Exhibit 10.46
EXECUTION COPY
NINTH AMENDMENT TO SECOND AMENDED
AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS NINTH
AMENDMENT TO SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT (this “ Amendment ”), dated as of
January 29, 2009, is entered into among WESCO RECEIVABLES
CORