ANY MORTGAGE, DEED
OF TRUST, LIEN, PLEDGE, ENCUMBRANCE, CHARGE OR SECURITY INTEREST IN OR ON SUCH
ASSET, (B) THE INTEREST OF A VENDOR OR A LESSOR UNDER ANY CONDITIONAL SALE
AGREEMENT, CAPITAL LEASE OR TITLE RETENTION AGREEMENT RELATING TO SUCH ASSET AND
(C) IN THE CASE OF SECURITIES, ANY PURCHASE OPTION, CALL OR OTHER SIMILAR RIGHT
OF A THIRD PARTY WITH RESPECT TO SUCH SECURITIES; PROVIDED, HOWEVER, THAT IF A
LIEN IS IMPOSED UNDER SECTION 412(N) OF THE CODE OR SECTION 302(F) OF ERISA FOR
A FAILURE TO MAKE A REQUIRED INSTALLMENT OR OTHER PAYMENT TO A PLAN TO WHICH
SECTION 412(N) OF THE CODE OR SECTION 302(F) OF ERISA APPLIES, THEN SUCH LIEN
SHALL NOT BE TREATED AS A "LIEN" FROM AND AFTER THE TIME ANY PERSON WHO IS
OBLIGATED TO MAKE SUCH PAYMENT PAYS TO SUCH PLAN THE AMOUNT OF SUCH LIEN
DETERMINED UNDER SECTION 412(N)(3) OF THE CODE OR SECTION 302(F)(3) OF ERISA, AS
THE CASE MAY BE, AND PROVIDES TO THE TRUSTEE, ANY AGENT AND EACH RATING AGENCY A
WRITTEN STATEMENT OF THE AMOUNT OF SUCH LIEN TOGETHER WITH WRITTEN EVIDENCE OF
PAYMENT OF SUCH AMOUNT, OR SUCH LIEN EXPIRES PURSUANT TO SECTION 412(N)(4)(B) OF
THE CODE OR SECTION 302(F)(4)(B) OF ERISA.
"MATERIAL ADVERSE EFFECT" SHALL MEAN, WITH RESPECT TO ANY SELLER,
(A) A MATERIAL IMPAIRMENT OF THE ABILITY OF SUCH SELLER TO PERFORM ITS
OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS, (B) A MATERIAL IMPAIRMENT OF THE
VALIDITY OR ENFORCEABILITY OF ANY OF THE TRANSACTION DOCUMENTS AGAINST SUCH
SELLER, (C) A MATERIAL IMPAIRMENT OF THE COLLECTIBILITY OF THE RECEIVABLES
ORIGINATED BY SUCH SELLER TAKEN AS A WHOLE OR (D) A MATERIAL IMPAIRMENT OF THE
INTERESTS, RIGHTS OR REMEDIES OF THE COMPANY UNDER THE TRANSACTION DOCUMENTS OR
THE RECEIVABLES TAKEN AS A WHOLE.
"MULTIEMPLOYER PLAN" SHALL MEAN, WITH RESPECT TO ANY PERSON, A
"MULTIEMPLOYER PLAN" (WITHIN THE MEANING OF SECTION 4001(A)(3) OF ERISA) AS TO
WHICH SUCH PERSON OR ANY ERISA AFFILIATE OF SUCH PERSON (OTHER THAN ONE
CONSIDERED AN ERISA AFFILIATE ONLY PURSUANT TO SUBSECTION (M) OR (O) OF SECTION
414 OF THE CODE) IS MAKING OR ACCRUING AN OBLIGATION TO MAKE CONTRIBUTIONS, OR
HAS WITHIN ANY OF THE PRECEDING FIVE YEARS MADE OR ACCRUED AN OBLIGATION TO MAKE
CONTRIBUTIONS.
"PAYMENT DATE" HAS THE MEANING SPECIFIED IN SUBSECTION 2.03(A).
"PLAN" SHALL MEAN, WITH RESPECT TO ANY PERSON, ANY PENSION PLAN
(OTHER THAN A MULTIEMPLOYER PLAN) SUBJECT TO THE PROVISIONS OF TITLE IV OF ERISA
OR SECTION 412 OF THE INTERNAL REVENUE CODE WHICH IS MAINTAINED FOR EMPLOYEES OF
SUCH PERSON OR ANY ERISA AFFILIATE OF SUCH PERSON.
"POOLING AGREEMENT" MEANS THE POOLING AGREEMENT DATED AS OF THE DATE
HEREOF, AMONG THE COMPANY, THE SERVICER AND THE TRUSTEE ON BEHALF OF THE
CERTIFICATEHOLDERS, AS SUCH AGREEMENT MAY BE AMENDED, SUPPLEMENTED, WAIVED, OR
OTHERWISE MODIFIED FROM TIME TO TIME, INCLUDING, WITHOUT LIMITATION, THE SERIES
1998-1 SUPPLEMENT DATED AS OF THE DATE HEREOF AMONG THE COMPANY, THE SERVICER
AND THE TRUSTEE.
4
"POTENTIAL PURCHASE TERMINATION EVENT" MEANS ANY CONDITION OR ACT
SPECIFIED IN SECTION 6.01 THAT, WITH THE GIVING OF NOTICE OR THE LAPSE OF TIME
OR BOTH, WOULD BECOME A PURCHASE TERMINATION EVENT.
"PURCHASED RECEIVABLE" MEANS, AT ANY TIME, ANY RECEIVABLE SOLD TO
THE COMPANY BY ANY SELLER PURSUANT TO, AND IN ACCORDANCE WITH THE TERMS OF, THIS
AGREEMENT AND NOT THERETOFORE RESOLD TO SUCH SELLER PURSUANT TO SUBSECTION
2.01(B) OR SECTIONS 2.06 OR 2.11.
"PURCHASED RECEIVABLES PERCENTAGE" MEANS, WITH RESPECT TO ANY SELLER
AS TO WHICH WESCO HAS SUBMITTED A SELLER TERMINATION REQUEST, THE PERCENTAGE
EQUIVALENT OF A FRACTION, THE NUMERATOR OF WHICH IS AN AMOUNT EQUAL TO THE
AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF PURCHASED RECEIVABLES SOLD BY SUCH
SELLER AS OF THE APPLICABLE SELLER TERMINATION REQUEST DATE, AND THE DENOMINATOR
OF WHICH IS AN AMOUNT EQUAL TO THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF ALL
PURCHASED RECEIVABLES AS OF SUCH DATE.
"PURCHASE PRICE" HAS THE MEANING SPECIFIED IN SECTION 2.02.
"PURCHASE TERMINATION DATE" MEANS, WITH RESPECT TO ANY SELLER, THE
DATE ON WHICH THE COMPANY'S OBLIGATION TO PURCHASE RECEIVABLES FROM SUCH SELLER
SHALL TERMINATE, WHICH SHALL BE THE DATE ON WHICH AN EARLY TERMINATION OCCURS
WITH RESPECT TO SUCH SELLER.
"PURCHASE TERMINATION EVENT" HAS THE MEANING SPECIFIED IN SECTION
6.01.
"RECEIVABLE" SHALL MEAN THE INDEBTEDNESS AND PAYMENT OBLIGATIONS OF
ANY PERSON TO A SELLER OR ACQUIRED BY A SELLER (INCLUDING, WITHOUT LIMITATION,
OBLIGATIONS CONSTITUTING AN ACCOUNT OR GENERAL INTANGIBLE OR EVIDENCED BY A
NOTE, INSTRUMENT, CONTRACT, SECURITY AGREEMENT, CHATTEL PAPER OR OTHER EVIDENCE
OF INDEBTEDNESS OR SECURITY) ARISING FROM A SALE OF MERCHANDISE OR THE PROVISION
OF SERVICES BY SUCH SELLER OR THE PERSON FROM WHOM SUCH INDEBTEDNESS AND PAYMENT
OBLIGATION WAS ACQUIRED BY A SELLER, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO
PAYMENT FOR GOODS SOLD OR FOR SERVICES RENDERED, AND INCLUDING THE RIGHT TO
PAYMENT OF ANY INTEREST, SALES TAXES, FINANCE CHARGES, RETURNED CHECK OR LATE
CHARGES AND OTHER OBLIGATIONS OF SUCH PERSON WITH RESPECT THERETO OTHER THAN
EXCLUDED RECEIVABLES; PROVIDED, HOWEVER, THAT FOR PURPOSES OF ARTICLE II HEREOF
IN THE EVENT THAT AN EXCLUDED RECEIVABLE IS INCLUDED ON ANY DAILY REPORT, SUCH
EXCLUDED RECEIVABLE SHALL BE DEEMED TO BE A RECEIVABLE BUT NOT AN ELIGIBLE
RECEIVABLE.
"RECEIVABLES PROPERTY" HAS THE MEANING SPECIFIED IN SECTION 2.01.
"REFERENCE RATE" SHALL MEAN, FOR ANY DAY, A RATE PER ANNUM (ROUNDED
UPWARDS, IF NECESSARY, TO THE NEXT 1/16 OF 1%) EQUAL TO THE GREATER OF (A) THE
PRIME RATE IN EFFECT ON SUCH DAY AND (B) THE FEDERAL FUNDS EFFECTIVE RATE IN
EFFECT ON SUCH DAY PLUS 1/2 OF 1%. IF THE CHASE MANHATTAN BANK SHALL HAVE
DETERMINED (WHICH DETERMINATION SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR) THAT
IT IS UNABLE TO ASCERTAIN THE FEDERAL FUNDS EFFECTIVE RATE FOR ANY REASON,
INCLUDING THE FAILURE OF THE FEDERAL RESERVE BANK OF NEW YORK TO PUBLISH RATES
OR THE INABILITY OF THE CHASE MANHATTAN BANK TO OBTAIN QUOTATIONS IN ACCORDANCE
WITH THE TERMS OF THE DEFINITION THEREOF, THE REFERENCE RATE SHALL BE DETERMINED
WITHOUT REGARD TO CLAUSE (B) OF THE IMMEDIATELY PRECEDING SENTENCE, AS
APPROPRIATE, UNTIL THE CIRCUMSTANCES GIVING RISE TO SUCH
5
INABILITY NO LONGER EXIST. ANY CHANGE IN THE REFERENCE RATE DUE TO A CHANGE IN
THE PRIME RATE OR THE FEDERAL FUNDS EFFECTIVE RATE SHALL BE EFFECTIVE ON THE
EFFECTIVE DATE OF SUCH CHANGE IN THE PRIME RATE OR THE FEDERAL FUNDS EFFECTIVE
RATE, RESPECTIVELY. THE TERM "PRIME RATE" SHALL MEAN THE RATE OF INTEREST PER
ANNUM PUBLICLY ANNOUNCED FROM TIME TO TIME BY THE CHASE MANHATTAN BANK AS ITS
PRIME RATE IN EFFECT AT ITS PRINCIPAL OFFICE IN NEW YORK CITY; EACH CHANGE IN
THE PRIME RATE SHALL BE EFFECTIVE ON THE DATE SUCH CHANGE IS PUBLICLY ANNOUNCED
AS BEING EFFECTIVE. THE TERM "FEDERAL FUNDS EFFECTIVE RATE" SHALL MEAN, FOR ANY
DAY, THE WEIGHTED AVERAGE OF THE RATES ON OVERNIGHT FEDERAL FUNDS TRANSACTIONS
WITH MEMBERS OF THE FEDERAL RESERVE SYSTEM ARRANGED BY FEDERAL FUNDS BROKERS, AS
PUBLISHED ON THE NEXT SUCCEEDING BUSINESS DAY BY THE FEDERAL RESERVE BANK OF NEW
YORK, OR, IF SUCH RATE IS NOT SO PUBLISHED FOR ANY DAY THAT IS A BUSINESS DAY,
THE AVERAGE OF THE QUOTATIONS FOR THE DAY FOR SUCH TRANSACTIONS RECEIVED BY THE
CHASE MANHATTAN BANK FROM THREE FEDERAL FUNDS BROKERS OF RECOGNIZED STANDING
SELECTED BY IT.
"RELATED PROPERTY" SHALL MEAN, WITH RESPECT TO EACH RECEIVABLE:
(A) ALL OF THE APPLICABLE SELLER'S INTEREST IN THE GOODS, IF
ANY, SOLD AND DELIVERED TO AN OBLIGOR WHICH GAVE RISE TO SUCH RECEIVABLE;
(B) ALL OTHER SECURITY INTERESTS OR LIENS PURPORTING TO SECURE
PAYMENT OF SUCH RECEIVABLE, TOGETHER WITH ALL FINANCING STATEMENTS SIGNED
BY AN OBLIGOR DESCRIBING ANY COLLATERAL SECURING SUCH RECEIVABLE; AND
(C) ALL GUARANTEES, CREDIT OR SIMILAR TYPES OF INSURANCE,
LETTERS OF CREDIT AND OTHER AGREEMENTS OR ARRANGEMENTS OF WHATEVER
CHARACTER FROM TIME TO TIME SUPPORTING OR SECURING PAYMENT OF SUCH
RECEIVABLE;
IN THE CASE OF CLAUSES (B) AND (C), WHETHER PURSUANT TO THE CONTRACT RELATED TO
SUCH RECEIVABLE OR OTHERWISE OR INCLUDING, WITHOUT LIMITATION, PURSUANT TO ANY
OBLIGATIONS EVIDENCED BY A NOTE, INSTRUMENT, CONTRACT, SECURITY AGREEMENT,
CHATTEL PAPER OR OTHER EVIDENCE OF INDEBTEDNESS OR SECURITY AND THE PROCEEDS
THEREOF.
"RELEVANT UCC STATE" MEANS EACH JURISDICTION IN WHICH THE FILING OF
A UCC FINANCING STATEMENT IS NECESSARY OR DESIRABLE TO PERFECT THE COMPANY'S
INTEREST IN THE RECEIVABLES.
"REPORTABLE EVENT" SHALL MEAN ANY REPORTABLE EVENT AS DEFINED IN
SECTION 4043(B) OF ERISA OR THE REGULATIONS ISSUED THEREUNDER WITH RESPECT TO A
PLAN (OTHER THAN A PLAN MAINTAINED BY AN ERISA AFFILIATE WHICH IS CONSIDERED AN
ERISA AFFILIATE ONLY PURSUANT TO SUBSECTION (M) OR (O) OF SECTION 414 OF THE
CODE).
"SEC" MEANS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
"SELLER ADDITION DATE" HAS THE MEANING SPECIFIED IN SECTION 3.02.
"SELLER ADJUSTMENT PAYMENT" HAS THE MEANING SPECIFIED IN SECTION
2.05.
6
"SELLER REPURCHASE PAYMENT" HAS THE MEANING SPECIFIED IN SECTION
2.06.
"SELLER TERMINATION REQUEST" HAS THE MEANING SPECIFIED IN SUBSECTION
9.13(B).
"SELLER TERMINATION REQUEST DATE" HAS THE MEANING SPECIFIED IN
SUBSECTION 9.13(B).
"SELLER NOTE" HAS THE MEANING SPECIFIED IN SECTION 8.01.
"WESCO PERSONS" MEANS EACH SELLER AND EACH OF ITS AFFILIATES OTHER
THAN THE COMPANY.
"WITHDRAWAL LIABILITIES" SHALL MEAN LIABILITY TO A MULTIEMPLOYER
PLAN AS A RESULT OF A COMPLETE OR PARTIAL WITHDRAWAL FROM SUCH MULTIEMPLOYER
PLAN, AS SUCH TERMS ARE DEFINED IN PART I OF SUBTITLE E OF TITLE IV OF ERISA.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. (A) ALL TERMS DEFINED
HEREIN OR IN THE POOLING AGREEMENT OR ANY SUPPLEMENT SHALL HAVE THEIR DEFINED
MEANINGS WHEN USED IN ANY CERTIFICATE OR OTHER DOCUMENT MADE OR DELIVERED
PURSUANT HERETO UNLESS OTHERWISE DEFINED THEREIN.
(B) AS USED HEREIN AND IN ANY CERTIFICATE OR OTHER DOCUMENT MADE OR
DELIVERED PURSUANT HERETO OR THERETO, ACCOUNTING TERMS NOT DEFINED IN SECTION
1.1 OF THE POOLING AGREEMENT OR ANY SUPPLEMENT, AND ACCOUNTING TERMS PARTLY
DEFINED IN SECTION 1.1 OF THE POOLING AGREEMENT OR ANY SUPPLEMENT TO THE EXTENT
NOT DEFINED, SHALL HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM UNDER GAAP. TO THE
EXTENT THAT THE DEFINITIONS OF ACCOUNTING TERMS HEREIN ARE INCONSISTENT WITH THE
MEANINGS OF SUCH TERMS UNDER GAAP, THE DEFINITIONS CONTAINED HEREIN SHALL
CONTROL. ALL TERMS USED IN ARTICLE 9 OF THE UCC THAT ARE USED BUT NOT
SPECIFICALLY DEFINED HEREIN ARE USED HEREIN AS DEFINED THEREIN.
(C) THE WORDS "HEREOF", "HEREIN" AND "HEREUNDER" AND WORDS OF
SIMILAR IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER TO THIS AGREEMENT AS A
WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT, AND SECTION,
SUBSECTION, ANNEX, SCHEDULE AND EXHIBIT REFERENCES CONTAINED IN THIS AGREEMENT
ARE REFERENCES TO SECTIONS, SUBSECTIONS, ANNEX, SCHEDULES AND EXHIBITS IN OR TO
THIS AGREEMENT UNLESS OTHERWISE SPECIFIED.
(D) THE DEFINITIONS CONTAINED IN SECTION 1.01 OF THIS AGREEMENT ARE
APPLICABLE TO THE SINGULAR AS WELL AS THE PLURAL FORMS OF SUCH TERMS AND TO THE
MASCULINE, THE FEMININE AND THE NEUTER GENDERS OF SUCH TERMS.
(E) ANY REFERENCE HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT TO A
PROVISION OF THE CODE OR ERISA SHALL BE DEEMED A REFERENCE TO ANY SUCCESSOR
PROVISION THERETO.
(F) ALL REFERENCES HEREIN TO ANY AGREEMENT OR INSTRUMENT SHALL BE
DEEMED REFERENCES TO SUCH AGREEMENT OR INSTRUMENT AS AMENDED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME, SUBJECT TO COMPLIANCE WITH ANY
RESTRICTIONS HEREIN ON THE AMENDMENT, SUPPLEMENTATION OR MODIFICATION OF SUCH
AGREEMENT OR INSTRUMENT.
7
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01. PURCHASE AND SALE OF RECEIVABLES. (A) UPON THE TERMS
SET FORTH HEREIN, EACH OF THE SELLERS HEREBY SELLS, ASSIGNS, TRANSFERS AND
CONVEYS TO THE COMPANY, WITHOUT RECOURSE (EXCEPT TO THE LIMITED EXTENT PROVIDED
HEREIN), ALL ITS RESPECTIVE PRESENT AND FUTURE RIGHT, TITLE AND INTEREST IN, TO
AND UNDER:
(I) ALL RECEIVABLES NOW EXISTING AND HEREAFTER ARISING FROM TIME TO
TIME (UNTIL AN EARLY TERMINATION WITH RESPECT TO SUCH SELLER OCCURS);
(II) ALL RELATED PROPERTY IN RESPECT OF SUCH RECEIVABLES;
(III) ALL COLLECTIONS;
(IV) ALL PAYMENT, ENFORCEMENT AND OTHER RIGHTS (INCLUDING
RESCISSION, REPLEVIN OR RECLAMATION), BUT NONE OF THE OBLIGATIONS, RELATING TO
ANY RECEIVABLE OR ARISING THEREFROM; AND
(V) ALL MONIES DUE OR TO BECOME DUE AND ALL AMOUNTS RECEIVED WITH
RESPECT TO THE ITEMS LISTED IN CLAUSES (I), (II), (III) AND (IV) AND ALL
PROCEEDS (INCLUDING, WITHOUT LIMITATION, WHATEVER IS RECEIVED UPON THE SALE,
EXCHANGE, COLLECTION OR OTHER DISPOSITION OF THE FOREGOING AND ALL "PROCEEDS" AS
DEFINED IN SECTION 9-306 OF THE UCC AS IN EFFECT IN THE COMMONWEALTH OF
PENNSYLVANIA) THEREOF, INCLUDING ALL RECOVERIES RELATING THERETO AND ALL AMOUNTS
ON DEPOSIT IN LOCKBOX ACCOUNTS OR ELIGIBLE SEGREGATED ACCOUNTS WHICH WERE NOT
AVAILABLE FUNDS ON THE DATE HEREOF (THE PROPERTY DESCRIBED IN THE FOREGOING
CLAUSES (II) THROUGH (V) ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE
"RECEIVABLES PROPERTY").
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THE COMPANY
HEREBY AGREES TO PURCHASE THE RECEIVABLES AND RECEIVABLES PROPERTY OF EACH
SELLER.
(B) ON EACH APPLICABLE EFFECTIVE DATE AND ON THE DATE OF CREATION OF
EACH NEWLY CREATED RECEIVABLE, ALL OF THE APPLICABLE SELLER'S RIGHT, TITLE AND
INTEREST IN, TO AND UNDER (I) IN THE CASE OF EACH SUCH EFFECTIVE DATE, ALL THEN
EXISTING RECEIVABLES AND ALL RECEIVABLES PROPERTY IN RESPECT OF SUCH RECEIVABLES
AND (II) IN THE CASE OF EACH SUCH DATE OF CREATION (BUT ONLY SO LONG AS NO EARLY
TERMINATION WITH RESPECT TO SUCH SELLER HAS OCCURRED), ALL SUCH NEWLY CREATED
RECEIVABLES AND ALL RECEIVABLES PROPERTY IN RESPECT OF SUCH RECEIVABLES, SHALL
BE IMMEDIATELY AND AUTOMATICALLY SOLD, ASSIGNED, TRANSFERRED AND CONVEYED TO THE
COMPANY PURSUANT TO PARAGRAPH (A) ABOVE WITHOUT ANY FURTHER ACTION BY SUCH
SELLER OR ANY OTHER PERSON. IF ANY SELLER SHALL NOT HAVE RECEIVED PAYMENT
(INCLUDING AS A RESULT OF THE FAILURE TO SATISFY THE CONDITIONS SET FORTH IN
SECTION 3.03 OR THE APPLICATION OF THE FINAL PARAGRAPH OF SECTION 6.01) FROM THE
COMPANY OF THE PURCHASE PRICE FOR ANY NEWLY CREATED RECEIVABLE AND THE RELATED
RECEIVABLES PROPERTY ON THE PAYMENT DATE THEREFOR IN ACCORDANCE WITH THE TERMS
OF SUBSECTION 2.03(B), SUCH NEWLY CREATED RECEIVABLE AND THE RECEIVABLES
PROPERTY WITH RESPECT THERETO SHALL, UPON RECEIPT OF NOTICE BY THE COMPANY AND
THE TRUSTEE FROM THE APPLICABLE SELLER OF SUCH FAILURE TO RECEIVE PAYMENT,
IMMEDIATELY AND AUTOMATICALLY BE SOLD, ASSIGNED,
8
TRANSFERRED AND RECONVEYED BY THE COMPANY TO SUCH SELLER WITHOUT ANY FURTHER
ACTION BY THE COMPANY OR ANY OTHER PERSON.
(C) THE PARTIES TO THIS AGREEMENT INTEND THAT THE TRANSACTIONS
CONTEMPLATED BY SUBSECTIONS 2.01(A) AND (B) HEREBY SHALL BE, AND SHALL BE
TREATED AS, A PURCHASE AND RECEIPT BY THE COMPANY AND A SALE BY THE APPLICABLE
SELLER OF THE PURCHASED RECEIVABLES AND THE RECEIVABLES PROPERTY IN RESPECT
THEREOF AND NOT A LENDING TRANSACTION. ALL TRANSFERS OF RECEIVABLES AND
RECEIVABLES PROPERTY BY ANY SELLER HEREUNDER SHALL BE WITHOUT RECOURSE TO, OR
REPRESENTATION OR WARRANTY OF ANY KIND (EXPRESS OR IMPLIED) BY, ANY SELLER,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN. THE FOREGOING SALE,
ASSIGNMENT, TRANSFER AND CONVEYANCE DOES NOT CONSTITUTE AND IS NOT INTENDED TO
RESULT IN A CREATION OR ASSUMPTION BY THE COMPANY OF ANY OBLIGATION OF ANY
SELLER OR ANY OTHER PERSON IN CONNECTION WITH THE RECEIVABLES, THE RECEIVABLES
PROPERTY OR ANY AGREEMENT OR INSTRUMENT RELATING THERETO, INCLUDING ANY
OBLIGATION TO ANY OBLIGOR. IF, AND TO THE EXTENT, THIS AGREEMENT DOES NOT
CONSTITUTE A VALID SALE, ASSIGNMENT, TRANSFER AND CONVEYANCE OF ALL RIGHT, TITLE
AND INTEREST OF EACH SELLER IN, TO AND UNDER THE PURCHASED RECEIVABLES AND THE
RECEIVABLES PROPERTY IN RESPECT THEREOF DESPITE THE INTENT OF THE PARTIES
HERETO, SUCH SELLER HEREBY GRANTS A "SECURITY INTEREST" (AS DEFINED IN THE UCC
AS IN EFFECT IN THE COMMONWEALTH OF PENNSYLVANIA) IN THE PURCHASED RECEIVABLES,
THE RECEIVABLES PROPERTY IN RESPECT THEREOF AND ALL PROCEEDS THEREOF TO THE
COMPANY, AND THE PARTIES AGREE THAT THIS AGREEMENT SHALL CONSTITUTE A SECURITY
AGREEMENT UNDER THE UCC IN EFFECT IN THE COMMONWEALTH OF PENNSYLVANIA.
(D) IN CONNECTION WITH THE FOREGOING CONVEYANCES, EACH SELLER AGREES
TO RECORD AND FILE, OR CAUSE TO BE RECORDED AND FILED, AT ITS OWN EXPENSE,
FINANCING STATEMENTS (AND CONTINUATION STATEMENTS WITH RESPECT TO SUCH FINANCING
STATEMENTS WHEN APPLICABLE), OR, WHERE APPLICABLE, REGISTRATIONS IN THE
APPROPRIATE RECORDS, (I) WITH RESPECT TO THE RECEIVABLES NOW EXISTING AND
HEREAFTER ACQUIRED PURSUANT TO THIS AGREEMENT BY THE COMPANY FROM THE SELLERS
AND (II) WITH RESPECT TO ANY OTHER RECEIVABLES PROPERTY FOR WHICH A SECURITY
INTEREST MAY BE PERFECTED UNDER THE RELEVANT UCC, LEGISLATION OR SIMILAR
STATUTES BY SUCH FILING, IN EACH CASE MEETING THE REQUIREMENTS OF APPLICABLE
STATE LAW IN SUCH MANNER AND IN SUCH JURISDICTIONS AS ARE NECESSARY TO PERFECT
AND MAINTAIN PERFECTION OF THE COMPANY'S PURCHASE OF OWNERSHIP INTERESTS IN
RECEIVABLES AND RECEIVABLES PROPERTY FROM THE SELLERS, AND TO DELIVER TO THE
COMPANY AND THE TRUSTEE NO LATER THAN 10 DAYS AFTER THE EFFECTIVE DATE (I) WHERE
APPLICABLE, A FILE-STAMPED COPY OR CERTIFIED STATEMENT OF SUCH FINANCING
STATEMENT OR OTHER EVIDENCE OF SUCH FILING OR REGISTRATION AND (II) OTHERWISE, A
PHOTOCOPY, CERTIFIED BY A RESPONSIBLE OFFICER TO BE A TRUE AND CORRECT COPY, OF
SUCH FINANCING STATEMENT OR OTHER FILING MADE NO LATER THAN 10 DAYS AFTER THE
EFFECTIVE DATE.
(E) IN CONNECTION WITH THE FOREGOING CONVEYANCES, EACH SELLER AGREES
AT ITS OWN EXPENSE, AS AGENT OF THE COMPANY (I) NO LATER THAN 30 DAYS AFTER THE
EFFECTIVE DATE, TO INDICATE OR CAUSE TO BE INDICATED ON THE COMPUTER FILES (BUT
NOT ON INDIVIDUAL INVOICES OR INDIVIDUAL COLLECTION FILES) RELATING TO SUCH
RECEIVABLES (BY MEANS OF A GENERAL LEGEND, SUBSTANTIALLY IN THE FORM DESCRIBED
ON SCHEDULE 9 HERETO, THAT WILL AUTOMATICALLY APPEAR EACH TIME A PERSON ENTERS
THE SELLERS' RECEIVABLES PROGRAM) THAT, UNLESS OTHERWISE SPECIFICALLY IDENTIFIED
AS A RECEIVABLE NOT SO SOLD, TRANSFERRED, ASSIGNED AND CONVEYED, ALL RECEIVABLES
(AND ANY SUCH OTHER RECEIVABLES) INCLUDED THEREIN AND ALL OTHER RECEIVABLES
PROPERTY (AND ANY OTHER SIMILAR RELATED PROPERTY) HAVE BEEN SOLD, TRANSFERRED,
ASSIGNED AND CONVEYED TO THE COMPANY
9
IN ACCORDANCE WITH THIS AGREEMENT AND (II) ON OR PRIOR TO THE EFFECTIVE DATE TO
DELIVER, TO THE COMPANY COMPUTER FILES, MICROFICHE LISTS OR TYPED OR PRINTED
LISTS (THE "RECEIVABLES LISTS") CONTAINING TRUE AND COMPLETE LISTS OF ALL SUCH
RECEIVABLES, IDENTIFIED BY OBLIGOR AND SETTING FORTH THE RECEIVABLES BALANCE FOR
EACH RECEIVABLE AS OF THE CUT-OFF DATE.
(F) AS FURTHER CONFIRMATION OF THE SALE OF THE RECEIVABLES BUT
SUBJECT TO SUBSECTION 6.02(B), IT IS UNDERSTOOD AND AGREED THAT THE COMPANY
SHALL HAVE THE FOLLOWING RIGHTS:
(A) THE COMPANY (AND ITS ASSIGNEES) SHALL HAVE THE RIGHT AT
ANY TIME TO (I) NOTIFY, OR REQUIRE THAT SUCH SELLER AT ITS OWN
EXPENSE NOTIFY, THE RESPECTIVE OBLIGORS OF THE COMPANY'S OWNERSHIP
OF THE PURCHASED RECEIVABLES AND RECEIVABLES PROPERTY, (II) DIRECT
THAT PAYMENT OF ALL AMOUNTS DUE OR TO BECOME DUE UNDER THE PURCHASED
RECEIVABLES BE MADE DIRECTLY TO THE COMPANY OR ITS DESIGNEE, (III)
SUE FOR COLLECTION ON ANY PURCHASED RECEIVABLE OR (IV) SELL ANY
PURCHASED RECEIVABLES TO ANY PERSON FOR A PRICE THAT IS ACCEPTABLE
TO THE COMPANY (OR ITS ASSIGNEE);
(B) SUCH SELLER SHALL, UPON WRITTEN REQUEST OF THE COMPANY,
AND AT SUCH SELLER'S EXPENSE (I) DELIVER TO THE COMPANY OR A PARTY
DESIGNATED BY THE COMPANY ALL DOCUMENTS, INSTRUMENTS AND OTHER
RECORDS (INCLUDING CREDIT FILES) THAT EVIDENCE OR RECORD THE
RECEIVABLES SOLD BY SUCH SELLER AND ALL LICENSES, RIGHTS, COMPUTER
PROGRAMS, RELATED MATERIAL, COMPUTER TAPES, DISKS, CASSETTES AND
DATA NECESSARY TO THE IMMEDIATE COLLECTION OF THE PURCHASED
RECEIVABLES BY THE COMPANY, WITH OR WITHOUT THE PARTICIPATION OF
SUCH SELLER AND (II) MAKE SUCH ARRANGEMENTS WITH RESPECT TO THE
COLLECTION OF THE PURCHASED RECEIVABLES AS MAY BE REASONABLY
REQUIRED BY THE COMPANY. IN RECOGNITION OF SUCH SELLER'S NEED TO
HAVE ACCESS TO ANY DOCUMENTS WHICH MAY BE TRANSFERRED TO THE COMPANY
HEREUNDER, WHETHER AS A RESULT OF ITS CONTINUING BUSINESS
RELATIONSHIP WITH ANY OBLIGOR FOR RECEIVABLES PURCHASED HEREUNDER OR
AS A RESULT OF ITS RESPONSIBILITIES AS A SUB-SERVICER, THE COMPANY
HEREBY GRANTS TO SUCH SELLER AN IRREVOCABLE LICENSE TO ACCESS THE
DOCUMENTS TRANSFERRED BY SUCH SELLER TO THE COMPANY AND TO ACCESS
ANY SUCH TRANSFERRED COMPUTER SOFTWARE IN CONNECTION WITH ANY
ACTIVITY ARISING IN THE ORDINARY COURSE OF SUCH SELLER'S BUSINESS OR
IN PERFORMANCE OF SUCH SELLER'S DUTIES AS A SERVICING PARTY,
PROVIDED, HOWEVER, THAT SUCH SELLER SHALL NOT DISRUPT OR OTHERWISE
INTERFERE WITH THE COMPANY'S USE OF AND ACCESS TO THE DOCUMENTS AND
ITS COMPUTER SOFTWARE DURING SUCH LICENSE PERIOD; AND
(C) SUCH SELLER HEREBY GRANTS TO THE COMPANY AN IRREVOCABLE
POWER OF ATTORNEY (COUPLED WITH AN INTEREST) TO TAKE ANY AND ALL
STEPS IN SUCH SELLER'S NAME NECESSARY OR DESIRABLE, IN THE
REASONABLE OPINION OF THE COMPANY, TO COLLECT ALL AMOUNTS DUE UNDER
THE PURCHASED RECEIVABLES, INCLUDING, WITHOUT LIMITATION, ENFORCING
THE PURCHASED RECEIVABLES, EXERCISING ALL RIGHTS AND REMEDIES IN
RESPECT THEREOF AND, WITHOUT REGARD TO THE LIMITATION SET FORTH IN
SUBSECTION 6.02(B), ENDORSING SUCH SELLER'S NAME ON CHECKS AND OTHER
INSTRUMENTS REPRESENTING COLLECTIONS.
10
SECTION 2.02. PURCHASE PRICE. THE AMOUNT PAYABLE BY THE COMPANY TO A
SELLER (THE "PURCHASE PRICE") FOR RECEIVABLES AND RECEIVABLES PROPERTY ON ANY
PAYMENT DATE UNDER THIS AGREEMENT SHALL BE EQUAL TO THE PRODUCT OF (A) THE
AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF SUCH RECEIVABLES AS SET FORTH IN THE
APPLICABLE DAILY REPORT TIMES (B) THE DISCOUNTED PERCENTAGE WITH RESPECT TO SUCH
SELLER PLUS, ON THE EFFECTIVE DATE, THE AGGREGATE OF ALL AMOUNTS ON DEPOSIT IN
LOCKBOX ACCOUNTS OR ELIGIBLE SEGREGATED ACCOUNTS WHICH WERE NOT AVAILABLE FUNDS
ON SUCH DATE.
SECTION 2.03. PAYMENT OF PURCHASE PRICE. (A) UPON THE FULFILLMENT OF
THE CONDITIONS SET FORTH IN ARTICLE III, THE PURCHASE PRICE FOR RECEIVABLES AND
THE RECEIVABLES PROPERTY SHALL BE PAID OR PROVIDED FOR BY THE COMPANY IN THE
MANNER PROVIDED BELOW ON EACH DAY FOR WHICH A DAILY REPORT IS DELIVERED TO THE
COMPANY (EACH SUCH DAY, A "PAYMENT DATE") IN RESPECT OF A REPORTED DAY (WHICH
DAILY REPORT SHALL SPECIFY, BY SELLER, THE PRINCIPAL AMOUNT OF RECEIVABLES BEING
SOLD ON SUCH PAYMENT DATE, THE AGGREGATE PURCHASE PRICE FOR SUCH RECEIVABLES AND
THE COMPONENTS OF PAYMENT AS PROVIDED IN PARAGRAPH (B) BELOW).
(B) THE PURCHASE PRICE FOR RECEIVABLES AND RECEIVABLES PROPERTY
SHALL BE PAID BY THE COMPANY ON EACH PAYMENT DATE (INCLUDING THE INITIAL PAYMENT
DATE) AS FOLLOWS:
(I) BY NETTING THE AMOUNT OF ANY SELLER ADJUSTMENT PAYMENTS OR
SELLER REPURCHASE PAYMENTS PURSUANT TO SECTION 2.05 OR 2.06 AGAINST SUCH
PURCHASE PRICE;
(II) TO THE EXTENT AVAILABLE FOR SUCH PURPOSE, IN CASH FROM
COLLECTIONS RELEASED TO THE COMPANY PURSUANT TO THE POOLING AGREEMENT;
(III) TO THE EXTENT AVAILABLE FOR SUCH PURPOSE, IN CASH FROM
THE NET PROCEEDS OF A TRANSFER OF INTERESTS IN PURCHASED RECEIVABLES BY
THE COMPANY TO OTHER PERSONS;
(IV) TO THE EXTENT AVAILABLE FOR SUCH PURPOSE, IN CASH FROM
THE PROCEEDS OF CAPITAL CONTRIBUTED BY WESCO TO THE COMPANY, IF ANY, IN
RESPECT OF ITS EQUITY INTEREST IN THE COMPANY; AND
(V) AT THE OPTION OF THE COMPANY (SUBJECT TO THE PROVISIONS OF
SECTION 8.01), BY MEANS OF AN ADDITION TO THE PRINCIPAL AMOUNT OF THE
SELLER NOTE IN AN AGGREGATE AMOUNT UP TO THE REMAINING PORTION OF THE
PURCHASE PRICE. ANY SUCH ADDITION TO THE PRINCIPAL AMOUNT OF THE SELLER
NOTE SHALL BE ALLOCATED AMONG THE SELLERS (PRO RATA ACCORDING TO THE
PRINCIPAL AMOUNT OF RECEIVABLES SOLD BY EACH SELLER) BY THE SERVICER IN
ACCORDANCE WITH THE PROVISIONS OF THIS SUBSECTION 2.03(B)(V) AND SECTION
8.01. THE SERVICER MAY EVIDENCE SUCH ADDITIONAL PRINCIPAL AMOUNTS BY
RECORDING THE DATE AND AMOUNT THEREOF ON THE GRID ATTACHED TO SUCH SELLER
NOTE; PROVIDED, HOWEVER, THAT THE FAILURE TO MAKE ANY SUCH RECORDATION OR
ANY ERROR IN SUCH GRID SHALL NOT ADVERSELY AFFECT ANY SELLER'S RIGHTS.
(C) THE SERVICER SHALL BE RESPONSIBLE, IN ITS SOLE DISCRETION BUT IN
ACCORDANCE WITH SUBSECTION 2.03(A), FOR ALLOCATING AMONG THE SELLERS THE PAYMENT
OF THE PURCHASE PRICE FOR RECEIVABLES AND ANY AMOUNTS NETTED THEREFROM PURSUANT
TO SUBSECTION 2.03(B)(I), EITHER IN THE FORM OF CASH RECEIVED FROM THE COMPANY
OR AS AN ADDITION TO THE
11
PRINCIPAL AMOUNT OF A SELLER'S INTEREST IN THE SELLER NOTE. THE COMPANY SHALL BE
ENTITLED TO PAY ALL AMOUNTS IN RESPECT OF THE PURCHASE PRICE OF RECEIVABLES AND
RECEIVABLES PROPERTY TO AN ACCOUNT OF THE SERVICER FOR ALLOCATION BY THE
SERVICER TO THE SELLERS, AND EACH OF THE SELLERS HEREBY APPOINT THE SERVICER AS
THEIR AGENT FOR PURPOSES OF RECEIVING SUCH PAYMENTS AND MAKING SUCH ALLOCATIONS
AND HEREBY AUTHORIZES THE COMPANY TO MAKE ALL PAYMENTS DUE TO SUCH SELLER
DIRECTLY TO, OR AS DIRECTED BY, THE SERVICER. THE SERVICER HEREBY ACCEPTS AND
AGREES TO SUCH APPOINTMENT. ALL PAYMENTS UNDER THIS AGREEMENT SHALL BE MADE NOT
LATER THAN 3:00 P.M (NEW YORK CITY TIME) ON THE DATE SPECIFIED THEREFOR IN
DOLLARS IN SAME DAY FUNDS OR BY CHECK, AS THE SERVICER SHALL ELECT AND TO THE
BANK ACCOUNT DESIGNATED IN WRITING BY THE SERVICER TO THE COMPANY.
(D) WHENEVER ANY PAYMENT TO BE MADE UNDER THIS AGREEMENT SHALL BE
STATED TO BE DUE ON A DAY OTHER THAN A BUSINESS DAY, SUCH PAYMENT SHALL BE MADE
ON THE NEXT SUCCEEDING BUSINESS DAY. AMOUNTS NOT PAID WHEN DUE IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT SHALL BEAR INTEREST AT A RATE EQUAL AT ALL
TIMES TO THE REFERENCE RATE, PAYABLE ON DEMAND.
SECTION 2.04. NO REPURCHASE. EXCEPT TO THE EXTENT EXPRESSLY SET
FORTH HEREIN, NO SELLER SHALL HAVE ANY RIGHT OR OBLIGATION UNDER THIS AGREEMENT,
BY IMPLICATION OR OTHERWISE, TO REPURCHASE FROM THE COMPANY ANY PURCHASED
RECEIVABLES OR RECEIVABLES PROPERTY OR TO RESCIND OR OTHERWISE RETROACTIVELY
AFFECT ANY PURCHASE OF ANY PURCHASED RECEIVABLES OR RECEIVABLES PROPERTY AFTER
THE PAYMENT DATE RELATING THERETO.
SECTION 2.05. REBATES, ADJUSTMENTS, RETURNS AND REDUCTIONS;
MODIFICATIONS. FROM TIME TO TIME, A SELLER MAY MAKE DILUTION ADJUSTMENTS TO
RECEIVABLES IN ACCORDANCE WITH THIS SUBSECTION 2.05 AND SUBSECTION 5.03(C). THE
SELLERS (OTHER THAN THOSE SELLERS FROM WHICH THE COMPANY HAS NO RECEIVABLES
OUTSTANDING AT SUCH TIME), JOINTLY AND SEVERALLY, AGREE TO PAY TO THE COMPANY
THE AMOUNT OF ANY SUCH DILUTION ADJUSTMENT (A "SELLER ADJUSTMENT PAYMENT");
PROVIDED, HOWEVER, THAT SUCH PAYMENT SHALL BE MADE NO LATER THAN THE SETTLEMENT
REPORT DATE OF THE MONTH FOLLOWING THE GRANT OF THE DILUTION ADJUSTMENT
(REGARDLESS OF WHICH SELLER SHALL HAVE GRANTED SUCH DILUTION ADJUSTMENT);
PROVIDED, FURTHER, THAT, PRIOR TO THE OCCURRENCE OF ANY EARLY TERMINATION WITH
RESPECT TO ALL SELLERS, ANY SUCH SELLER ADJUSTMENT PAYMENT KNOWN TO BE OWING TO
THE COMPANY ON ANY PAYMENT DATE SHALL, ON SUCH PAYMENT DATE, BE NETTED AGAINST
THE PURCHASE PRICE OF NEWLY CREATED RECEIVABLES IN ACCORDANCE WITH SUBSECTION
2.03(B)(I) TO THE EXTENT OF SUCH PRINCIPAL AMOUNT AND THE REMAINING AMOUNT OF
SUCH SELLER ADJUSTMENT PAYMENT KNOWN TO BE OWING TO THE COMPANY AFTER SUCH
NETTING, IF ANY, (OR FOLLOWING AN EARLY TERMINATION WITH RESPECT TO ALL SELLERS,
THE FULL AMOUNT) SHALL BE PAID TO THE COMPANY ON SUCH DATE IN CASH. THE AMOUNT
OF ANY DILUTION ADJUSTMENT POSTED ON ANY REPORTED DAY SHALL BE SET FORTH ON THE
DAILY REPORT PREPARED WITH RESPECT TO SUCH REPORTED DAY.
SECTION 2.06. LIMITED REPURCHASE OBLIGATION. IN THE EVENT THAT (I)
ANY REPRESENTATION OR WARRANTY CONTAINED IN SECTION 4.02 IN RESPECT OF ANY
RECEIVABLE TRANSFERRED TO THE COMPANY IS NOT TRUE AND CORRECT IN ANY MATERIAL
RESPECT ON THE APPLICABLE PAYMENT DATE, OR (II) THERE IS A BREACH OF ANY
COVENANT CONTAINED IN SUBSECTION 5.01(C), (F) OR (N) OR SECTION 5.03 WITH
RESPECT TO ANY RECEIVABLE IN ANY MATERIAL RESPECT OR (III) THE COMPANY'S
INTEREST IN ANY RECEIVABLE IS NOT A FIRST PRIORITY PERFECTED OWNERSHIP OR
SECURITY INTEREST AT ANY
12
TIME AS A RESULT OF ANY ACTION TAKEN BY, OR ANY FAILURE TO TAKE ACTION BY, ANY
SELLER, THEN THE SELLERS (OTHER THAN THOSE SELLERS FROM WHICH THE COMPANY HAS NO
RECEIVABLES OUTSTANDING AT SUCH TIME), JOINTLY AND SEVERALLY, AGREE TO PAY TO
THE COMPANY AN AMOUNT EQUAL TO THE PRINCIPAL AMOUNT (DETERMINED AS OF THE
PAYMENT DATE FOR SUCH RECEIVABLE) OF SUCH RECEIVABLE (WHETHER THE COMPANY PAID
SUCH PURCHASE PRICE IN CASH OR OTHERWISE) LESS COLLECTIONS RECEIVED BY THE
COMPANY IN RESPECT OF SUCH RECEIVABLE, REGARDLESS OF WHICH SELLER SHALL HAVE
BEEN RESPONSIBLE FOR SUCH INCORRECTNESS OR BREACH, SUCH PAYMENT TO OCCUR NO
LATER THAN THE PAYMENT DATE OCCURRING ON THE 30TH DAY (OR, IF SUCH 30TH DAY IS
NOT A PAYMENT DATE, ON THE PAYMENT DATE IMMEDIATELY SUCCEEDING SUCH 30TH DAY)
AFTER THE DAY SUCH BREACH OR INCORRECTNESS BECOMES KNOWN (OR SHOULD HAVE BECOME
KNOWN WITH DUE DILIGENCE) TO ANY SELLER (UNLESS SUCH BREACH OR INCORRECTNESS
SHALL HAVE BEEN CURED ON OR BEFORE SUCH DAY); PROVIDED, HOWEVER, THAT, PRIOR TO
ANY EARLY TERMINATION WITH RESPECT TO ALL SELLERS, ANY SUCH PAYMENT DUE AND
OWING TO THE COMPANY ON SUCH PAYMENT DATE SHALL BE NETTED AGAINST THE PURCHASE
PRICE OF NEWLY CREATED RECEIVABLES IN ACCORDANCE WITH SUBSECTION 2.03(B)(I) TO
THE EXTENT OF SUCH PRINCIPAL AMOUNT AND THE REMAINING AMOUNT OF SUCH PAYMENT DUE
TO THE COMPANY AFTER SUCH NETTING, IF ANY, (OR FOLLOWING AN EARLY TERMINATION
WITH RESPECT TO ALL SELLERS, THE FULL AMOUNT) SHALL BE PAID TO THE COMPANY IN
CASH TO THE EXTENT STILL UNPAID ON SUCH PAYMENT DATE. ANY PAYMENT BY ANY SELLER
PURSUANT TO THIS SECTION 2.06 IS REFERRED TO AS A "SELLER REPURCHASE PAYMENT".
THE OBLIGATION TO REACQUIRE ANY RECEIVABLE SHALL, UPON SATISFACTION THEREOF,
CONSTITUTE THE SOLE REMEDY RESPECTING THE EVENT GIVING RISE TO SUCH OBLIGATION
AVAILABLE TO THE COMPANY. SIMULTANEOUSLY WITH ANY SELLER REPURCHASE PAYMENT WITH
RESPECT TO ANY RECEIVABLE, SUCH RECEIVABLE AND THE RECEIVABLES PROPERTY WITH
RESPECT THERETO SHALL IMMEDIATELY AND AUTOMATICALLY BE SOLD, ASSIGNED,
TRANSFERRED AND CONVEYED BY THE COMPANY TO THE APPLICABLE SELLER WITHOUT ANY
FURTHER ACTION BY THE COMPANY OR ANY OTHER PERSON.
SECTION 2.07. OBLIGATIONS UNAFFECTED. THE OBLIGATIONS OF THE SELLERS
TO THE COMPANY UNDER THIS AGREEMENT SHALL NOT BE AFFECTED BY REASON OF ANY
INVALIDITY OR ILLEGALITY OF ANY RECEIVABLE OR ANY SALE OF A RECEIVABLE.
SECTION 2.08. CERTAIN CHARGES. EACH SELLER AND THE COMPANY AGREE
THAT LATE CHARGE REVENUE, REVERSALS OF DISCOUNTS, OTHER FEES AND CHARGES AND
OTHER SIMILAR ITEMS, WHENEVER CREATED, ACCRUED IN RESPECT OF PURCHASED
RECEIVABLES SHALL BE THE PROPERTY OF THE COMPANY NOTWITHSTANDING THE OCCURRENCE
OF AN EARLY TERMINATION AND ALL COLLECTIONS WITH RESPECT THERETO SHALL CONTINUE
TO BE ALLOCATED AND TREATED AS COLLECTIONS IN RESPECT OF PURCHASED RECEIVABLES.
SECTION 2.09. CERTAIN ALLOCATIONS. EACH SELLER HEREBY AGREES THAT,
FOLLOWING THE OCCURRENCE OF AN EARLY TERMINATION WITH RESPECT TO SUCH SELLER,
ALL COLLECTIONS AND OTHER PROCEEDS RECEIVED IN RESPECT OF RECEIVABLES GENERATED
BY SUCH SELLER SHALL BE APPLIED, FIRST, TO PAY THE OUTSTANDING PRINCIPAL AMOUNT
OF PURCHASED RECEIVABLES (AS OF THE DATE OF SUCH EARLY TERMINATION) OF THE
OBLIGOR TO WHOM SUCH COLLECTIONS ARE ATTRIBUTABLE UNTIL SUCH PURCHASED
RECEIVABLES ARE PAID IN FULL AND, SECOND, TO THE RELATED SELLER TO PAY
RECEIVABLES OF SUCH OBLIGOR NOT SOLD TO THE COMPANY; PROVIDED, HOWEVER, THAT
NOTWITHSTANDING THE FOREGOING, IF THE SELLER CAN ATTRIBUTE A COLLECTION TO A
SPECIFIC OBLIGOR AND A SPECIFIC RECEIVABLE, THEN SUCH COLLECTION SHALL BE
APPLIED TO PAY SUCH RECEIVABLE OF SUCH OBLIGOR. THE COMPANY AND THE SERVICER
SHALL TAKE SUCH ACTION AS THE SELLER MAY REASONABLY REQUEST, AT THE EXPENSE OF
THE
13
SELLER, TO ASSURE THAT ANY RECEIVABLE NOT SOLD TO THE COMPANY, THE RELATED
PROPERTY AND COLLECTIONS WITH RESPECT THERETO DO NOT REMAIN COMMINGLED WITH
OTHER COLLECTIONS HEREUNDER AND ARE IMMEDIATELY PAID TO THE SELLER.
SECTION 2.10. FURTHER ASSURANCES. FROM TIME TO TIME AT THE REQUEST
OF A SELLER, THE COMPANY SHALL DELIVER TO SUCH SELLER SUCH DOCUMENTS,
ASSIGNMENTS, RELEASES AND INSTRUMENTS OF TERMINATION AS SUCH SELLER MAY
REASONABLY REQUEST TO EVIDENCE THE RECONVEYANCE BY THE COMPANY TO SUCH SELLER OF
A RECEIVABLE PURSUANT TO THE TERMS OF SECTION 2.01(B), 2.06 OR 2.11(B),
PROVIDED, HOWEVER, THAT THE COMPANY SHALL HAVE BEEN PAID ALL AMOUNTS DUE
THEREUNDER; AND THE COMPANY AND THE SERVICER SHALL TAKE SUCH ACTION AS SUCH
SELLER MAY REASONABLY REQUEST, AT THE EXPENSE OF SUCH SELLER, TO ASSURE THAT ANY
SUCH RECEIVABLE, THE RELATED PROPERTY AND COLLECTIONS WITH RESPECT THERETO DO
NOT REMAIN COMMINGLED WITH OTHER COLLECTIONS HEREUNDER.
SECTION 2.11. PURCHASE OF SELLERS' INTEREST IN RECEIVABLES AND
RECEIVABLES PROPERTY. (A) IN THE EVENT OF ANY BREACH OF ANY OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SUBSECTION 4.01 (A), (B), (C), (E),
(F) OR (G), AS OF THE DATE MADE, WHICH BREACH HAS A MATERIAL ADVERSE EFFECT ON
THE INTERESTS OF THE COMPANY IN THE RECEIVABLES OR THE RECEIVABLES PROPERTY,
THEN THE COMPANY, BY NOTICE THEN GIVEN IN WRITING TO THE SELLERS, MAY DIRECT THE
SELLERS TO PURCHASE ALL RECEIVABLES AND RECEIVABLES PROPERTY AND THE SELLERS
(OTHER THAN THOSE SELLERS FROM WHICH THE COMPANY HAS NO RECEIVABLES OUTSTANDING
AT SUCH TIME), JOINTLY AND SEVERALLY, SHALL BE OBLIGATED TO MAKE SUCH PURCHASE
30 DAYS AFTER RECEIPT OF SUCH NOTICE ON THE TERMS AND CONDITIONS SET FORTH IN
SUBSECTION 2.11(B) BELOW; PROVIDED, HOWEVER, THAT NO SUCH PURCHASE SHALL BE
REQUIRED TO MADE IF, BY SUCH DATE, THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN SUBSECTIONS 4.01(A), (B), (C), (E), (F) OR (G) SHALL BE SATISFIED IN ALL
MATERIAL RESPECTS, OR ANY MATERIAL ADVERSE EFFECT ON THE COMPANY CAUSED THEREBY
HAS BEEN CURED.
(B) THE SELLERS (OTHER THAN THOSE SELLERS FROM WHICH THE COMPANY HAS
NO RECEIVABLES OUTSTANDING AT SUCH TIME), JOINTLY AND SEVERALLY, SHALL, AS THE
PURCHASE PRICE FOR THE RECEIVABLES AND RECEIVABLES PROPERTY TO BE PURCHASED
PURSUANT TO SUBSECTION 2.11(A) ABOVE, PAY TO THE COMPANY, ON THE BUSINESS DAY
PRECEDING SUCH DISTRIBUTION DATE, AN AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF THE
PURCHASED RECEIVABLES (DETERMINED AS OF THE PAYMENT DATE OR CONTRIBUTION DATE
FOR SUCH PURCHASED RECEIVABLES), LESS COLLECTIONS RECEIVED BY THE COMPANY IN
RESPECT OF SUCH PURCHASED RECEIVABLES, AS OF SUCH DISTRIBUTION DATE. UPON
PAYMENT OF SUCH AMOUNT, IN IMMEDIATELY AVAILABLE FUNDS, TO THE COMPANY, THE
COMPANY'S RIGHTS WITH RESPECT TO THE PURCHASED RECEIVABLES SHALL TERMINATE AND
SUCH INTEREST THEREIN SHALL IMMEDIATELY AND AUTOMATICALLY BE SOLD, ASSIGNED,
TRANSFERRED AND CONVEYED BY THE COMPANY TO THE SELLERS WITHOUT ANY FURTHER
ACTION BY THE COMPANY OR ANY OTHER PERSON AND THE COMPANY SHALL HAVE NO FURTHER
RIGHTS WITH RESPECT THERETO. IF THE COMPANY GIVES NOTICE DIRECTING THE SELLERS
TO PURCHASE THE PURCHASED RECEIVABLES AS PROVIDED ABOVE, THE OBLIGATION OF THE
SELLERS TO PURCHASE THE PURCHASED RECEIVABLES PURSUANT TO THIS SECTION 2.11
SHALL, UPON SATISFACTION THEREOF, CONSTITUTE THE SOLE REMEDY RESPECTING AN EVENT
OF THE TYPE SPECIFIED IN THE FIRST SENTENCE OF THIS SECTION 2.11 AVAILABLE TO
THE COMPANY.
ARTICLE III
CONDITIONS TO PURCHASES
14
SECTION 3.01. CONDITIONS PRECEDENT TO COMPANY'S INITIAL PURCHASE.
THE OBLIGATION OF THE COMPANY TO PURCHASE RECEIVABLES AND RECEIVABLES PROPERTY
HEREUNDER ON THE EFFECTIVE DATE FROM THE SELLERS IS SUBJECT TO THE CONDITIONS
PRECEDENT THAT THE COMPANY SHALL HAVE RECEIVED ON OR BEFORE THE DATE OF SUCH
PURCHASE THE FOLLOWING, EACH (UNLESS OTHERWISE INDICATED) DATED THE DAY OF SUCH
SALE AND IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY:
(A) SECRETARY'S CERTIFICATE. A CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF EACH SELLER, DATED THE CLOSING DATE, AND CERTIFYING
(I) THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF THE BY-LAWS OF
SUCH SELLER, AS IN EFFECT ON THE EFFECTIVE DATE AND AT ALL TIMES SINCE A
DATE PRIOR TO THE DATE OF THE RESOLUTIONS DESCRIBED IN CLAUSE (II) BELOW,
(II) THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF THE RESOLUTIONS,
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, OF THE BOARD
OF DIRECTORS OF SUCH SELLER OR COMMITTEES THEREOF AUTHORIZING THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY, AND THAT SUCH RESOLUTIONS HAVE NOT BEEN
AMENDED, MODIFIED, REVOKED OR RESCINDED AND ARE IN FULL FORCE AND EFFECT,
(III) THAT THE CERTIFICATE OF INCORPORATION OF SUCH PERSON HAS NOT BEEN
AMENDED SINCE THE DATE OF THE LAST AMENDMENT THERETO SHOWN ON THE
CERTIFICATE OF GOOD STANDING (OR ITS EQUIVALENT) FURNISHED PURSUANT TO
SUBSECTION (B) BELOW AND (IV) AS TO THE INCUMBENCY AND SPECIMEN SIGNATURE
OF EACH OFFICER EXECUTING THIS AGREEMENT AND ANY OTHER TRANSACTION
DOCUMENTS OR ANY OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH OR
THEREWITH ON BEHALF OF SUCH SELLER (ON WHICH CERTIFICATES THE COMPANY MAY
CONCLUSIVELY RELY UNTIL SUCH TIME AS THE COMPANY SHALL RECEIVE FROM SUCH
SELLER A REVISED CERTIFICATE WITH RESPECT TO SUCH SELLER MEETING THE
REQUIREMENTS OF THIS SUBSECTION (A));
(B) CORPORATE DOCUMENTS. THE CERTIFICATE OF INCORPORATION, INCLUDING
ALL AMENDMENTS THERETO, OF THE SELLER, CERTIFIED AS OF A RECENT DATE BY
THE SECRETARY OF STATE OR OTHER APPROPRIATE AUTHORITY OF THE STATE OF
INCORPORATION, AS THE CASE MAY BE;
(C) GOOD STANDING CERTIFICATES. CERTIFICATES OF COMPLIANCE, OF
STATUS OR OF GOOD STANDING, DATED AS OF A RECENT DATE, FROM THE SECRETARY
OF STATE OF DELAWARE AND PENNSYLVANIA;
(D) CONSENTS, LICENSES, APPROVALS, ETC. A CERTIFICATE DATED THE
CLOSING DATE OF A RESPONSIBLE OFFICER OF EACH SELLER EITHER (I) ATTACHING
COPIES OF ALL CONSENTS (INCLUDING, WITHOUT LIMITATION, CONSENTS UNDER LOAN
AGREEMENTS AND INDENTURES TO WHICH ANY SELLER OR ITS AFFILIATES ARE
PARTIES), LICENSES AND APPROVALS REQUIRED IN CONNECTION WITH THE
EXECUTION, DELIVERY AND PERFORMANCE BY SUCH SELLER OF THIS AGREEMENT AND
THE VALIDITY AND ENFORCEABILITY OF THIS AGREEMENT AGAINST SUCH SELLER, AND
SUCH CONSENTS, LICENSES AND APPROVALS SHALL BE IN FULL FORCE AND EFFECT OR
(II) STATING THAT NO SUCH CONSENTS, LICENSES OR APPROVALS ARE SO REQUIRED;
(E) NO LITIGATION. CONFIRMATION THAT THERE IS NO PENDING OR, TO ITS
KNOWLEDGE AFTER DUE INQUIRY, THREATENED ACTION OR PROCEEDING AFFECTING
SUCH SELLER OR
15
ANY OF ITS SUBSIDIARIES BEFORE ANY GOVERNMENTAL AUTHORITY THAT COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT;
(F) UCC CERTIFICATE; UCC FINANCING STATEMENTS. (I) A UCC
CERTIFICATE, SUBSTANTIALLY IN THE FORM OF EXHIBIT C HERETO, DULY EXECUTED
BY A RESPONSIBLE OFFICER OF THE APPLICABLE SELLER AND DATED SUCH DATE OF
PURCHASE AND (II) EXECUTED COPIES OF SUCH PROPER FINANCING STATEMENTS,
FILED AND RECORDED AT SUCH SELLER'S EXPENSE PRIOR TO THE CLOSING DATE,
NAMING THE APPLICABLE SELLER AS THE SELLER AND THE COMPANY AS THE
PURCHASER OF THE RECEIVABLES AND THE RECEIVABLES PROPERTY, IN PROPER FORM
FOR FILING IN EACH JURISDICTION IN WHICH THE COMPANY (OR ANY OF ITS
ASSIGNEES) DEEMS IT NECESSARY OR DESIRABLE TO PERFECT THE COMPANY'S
OWNERSHIP INTEREST IN ALL RECEIVABLES AND RECEIVABLES PROPERTY UNDER THE
UCC OR ANY COMPARABLE LAW OF SUCH JURISDICTION;
(G) UCC SEARCHES. WRITTEN SEARCH REPORTS, LISTING ALL EFFECTIVE
FINANCING STATEMENTS THAT NAME THE APPLICABLE SELLER AS DEBTOR OR ASSIGNOR
AND THAT ARE FILED IN THE JURISDICTIONS IN WHICH FILINGS WERE MADE
PURSUANT TO SUBSECTION (F) ABOVE AND IN ANY OTHER JURISDICTIONS THAT THE
COMPANY DETERMINES ARE NECESSARY OR APPROPRIATE, TOGETHER WITH COPIES OF
SUCH FINANCING STATEMENTS (NONE OF WHICH, EXCEPT FOR THOSE DESCRIBED IN
SUBSECTION (F) ABOVE, SHALL COVER ANY RECEIVABLES OR RECEIVABLES
PROPERTY), AND TAX AND JUDGMENT LIEN SEARCHES SHOWING NO SUCH LIENS THAT
ARE NOT PERMITTED BY THE TRANSACTION DOCUMENTS;
(H) OTHER TRANSACTION DOCUMENTS. ORIGINAL COPIES, EXECUTED BY EACH
OF THE PARTIES THERETO, OF EACH OF THE OTHER TRANSACTION DOCUMENTS TO BE
EXECUTED AND DELIVERED IN CONNECTION HEREWITH;
(I) BACK-UP SERVICING ARRANGEMENTS. EVIDENCE THAT EACH SELLER
MAINTAINS DISASTER RECOVERY SYSTEMS AND BACK-UP COMPUTER AND OTHER
INFORMATION MANAGEMENT SYSTEMS THAT, IN THE COMPANY'S REASONABLE JUDGMENT
AS OF THE DATE HEREOF, ARE SUFFICIENT TO PROTECT SUCH SELLER'S BUSINESS
AGAINST MATERIAL INTERRUPTION OR LOSS OR DESTRUCTION OF ITS PRIMARY
COMPUTER AND INFORMATION MANAGEMENT SYSTEMS;
(J) LEGAL OPINIONS. (I) ONE OR MORE LEGAL OPINIONS FROM COUNSEL TO
THE SELLERS AND COUNSEL TO THE COMPANY TO THE EFFECT THAT:
(A) THE SALES OF RECEIVABLES BY EACH SELLER TO THE COMPANY
PURSUANT TO THIS AGREEMENT WOULD CONSTITUTE TRUE SALES AND THAT SUCH
RECEIVABLES WOULD NOT BE PROPERTY OF SUCH SELLER'S BANKRUPTCY
ESTATE; AND
(B) A COURT WOULD NOT ORDER THE SUBSTANTIVE CONSOLIDATION OF
THE ASSETS AND LIABILITIES OF THE COMPANY WITH THOSE OF ANY SELLER.
(II) ONE OR MORE LEGAL OPINIONS FROM COUNSEL TO THE SELLERS AND
COUNSEL TO THE COMPANY:
(A) TO THE EFFECT THAT EACH SELLER AND THE COMPANY, AS
APPLICABLE, HAS ALL APPROVALS, JUDICIAL, REGULATORY, LEGAL OR
OTHERWISE, NEEDED TO EXECUTE,
16
DELIVER AND PERFORM EACH TRANSACTION DOCUMENT TO WHICH IT IS A PARTY
AND THAT NO CONFLICT OR DEFAULT WILL OCCUR AS A RESULT OF THE
EXECUTION, DELIVERY AND PERFORMANCE THEREOF;
(B) TO THE EFFECT THAT THE COMPANY HAS A PERFECTED, FIRST
PRIORITY, SECURITY INTEREST IN THE RECEIVABLES; AND
(C) ADDRESSING OTHER CUSTOMARY MATTERS.
(III) EACH SUCH LEGAL OPINION SHALL ALSO BE ADDRESSED TO THE RATING
AGENCIES, THE INITIAL PURCHASER, AND THE TRUSTEE;
(K) LOCK-BOX AGREEMENT. LOCKBOX AGREEMENTS SIGNED BY THE SERVICER,
EACH SELLER (IF NECESSARY), THE COMPANY, EACH LOCKBOX PROCESSOR AND THE
TRUSTEE AND NO LATER THAN 30 DAYS AFTER THE EFFECTIVE DATE, ELIGIBLE
SEGREGATED ACCOUNT BANK ACKNOWLEDGEMENTS WITH RESPECT TO EACH ELIGIBLE
SEGREGATED ACCOUNTS;
(L) POLICIES. A COPY OF THE POLICIES, WHICH SHALL BE SATISFACTORY IN
FORM AND SUBSTANCE TO THE COMPANY;
(M) LIST OF OBLIGORS. THE RECEIVABLES LIST OF EACH SELLER SHOWING,
AS OF THE CUT-OFF DATE, THE OBLIGORS WHOSE RECEIVABLES EXIST ON THE
CUT-OFF DATE AND THE BALANCE OF THE RECEIVABLES WITH RESPECT TO EACH SUCH
OBLIGOR AS OF SUCH PRIOR DATE; AND
(N) SYSTEMS. EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THE
TRUSTEE AND THE AGENTS THAT SUCH SELLER'S SYSTEMS, PROCEDURES AND RECORD
KEEPING RELATING TO THE PURCHASED RECEIVABLES IS IN ALL MATERIAL RESPECTS
SUFFICIENT AND SATISFACTORY IN ORDER TO PERMIT THE PURCHASE AND
ADMINISTRATION OF THE PURCHASED RECEIVABLES IN ACCORDANCE WITH THE TERMS
AND INTENT OF THIS AGREEMENT.
SECTION 3.02. CONDITIONS PRECEDENT TO THE ADDITION OF A SELLER. THE
OBLIGATION OF THE COMPANY TO PURCHASE RECEIVABLES AND RECEIVABLES PROPERTY
HEREUNDER FROM A SUBSIDIARY OF WESCO REQUESTED TO BE AN ADDITIONAL SELLER
PURSUANT TO SECTION 9.12 IS SUBJECT TO THE CONDITIONS PRECEDENT THAT THE COMPANY
SHALL HAVE RECEIVED ON OR BEFORE THE DATE DESIGNATED FOR THE ADDITION OF SUCH
SELLER (THE "SELLER ADDITION DATE") AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE COMPANY:
(A) ADDITIONAL SELLER SUPPLEMENT. AN ADDITIONAL SELLER SUPPLEMENT
(WITH A COPY FOR THE TRUSTEE AND EACH AGENT) DULY EXECUTED AND DELIVERED
BY SUCH SELLER.
(B) SECRETARY'S CERTIFICATE. A CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF SUCH SELLER, DATED THE EFFECTIVE DATE, AND
CERTIFYING (I) THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF THE
BY-LAWS OF SUCH SELLER, AS IN EFFECT ON THE SELLER ADDITION DATE AND AT
ALL TIMES SINCE A DATE PRIOR TO THE DATE OF THE RESOLUTIONS DESCRIBED IN
CLAUSE (II) BELOW, (II) THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY
OF THE RESOLUTIONS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY, OF THE
17
BOARD OF DIRECTORS OF SUCH SELLER OR COMMITTEES THEREOF AUTHORIZING THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY, AND THAT SUCH RESOLUTIONS HAVE NOT BEEN
AMENDED, MODIFIED, REVOKED OR RESCINDED AND ARE IN FULL FORCE AND EFFECT,
(III) THAT THE CERTIFICATE OF INCORPORATION OF SUCH SELLER HAS NOT BEEN
AMENDED SINCE THE DATE OF THE LAST AMENDMENT THERETO SHOWN ON THE
CERTIFICATE OF GOOD STANDING (OR ITS EQUIVALENT) FURNISHED PURSUANT TO
SUBSECTION (E) BELOW AND (IV) AS TO THE INCUMBENCY AND SPECIMEN SIGNATURE
OF EACH OFFICER EXECUTING THE ADDITIONAL SELLER SUPPLEMENT AND ANY OTHER
TRANSACTION DOCUMENTS OR ANY OTHER DOCUMENT DELIVERED IN CONNECTION
THEREWITH ON BEHALF OF SUCH SELLER (ON WHICH CERTIFICATES THE COMPANY MAY
CONCLUSIVELY RELY UNTIL SUCH TIME AS THE COMPANY SHALL RECEIVE FROM SUCH
SELLER A REVISED CERTIFICATE WITH RESPECT TO SUCH SELLER MEETING THE
REQUIREMENTS OF THIS SUBSECTION (B));
(C) OFFICER'S CERTIFICATE. A CERTIFICATE OF A RESPONSIBLE OFFICER OF
WESCO, DATED THE EFFECTIVE DATE, AND CERTIFYING SUCH SELLER IS IN THE SAME
LINE OF BUSINESS AS THE EXISTING SELLERS AS OF THE RELATED SELLER ADDITION
DATE;
(D) CORPORATE DOCUMENTS. THE CERTIFICATE OF INCORPORATION, INCLUDING
ALL AMENDMENTS THERETO, OF SUCH SELLER, CERTIFIED AS OF A RECENT DATE BY
THE SECRETARY OF STATE OR OTHER APPROPRIATE AUTHORITY OF THE STATE OF
INCORPORATION, AS THE CASE MAY BE;
(E) GOOD STANDING CERTIFICATES. CERTIFICATES OF COMPLIANCE, OF
STATUS OR OF GOOD STANDING, DATED AS OF A RECENT DATE, FROM THE SECRETARY
OF STATE OR OTHER APPROPRIATE AUTHORITY OF SUCH JURISDICTION, WITH RESPECT
TO SUCH SELLER IN EACH STATE WHERE THE OWNERSHIP, LEASE OR OPERATION OF
PROPERTY OR THE CONDUCT OF BUSINESS REQUIRES IT TO QUALIFY AS A FOREIGN
CORPORATION, EXCEPT WHERE THE FAILURE TO SO QUALIFY WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT;
(F) CONSENTS, LICENSES, APPROVALS, ETC. A CERTIFICATE DATED THE
RELATED SELLER ADDITION DATE OF A RESPONSIBLE OFFICER OF SUCH SELLER
EITHER (I) ATTACHING COPIES OF ALL CONSENTS (INCLUDING, WITHOUT
LIMITATION, CONSENTS UNDER LOAN AGREEMENTS AND INDENTURES TO WHICH ANY
SELLER OR ITS AFFILIATES ARE PARTIES), LICENSES AND APPROVALS REQUIRED IN
CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH SELLER OF
THE ADDITIONAL SELLER SUPPLEMENT AND THE VALIDITY AND ENFORCEABILITY OF
THE ADDITIONAL SELLER SUPPLEMENT AGAINST SUCH SELLER, AND SUCH CONSENTS,
LICENSES AND APPROVALS SHALL BE IN FULL FORCE AND EFFECT OR (II) STATING
THAT NO SUCH CONSENTS, LICENSES OR APPROVALS ARE SO REQUIRED;
(G) NO LITIGATION. CONFIRMATION THAT THERE IS NO PENDING OR, TO ITS
KNOWLEDGE AFTER DUE INQUIRY, THREATENED ACTION OR PROCEEDING AFFECTING
SUCH SELLER OR ANY OF ITS SUBSIDIARIES BEFORE ANY GOVERNMENTAL AUTHORITY
THAT COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT;
(H) LOCKBOXES; ELIGIBLE SEGREGATED ACCOUNTS. A LOCKBOX ACCOUNT OR AN
ELIGIBLE SEGREGATED ACCOUNT WITH RESPECT TO RECEIVABLES TO BE SOLD BY SUCH
SELLER SHALL HAVE BEEN ESTABLISHED IN THE NAME OF THE COMPANY, EACH
INVOICE ISSUED TO AN
18
OBLIGOR ON AND AFTER THE EFFECTIVE DATE SHALL INDICATE THAT PAYMENTS IN
RESPECT OF ITS RECEIVABLE SHALL BE MADE BY SUCH OBLIGOR TO A LOCKBOX
ACCOUNT OR ELIGIBLE SEGREGATED ACCOUNT OR BY WIRE TRANSFER OR OTHER
ELECTRONIC PAYMENT TO A LOCKBOX ACCOUNT, AN ELIGIBLE SEGREGATED ACCOUNT OR
THE COLLECTION ACCOUNT OR OTHERWISE AS PROVIDED IN SECTION 2.03 OF THE
SERVICING AGREEMENT AND THE SERVICER SHALL HAVE DELIVERED (I) WITH RESPECT
TO EACH SUCH LOCKBOX ACCOUNT A LOCKBOX AGREEMENT SIGNED BY IT, THE
COMPANY, THE TRUSTEE AND APPLICABLE LOCKBOX PROCESSOR AND (II) WITH
RESPECT TO EACH SUCH ELIGIBLE SEGREGATED ACCOUNT, AN ELIGIBLE SEGREGATED
ACCOUNT BANK ACKNOWLEDGEMENT, AS THE CASE MAY BE, OR A COMMITMENT TO
TRANSFER THE SAME WITHIN 30 DAYS OF THE APPLICABLE SELLER ADDITION DATE.
(I) UCC CERTIFICATE; UCC FINANCING STATEMENTS. (I) A UCC CERTIFICATE
DULY EXECUTED BY A RESPONSIBLE OFFICER OF SUCH SELLER AND DATED THE
RELATED SELLER ADDITION DATE AND (II) EXECUTED COPIES OF SUCH PROPER
FINANCING STATEMENTS, FILED AND RECORDED AT SUCH SELLER'S EXPENSE PRIOR TO
THE RELATED SELLER ADDITION DATE, NAMING SUCH SELLER AS THE SELLER AND THE
COMPANY AS THE PURCHASER OF THE RECEIVABLES AND THE RECEIVABLES PROPERTY,
IN PROPER FORM FOR FILING IN EACH JURISDICTION IN WHICH THE COMPANY (OR
ANY OF ITS ASSIGNEES) DEEMS IT NECESSARY OR DESIRABLE TO PERFECT THE
COMPANY'S OWNERSHIP INTEREST IN ALL RECEIVABLES AND RECEIVABLES PROPERTY
UNDER THE UCC OR ANY COMPARABLE LAW OF SUCH JURISDICTION;
(J) UCC SEARCHES. WRITTEN SEARCH REPORTS, LISTING ALL EFFECTIVE
FINANCING STATEMENTS THAT NAME SUCH SELLER AS DEBTOR OR ASSIGNOR AND THAT
ARE FILED IN THE JURISDICTIONS IN WHICH FILINGS WERE MADE PURSUANT TO
SUBSECTION (I) ABOVE AND IN ANY OTHER JURISDICTIONS THAT THE COMPANY
DETERMINES ARE NECESSARY OR APPROPRIATE, TOGETHER WITH COPIES OF SUCH
FINANCING STATEMENTS (NONE OF WHICH, EXCEPT FOR THOSE DESCRIBED IN
SUBSECTION (I) ABOVE, SHALL COVER ANY RECEIVABLES OR RECEIVABLES
PROPERTY), AND TAX AND JUDGMENT LIEN SEARCHES SHOWING NO SUCH LIENS THAT
ARE NOT PERMITTED BY THE TRANSACTION DOCUMENTS;
(K) LIST OF OBLIGORS. A MICROFICHE, TYPED OR PRINTED LIST OR OTHER
TANGIBLE EVIDENCE REASONABLY ACCEPTABLE TO THE COMPANY SHOWING AS OF A
DATE ACCEPTABLE TO THE COMPANY PRIOR TO THE RELATED SELLER ADDITION DATE
THE OBLIGORS WHOSE RECEIVABLES ARE TO BE TRANSFERRED TO THE COMPANY AND
THE BALANCE OF THE RECEIVABLES WITH RESPECT TO EACH SUCH OBLIGOR AS OF
SUCH DATE;
(L) OPINIONS. LEGAL OPINIONS WITH RESPECT TO SUCH SELLER CONFORMING
TO THE REQUIREMENTS OF SECTION 3.01(J).
(M) BACK-UP SERVICING ARRANGEMENTS. EVIDENCE THAT SUCH SELLER
MAINTAINS DISASTER RECOVERY SYSTEMS AND BACK-UP COMPUTER AND OTHER
INFORMATION MANAGEMENT SYSTEMS THAT, IN THE COMPANY'S REASONABLE JUDGMENT,
ARE SUFFICIENT TO PROTECT SUCH SELLER'S BUSINESS AGAINST MATERIAL
INTERRUPTION OR LOSS OR DESTRUCTION OF ITS PRIMARY COMPUTER AND
INFORMATION MANAGEMENT SYSTEMS.
19
(N) PARTY TO SERVICING AGREEMENT. EVIDENCE THAT SUCH ADDITIONAL
SELLER SHALL HAVE BECOME A PARTY TO THE SERVICING AGREEMENT IN ITS
CAPACITY AS A SUB-SERVICER THEREUNDER.
(O) SYSTEMS. EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THE
TRUSTEE AND THE AGENTS, THAT SUCH ADDITIONAL SELLER'S SYSTEMS, PROCEDURES
AND RECORD KEEPING RELATING TO THE PURCHASED RECEIVABLES REMAIN IN ALL
MATERIAL RESPECTS SUFFICIENT AND SATISFACTORY IN ORDER TO PERMIT THE
PURCHASE AND ADMINISTRATION OF THE PURCHASED RECEIVABLES IN ACCORDANCE
WITH THE TERMS AND INTENT OF THIS AGREEMENT.
SECTION 3.03. CONDITIONS PRECEDENT TO ALL THE COMPANY'S PURCHASES OF
RECEIVABLES. THE OBLIGATION OF THE COMPANY TO PAY FOR ANY RECEIVABLE AND THE
RECEIVABLES PROPERTY WITH RESPECT THERETO ON EACH PAYMENT DATE (INCLUDING THE
EFFECTIVE DATE) SHALL BE SUBJECT TO THE FURTHER CONDITIONS PRECEDENT THAT, ON
AND AS OF SUCH PAYMENT DATE:
(A) THE FOLLOWING STATEMENTS SHALL BE TRUE (AND THE ACCEPTANCE BY
THE RELEVANT SELLER OF THE PURCHASE PRICE FOR SUCH RECEIVABLE ON SUCH
PAYMENT DATE SHALL CONSTITUTE A REPRESENTATION AND WARRANTY BY SUCH SELLER
THAT ON SUCH PAYMENT DATE SUCH STATEMENTS ARE TRUE):
(I) THE REPRESENTATION AND WARRANTIES OF SUCH SELLER
CONTAINED IN SECTIONS 4.01 AND 4.02 SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF SUCH PAYMENT DATE AS THOUGH MADE ON
AND AS OF SUCH DATE EXCEPT TO THE EXTENT ANY SUCH REPRESENTATION OR
WARRANTY IS EXPRESSLY MADE ONLY AS OF ANOTHER DATE (IN WHICH CASE IT
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF SUCH
OTHER DATE);
(II) AFTER GIVING EFFECT TO SUCH PURCHASE, NO (A) EARLY
TERMINATION WITH RESPECT TO SUCH SELLER OR (B) POTENTIAL PURCHASE
TERMINATION EVENT WITH RESPECT TO A PURCHASE TERMINATION EVENT SET
FORTH IN CLAUSE (G)(II) OF SECTION 6.01 SHALL HAVE OCCURRED AND BE
CONTINUING; AND
(III) THERE HAS BEEN NO MATERIAL ADVERSE CHANGE SINCE THE
DATE OF THIS AGREEMENT IN THE COLLECTIBILITY OF THE RECEIVABLES
TAKEN AS A WHOLE (OTHER THAN DUE TO A CHANGE IN THE CREDITWORTHINESS
OF THE OBLIGORS);
(B) THE COMPANY SHALL HAVE RECEIVED (AFTER GIVING EFFECT TO
SUBSECTION 2.03(B)(I)) PAYMENT IN FULL OF ALL AMOUNTS FOR WHICH PAYMENT IS
DUE FROM SUCH SELLER PURSUANT TO SECTIONS 2.05, 2.06 OR 7.01;
(C) THE COMPANY SHALL HAVE RECEIVED SUCH OTHER APPROVALS, OPINIONS
OR DOCUMENTS AS THE COMPANY MAY REASONABLY REQUEST; AND
(D) SUCH SELLER SHALL HAVE COMPLIED WITH ALL OF ITS COVENANTS IN ALL
MATERIAL RESPECTS AND SATISFIED ALL OF ITS OBLIGATIONS IN ALL MATERIAL
RESPECTS UNDER THIS AGREEMENT REQUIRED TO BE COMPLIED WITH OR SATISFIED AS
OF SUCH DATE;
20
PROVIDED, HOWEVER, THAT THE FAILURE OF SUCH SELLER TO SATISFY ANY OF THE
FOREGOING CONDITIONS SHALL NOT PREVENT SUCH SELLER FROM SUBSEQUENTLY SELLING
RECEIVABLES UPON SATISFACTION OF ALL SUCH CONDITIONS OR EXERCISING ITS RIGHTS
UNDER SUBSECTION 2.01(B).
SECTION 3.04. CONDITION PRECEDENT TO EACH SELLER'S OBLIGATIONS. THE
OBLIGATION OF A SELLER TO SELL ANY RECEIVABLE GENERATED BY IT ON ANY DATE
(INCLUDING ON THE EFFECTIVE DATE) SHALL BE SUBJECT TO THE CONDITION PRECEDENT
THAT, ON THE RELATED PAYMENT DATE, THE FOLLOWING STATEMENT SHALL BE TRUE (AND
THE PAYMENT BY THE COMPANY OF THE PURCHASE PRICE FOR SUCH RECEIVABLE ON SUCH
DATE SHALL CONSTITUTE A REPRESENTATION AND WARRANTY BY THE COMPANY THAT ON SUCH
PAYMENT DATE THE STATEMENTS IN CLAUSE (II) ARE TRUE): (I) NO PURCHASE
TERMINATION EVENT SET FORTH IN PARAGRAPH (G) (OTHER THAN CLAUSE (V) THEREOF) OF
SECTION 6.01 SHALL HAVE OCCURRED AND BE CONTINUING AND (II) NO EARLY
AMORTIZATION EVENT OR POTENTIAL EARLY AMORTIZATION EVENT IN EACH CASE OF A TYPE
SET FORTH IN PARAGRAPH (A) (OTHER THAN CLAUSE (V) THEREOF) OF SECTION 7.1 OF THE
POOLING AGREEMENT (AS IN EFFECT ON THE DATE HEREOF) SHALL HAVE OCCURRED AND BE
CONTINUING.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. EACH
SELLER HEREBY REPRESENTS AND WARRANTS, AS TO ITSELF ONLY, FOR THE BENEFIT OF THE
COMPANY AND ITS ASSIGNS (INCLUDING THE TRUSTEE) ON THE APPLICABLE EFFECTIVE DATE
AND ON EACH PAYMENT DATE AS FOLLOWS:
(A) CORPORATE EXISTENCE. SUCH SELLER (I) IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION, (II) HAS ALL REQUISITE CORPORATE POWER
AND AUTHORITY, AND ALL LEGAL RIGHT, TO OWN AND OPERATE ITS PROPERTIES, TO
LEASE THE PROPERTIES IT OPERATES AS LESSEE AND TO CONDUCT ITS BUSINESS AS
NOW CONDUCTED AND (III) IS DULY QUALIFIED AS A FOREIGN CORPORATION TO DO
BUSINESS AND IN GOOD STANDING (OR IS EXEMPT FROM SUCH REQUIREMENTS) UNDER
THE LAWS OF EACH JURISDICTION IN WHICH THE OWNERSHIP OR LEASE OF PROPERTY
OR THE CONDUCT OF ITS BUSINESS REQUIRES SUCH QUALIFICATION, EXCEPT, IN THE
CASE OF CLAUSES (II) AND (III), TO THE EXTENT THAT A FAILURE TO HAVE SUCH
POWER, AUTHORITY OR RIGHT OR TO QUALIFY AND BE IN GOOD STANDING, AS THE
CASE MAY BE, WOULD NOT BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE
EFFECT.
(B) CORPORATE POWER; AUTHORIZATION; CONSENTS. THE SELLER HAS THE
CORPORATE POWER AND AUTHORITY, AND THE LEGAL RIGHT, TO EXECUTE, DELIVER
AND PERFORM THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT
IS A PARTY AND HAS TAKEN ALL NECESSARY CORPORATE ACTION TO AUTHORIZE THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY. NO CONSENT OR AUTHORIZATION
OF, FILING WITH, NOTICE TO OR OTHER ACT BY OR IN RESPECT OF, ANY
GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON IS REQUIRED IN CONNECTION WITH
THE EXECUTION, DELIVERY, PERFORMANCE, VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY BY OR
AGAINST THE SELLER OTHER THAN (I) THOSE CONSENTS WHICH HAVE DULY BEEN
OBTAINED OR MADE AND ARE IN FULL FORCE AND
21
EFFECT ON THE EFFECTIVE DATE OR THE RELEVANT PAYMENT DATE, AS THE CASE MAY
BE, (II) THE FILING OF THE UCC FINANCING STATEMENTS REFERRED TO IN ARTICLE
III, ALL OF WHICH, AT THE TIME REQUIRED IN ARTICLE III, SHALL HAVE BEEN
DULY MADE AND SHALL BE IN FULL FORCE AND EFFECT, (III) THOSE THAT MAY BE
REQUIRED UNDER STATE SECURITIES OR "BLUE SKY" LAWS IN CONNECTION WITH THE
OFFERING OR SALE OF CERTIFICATES AND (IV) ANY SUCH CONSENT, AUTHORIZATION,
FILING, NOTICE OR OTHER ACT, THE ABSENCE OF WHICH WOULD NOT BE REASONABLY
LIKELY TO HAVE A MATERIAL ADVERSE EFFECT. THIS AGREEMENT AND EACH OTHER
TRANSACTION DOCUMENT TO WHICH IT IS A PARTY HAVE BEEN DULY EXECUTED AND
DELIVERED ON BEHALF OF THE SELLER.
(C) NO DEFAULT. (I) SUCH SELLER IS NOT IN DEFAULT UNDER OR WITH
RESPECT TO ANY OF ITS CONTRACTUAL OBLIGATIONS IN ANY RESPECT WHICH WOULD
BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT. (II) NO (A) EARLY
TERMINATION OR (B) POTENTIAL PURCHASE TERMINATION EVENT WITH RESPECT TO A
PURCHASE TERMINATION EVENT SET FORTH IN CLAUSE (G)(II) OF SECTION 6.01, IN
EACH CASE WITH RESPECT TO SUCH SELLER, HAS OCCURRED AND IS CONTINUING.
(D) VALID SALE; BINDING OBLIGATIONS. THIS AGREEMENT CONSTITUTES, AND
EACH OTHER TRANSACTION DOCUMENT TO BE SIGNED BY A RESPONSIBLE OFFICER OF
SUCH SELLER WHEN DULY EXECUTED AND DELIVERED WILL CONSTITUTE, AN
ENFORCEABLE OBLIGATION OF SUCH SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT
(A) AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS NOW OR
HEREAFTER IN EFFECT AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS IN
GENERAL, AND (B) AS SUCH ENFORCEABILITY MAY BE LIMITED BY GENERAL
PRINCIPLES OF EQUITY (WHETHER CONSIDERED IN A SUIT AT LAW OR IN EQUITY).
(E) NO VIOLATION. THE EXECUTION, DELIVERY AND PERFORMANCE OF, AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY, THIS AGREEMENT AND
THE OTHER TRANSACTION DOCUMENTS AND THE FULFILLMENT OF THE TERMS HEREOF
AND THEREOF WILL NOT (I) CONFLICT WITH, RESULT IN ANY BREACH OF ANY OF THE
TERMS AND PROVISIONS OF, OR CONSTITUTE (WITH OR WITHOUT NOTICE OR LAPSE OF
TIME OR BOTH) A DEFAULT UNDER, (A) THE CERTIFICATE OR ARTICLES OF
INCORPORATION OR BY-LAWS OF SUCH SELLER OR (B) ANY INDENTURE, LOAN
AGREEMENT, MORTGAGE, DEED OF TRUST, OR OTHER MATERIAL CONTRACT, AGREEMENT
OR INSTRUMENT TO WHICH SUCH SELLER IS A PARTY OR BY WHICH SUCH SELLER OR
ANY OF ITS PROPERTIES IS BOUND, (II) RESULT IN THE CREATION OR IMPOSITION
OF ANY LIEN UPON ANY OF ITS PROPERTIES PURSUANT TO THE TERMS OF ANY SUCH
CONTRACT, INDENTURE, LOAN AGREEMENT, MORTGAGE, DEED OF TRUST, LEASE OR
OTHER AGREEMENT OR INSTRUMENT, OTHER THAN THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS OR (III) VIOLATE ANY OTHER REQUIREMENT OF LAW,
EXCEPT, IN THE CASE OF CLAUSES (I)(B), (II) AND (III) TO THE EXTENT THAT
SUCH CONFLICT, BREACH, DEFAULT, LIEN OR VIOLATION, AS THE CASE MAY BE,
WOULD NOT BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
(F) NO PROCEEDINGS. THERE ARE NO ACTIONS, SUITS OR PROCEEDINGS BY OR
BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY PENDING AGAINST OR, TO THE
KNOWLEDGE OF SUCH SELLER, THREATENED AGAINST OR AFFECTING SUCH SELLER (I)
ASSERTING THE INVALIDITY OR UNENFORCEABILITY OF THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT, (II) SEEKING TO PREVENT THE CONSUMMATION OF
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
22
OR ANY OTHER TRANSACTION DOCUMENT, OR (III) SEEKING ANY DETERMINATION OR
RULING THAT COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT (OTHER THAN THE DISCLOSED MATTERS).
(G) BULK SALES ACT. NO TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR
ANY OTHER TRANSACTION DOCUMENT WITH RESPECT TO SUCH SELLER REQUIRES
COMPLIANCE WITH, OR WILL BE SUBJECT TO AVOIDANCE UNDER, ANY BULK SALES ACT
OR SIMILAR LAW.
(H) LOCATION OF RECORDS; CHIEF EXECUTIVE OFFICE. THE CHIEF EXECUTIVE
OFFICE OF SUCH SELLER IS AS INDICATED ON SCHEDULE 2 HERETO AND IS THE
PLACE WHERE THE SELLER IS "LOCATED" FOR THE PURPOSES OF SECTION
9-103(3)(D) OF THE UCC AS IN EFFECT IN THE STATE OF NEW YORK. THE STATE
AND COUNTY WHERE THE CHIEF EXECUTIVE OFFICE OF SUCH SELLER IS "LOCATED"
FOR THE PURPOSES OF SECTION 9-103(3)(D) OF THE UCC AS IN EFFECT IN THE
STATE OF NEW YORK HAS NOT CHANGED IN THE PAST FOUR MONTHS. THE OFFICES
WHERE SUCH SELLER KEEPS ITS RECORDS CONCERNING THE RECEIVABLES AND RELATED
CONTRACTS AND ALL OTHER AGREEMENTS RELATED TO THE RECEIVABLES ARE AS
INDICATED FOR SUCH SELLER ON SCHEDULE 2 HERETO (OR AT SUCH OTHER
LOCATIONS, NOTIFIED TO THE COMPANY AND THE TRUSTEE IN ACCORDANCE WITH
SECTION 5.01(H), IN JURISDICTIONS WHERE ALL ACTION REQUIRED BY SECTION
9.02 HAS BEEN TAKEN AND COMPLETED).
(I) MARGIN REGULATIONS. NO USE OF ANY FUNDS OBTAINED BY SUCH SELLER
UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS WILL CONFLICT WITH
OR CONTRAVENE ANY OF REGULATIONS G, T, U AND X PROMULGATED BY THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM FROM TIME TO TIME.
(J) PROCEEDS BANKS; PAYMENT INSTRUCTIONS. THE NAMES AND ADDRESSES OF
ALL THE LOCKBOX BANKS, THE LOCKBOX PROCESSORS, AND ELIGIBLE SEGREGATED
ACCOUNT BANKS, TOGETHER WITH THE ACCOUNT NUMBERS OF THE LOCKBOX ACCOUNTS
AND THE ELIGIBLE SEGREGATED ACCOUNTS INTO WHICH COLLECTIONS ARE DEPOSITED
AT SUCH INSTITUTIONS, ARE SPECIFIED IN SCHEDULE 3. THE SELLERS HAVE
TRANSFERRED ALL OF THEIR RIGHT, TITLE AND INTEREST IN EACH LOCKBOX ACCOUNT
AND ELIGIBLE SEGREGATED ACCOUNT TO THE COMPANY. EACH LOCKBOX BANK OR
LOCKBOX PROCESSOR HAS EXECUTED AND DELIVERED TO THE COMPANY AND THE
TRUSTEE A LOCKBOX AGREEMENT. EACH ELIGIBLE SEGREGATED ACCOUNT BANK HAS
EXECUTED AND DELIVERED TO THE COMPANY AND THE TRUSTEE AN ELIGIBLE
SEGREGATED ACCOUNT BANK AGREEMENT. WITH RESPECT TO ANY PAYMENTS IN RESPECT
OF RECEIVABLES AND RELATED PROPERTY THAT ARE MADE DIRECTLY TO ANY SELLER
(INCLUDING, WITHOUT LIMITATION, ANY COLLECTORS, OTHER EMPLOYEES THEREOF OR
INDEPENDENT CONTRACTORS EMPLOYED THEREBY), SUCH SELLER AGREES TO DEPOSIT
PAYMENTS IN THE FORM RECEIVED WITHIN ONE BUSINESS DAY OF RECEIPT DIRECTLY
TO ONE OF THE LOCKBOX ACCOUNTS, OR ELIGIBLE SEGREGATED ACCOUNTS. EACH
INVOICE ISSUED TO AN OBLIGOR ON AND AFTER THE EFFECTIVE DATE SHALL
INDICATE THAT PAYMENTS IN RESPECT OF ITS RECEIVABLE SHALL BE MADE BY SUCH
OBLIGOR TO A LOCKBOX ACCOUNT OR ELIGIBLE SEGREGATED ACCOUNT OR BY WIRE
TRANSFER OR OTHER ELECTRONIC PAYMENT TO A LOCKBOX ACCOUNT, AN ELIGIBLE
SEGREGATED ACCOUNT OR THE COLLECTION ACCOUNT OR OTHERWISE AS PROVIDED IN
SECTION 2.03 OF THE SERVICING AGREEMENT.
23
(K) NO FRAUDULENT TRANSFERS. THE TRANSFERS OF RECEIVABLES AND
RECEIVABLES PROPERTY BY SUCH SELLER TO THE COMPANY PURSUANT TO THIS
AGREEMENT, AND ALL OTHER TRANSACTIONS BETWEEN SUCH SELLER AND THE COMPANY,
HAVE BEEN AND WILL BE MADE IN GOOD FAITH AND WITHOUT INTENT TO HINDER,
DELAY OR DEFRAUD CREDITORS OF SUCH SELLER, AND SUCH SELLER ACKNOWLEDGES
THAT IT HAS RECEIVED AND WILL RECEIVE FAIR CONSIDERATION AND REASONABLY
EQUIVALENT VALUE FOR THE PURCHASES BY THE COMPANY OF RECEIVABLES AND
RECEIVABLES PROPERTY HEREUNDER. THE PURCHASE OF RECEIVABLES AND
RECEIVABLES PROPERTY BY THE COMPANY FROM SUCH SELLER CONSTITUTES A TRUE
SALE OF SUCH RECEIVABLES AND RECEIVABLES PROPERTY UNDER APPLICABLE STATE
LAW.
(L) TRADE NAMES. SUCH SELLER USES NO TRADE NAME IN THE FURNISHING OF
ITS PRODUCTS OR SERVICES WHICH GENERATE RECEIVABLES OTHER THAN ITS ACTUAL
CORPORATE NAME AND THE TRADE NAMES SET FORTH FOR SUCH SELLER IN SCHEDULE
5. DURING THE FIVE YEARS PRECEDING THE DATE HEREOF, EXCEPT AS SET FORTH IN
SCHEDULE 5, (I) SUCH SELLER HAS NOT BEEN KNOWN BY ANY LEGAL NAME OR TRADE
NAME OTHER THAN ITS CORPORATE NAME, (II) NOR HAS SUCH SELLER BEEN THE
SUBJECT OF ANY MERGER OR OTHER CORPORATE REORGANIZATION WITHIN THE LAST
FIVE YEARS, OTHER THAN MERGERS OCCURRING MORE THAN ONE YEAR PRIOR TO THE
DATE HEREOF IN WHICH THE SELLER WAS THE SURVIVING COMPANY AND THE MERGED
ENTITY DID NOT INCLUDE IN ITS NAME THE NAME "WESCO".
(M) COMPLIANCE WITH APPLICABLE LAWS. SUCH SELLER IS IN COMPLIANCE
WITH THE REQUIREMENTS OF ALL APPLICABLE LAWS, RULES, REGULATIONS, AND
ORDERS OF ALL GOVERNMENTAL AUTHORITIES (FEDERAL, STATE, LOCAL OR FOREIGN,
AND INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LAWS), RELATING TO THE
RECEIVABLES A BREACH OF ANY OF WHICH, INDIVIDUALLY OR IN THE AGGREGATE,
WOULD BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
(N) TAXES. SUCH SELLER HAS FILED ALL TAX RETURNS (FEDERAL, STATE AND
LOCAL) REQUIRED BY LAW TO BE FILED AND HAS PAID OR MADE ADEQUATE PROVISION
FOR THE PAYMENT OF ALL TAXES, ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES
DUE FROM SUCH SELLER OR IS CONTESTING ANY SUCH TAX, ASSESSMENT OR OTHER
GOVERNMENTAL CHARGE IN GOOD FAITH THROUGH APPROPRIATE PROCEEDINGS. NO TAX
LIEN HAS BEEN FILED WITH RESPECT TO TAXES WHICH COULD REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT AND, TO THE BEST KNOWLEDGE
OF THE SELLER, NO CLAIM IS PRESENTLY BEING ASSERTED WITH RESPECT TO TAXES
WHICH COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
FOR PURPOSES OF THIS PARAGRAPH, "TAXES" SHALL MEAN ANY PRESENT OR FUTURE
TAX, LEVY, IMPOST, DUTY, CHARGE, ASSESSMENT OR FEE OF ANY NATURE
(INCLUDING INTEREST, PENALTIES AND ADDITIONS THERETO) THAT IS IMPOSED BY
ANY GOVERNMENTAL AUTHORITY. SUCH SELLER KNOWS OF NO BASIS FOR ANY MATERIAL
ADDITIONAL TAX ASSESSMENT FOR ANY FISCAL YEAR FOR WHICH ADEQUATE RESERVES
HAVE NOT BEEN ESTABLISHED.
(O) EMPLOYEE BENEFIT PLANS. NO REPORTABLE EVENT HAS OCCURRED OR IS
REASONABLY EXPECTED TO OCCUR THAT, WHEN TAKEN TOGETHER WITH ALL OTHER SUCH
REPORTABLE EVENTS, COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT. THE PRESENT VALUE OF ALL ACCUMULATED BENEFIT OBLIGATIONS
OF ALL UNDERFUNDED PLANS (BASED ON THE ASSUMPTIONS USED FOR PURPOSES OF
STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NO. 87) OF SUCH SELLER DID
NOT, AS OF THE DATE OF THE MOST RECENT FINANCIAL STATEMENTS
24
REFLECTING SUCH AMOUNTS, EXCEED BY MORE THAN $2,500,000 THE FAIR MARKET
VALUE OF THE ASSETS OF SUCH PLAN AND THE PRESENT VALUE OF ALL ACCUMULATED
BENEFIT OBLIGATIONS OF ALL UNDERFUNDED PLANS (BASED ON THE ASSUMPTIONS
USED FOR PURPOSES OF STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NO. 87)
OF SUCH SELLER DID NOT, AS OF THE DATE OF THE MOST RECENT FINANCIAL
STATEMENTS REFLECTING SUCH AMOUNTS, EXCEED BY MORE THAN $5,000,000 THE
FAIR MARKET VALUE OF THE ASSETS OF ALL SUCH UNDERFUNDED PLANS.
(P) SOLVENCY. BOTH PRIOR TO AND AFTER GIVING EFFECT TO THE
TRANSACTIONS OCCURRING ON THE EFFECTIVE DATE, (I) THE FAIR VALUE OF THE
ASSETS OF SUCH SELLER AT A FAIR VALUATION WILL EXCEED THE DEBTS AND
LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE, OF SUCH SELLER; (II)
THE PRESENT FAIR SALABLE VALUE OF THE PROPERTY OF SUCH SELLER WILL BE
GREATER THAN THE AMOUNT THAT WILL BE REQUIRED TO PAY THE PROBABLE
LIABILITY OF SUCH SELLER ON ITS DEBTS AND OTHER LIABILITIES, SUBORDINATED,
CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND LIABILITIES BECOME ABSOLUTE AND
MATURED; (III) SUCH SELLER WILL BE ABLE TO PAY ITS DEBTS AND LIABILITIES,
SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND LIABILITIES
BECOME ABSOLUTE AND MATURED; AND (IV) SUCH SELLER WILL NOT HAVE
UNREASONABLY SMALL CAPITAL WITH WHICH TO CONDUCT THE BUSINESS IN WHICH IT
IS ENGAGED AS SUCH BUSINESS IS NOW CONDUCTED AND IS PROPOSED TO BE
CONDUCTED. FOR ALL PURPOSES OF CLAUSES (I) THROUGH (IV) ABOVE, THE AMOUNT
OF CONTINGENT LIABILITIES AT ANY TIME SHALL BE COMPUTED AS THE AMOUNT
THAT, IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES EXISTING AT SUCH
TIME, REPRESENTS THE AMOUNT THAT CAN REASONABLY BE EXPECTED TO BECOME AN
ACTUAL OR MATURED LIABILITY. SUCH SELLER DOES NOT INTEND TO, NOR DOES IT
BELIEVE THAT IT WILL, INCUR DEBTS BEYOND ITS ABILITY TO PAY SUCH DEBTS AS
THEY MATURE, TAKING INTO ACCOUNT THE TIMING OF AND AMOUNTS OF CASH TO BE
RECEIVED BY IT AND THE TIMING OF AND AMOUNTS OF CASH TO BE PAYABLE IN
RESPECT OF ITS DEBT.
(Q) INVESTMENT COMPANY ACT. NEITHER SUCH SELLER NOR ANY OF SUCH
SELLER'S SUBSIDIARIES IS (I) AN "INVESTMENT COMPANY" REGISTERED OR
REQUIRED TO BE REGISTERED UNDER THE 1940 ACT, OR (II) A "HOLDING COMPANY",
OR A "SUBSIDIARY COMPANY" OR AN "AFFILIATE" OF A "HOLDING COMPANY" WITHIN
THE MEANING OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED.
(R) OWNERSHIP. ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF
SUCH SELLER (OTHER THAN WESCO) IS OWNED, DIRECTLY OR INDIRECTLY, BY WESCO.
(S) INDEBTEDNESS TO COMPANY. SUCH SELLER HAD NO OUTSTANDING
INDEBTEDNESS TO THE COMPANY OTHER THAN AMOUNTS PERMITTED BY THIS AGREEMENT
OR AMOUNTS OUTSTANDING UNDER THE SELLER NOTE.
(T) RECEIVABLES DOCUMENTS. UPON THE DELIVERY, IF ANY, BY SUCH SELLER
TO THE COMPANY OF LICENSES, RIGHTS, COMPUTER PROGRAMS, RELATED MATERIALS,
COMPUTER TAPES, DISKS, CASSETTES AND DATA RELATING TO THE ADMINISTRATION
OF THE PURCHASED RECEIVABLES PURSUANT TO SUBSECTION 5.01(O), THE COMPANY
SHALL HAVE BEEN FURNISHED WITH ALL MATERIALS AND DATA NECESSARY TO PERMIT
ORDERLY COLLECTION OF THE PURCHASED RECEIVABLES WITHOUT THE PARTICIPATION
OF SUCH SELLER IN SUCH COLLECTION.
25
(U) FILINGS. ON OR PRIOR TO THE DATE THAT IS 10 DAYS AFTER THE
EFFECTIVE DATE, ALL FILINGS AND OTHER ACTS (INCLUDING BUT NOT LIMITED TO
ALL FILINGS AND OTHER ACTS NECESSARY OR ADVISABLE UNDER THE UCC) SHALL
HAVE BEEN MADE OR PERFORMED SUCH THAT THE COMPANY HAS ON SUCH DATE A FIRST
PRIORITY PERFECTED OWNERSHIP OR SECURITY INTEREST IN RESPECT OF ALL
RECEIVABLES.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE SELLERS RELATING
TO THE RECEIVABLES. EACH SELLER HEREBY REPRESENTS AND WARRANTS, AS TO ITSELF
ONLY, FOR THE BENEFIT OF THE COMPANY AND ITS ASSIGNS (INCLUDING THE TRUSTEE) ON
EACH PAYMENT DATE AS FOLLOWS:
(I) RECEIVABLES DESCRIPTION. AS OF THE EFFECTIVE DATE, THE
RECEIVABLES LIST DELIVERED PURSUANT TO SECTION 3.01(M) SETS FORTH IN ALL
MATERIAL RESPECTS AN ACCURATE AND COMPLETE LISTING OF ALL ITS RECEIVABLES
AS OF THE EFFECTIVE DATE AND THE INFORMATION CONTAINED THEREIN WITH
RESPECT TO THE IDENTITY OF SUCH RECEIVABLES IS TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF SUCH DATE. AS OF THE EFFECTIVE DATE, THE AGGREGATE
AMOUNT OF RECEIVABLES OWNED BY SUCH SELLER IS ACCURATELY SET FORTH ON THE
RECEIVABLES LIST.
(II) QUALITY OF TITLE. EACH RECEIVABLE EXISTING ON THE EFFECTIVE
DATE OR, IN THE CASE OF RECEIVABLES SOLD TO THE COMPANY AFTER THE
EFFECTIVE DATE, ON THE DATE THAT EACH SUCH RECEIVABLE SHALL HAVE BEEN SOLD
TO THE COMPANY, HAS BEEN CONVEYED TO THE COMPANY AND THE COMPANY HAS
ACQUIRED A VALID AND PERFECTED FIRST PRIORITY OWNERSHIP INTEREST IN EACH
SUCH RECEIVABLE, IN EACH CASE, FREE AND CLEAR OF ANY LIENS, EXCEPT FOR
PERMITTED LIENS SPECIFIED IN CLAUSES (I) OR (IV) OF THE DEFINITION
THEREOF.
(III) ELIGIBLE RECEIVABLE. ON THE EFFECTIVE DATE, EACH RECEIVABLE,
OTHER THAN RECEIVABLES DESIGNATED AS INELIGIBLE RECEIVABLES ON A DAILY
REPORT, SOLD TO THE COMPANY ON SUCH DATE IS AN ELIGIBLE RECEIVABLE ON THE
EFFECTIVE DATE AND, IN THE CASE OF RECEIVABLES SOLD TO THE COMPANY AFTER
THE EFFECTIVE DATE, EACH SUCH RECEIVABLE, OTHER THAN RECEIVABLES
DESIGNATED AS INELIGIBLE RECEIVABLES ON A DAILY REPORT, SOLD TO THE
COMPANY ON SUCH LATER DATE IS AN ELIGIBLE RECEIVABLE ON SUCH LATER DATE.
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 4.02
SHALL SURVIVE THE TRANSFER AND ASSIGNMENT OF THE RESPECTIVE RECEIVABLES TO THE
COMPANY PURSUANT TO THIS AGREEMENT. UPON DISCOVERY BY ANY SELLER OR THE COMPANY
OF A BREACH OF ANY OF THE FOREGOING REPRESENTATIONS AND WARRANTIES, THE PARTY
DISCOVERING SUCH BREACH SHALL GIVE PROMPT WRITTEN NOTICE TO THE OTHER.
SECTION 4.03. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. THE
COMPANY REPRESENTS AND WARRANTS AS TO ITSELF FOR THE BENEFIT OF THE SELLERS AS
FOLLOWS:
(A) CORPORATE EXISTENCE. IT (I) IS A CORPORATION DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION
OF ITS INCORPORATION, AND IS DULY QUALIFIED AS A FOREIGN CORPORATION AND
IS IN GOOD STANDING IN EACH JURISDICTION IN WHICH THE FAILURE TO SO
QUALIFY WOULD HAVE A MATERIAL ADVERSE EFFECT, (II) HAS ALL REQUISITE
CORPORATE POWER AND AUTHORITY AND THE LEGAL RIGHT TO OWN, PLEDGE, MORTGAGE
AND OPERATE ITS PROPERTIES, AND TO CONDUCT ITS BUSINESS AS NOW OR
CURRENTLY PROPOSED TO BE CONDUCTED AND (III) IS IN COMPLIANCE WITH ALL
REQUIREMENTS OF LAW.
26
(B) CORPORATE POWER; AUTHORIZATION; CONSENTS. IT HAS THE CORPORATE
POWER AND AUTHORITY, AND THE LEGAL RIGHT, TO EXECUTE, DELIVER AND PERFORM
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY
AND HAS TAKEN ALL NECESSARY CORPORATE ACTION TO AUTHORIZE THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY.
(C) NO VIOLATION. THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY
AND ALL INSTRUMENTS AND DOCUMENTS TO BE DELIVERED HEREUNDER BY IT, AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, (I) DO NOT (A) VIOLATE ITS
CERTIFICATE OR ARTICLES OF INCORPORATION AND BY-LAWS OR OTHER
ORGANIZATIONAL OR GOVERNING DOCUMENTS OR, IN ANY MATERIAL RESPECT, ANY
OTHER REQUIREMENT OF LAW, (B) CONFLICT WITH OR RESULT IN THE BREACH OF, OR
CONSTITUTE A DEFAULT UNDER, ANY INDENTURE, MORTGAGE OR DEED OF TRUST OR
ANY MATERIAL LEASE, AGREEMENT OR OTHER INSTRUMENT BINDING ON OR AFFECTING
IT OR ANY OF ITS RESPECTIVE SUBSIDIARIES OR ANY OF ITS PROPERTIES IN ANY
MATERIAL RESPECT OR (C) RESULT IN OR REQUIRE THE CREATION OR IMPOSITION OF
ANY LIEN EXCEPT AS CREATED OR IMPOSED HEREUNDER OR UNDER THE POOLING
AGREEMENT, AND NO TRANSACTION CONTEMPLATED HEREBY REQUIRES COMPLIANCE ON
ITS PART WITH ANY BULK SALES ACT OR SIMILAR LAW, AND (II) DO NOT REQUIRE
THE CONSENT OF, AUTHORIZATION BY OR APPROVAL OF OR NOTICE TO OR FILING OR
REGISTRATION WITH, ANY GOVERNMENTAL BODY, AGENCY, AUTHORITY, REGULATORY
BODY OR ANY OTHER PERSON OTHER THAN THOSE WHICH HAVE BEEN OBTAINED OR MADE
EXCEPT FOR THE FILING OF THE FINANCING STATEMENTS REFERRED TO IN ARTICLE
III HEREOF, WHICH FILINGS THE SELLERS HEREBY REPRESENT SHALL HAVE BEEN
DULY MADE PRIOR TO OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH ANY PURCHASES
OF RECEIVABLES AND OTHER RECEIVABLES PROPERTY AND SHALL AT ALL TIMES BE IN
FULL FORCE AND EFFECT (EXCEPT AS THEY MAY BE TERMINATED BY THE COMPANY).
(D) BINDING OBLIGATIONS. THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED BY THE COMPANY AND CONSTITUTES ITS LEGAL, VALID AND BINDING
OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS EXCEPT (A)
AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS NOW OR
HEREAFTER IN EFFECT AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS IN
GENERAL, AND (B) AS SUCH ENFORCEABILITY MAY BE LIMITED BY GENERAL
PRINCIPLES OF EQUITY (WHETHER CONSIDERED IN A SUIT AT LAW OR IN EQUITY).
(E) ACCOUNTING TREATMENT. THE COMPANY WILL NOT PREPARE ANY FINANCIAL
STATEMENTS THAT SHALL ACCOUNT FOR THE TRANSACTIONS CONTEMPLATED HEREBY,
NOR WILL IT IN ANY OTHER RESPECT (OTHER THAN FOR TAX PURPOSES) ACCOUNT FOR
THE TRANSACTIONS CONTEMPLATED HEREBY, IN A MANNER THAT IS INCONSISTENT
WITH THE COMPANY'S OWNERSHIP INTEREST IN THE RECEIVABLES.
ARTICLE V
GENERAL COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE SELLERS. EACH SELLER
COVENANTS THAT, UNTIL THE PURCHASE TERMINATION DATE SHALL HAVE OCCURRED WITH
RESPECT TO SUCH SELLER AND
27
THERE ARE NO AMOUNTS OUTSTANDING WITH RESPECT TO THE PURCHASED RECEIVABLES
PREVIOUSLY SOLD BY SUCH SELLER TO THE COMPANY (OTHER THAN CHARGED-OFF
RECEIVABLES):
(A) PRESERVATION OF CORPORATE EXISTENCE AND NAME. SUCH SELLER WILL
PRESERVE AND MAINTAIN IN ALL MATERIAL RESPECTS ITS CORPORATE EXISTENCE,
RIGHTS, FRANCHISES AND PRIVILEGES IN THE JURISDICTION OF ITS
INCORPORATION, AND QUALIFY AND REMAIN QUALIFIED IN GOOD STANDING AS A
FOREIGN CORPORATION IN EACH JURISDICTION WHERE THE FAILURE TO PRESERVE AND
MAINTAIN SUCH EXISTENCE, RIGHTS, FRANCHISES, PRIVILEGES AND QUALIFICATION
COULD HAVE A MATERIAL ADVERSE EFFECT.
(B) MAINTENANCE OF PROPERTY. SUCH SELLER WILL KEEP ALL PROPERTY AND
ASSETS USEFUL AND NECESSARY TO PERMIT THE ORIGINATION, MONITORING AND
COLLECTION OF RECEIVABLES.
(C) COMPLIANCE WITH LAWS, ETC. SUCH SELLER SHALL COMPLY IN ALL
MATERIAL RESPECTS WITH ALL APPLICABLE LAWS, RULES, REGULATIONS AND ORDERS
APPLICABLE TO THE RECEIVABLES AND THE RECEIVABLES PROPERTY, INCLUDING,
WITHOUT LIMITATION, RULES AND REGULATIONS RELATING TO TRUTH IN LENDING,
FAIR CREDIT BILLING, FAIR CREDIT REPORTING, EQUAL CREDIT OPPORTUNITY, FAIR
DEBT COLLECTION PRACTICES AND PRIVACY, WHERE FAILURE TO SO COMPLY COULD
REASONABLY BE EXPECTED TO HAVE A MATERIALLY ADVERSE IMPACT ON THE AMOUNT
OF COLLECTIONS THEREUNDER.
(D) VISITATION RIGHTS. AT ANY REASONABLE TIME DURING NORMAL BUSINESS
HOURS AND FROM TIME TO TIME UPON REASONABLE NOTICE, ACCORDING TO THE
SELLER'S NORMAL SECURITY AND CONFIDENTIALITY PROVISIONS WITH RESPECT TO
CUSTOMER LISTS, SUCH SELLER SHALL PERMIT (I) THE COMPANY, THE TRUSTEE OR
ANY OF ITS AGENTS OR REPRESENTATIVES, (A) TO EXAMINE AND MAKE COPIES OF
AND ABSTRACTS FROM THE RECORDS, BOOKS OF ACCOUNT AND DOCUMENTS (INCLUDING,
WITHOUT LIMITATION, COMPUTER TAPES AND DISKS) OF SUCH SELLER RELATING TO
RECEIVABLES AND RELATED PROPERTY OWNED OR TO BE PURCHASED BY THE COMPANY
HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RELATED CONTRACTS AND
PURCHASE ORDERS AND OTHER AGREEMENTS AND (B) FOLLOWING THE TERMINATION OF
THE APPOINTMENT OF WESCO AS SERVICER OR OF SUCH SELLER AS A SERVICING
PARTY WITH RESPECT TO THE RECEIVABLES, TO BE PRESENT AT THE OFFICES AND
PROPERTIES OF SUCH SELLER TO ADMINISTER AND CONTROL THE COLLECTION OF
AMOUNTS OWING ON THE PURCHASED RECEIVABLES AND (II) THE COMPANY, THE
TRUSTEE OR ANY OF ITS AGENTS OR REPRESENTATIVES, OR THE TRUSTEE (UPON THE
GIVING OF APPROPRIATE NOTICE TO THE COMPANY) TO VISIT THE PROPERTIES OF
SUCH SELLER FOR THE PURPOSE OF EXAMINING SUCH RECORDS, BOOKS OF ACCOUNT
AND DOCUMENTS, AND TO DISCUSS THE AFFAIRS, FINANCES AND ACCOUNTS OF SUCH
SELLER RELATING TO THE RECEIVABLES OR SUCH SELLER'S PERFORMANCE HEREUNDER
WITH ANY OF ITS OFFICERS OR DIRECTORS AND WITH ITS INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS; PROVIDED, HOWEVER, THAT THE COMPANY, THE TRUSTEE OR
SUCH AGENTS OR REPRESENTATIVES, AS THE CASE MAY BE, SHALL NOTIFY SUCH
SELLER PRIOR TO ANY CONTACT WITH SUCH ACCOUNTANTS AND PERMIT
REPRESENTATIVES OF THE SELLER TO PARTICIPATE IN SUCH DISCUSSIONS.
(E) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. SUCH SELLER WILL
MAINTAIN AND IMPLEMENT ADMINISTRATIVE AND OPERATING PROCEDURES (INCLUDING,
WITHOUT LIMITATION, AN ABILITY TO RECREATE RECORDS EVIDENCING RECEIVABLES
AND THE RECEIVABLES PROPERTY IN
28
THE EVENT OF THE DESTRUCTION OF THE ORIGINALS THEREOF), AND KEEP AND
MAINTAIN ALL DOCUMENTS, BOOKS, RECORDS AND OTHER INFORMATION WHICH, IN
EACH CASE, IN THE REASONABLE DISCRETION OF THE COMPANY, ARE NECESSARY OR
ADVISABLE FOR THE COLLECTION OF ALL RECEIVABLES AND THE RECEIVABLES
PROPERTY (INCLUDING, WITHOUT LIMITATION, RECORDS ADEQUATE TO PERMIT THE
IDENTIFICATION OF EACH NEW RECEIVABLE AND ALL COLLECTIONS OF AND
ADJUSTMENTS TO EACH EXISTING RECEIVABLE). UPON THE REQUEST OF THE COMPANY,
SUCH SELLER WILL DELIVER COPIES OF ALL BOOKS AND RECORDS MAINTAINED
PURSUANT TO THIS SECTION 5.01(E) TO THE TRUSTEE.
(F) PERFORMANCE AND COMPLIANCE WITH POLICIES, RECEIVABLES AND
CONTRACTS. SUCH SELLER WILL (I) PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH
AND COMPLY IN ALL MATERIAL RESPECTS WITH THE POLICIES, AS AMENDED FROM
TIME TO TIME IN ACCORDANCE WITH THE TRANSACTION DOCUMENTS AND (II) AT ITS
EXPENSE, TIMELY AND FULLY PERFORM AND COMPLY WITH ALL MATERIAL PROVISIONS,
COVENANTS AND OTHER PROMISES REQUIRED TO BE OBSERVED BY IT UNDER THE
RECEIVABLES AND THE CONTRACTS RELATED TO THE RECEIVABLES AND RELATED
PROPERTY AND ALL PURCHASE ORDERS AND OTHER AGREEMENTS RELATED TO SUCH
RECEIVABLES AND RELATED PROPERTY.
(G) OBLIGATIONS. SELLER SHALL PAY, DISCHARGE OR OTHERWISE SATISFY AT
OR BEFORE MATURITY OR BEFORE THEY BECOME DELINQUENT, AS THE CASE MAY BE,
ALL ITS OTHER OBLIGATIONS OF WHATEVER NATURE, EXCEPT WHERE (I) THE AMOUNT
OF VALIDITY THEREOF IS CURRENTLY BEING CONTESTED IN GOOD FAITH BY
APPROPRIATE PROCEEDINGS AND RESERVES IN CONFORMITY WITH GAAP WITH RESPECT
THERETO HAVE BEEN PROVIDED ON ITS BOOKS, OR (II) THE FAILURE TO SO PAY,
DISCHARGE OR SATISFY ALL SUCH OBLIGATIONS WOULD NOT, IN THE AGGREGATE, BE
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT AND WOULD NOT SUBJECT
ANY OF ITS PROPERTIES TO ANY LIEN PROHIBITED BY SUBSECTION 5.03(B).
(H) LOCATION OF RECORDS. SUCH SELLER WILL KEEP ITS PRINCIPAL PLACE
OF BUSINESS AND CHIEF EXECUTIVE OFFICE, AND THE OFFICES WHERE IT KEEPS ITS
RECORDS CONCERNING THE RECEIVABLES, ALL RECEIVABLES PROPERTY, ALL
CONTRACTS AND PURCHASE ORDERS AND OTHER AGREEMENTS RELATED TO SUCH
RECEIVABLES (AND ALL ORIGINAL DOCUMENTS RELATING THERETO), AT THE
ADDRESS(ES) OF SUCH SELLER REFERRED TO IN SCHEDULE 2 OR, UPON 30 DAYS'
PRIOR WRITTEN NOTICE TO THE COMPANY AND THE AGENTS, AT SUCH OTHER
LOCATIONS IN JURISDICTIONS WHERE ALL ACTION REQUIRED BY SECTION 5.01(M)
SHALL HAVE BEEN TAKEN AND COMPLETED; PROVIDED, HOWEVER, THAT THE RATING
AGENCY CONDITION SHALL HAVE BEEN SATISFIED WITH RESPECT TO ANY CHANGES IN
LOCATION IF SUCH LOCATION IS NOT IN A STATE WHICH IS WITHIN THE TENTH
CIRCUIT UNLESS IT DELIVERS AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE RATING AGENCIES TO THE EFFECT THAT OCTAGON GAS SYSTEMS, INC. V.
RIMMER, 995 F.2D 948 (10TH CIR. 1993), IS NO LONGER CONTROLLING PRECEDENT
IN THE TENTH CIRCUIT.
(I) OBLIGATION TO RECORD AND REPORT. SUCH SELLER SHALL TO THE
FULLEST EXTENT PERMITTED BY GAAP AND BY APPLICABLE LAW, RECORD EACH
PURCHASE OF THE PURCHASED RECEIVABLES AS A SALE ON ITS BOOKS AND RECORDS
AND REFLECT EACH PURCHASE OF PURCHASED RECEIVABLES IN ITS FINANCIAL
STATEMENTS AS A SALE.
29
(J) COLLECTIONS. SUCH SELLER SHALL CAUSE EACH INVOICE ISSUED TO AN
OBLIGOR ON AND AFTER THE EFFECTIVE DATE SHALL INDICATE THAT PAYMENTS IN
RESPECT OF ITS RECEIVABLE SHALL BE MADE BY SUCH OBLIGOR TO A LOCKBOX
ACCOUNT OR ELIGIBLE SEGREGATED ACCOUNT OR BY WIRE TRANSFER OR OTHER
ELECTRONIC PAYMENT TO A LOCKBOX ACCOUNT, AN ELIGIBLE SEGREGATED ACCOUNT OR
THE COLLECTION ACCOUNT OR OTHERWISE AS PROVIDED IN SECTION 2.03 OF THE
SERVICING AGREEMENT AND COMPLY IN ALL MATERIAL RESPECTS WITH PROCEDURES
WITH RESPECT TO COLLECTIONS REASONABLY SPECIFIED FROM TIME TO TIME BY THE
COMPANY, INCLUDING, WITHOUT LIMITATION, THE PROCEDURES SPECIFIED IN THE
SERVICING AGREEMENT. IN THE EVENT THAT ANY PAYMENTS IN RESPECT OF ANY SUCH
RECEIVABLES ARE MADE DIRECTLY TO THE SELLER (INCLUDING, WITHOUT
LIMITATION, ANY COLLECTOR, ANY OTHER EMPLOYEES THEREOF OR INDEPENDENT
CONTRACTORS EMPLOYED THEREBY), THE SELLER SHALL, WITHIN ONE BUSINESS DAY
(EXCEPT AS PROVIDED IN THE SERVICING AGREEMENT) OF RECEIPT THEREOF,
FORWARD SUCH AMOUNTS TO A LOCKBOX, A LOCKBOX ACCOUNT, AN ELIGIBLE
SEGREGATED ACCOUNT OR THE COLLECTION ACCOUNT AND, PRIOR TO FORWARDING SUCH
AMOUNTS, THE SELLER SHALL HOLD SUCH PAYMENTS IN TRUST AS CUSTODIAN FOR THE
COMPANY AND THE TRUSTEE.
(K) TAXES. SUCH SELLER WILL FILE ALL TAX RETURNS AND REPORTS
REQUIRED BY LAW TO BE FILED BY IT AND WILL PAY ALL TAXES AND GOVERNMENTAL
CHARGES THEREBY SHOWN TO BE OWING, EXCEPT ANY SUCH TAXES OR CHARGES WHICH
ARE BEING DILIGENTLY CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS
AND FOR WHICH ADEQUATE RESERVES IN ACCORDANCE WITH GAAP HAVE BEEN SET
ASIDE ON ITS BOOKS.
(L) SEPARATE CORPORATE EXISTENCE OF THE COMPANY. SUCH SELLER HEREBY
ACKNOWLEDGES THAT THE TRUSTEE AND THE INVESTOR CERTIFICATEHOLDERS ARE
ENTERING INTO THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS
IN RELIANCE UPON THE COMPANY'S IDENTITY AS A LEGAL ENTITY SEPARATE FROM
THE SELLERS AND ALL OTHER WESCO PERSONS. THEREFORE, FROM AND AFTER THE
DATE HEREOF, SUCH SELLER WILL TAKE (OR REFRAIN FROM TAKING, AS THE CASE
MAY BE) SUCH ACTIONS AND WILL CAUSE EACH OTHER WESCO PERSON TO TAKE (OR
REFRAIN FROM TAKING, AS THE CASE MAY BE) SUCH ACTIONS, AS SHALL BE
REQUIRED IN ORDER THAT:
(I) EACH WESCO PERSON MAINTAIN ITS DEPOSIT ACCOUNT OR ACCOUNTS
SEPARATE FROM THOSE OF THE COMPANY AND ENSURE THAT ITS FUNDS WILL
NOT BE DIVERTED TO THE COMPANY, NOR WILL SUCH FUNDS BE COMMINGLED
WITH THE FUNDS OF THE COMPANY;
(II) TO THE EXTENT THAT ANY WESCO PERSON SHARES ANY OFFICERS
OR OTHER EMPLOYEES WITH THE COMPANY, THE SALARIES OF AND THE
EXPENSES RELATED TO PROVIDING BENEFITS TO SUCH OFFICERS AND OTHER
EMPLOYEES SHALL BE FAIRLY ALLOCATED AMONG SUCH WESCO PERSON AND THE
COMPANY, AND SUCH WESCO PERSON AND THE COMPANY SHALL BEAR THEIR FAIR
SHARES OF THE SALARY AND BENEFIT COSTS ASSOCIATED WITH ALL SUCH
COMMON OFFICERS AND EMPLOYEES;
(III) TO THE EXTENT THAT ANY WESCO PERSON JOINTLY CONTRACTS
WITH THE COMPANY TO DO BUSINESS WITH VENDORS OR SERVICE PROVIDERS OR
TO SHARE OVERHEAD EXPENSES, THE COSTS INCURRED IN SO DOING SHALL BE
ALLOCATED FAIRLY BETWEEN SUCH
30
WESCO PERSON AND THE COMPANY, AND SUCH WESCO PERSON AND THE COMPANY
SHALL BEAR THEIR FAIR SHARES OF SUCH COSTS. TO THE EXTENT THAT ANY
WESCO PERSON CONTRACTS OR DOES BUSINESS WITH VENDORS OR SERVICE
PROVIDERS WHERE THE GOODS AND SERVICES PROVIDED ARE PARTIALLY FOR
THE BENEFIT OF THE COMPANY, THE COSTS INCURRED IN SO DOING SHALL BE
FAIRLY ALLOCATED BETWEEN SUCH WESCO PERSON AND THE COMPANY IN
PROPORTION TO THE BENEFIT OF THE GOODS OR SERVICES EACH IS PROVIDED,
AND SUCH WESCO PERSON AND THE COMPANY SHALL BEAR THEIR FAIR SHARES
OF SUCH COSTS. ALL MATERIAL TRANSACTIONS BETWEEN ANY WESCO PERSON
AND THE COMPANY, WHETHER CURRENTLY EXISTING OR HEREAFTER ENTERED
INTO, SHALL BE ONLY ON AN ARM'S LENGTH BASIS, IT BEING UNDERSTOOD
AND AGREED THAT THE TRANSACTIONS CONTEMPLATED IN THE TRANSACTION
DOCUMENTS MEET THE REQUIREMENTS OF THIS CLAUSE (III);
(IV) EACH WESCO PERSON WILL MAINTAIN OFFICE SPACE SEPARATE
FROM THE OFFICE SPACE OF THE COMPANY (BUT WHICH MAY BE LOCATED AT
THE SAME ADDRESS AS THE COMPANY). TO THE EXTENT THAT IT AND THE
COMPANY HAVE OFFICES IN THE SAME LOCATION, THERE SHALL BE A FAIR AND
APPROPRIATE ALLOCATION OF OVERHEAD COSTS BETWEEN THEM, AND EACH
SHALL BEAR ITS FAIR SHARE OF SUCH EXPENSES;
(V) NO WESCO PERSON WILL ASSUME OR GUARANTEE ANY OF THE
LIABILITIES OF THE COMPANY;
(VI) EACH WESCO PERSON WILL MAINTAIN CORPORATE RECORDS AND
BOOKS OF ACCOUNT SEPARATE FROM THOSE OF THE COMPANY AND TELEPHONE
NUMBERS, MAILING ADDRESSES, STATIONERY AND OTHER BUSINESS FORMS THAT
ARE SEPARATE AND DISTINCT FROM THOSE OF THE COMPANY.
(VII) ANY FINANCIAL STATEMENTS OF ANY WESCO PERSON WHICH ARE
CONSOLIDATED TO INCLUDE THE COMPANY WILL CONTAIN A DETAILED NOTE
SUBSTANTIALLY IN THE FORM, AND TO THE EFFECT, OF THE NOTE SET FORTH
ON SCHEDULE 8.
(VIII) NO WESCO PERSON WILL HOLD ITSELF OUT, OR PERMIT ITSELF
TO BE HELD OUT, AS HAVING AGREED TO PAY OR BE LIABLE FOR THE DEBTS
OF THE COMPANY.
(IX) EACH WESCO PERSON WILL TAKE, OR REFRAIN FROM TAKING, AS
THE CASE MAY BE, ALL OTHER ACTIONS THAT ARE NECESSARY TO BE TAKEN OR
NOT TO BE TAKEN IN ORDER (X) TO ENSURE THAT THE ASSUMPTIONS AND
FACTUAL RECITATIONS SET FORTH IN THE SPECIFIED BANKRUPTCY OPINION
PROVISIONS REMAIN TRUE AND CORRECT WITH RESPECT TO SUCH WESCO PERSON
(AND, TO THE EXTENT WITHIN ITS CONTROL, TO ENSURE THAT THE
ASSUMPTIONS AND FACTUAL RECITATIONS SET FORTH IN THE SPECIFIED
BANKRUPTCY OPINION PROVISIONS REMAIN TRUE AND CORRECT WITH RESPECT
TO THE COMPANY) AND (Y) TO COMPLY WITH THOSE PROCEDURES DESCRIBED IN
SUCH PROVISIONS THAT ARE APPLICABLE TO SUCH WESCO PERSON.
(M) FURTHER ACTION EVIDENCING PURCHASES.
31
(I) SUCH SELLER AGREES THAT FROM TIME TO TIME, AT ITS
EXPENSE, IT WILL PROMPTLY EXECUTE AND DELIVER ALL FURTHER
INSTRUMENTS AND DOCUMENTS, AND TAKE ALL FURTHER ACTION, THAT MAY BE
NECESSARY OR DESIRABLE OR THAT THE COMPANY MAY REASONABLY REQUEST,
TO PROTECT OR MORE FULLY EVIDENCE THE COMPANY'S OWNERSHIP, RIGHT,
TITLE AND INTEREST IN THE RECEIVABLES AND RECEIVABLES PROPERTY SOLD
BY SUCH SELLER AND ITS RIGHTS UNDER THE CONTRACTS WITH RESPECT
THERETO, OR TO ENABLE THE COMPANY TO EXERCISE OR ENFORCE ANY OF ITS
RIGHTS HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SUCH SELLER WILL UPON THE
REQUEST OF THE COMPANY (A) EXECUTE AND FILE SUCH FINANCING OR
CONTINUATION STATEMENTS, OR AMENDMENTS THERETO, AND SUCH OTHER
INSTRUMENTS OR NOTICES, AS MAY BE NECESSARY OR, IN THE REASONABLE
OPINION OF THE COMPANY OR THE AGENTS, DESIRABLE, (B) INDICATE ON ITS
BOOKS AND RECORDS (INCLUDING, WITHOUT LIMITATION, MASTER DATA
PROCESSING RECORDS) THAT THE RECEIVABLES AND RECEIVABLES PROPERTY
HAVE BEEN SOLD AND ASSIGNED TO THE COMPANY AND, IN TURN, THE COMPANY
HAS SOLD AND ASSIGNED ITS INTEREST THEREIN TO THE TRUSTEE, AND
PROVIDE TO THE COMPANY, UPON REQUEST, COPIES OF ANY SUCH RECORDS,
(C) AFTER THE OCCURRENCE OF A PURCHASE TERMINATION EVENT, CONTACT
CUSTOMERS TO CONFIRM AND VERIFY RECEIVABLES AND (D) OBTAIN THE
AGREEMENT OF ANY PERSON HAVING A LIEN ON ANY RECEIVABLES OWNED BY
SUCH SELLER (OTHER THAN ANY LIEN CREATED OR IMPOSED HEREUNDER OR
UNDER THE POOLING AGREEMENT OR ANY PERMITTED LIEN) TO RELEASE SUCH
LIEN UPON THE PURCHASE OF ANY SUCH RECEIVABLES BY THE COMPANY.
(II) SUCH SELLER HEREBY IRREVOCABLY AUTHORIZES THE COMPANY
AND THE TRUSTEE TO FILE ONE OR MORE FINANCING OR CONTINUATION
STATEMENTS SUBSTANTIALLY IN THE FORM OF THE ORIGINALLY AGREED UPON
FINANCING STATEMENTS, AND AMENDMENTS THERETO, RELATIVE TO ALL OR ANY
PART OF THE RECEIVABLES AND RECEIVABLES PROPERTY SOLD OR TO BE SOLD
BY SUCH SELLER, WITHOUT THE SIGNATURE OF SUCH SELLER WHERE PERMITTED
BY LAW.
(III) IF SUCH SELLER FAILS TO PERFORM ANY OF ITS AGREEMENTS
OR OBLIGATIONS UNDER THIS AGREEMENT, THE COMPANY OR ITS ASSIGNEES
MAY (BUT SHALL NOT BE REQUIRED TO) PERFORM, OR CAUSE PERFORMANCE OF,
SUCH AGREEMENTS OR OBLIGATIONS, AND THE EXPENSES OF THE COMPANY
INCURRED IN CONNECTION THEREWITH SHALL BE PAYABLE BY SUCH SELLER AS
PROVIDED IN SECTION 7.01.
(N) LEGEND REQUIREMENT FOR CHATTEL PAPER. SUCH SELLER AGREES (I) AT
ALL TIMES TO COMPLY WITH THE TERMS AND PROVISIONS SET FORTH IN SCHEDULE 3
TO THE POOLING AGREEMENT AND (II) THAT ANY RECEIVABLE THAT CONSTITUTES OR
IS EVIDENCED BY "CHATTEL PAPER" AS DEFINED IN ARTICLE 9 OF THE UCC AS IN
EFFECT IN THE RELEVANT UCC STATE SHALL BEAR A LEGEND STATING THAT SUCH
RECEIVABLE HAS BEEN CONVEYED TO THE TRUST.
(O) COMPUTER FILES. AT ITS OWN COST AND EXPENSE, EACH SELLER SHALL
RETAIN THE LEDGER USED BY SUCH SELLER AS A MASTER RECORD OF THE OBLIGORS
AND RETAIN COPIES OF ALL DOCUMENTS RELATING TO EACH OBLIGOR AS CUSTODIAN
AND AGENT FOR THE COMPANY AND OTHER PERSONS WITH INTERESTS IN THE
PURCHASED RECEIVABLES, AND EACH SELLER SHALL ASSURE CONTINUED COMPLIANCE
WITH SECTION 2.01(E).
32
SECTION 5.02. REPORTING REQUIREMENTS. EACH SELLER SHALL FURNISH TO
THE COMPANY AND ITS ASSIGNS (INCLUDING THE TRUSTEE) FROM THE DATE HEREOF UNTIL
THE PURCHASE TERMINATION DATE SHALL HAVE OCCURRED WITH RESPECT TO SUCH SELLER
AND UNTIL THERE ARE NO AMOUNTS OUTSTANDING WITH RESPECT TO PURCHASED RECEIVABLES
PREVIOUSLY SOLD BY SUCH SELLER TO THE COMPANY:
(A) COMPLIANCE CERTIFICATE. NOT LATER THAN 120 DAYS AFTER THE END OF
EACH FISCAL YEAR AND NOT LATER THAN 60 DAYS AFTER THE END OF EACH OF THE
FIRST THREE FISCAL QUARTERS OF EACH FISCAL YEAR, A CERTIFICATE OF A
RESPONSIBLE OFFICER OF SUCH SELLER STATING THAT, TO THE BEST OF SUCH
RESPONSIBLE OFFICER'S KNOWLEDGE, SUCH SELLER DURING SUCH PERIOD, HAS
OBSERVED OR PERFORMED ALL OF ITS COVENANTS AND OTHER AGREEMENTS, AND
SATISFIED EVERY CONDITION, CONTAINED IN THE TRANSACTION DOCUMENTS TO WHICH
IT IS A PARTY TO BE OBSERVED, PERFORMED OR SATISFIED BY IT, AND THAT SUCH
RESPONSIBLE OFFICER HAS OBTAINED NO KNOWLEDGE OF ANY PURCHASE TERMINATION
EVENT OR POTENTIAL PURCHASE TERMINATION EVENT EXCEPT AS SPECIFIED IN SUCH
CERTIFICATE;
(B) ERISA. PROMPTLY AFTER THE FILING OR RECEIVING THEREOF, COPIES OF
ALL REPORTS AND NOTICES WITH RESPECT TO ANY REPORTABLE EVENT WHICH SUCH
SELLER FILES UNDER ERISA WITH THE INTERNAL REVENUE SERVICE, THE PENSION
BENEFIT GUARANTY CORPORATION OR THE U.S. DEPARTMENT OF LABOR OR WHICH SUCH
SELLER RECEIVES FROM THE PENSION BENEFIT GUARANTY CORPORATION IF, IN EACH
CASE, SUCH REPORT OR NOTICE RELATES TO AN EVENT OR CONDITION THAT COULD
REASONABLY BE EXPECTED TO GIVE RISE TO A PURCHASE TERMINATION EVENT,
AMORTIZATION EVENT OR A MATERIAL ADVERSE EFFECT;
(C) TERMINATION EVENTS: OTHER MATERIAL EVENTS. (I) UPON THE
COMPANY'S REQUEST, A CERTIFICATE OF A RESPONSIBLE OFFICER OF SUCH SELLER
CERTIFYING, AS OF THE DATE THEREOF, THAT NO PURCHASE TERMINATION EVENT HAS
OCCURRED AND IS CONTINUING AND SETTING FORTH THE COMPUTATIONS USED BY THE
CHIEF FINANCIAL OFFICER OF SUCH SELLER IN MAKING SUCH DETERMINATION; (II)
AS SOON AS POSSIBLE AND IN ANY EVENT WITHIN TWO BUSINESS DAYS AFTER A
RESPONSIBLE OFFICER OF SUCH SELLER OBTAINS KNOWLEDGE OF THE OCCURRENCE OF
ANY PURCHASE TERMINATION EVENT, POTENTIAL PURCHASE TERMINATION EVENT,
SERVICER DEFAULT OR POTENTIAL SERVICER DEFAULT, A WRITTEN STATEMENT OF A
RESPONSIBLE OFFICER OF SUCH SELLER SETTING FORTH DETAILS OF SUCH EVENT AND
THE ACTION THAT SUCH SELLER PROPOSES TO TAKE OR HAS TAKEN WITH RESPECT
THERETO; (III) PROMPTLY AFTER OBTAINING KNOWLEDGE OF ANY THREATENED ACTION
OR PROCEEDING AFFECTING SUCH SELLER OR ITS SUBSIDIARIES BEFORE ANY COURT,
GOVERNMENTAL AGENCY OR ARBITRATOR THAT MAY REASONABLY BE EXPECTED TO
MATERIALLY AND ADVERSELY AFFECT THE ENFORCEABILITY OF THIS AGREEMENT AND
THE OTHER TRANSACTION DOCUMENTS, NOTICE OF SUCH ACTION OR PROCEEDING; AND
(IV) BY JUNE 15, 1999, A CERTIFICATE OF A RESPONSIBLE OFFICER OF SUCH
SELLER (WITH A COPY TO EACH RATING AGENCY) CERTIFYING, AS OF THE DATE
THEREOF, THAT SUCH SELLER'S COMPUTER SYSTEMS SHALL BE "YEAR 2000
COMPLIANT" BY JUNE 30, 1999;
(D) INELIGIBLE RECEIVABLES. PROMPTLY UPON DETERMINING THAT ANY
PURCHASED RECEIVABLE ORIGINATED BY IT DESIGNATED AS AN ELIGIBLE RECEIVABLE
ON THE APPLICABLE DAILY REPORT WAS NOT AN ELIGIBLE RECEIVABLE AS OF THE
DATE PROVIDED THEREFOR, WRITTEN NOTICE OF SUCH DETERMINATION; AND
33
(E) OTHER. PROMPTLY, FROM TIME TO TIME, SUCH OTHER INFORMATION,
DOCUMENTS, RECORDS OR REPORTS RESPECTING THE RECEIVABLES OF SUCH SELLER AS
THE COMPANY OR THE AGENTS MAY FROM TIME TO TIME REASONABLY REQUEST IN
ORDER TO PROTECT THE INTERESTS OF THE COMPANY AND THE AGENTS UNDER OR AS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
SECTION 5.03. NEGATIVE COVENANTS. EACH SELLER COVENANTS THAT, UNTIL
THE PURCHASE TERMINATION DATE SHALL HAVE OCCURRED WITH RESPECT TO SUCH SELLER
AND THERE ARE NO AMOUNTS OUTSTANDING WITH RESPECT TO PURCHASED RECEIVABLES
PREVIOUSLY SOLD BY SUCH SELLER TO THE COMPANY,:
(A) RECEIVABLES TO BE ACCOUNTS, GENERAL INTANGIBLES OR CHATTEL
PAPER. SUCH SELLER WILL TAKE NO ACTION TO CAUSE ANY RECEIVABLE TO BE
EVIDENCED BY ANY "INSTRUMENT" OTHER THAN IN COMPLIANCE WITH SECTION 2.2(G)
OF THE SERVICING AGREEMENT OR, PROVIDED THAT THE PROCEDURES SET FORTH IN
SCHEDULE 3 TO THE POOLING AGREEMENT ARE FULLY IMPLEMENTED WITH RESPECT
THERETO, AN INSTRUMENT WHICH TOGETHER WITH A SECURITY AGREEMENT
CONSTITUTES "CHATTEL PAPER" (EACH AS DEFINED IN THE UCC AS IN EFFECT IN
THE RELEVANT UCC STATE). SUCH SELLER WILL TAKE NO ACTION TO CAUSE ANY
RECEIVABLE TO BE ANYTHING OTHER THAN AN "ACCOUNT", "GENERAL INTANGIBLE" OR
"CHATTEL PAPER" (EACH AS DEFINED IN THE UCC AS IN EFFECT IN THE RELEVANT
UCC STATE).
(B) SECURITY INTERESTS; SALE OF RECEIVABLES. EXCEPT FOR THE
CONVEYANCES HEREUNDER AND AS PROVIDED BELOW, SUCH SELLER WILL NOT SELL,
PLEDGE, ASSIGN OR TRANSFER TO ANY OTHER PERSON, OR GRANT, CREATE, INCUR,
ASSUME OR SUFFER TO EXIST ANY OTHER LIEN ON ANY RECEIVABLE OR RECEIVABLES
PROPERTY, WHETHER NOW EXISTING OR HEREAFTER CREATED, OR ANY INTEREST
THEREIN; SUCH SELLER WILL IMMEDIATELY NOTIFY THE COMPANY OF THE EXISTENCE
OF ANY OTHER LIEN ON ANY RECEIVABLE OR RECEIVABLES PROPERTY; AND SUCH
SELLER SHALL DEFEND THE RIGHT, TITLE AND INTEREST OF THE COMPANY IN, TO
AND UNDER THE RECEIVABLES OR RECEIVABLES PROPERTY, WHETHER NOW EXISTING OR
HEREAFTER CREATED, AGAINST ALL CLAIMS OF THIRD PARTIES CLAIMING THROUGH OR
UNDER SUCH SELLER; PROVIDED, HOWEVER, THAT NOTHING IN THIS SUBSECTION
5.03(B) SHALL PREVENT OR BE DEEMED TO PROHIBIT SUCH SELLER FROM SUFFERING
TO EXIST UPON ANY OF THE RECEIVABLES ANY PERMITTED LIEN.
(C) EXTENSION OR AMENDMENT OF RECEIVABLES. SUCH SELLER WILL NOT
EXTEND, RESCIND, CANCEL, MAKE ANY DILUTION ADJUSTMENT TO, AMEND OR
OTHERWISE MODIFY, OR ATTEMPT OR PURPORT TO EXTEND, RESCIND, CANCEL, MAKE
ANY DILUTION ADJUSTMENT TO, AMEND OR OTHERWISE MODIFY, THE TERMS OF ANY
PURCHASED RECEIVABLES, EXCEPT IN ANY SUCH CASE (I) IN ACCORDANCE WITH THE
TERMS OF THE POLICIES, (II) AS REQUIRED BY ANY REQUIREMENT OF LAW OR (III)
IN THE CASE OF DILUTION ADJUSTMENTS (WHETHER OR NOT PERMITTED BY ANY OTHER
CLAUSE OF THIS SENTENCE), UPON MAKING A SELLER ADJUSTMENT PAYMENT PURSUANT
TO SECTION 2.05.
(D) CHANGE IN BUSINESS. SUCH SELLER WILL NOT MAKE OR PERMIT TO BE
MADE ANY CHANGE IN THE CHARACTER OF ITS BUSINESS IN ANY MATERIAL RESPECT
IF SUCH CHANGE COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
(E) CHANGE IN POLICIES. SUCH SELLER SHALL NOT MAKE OR PERMIT TO BE
MADE ANY CHANGE IN THE POLICIES IN ANY MATERIAL RESPECT, EXCEPT (I) IF
SUCH CHANGES OR
34
MODIFICATIONS ARE REQUIRED UNDER ANY REQUIREMENT OF LAW, (II) IF SUCH
CHANGES OR MODIFICATIONS WOULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT OR (III) IF THE RATING AGENCY CONDITION IS
SATISFIED WITH RESPECT THERETO.
(F) CHANGE IN NAME. SUCH SELLER WILL NOT CHANGE ITS NAME, IDENTITY
OR CORPORATE STRUCTURE IN ANY MANNER INCLUDING BY WAY OF ANY MERGER,
CONSOLIDATION, AMALGAMATION, LIQUIDATION, A WINDING UP OR DISSOLUTION
WHICH WOULD OR MIGHT MAKE ANY FINANCING STATEMENT OR CONTINUATION
STATEMENT (OR OTHER SIMILAR INSTRUMENT) RELATING TO THIS AGREEMENT
SERIOUSLY MISLEADING WITHIN THE MEANING OF SECTION 9-402(7) OF THE UCC, OR
IMPAIR THE PERFECTION OF THE COMPANY'S INTEREST IN ANY RECEIVABLE UNDER
ANY OTHER SIMILAR LAW, WITHOUT HAVING (I) DELIVERED 30 DAYS' PRIOR WRITTEN
NOTICE TO THE COMPANY, THE SERVICER AND THE TRUSTEE AND (II) TAKEN ALL
ACTION REQUIRED BY SUBSECTION 5.01(A).
(G) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. SUCH SELLER SHALL
NOT INSTRUCT ANY OBLIGOR OF ANY PURCHASED RECEIVABLES TO MAKE ANY PAYMENTS
WITH RESPECT TO ANY RECEIVABLES OTHER THAN TO A LOCKBOX, A LOCKBOX
ACCOUNT, AN ELIGIBLE SEGREGATED ACCOUNT OR THE COLLECTION ACCOUNT OR
OTHERWISE IN ACCORDANCE WITH THE SERVICING AGREEMENT.
(H) ACCOUNTING CHANGES. SUCH SELLER SHALL NOT PREPARE ANY FINANCIAL
STATEMENTS (OTHER THAN CONSOLIDATED FINANCIAL STATEMENTS) WHICH SHALL
ACCOUNT FOR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY MANNER OTHER THAN
AS A SALE OF THE PURCHASED RECEIVABLES BY SUCH SELLER TO THE COMPANY NOR
IN ANY OTHER RESPECT (OTHER THAN FOR TAX PURPOSES) ACCOUNT FOR OR TREAT
THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING FOR FINANCIAL ACCOUNTING
PURPOSES, EXCEPT AS REQUIRED BY LAW) IN ANY MANNER OTHER THAN AS SALES OF
THE PURCHASED RECEIVABLES ORIGINATED BY SUCH SELLER TO THE COMPANY.
(I) INELIGIBLE RECEIVABLES. SUCH SELLER SHALL NOT TAKE ANY ACTION TO
CAUSE AN ELIGIBLE RECEIVABLE TO CEASE TO BE AN ELIGIBLE RECEIVABLE, EXCEPT
IN ANY SUCH CASE UPON MAKING A SELLER REPURCHASE PAYMENT PURSUANT TO
SECTION 2.06; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL AN ELIGIBLE
RECEIVABLE BECOMING AN AGED RECEIVABLE CONSTITUTE A BREACH OF THIS
PARAGRAPH (I).
ARTICLE VI
PURCHASE TERMINATION EVENTS
SECTION 6.01. PURCHASE TERMINATION EVENTS. IF, WITH RESPECT TO ANY
SELLER, ANY OF THE FOLLOWING EVENTS (EACH, A "PURCHASE TERMINATION EVENT" WITH
RESPECT TO SUCH SELLER) SHALL HAVE OCCURRED AND BE CONTINUING:
(A) THE SELLER SHALL FAIL TO MAKE ANY PAYMENT OR DEPOSIT TO BE MADE
BY IT HEREUNDER WHEN DUE AND SUCH FAILURE SHALL REMAIN UNREMEDIED FOR FIVE
BUSINESS DAYS; OR
35
(B) THERE SHALL HAVE OCCURRED (I) AN EARLY AMORTIZATION EVENT SET
FORTH IN SECTION 7.1 OF THE POOLING AGREEMENT OR (II) THE AMORTIZATION
PERIOD WITH RESPECT TO ALL OUTSTANDING SERIES SHALL HAVE OCCURRED AND BE
CONTINUING; OR
(C) ANY REPRESENTATION OR WARRANTY MADE OR DEEMED TO BE MADE BY SUCH
SELLER OR ANY OF ITS OFFICERS UNDER OR IN CONNECTION WITH ANY TRANSACTION
DOCUMENT, DAILY REPORT, MONTHLY SETTLEMENT STATEMENT OR OTHER INFORMATION,
STATEMENT, RECORD, CERTIFICATE, DOCUMENT OR REPORT DELIVERED PURSUANT TO A
TRANSACTION DOCUMENT SHALL PROVE TO HAVE BEEN FALSE OR INCORRECT IN ANY
MATERIAL RESPECT WHEN MADE OR DEEMED MADE (INCLUDING IN EACH CASE BY
OMISSION OF MATERIAL INFORMATION NECESSARY TO MAKE SUCH REPRESENTATION,
WARRANTY, CERTIFICATE OR STATEMENT NOT MISLEADING); PROVIDED, HOWEVER,
THAT NO SUCH EVENT SHALL CONSTITUTE A PURCHASE TERMINATION EVENT UNLESS
SUCH EVENT SHALL CONTINUE UNREMEDIED FOR A PERIOD OF 30 DAYS FROM THE
EARLIER OF (A) THE DATE ANY RESPONSIBLE OFFICER OF SUCH SELLER OBTAINS
KNOWLEDGE THEREOF AND (B) THE DATE SUCH SELLER RECEIVES NOTICE OF THE
INCORRECTNESS OF SUCH REPRESENTATION OR WARRANTY FROM THE COMPANY OR THE
TRUSTEE; PROVIDED, FURTHER,THAT A PURCHASE TERMINATION EVENT SHALL NOT BE
DEEMED TO HAVE OCCURRED UNDER THIS PARAGRAPH (C) BASED UPON A BREACH OF
ANY REPRESENTATION OR WARRANTY SET FORTH IN SECTION 4.02 WITH RESPECT TO
ANY RECEIVABLE IF THE SELLERS SHALL HAVE COMPLIED WITH THE PROVISIONS OF
SECTIONS 2.06 OR 2.11, AS THE CASE MAY BE; OR
(D) SUCH SELLER SHALL FAIL TO PERFORM OR OBSERVE ANY OTHER TERM,
COVENANT OR AGREEMENT CONTAINED HEREIN; PROVIDED, HOWEVER, THAT NO FAILURE
TO PERFORM OR OBSERVE ANY OTHER TERM, COVENANT OR AGREEMENT CONTAINED
HEREIN SHALL CONSTITUTE A PURCHASE TERMINATION EVENT UNLESS SUCH EVENT
SHALL CONTINUE UNREMEDIED FOR A PERIOD OF 30 DAYS FROM THE EARLIER OF (A)
THE DATE ANY RESPONSIBLE OFFICER OF SUCH SELLER OBTAINS KNOWLEDGE OF SUCH
FAILURE AND (B) THE DATE SUCH SELLER RECEIVES NOTICE OF SUCH FAILURE FROM
THE COMPANY OR THE TRUSTEE; PROVIDED, FURTHER, THAT A PURCHASE TERMINATION
EVENT SHALL NOT BE DEEMED TO HAVE OCCURRED UNDER THIS PARAGRAPH (D) BASED
UPON A BREACH OF ANY COVENANT SET FORTH IN SUBSECTION 5.01(C), (F) OR (G)
OR SECTION 5.03 WITH RESPECT TO ANY RECEIVABLE IF THE SELLERS SHALL HAVE
COMPLIED WITH THE PROVISIONS OF SECTIONS 2.06 OR 2.11, AS THE CASE MAY BE;
OR
(E) ANY TRANSACTION DOCUMENT TO WHICH SUCH SELLER IS A PARTY SHALL
CEASE, FOR ANY REASON, TO BE IN FULL FORCE AND EFFECT, OR WESCO OR SUCH
SELLER SHALL SO ASSERT IN WRITING, OR THE COMPANY SHALL FAIL TO HAVE A
VALID AND PERFECTED FIRST PRIORITY OWNERSHIP INTEREST IN SUBSTANTIALLY ALL
OF THE RECEIVABLES AND THE RECEIVABLES PROPERTY; OR
(F) (I) SUCH SELLER SHALL COMMENCE ANY CASE, PROCEEDING OR OTHER
ACTION (A) UNDER ANY EXISTING OR FUTURE LAW OF ANY JURISDICTION, DOMESTIC
OR FOREIGN, RELATING TO BANKRUPTCY, INSOLVENCY, REORGANIZATION OR RELIEF
OF DEBTORS, SEEKING TO HAVE AN ORDER FOR RELIEF ENTERED WITH RESPECT TO
IT, OR SEEKING TO ADJUDICATE IT A BANKRUPT OR INSOLVENT, OR SEEKING
REORGANIZATION, ARRANGEMENT, ADJUSTMENT, WINDING-UP, LIQUIDATION,
DISSOLUTION, COMPOSITION OR OTHER RELIEF WITH RESPECT TO IT OR ITS DEBTS,
OR (B) SEEKING APPOINTMENT OF A RECEIVER, TRUSTEE, CUSTODIAN OR OTHER
SIMILAR OFFICIAL FOR IT OR FOR ALL OR ANY SUBSTANTIAL PART OF ITS ASSETS,
OR SUCH SELLER SHALL MAKE A GENERAL ASSIGNMENT FOR
36
THE BENEFIT OF ITS CREDITORS; OR (II) THERE SHALL BE COMMENCED AGAINST
SUCH SELLER ANY CASE, PROCEEDING OR OTHER ACTION OF A NATURE REFERRED TO
IN CLAUSE (I) ABOVE WHICH (A) RESULTS IN THE ENTRY OF AN ORDER FOR RELIEF
OR ANY SUCH ADJUDICATION OR APPOINTMENT OR (B) REMAINS UNDISMISSED,
UNDISCHARGED OR UNBONDED FOR A PERIOD OF 60 DAYS; OR (III) THERE SHALL BE
COMMENCED AGAINST SUCH SELLER OR ANY OF ITS SUBSIDIARIES ANY CASE,
PROCEEDING OR OTHER ACTION SEEKING ISSUANCE OF A WARRANT OF ATTACHMENT,
EXECUTION, DISTRAINT OR SIMILAR PROCESS AGAINST ALL OR ANY SUBSTANTIAL
PART OF ITS ASSETS WHICH RESULTS IN THE ENTRY OF AN ORDER FOR ANY SUCH
RELIEF WHICH SHALL NOT HAVE BEEN VACATED, DISCHARGED, OR STAYED OR BONDED
PENDING APPEAL WITHIN 60 DAYS FROM THE ENTRY THEREOF; OR (IV) SUCH SELLER
OR ANY OF ITS RESPECTIVE SUBSIDIARIES SHALL TAKE ANY ACTION IN FURTHERANCE
OF ANY OF THE ACTS SET FORTH IN CLAUSE (I), (II), OR (III) ABOVE; OR (V)
SUCH SELLER SHALL GENERALLY NOT, OR SHALL BE UNABLE TO, OR SHALL ADMIT IN
WRITING ITS INABILITY TO, PAY ITS DEBTS AS THEY BECOME DUE; OR
(G) WESCO HAS BEEN TERMINATED AS SERVICER FOLLOWING A SERVICER
DEFAULT WITH RESPECT TO WESCO UNDER THE SERVICING AGREEMENT; OR
(H) 15 DAYS SHALL HAVE ELAPSED AFTER THERE SHALL BE FILED AGAINST
SUCH SELLER A (I) A NOTICE OF FEDERAL TAX LIEN FROM THE INTERNAL REVENUE
SERVICE (PROVIDED THAT IN THE CASE OF A FEDERAL TAX LIEN WITH RESPECT TO
PAYROLL TAXES SUCH LIEN SHALL RELATE TO TAXES IN EXCESS OF $750,000) OR
(II) A NOTICE OF LIEN FROM THE PBGC UNDER SECTION 412(N) OF THE CODE OR
SECTION 302(F) OF ERISA FOR A FAILURE TO MAKE A REQUIRED INSTALLMENT OR
OTHER PAYMENT TO A PLAN TO WHICH SECTION 412(N) OF THE CODE OR SECTION
302(F) OF ERISA APPLIES, UNLESS IN EACH CASE THERE SHALL HAVE BEEN
DELIVERED TO THE TRUSTEE AND EACH RATING AGENCY PROOF OF THE RELEASE OF,
OR PAYMENT OF AMOUNTS SECURED BY, SUCH LIEN; OR
(I) THERE SHALL BE FILED AGAINST SUCH SELLER A NOTICE OF ANY OTHER
LIEN, THE EXISTENCE OF WHICH COULD REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT UNLESS THERE HAS BEEN DELIVERED TO THE TRUSTEE
PROOF OF RELEASE OF, OR PAYMENT OF AMOUNTS SECURED BY, SUCH LIEN;
THEN, (X) IN THE CASE OF ANY PURCHASE TERMINATION EVENT DESCRIBED IN
PARAGRAPH (B)(I) OR (F) (OTHER THAN CLAUSE (V) THEREOF), THE OBLIGATION OF
THE COMPANY TO PURCHASE RECEIVABLES SHALL THEREUPON AUTOMATICALLY
TERMINATE WITHOUT FURTHER NOTICE OF ANY KIND, WHICH IS HEREBY WAIVED BY
SUCH SELLER, (Y) IN THE CASE OF ANY PURCHASE TERMINATION EVENT DESCRIBED
IN PARAGRAPH (B)(II) ABOVE, THE OBLIGATION OF THE COMPANY TO PURCHASE
RECEIVABLES SHALL THEREUPON TERMINATE WITHOUT NOTICE OF ANY KIND, WHICH IS
HEREBY WAIVED BY SUCH SELLER, UNLESS BOTH THE COMPANY AND SUCH SELLER
AGREE IN WRITING THAT SUCH EVENT SHALL NOT TRIGGER AN EARLY TERMINATION
HEREUNDER AND (Z) IN THE CASE OF ANY OTHER PURCHASE TERMINATION EVENT, SO
LONG AS SUCH PURCHASE TERMINATION EVENT SHALL BE CONTINUING, THE COMPANY
MAY TERMINATE ITS OBLIGATION TO PURCHASE RECEIVABLES FROM SUCH SELLER BY
WRITTEN NOTICE TO SUCH SELLER (ANY TERMINATION WITH RESPECT TO ANY SELLER
PURSUANT TO CLAUSE (X), (Y) OR (Z) OF THIS ARTICLE VI IS HEREIN CALLED AN
"EARLY TERMINATION" WITH RESPECT TO SUCH SELLER); PROVIDED, HOWEVER, THAT
IN THE EVENT OF (A) THE FILING OF ANY NOTICE OF LIEN DESCRIBED IN
PARAGRAPH (H) ABOVE OR (B) AN INVOLUNTARY PETITION OR PROCEEDING AS
DESCRIBED IN PARAGRAPHS (F)(II) AND (F)(III) ABOVE, THE
37
COMPANY SHALL NOT PURCHASE RECEIVABLES FROM SUCH SELLER UNTIL SUCH TIME,
IF ANY, AS SUCH LIEN IS RELEASED OR PAID (AND EVIDENCE OF SUCH RELEASE OR
PAYMENT IS RECEIVED AND VERIFIED BY S&P) AS DESCRIBED ABOVE OR SUCH
INVOLUNTARY PETITION OR PROCEEDING HAS BEEN DISMISSED; PROVIDED, FURTHER,
THAT IN THE CASE OF CLAUSE (B) SUCH DISMISSAL SHALL HAVE OCCURRED WITHIN
60 DAYS OF THE FILING OF SUCH PETITION OR THE COMMENCEMENT OF SUCH
PROCEEDING; PROVIDED, FURTHER, THAT UPON THE OCCURRENCE OF AN EARLY
TERMINATION OF A SELLER, SUCH SELLER SHALL HAVE NO FURTHER OBLIGATION TO
SELL ANY ADDITIONAL RECEIVABLES TO THE COMPANY. NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS SECTION 6.01, A DELAY IN OR FAILURE OF PERFORMANCE
REFERRED TO UNDER CLAUSE (A) ABOVE FOR A PERIOD OF 10 BUSINESS DAYS AFTER
THE APPLICABLE GRACE PERIOD SHALL NOT CONSTITUTE A PURCHASE TERMINATION
EVENT, IF SUCH DELAY OR FAILURE COULD NOT HAVE BEEN PREVENTED BY THE
EXERCISE OF REASONABLE DILIGENCE BY SUCH SELLER AND SUCH DELAY OR FAILURE
WAS CAUSED BY A FORCE MAJEURE DELAY.
SECTION 6.02. ADDITIONAL REMEDIES. (A) UPON THE OCCURRENCE OF ANY
PURCHASE TERMINATION EVENT, THE COMPANY SHALL HAVE, IN ADDITION TO ALL OTHER
RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR OTHERWISE ALL OTHER RIGHTS AND
REMEDIES PROVIDED UNDER THE UCC OF EACH APPLICABLE JURISDICTION AND OTHER
APPLICABLE LAWS, WHICH RIGHTS SHALL BE CUMULATIVE. WITHOUT LIMITING THE
FOREGOING, THE OCCURRENCE OF A PURCHASE TERMINATION EVENT SHALL NOT DENY TO THE
COMPANY ANY REMEDY (IN ADDITION TO TERMINATION OF THE COMPANY'S OBLIGATION TO
PURCHASE RECEIVABLES FROM ANY RELEVANT SELLER OR SELLERS) TO WHICH THE COMPANY
MAY BE OTHERWISE APPROPRIATELY ENTITLED, WHETHER BY STATUTE OR OTHER APPLICABLE
LAW, AT LAW OR IN EQUITY.
(B) IN THE ABSENCE OF A PURCHASE TERMINATION EVENT UNDER SECTION
6.01(B)(I) OR (F), IT IS UNDERSTOOD AND AGREED THAT THE COMPANY WILL NOT
EXERCISE THE RIGHTS GRANTED TO IT PURSUANT TO SECTION 2.01(F).
ARTICLE VII
INDEMNIFICATION; EXPENSES; COSTS
SECTION 7.01. INDEMNITIES BY THE SELLERS. WESCO AND THE OTHER
SELLERS (OTHER THAN THOSE SELLERS FROM WHICH THE COMPANY HAS NO RECEIVABLES
OUTSTANDING AT SUCH TIME) AGREE (I) TO PAY OR REIMBURSE THE COMPANY FOR ALL ITS
COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE ENFORCEMENT OR PRESERVATION
OF ANY RIGHTS AGAINST ANY SELLER UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL TO THE COMPANY,
(II) TO PAY, INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM, ANY AND ALL RECORDING
AND FILING FEES AND ANY AND ALL LIABILITIES WITH RESPECT TO, OR RESULTING FROM
ANY DELAY CAUSED BY THE SELLER IN PAYING, STAMP, EXCISE AND OTHER SIMILAR TAXES,
IF ANY, WHICH MAY BE PAYABLE OR DETERMINED TO BE PAYABLE IN CONNECTION WITH THE
EXECUTION AND DELIVERY OF, OR ANY AMENDMENT, SUPPLEMENT OR MODIFICATION OF, OR
ANY WAIVER OR CONSENT UNDER OR IN RESPECT OF, THIS AGREEMENT AND ANY SUCH OTHER
DOCUMENTS, AND (III) WITHOUT LIMITING ANY OTHER RIGHTS THAT THE COMPANY MAY HAVE
HEREUNDER OR UNDER APPLICABLE LAW, TO INDEMNIFY THE COMPANY FROM AND AGAINST ANY
AND ALL CLAIMS, LOSSES AND LIABILITIES (INCLUDING REASONABLE ATTORNEYS' FEES)
(ALL THE FOREGOING BEING COLLECTIVELY REFERRED TO AS "INDEMNIFIED AMOUNTS")
ARISING OUT OF OR RESULTING FROM ANY OF THE FOLLOWING, EXCLUDING, HOWEVER,
INDEMNIFIED AMOUNTS (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE COMPANY,
38
(B) ARISING SOLELY FROM A DELAY IN PAYMENT, OR DEFAULT BY, AN OBLIGOR WITH
RESPECT TO ANY RECEIVABLE (OTHER THAN ANY DELAY OR DEFAULT ARISING OUT OF ANY
DISCHARGE, CLAIM, OFFSET OR DEFENSE (OTHER THAN DISCHARGE IN BANKRUPTCY OF THE
OBLIGOR OR OTHERWISE IN RESPECT OF A CHARGED-OFF RECEIVABLE) OF THE OBLIGOR TO
THE PAYMENT OF ANY TRANSFERRED RECEIVABLE ARISING FROM THE ACTIONS OF SUCH
SELLER (INCLUDING, WITHOUT LIMITATION, A DEFENSE BASED ON SUCH TRANSFERRED
RECEIVABLE'S NOT BEING A LEGAL, VALID AND BINDING OBLIGATION OF SUCH OBLIGOR
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS) OR (C) ATTRIBUTABLE TO ANY
INCOME OR FRANCHISE TAXES IMPOSED ON (OR MEASURED BY) THE COMPANY'S NET INCOME:
(A) THE TRANSFER BY SUCH SELLER OF ANY INTEREST IN ANY RECEIVABLE OR
RECEIVABLES PROPERTY OR PROCEEDS THEREOF TO A PERSON OTHER THAN THE COMPANY;
(B) RELIANCE ON ANY REPRESENTATION OR WARRANTY OR STATEMENT MADE OR
DEEMED MADE BY SUCH SELLER (OR ANY OF ITS OFFICERS) UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR IN ANY CERTIFICATE OR REPORT DELIVERED PURSUANT HERETO THAT,
IN EITHER CASE, SHALL HAVE BEEN FALSE OR INCORRECT IN ANY MATERIAL RESPECT WHEN
MADE OR DEEMED MADE;
(C) THE FAILURE BY SUCH SELLER TO COMPLY WITH ANY APPLICABLE LAW,
RULE OR REGULATION OF ANY GOVERNMENTAL AUTHORITY WITH RESPECT TO ANY RECEIVABLE
OR RECEIVABLES PROPERTY, OR THE NONCONFORMITY OF ANY RECEIVABLE OR RECEIVABLES
PROPERTY WITH ANY SUCH APPLICABLE LAW, RULE OR REGULATION;
(D) THE FAILURE TO VEST AND MAINTAIN VESTED IN THE COMPANY AN
OWNERSHIP INTEREST IN ANY RECEIVABLE OR RECEIVABLES PROPERTY, FREE AND CLEAR OF
ANY LIEN, OTHER THAN A LIEN ARISING UNDER THE TRANSACTION DOCUMENTS, WHETHER
EXISTING AT THE TIME OF THE PURCHASE OF SUCH RECEIVABLE OR RECEIVABLES PROPERTY
OR AT ANY TIME THEREAFTER;
(E) THE FAILURE TO FILE, OR ANY DELAY IN FILING, FINANCING
STATEMENTS OR OTHER SIMILAR INSTRUMENTS OR DOCUMENTS UNDER THE UCC OF ANY
APPLICABLE JURISDICTION OR OTHER APPLICABLE LAWS WITH RESPECT TO ANY RECEIVABLES
OR RECEIVABLES PROPERTY OF SUCH SELLER;
(F) ANY DISPUTE, CLAIM, OFFSET OR DEFENSE OF THE OBLIGOR TO THE
PAYMENT OF ANY RECEIVABLE (INCLUDING, WITHOUT LIMITATION, A DEFENSE BASED ON
SUCH RECEIVABLE OR THE RELATED CONTRACT NOT BEING FULLY ENFORCEABLE AGAINST THE
OBLIGOR IN ACCORDANCE WITH ITS TERMS), OR ANY OTHER CLAIM RESULTING FROM THE
SALE OF THE MERCHANDISE OR SERVICES RELATED TO ANY SUCH RECEIVABLE OR THE
FURNISHING OR FAILURE TO FURNISH SUCH MERCHANDISE OR SERVICES;
(G) ANY FAILURE OF SUCH SELLER TO PERFORM ITS DUTIES OR OBLIGATIONS
UNDER THIS AGREEMENT;
(H) ANY PRODUCTS LIABILITY CLAIM ARISING OUT OF OR IN CONNECTION
WITH MERCHANDISE, INSURANCE OR SERVICES THAT ARE THE SUBJECT OF ANY RECEIVABLE
OR RECEIVABLES PROPERTY;
(I) THE COMMINGLING OF COLLECTIONS AT ANY TIME WITH OTHER FUNDS OF
SUCH SELLER;
39
(J) ANY CLAIM INVOLVING ENVIRONMENTAL LIABILITY THAT RELATES TO ANY
PROPERTY THAT HAS BEEN, IS NOW OR HEREAFTER WILL BE OWNED, LEASED, OPERATED OR
OTHERWISE USED BY SUCH SELLER;
(K) ANY TAX OR GOVERNMENTAL FEE OR CHARGE (BUT NOT INCLUDING
FRANCHISE TAXES AND TAXES UPON OR MEASURED BY NET INCOME OF THE COMPANY), ALL
INTEREST AND PENALTIES THEREON OR WITH RESPECT THERETO, AND ALL OUT-OF-POCKET
COSTS AND EXPENSES, INCLUDING THE REASONABLE FEES AND EXPENSES OF COUNSEL IN
DEFENDING AGAINST THE SAME, WHICH MAY ARISE BY REASON OF THE PURCHASE OR
OWNERSHIP OF ANY RECEIVABLE OR RECEIVABLES PROPERTY, OR ANY INTEREST THEREIN OR
IN ANY MERCHANDISE WHICH SECURE ANY SUCH RECEIVABLES, ANY RECEIVABLES PROPERTY
OR ANY OTHER RIGHTS OR ASSETS TRANSFERRED HEREUNDER; OR
(L) ANY INVESTIGATION, LITIGATION OR PROCEEDING RELATED TO THIS
AGREEMENT OR IN RESPECT OF ANY RECEIVABLE OR RECEIVABLES PROPERTY OF SUCH
SELLER.
THE SELLERS SHALL PAY ON DEMAND TO THE COMPANY ANY AND ALL AMOUNTS
NECESSARY TO INDEMNIFY THE COMPANY FROM AND AGAINST ANY AND ALL INDEMNIFIED
AMOUNTS. NOTWITHSTANDING THE FOREGOING, SUCH SELLERS SHALL NOT UNDER ANY
CIRCUMSTANCES BE REQUIRED TO INDEMNIFY THE COMPANY FOR ANY INDEMNIFIED AMOUNTS
THAT RESULT FROM ANY DELAY IN THE COLLECTION OF ANY RECEIVABLES OR ANY DEFAULT
BY AN OBLIGOR WITH RESPECT TO ANY RECEIVABLES.
SECTION 7.02. INDEMNITIES BY THE COMPANY. WITHOUT LIMITING ANY OTHER
RIGHTS THAT THE SELLERS MAY HAVE HEREUNDER OR UNDER APPLICABLE LAW, THE COMPANY
HEREBY AGREES TO INDEMNIFY EACH SELLER FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES AND LIABILITIES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR
RESULTING FROM SUCH SELLER'S RELIANCE ON ANY REPRESENTATION OR WARRANTY MADE BY
THE COMPANY IN THIS AGREEMENT OR IN ANY CERTIFICATE DELIVERED PURSUANT HERETO
THAT, IN EITHER CASE, SHALL HAVE BEEN FALSE OR INCORRECT IN ANY MATERIAL RESPECT
WHEN MADE OR DEEMED MADE; PROVIDED, HOWEVER, THAT ANY PAYMENTS MADE BY THE
COMPANY IN RESPECT OF ANY OF THE FOREGOING ITEMS SHALL BE MADE SOLELY FROM FUNDS
AVAILABLE TO THE COMPANY WHICH ARE NOT OTHERWISE REQUIRED TO BE APPLIED TO THE
PAYMENT OF ANY AMOUNTS PURSUANT TO ANY POOLING AND SERVICING AGREEMENTS (OTHER
THAN TO THE COMPANY), SHALL BE NON-RECOURSE OTHER THAN WITH RESPECT TO SUCH
FUNDS AND SHALL NOT CONSTITUTE A CLAIM AGAINST THE COMPANY TO THE EXTENT THAT
INSUFFICIENT FUNDS EXIST TO MAKE SUCH PAYMENT.
ARTICLE VIII
SELLER NOTE
SECTION 8.01. SELLER NOTE. (A) ON THE INITIAL EFFECTIVE DATE, THE
COMPANY SHALL ISSUE TO EACH SELLER A NOTE SUBSTANTIALLY IN THE FORM OF EXHIBIT A
(AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE "SELLER
NOTE"). THE AGGREGATE PRINCIPAL AMOUNT OF THE SELLER NOTE AT ANY TIME SHALL BE
EQUAL TO THE DIFFERENCE BETWEEN (A) THE AGGREGATE PRINCIPAL AMOUNT ON THE
ISSUANCE THEREOF AND EACH ADDITION TO THE PRINCIPAL AMOUNT OF SUCH SELLER NOTE
WITH RESPECT TO EACH SELLER PURSUANT TO THE TERMS OF SECTION 2.03 AS OF SUCH
TIME, MINUS (B) THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE IN RESPECT OF THE
PRINCIPAL OF SUCH SELLER NOTE AS OF SUCH TIME. ALL PAYMENTS MADE IN RESPECT OF
THE SELLER NOTE SHALL BE ALLOCATED AMONG THE SELLERS BY THE SERVICER. EACH
SELLER'S INTEREST IN THE SELLER
40
NOTE SHALL EQUAL THE SUM OF EACH ADDITION THERETO ALLOCATED TO SUCH SELLER
PURSUANT TO SUBSECTION 2.03(C) LESS THE SUM OF EACH REPAYMENT THEREOF ALLOCATED
TO SUCH SELLER. ALL PAYMENTS MADE IN RESPECT OF THE SELLER NOTE SHALL BE
ALLOCATED, FIRST, TO PAY ACCRUED AND UNPAID INTEREST THEREON, AND SECOND, TO PAY
THE OUTSTANDING PRINCIPAL AMOUNT THEREOF. INTEREST ON THE OUTSTANDING PRINCIPAL
AMOUNT OF THE SELLER NOTE SHALL ACCRUE ON THE LAST DAY OF EACH SETTLEMENT PERIOD
AT A RATE PER ANNUM EQUAL TO THE REFERENCE RATE IN EFFECT FROM TIME TO TIME PLUS
2% FROM AND INCLUDING THE INITIAL EFFECTIVE DATE TO BUT EXCLUDING THE LAST DAY
OF EACH SETTLEMENT PERIOD AND SHALL BE PAID (X) ON EACH DISTRIBUTION DATE WITH
RESPECT TO THE PRINCIPAL AMOUNT OF THE SELLER NOTE OUTSTANDING FROM TIME TO TIME
DURING THE SETTLEMENT PERIOD IMMEDIATELY PRECEDING SUCH DISTRIBUTION DATE AND/OR
(Y) ON THE MATURITY DATE THEREOF; PROVIDED, HOWEVER, THAT, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ACCRUED INTEREST ON THE SELLER NOTE WHICH IS NOT SO PAID SHALL
BE ADDED, AT THE REQUEST OF SUCH SELLER, TO THE PRINCIPAL AMOUNT OF THE SELLER
NOTE. PRINCIPAL HEREUNDER NOT PAID OR PREPAID PURSUANT TO THE TERMS HEREOF SHALL
BE PAYABLE ON THE MATURITY DATE OF THE SELLER NOTE. DEFAULT IN THE PAYMENT OF
PRINCIPAL OR INTEREST UNDER THE SELLER NOTE SHALL NOT CONSTITUTE A PURCHASE
TERMINATION EVENT UNDER THIS AGREEMENT, A SERVICER DEFAULT UNDER ANY SERVICING
AGREEMENT OR AN EARLY AMORTIZATION EVENT UNDER THE POOLING AGREEMENT OR ANY
SUPPLEMENT THERETO.
SECTION 8.02. RESTRICTIONS ON TRANSFER OF SELLER NOTE. NEITHER THE
Seller Note, nor any right of any Seller to receive payments thereunder, shall
be assigned, transferred, exchanged, pledged, hypothecated, participated or
otherwise conveyed except as provided in the Credit Agreement and the security
documents related thereto.
Section 8.03. Aggregate Amount. Anything herein to the contrary
notwithstanding, the Company may not make any payment of any Purchase Price in
the form of Indebtedness of the Company under the Seller Note unless (i) at the
time of such payment and after giving effect thereto, the fair market value of
the Company's assets, including beneficial interests in, or indebtedness of, a
trust and all Receivables and Receivables Property the Company owns, is greater
than the amount of its liabilities, including its liabilities on the Seller Note
and all interest and other fees due and payable under any Pooling and Servicing
Agreements and the other Transaction Documents plus $45,000,000 and (ii) the
aggregate principal amount of Indebtedness evidenced by the Seller Note,
incurred on or before such Payment Date and outstanding on such Payment Date
(after giving effect to all repayments thereof on or before such Payment Date)
would not exceed 25% of the outstanding balance of the Receivables on such
Payment Date.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendment. Neither this Agreement nor any of the terms
hereof may be amended, supplemented or modified except in a writing signed by
the Company and the Sellers. Any amendment, supplement or modification shall not
be effective until the Rating Agency Condition, if applicable, has been
satisfied.
Section 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile
41
communication) and shall be personally delivered or sent by certified mail,
postage-prepaid, by facsimile or by overnight courier, to the intended party at
the address or facsimile number of such party set forth under its name on the
signature pages hereof or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties hereto given
in accordance with this Section 9.02. Copies of all notices and other
communications provided for hereunder shall be delivered, if to the Trustee, at
its address at 450 West 33rd Street, New York, New York 10001, Attention:
Structured Finance Services, and if to the Servicer, at its address set forth on
Schedule 4. All notices and communications provided for hereunder shall be
effective, (a) if personally delivered by express mail or courier, when
received, (b) if sent by certified mail, three Business Days after having been
deposited in the mail, postage prepaid and (c) if transmitted by facsimile, when
sent, receipt confirmed by telephone or electronic means.
Section 9.03. No Waiver; Remedies. No failure on the part of the
Company, the Sellers or the Agents to exercise, and no delay in exercising, any
right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Sellers and the Company and their
respective successors (whether by merger, consolidation or otherwise) and
assigns. Each Seller agrees that it will not assign or transfer all or any
portion of its rights or obligations hereunder without the prior written consent
of the Company and the Trustee. Each Seller hereby acknowledges and consents to
the assignment by the Company of the Receivables and Receivables Property and
the rights and remedies of the Company under this Agreement to the Trustee for
the benefit of the Certificateholders pursuant to the Pooling and Servicing
Agreements. Each Seller hereby acknowledges and consents that the Company will
grant a security interest in the Lockbox Accounts, the Collection Account and
the Eligible Segregated Accounts to the Trust and the Trustee for the benefit of
the Certificateholders. Each Seller agrees to take any action that the Company
or the Trust may reasonably request in connection with such assignment or
security interest. Each Seller agrees that the Trustee shall be entitled to
enforce the terms of this Agreement and the rights (including, without
limitation, the right to grant or withhold any consent or waiver or give any
notice) of the Company directly against such Seller, whether or not a Purchase
Termination Event or a Termination Event has occurred and that so long as any
Investor Certificates are outstanding that no consent, waiver or notice given
hereunder by the Company shall be effective unless the Trustee has given its
written consent thereto. Each Seller further agrees that, in respect of its
obligations hereunder, it will act at the direction of, and in accordance with,
all requests and instructions from the Trustee until all amounts due to the
Investor Certificateholders are paid in full. Each of the Trustee and the
Investor Certificateholders shall have the rights of third-party beneficiaries
under this Agreement.
Section 9.05. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES
42
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT (I) THAT
ARTICLE II OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH
OF PENNSYLVANIA, (II) AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND (III) TO
THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE COMPANY'S OWNERSHIP OF THE
RECEIVABLES AND RECEIVABLES PROPERTY, OR REMEDIES HEREUNDER IN RESPECT THEREOF,
MAY BE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 9.06. Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
ACTIONS OF ANY OF THE PARTIES HERETO OR ANY OTHER RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
Section 9.07. Jurisdiction; Consent to Service of Process. (a) Each
party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Transaction Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Company may otherwise have to bring any action or proceeding
relating to this Agreement or the other Transaction Documents against any Seller
or its properties in the courts of any jurisdiction.
(b) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent they may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Transaction
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.02. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
43
Section 9.08. Integration. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and thereof and
shall together constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof, superseding all prior oral or
written understandings.
Section 9.09. Captions and Cross References. The various captions
(including, without limitation, the table of contents) in this Agreement are
provided solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement.
Section 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
Section 9.11. No Petition in Bankruptcy. Each Seller covenants and
agrees that prior to the date which is one year and one day after the date of
termination of this Agreement pursuant to Section 9.14, it will not institute
against or join any other Person in instituting against the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any State of
the United States.
Section 9.12. Addition of Sellers. Subject to the terms and
conditions hereof, from time to time one or more wholly-owned Subsidiaries of
WESCO may become additional Sellers parties hereto. If any such Subsidiary
wishes to become an additional Seller, WESCO shall submit a request to such
effect in writing to the Company. Such wholly-owned Subsidiary shall become an
additional Seller party hereto on the related Seller Addition Date upon
satisfaction of the conditions set forth in Section 3.02 and the conditions, if
any, set forth in the Pooling and Servicing Agreements.
Section 9.13. Treatment of Sellers other than WESCO; Termination
Thereof. (a) WESCO hereby covenants and agrees with the Company that WESCO shall
not permit any Seller (other than WESCO) at any time to cease to be a
wholly-owned Subsidiary of WESCO, except as provided in the following paragraph
(b).
(b) If WESCO wishes to permit any Seller (other than WESCO) or
Seller Division (other than "core" WESCO) to cease to be a wholly-owned
Subsidiary of WESCO or terminate the sales of Receivables hereunder by any
Seller Division, then WESCO shall submit a request (a "Seller Termination
Request") to such effect in writing to the Company, which request shall be
accompanied by a certificate prepared by a Responsible Officer of the Servicer
indicating the Purchased Receivables Percentage applicable to such Seller (or
Seller Division) as of the date of submission of such request (the "Seller
Termination Request Date"). Subject to the terms and provisions hereof and of
the Pooling and Servicing Agreements, the relevant Seller (or Seller Division)
shall be terminated as a Seller (or Seller Division) hereunder immediately upon
the consummation of the transaction in connection with which such Seller ceases
to be a wholly-owned Subsidiary of WESCO or in the case of
44
a Seller Division upon the satisfaction of any applicable conditions in the
Pooling and Servicing Agreements. From and after the date any such Seller (or
Seller Division) is terminated as a Seller (or Seller Division) pursuant to this
subsection, the Seller (or Seller Division) shall cease selling, and the Company
shall cease buying, Receivables and Receivables Property from such Seller (or
Seller Division) and, in the case of the termination of a Seller, an "Early
Termination" shall deemed to have occurred with respect to such Seller.
(c) A terminated Seller shall have no further obligation under any
Transaction Document, other than pursuant to Sections 2.05, 2.06 and 2.11, with
respect to Receivables previously sold by it to the Company.
Section 9.14. Termination. This Agreement will terminate at such
time as (a) an Early Termination shall have occurred with respect to all Sellers
herewith and (b) all Receivables purchased hereunder have been collected, and
the proceeds thereof turned over to the Company and all other amounts owing to
the Company hereunder shall have been paid in full or, if Receivables sold
hereunder have not been collected, such Receivables have become Charged-Off
Receivables and the Company shall have completed its collection efforts with
respect thereto; provided, however, that the indemnities of the Sellers to the
Company set forth in Article 7 of this Agreement shall survive such termination
and provided, further, that the Company shall remain entitled to receive any
Collections on Receivables sold hereunder which have become Charged-Off
Receivables.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE SELLERS:
WESCO Distribution, Inc.
By: /s/ [ILLEGIBLE]
--------------------------
Name:
Title:
Address:
Commerce Court
4 Station Square, Suite 700
Pittsburgh, PA 15219
Telephone: (412) 454-2284
Facsimile: (412) 454-2555
WESCO Equity Corporation
By: /s/ [ILLEGIBLE]
--------------------------
Name:
Title:
Address:
3065 Sheridan Street
Las Vegas, NV 89102
Telephone: (702) 253-7660
Facsimile: (702) 253-7886
THE COMPANY:
WESCO RECEIVABLES CORP.
By: /s/ [ILLEGIBLE]
--------------------------
Name:
Title:
Address:
Commerce Court
4 Station Square, Suite 700
Pittsburgh, PA 15219
Telephone: (412) 454-2270
Facsimile: (412) 454-2555
THE SERVICER:
WESCO Distribution, Inc.
By: /s/ [ILLEGIBLE]
--------------------------
Name:
Title:
Address:
Commerce Court
4 Station Square, Suite 700
Pittsburgh, PA 15219
Telephone: (412) 454-2283
Facsimile: (412) 454-2555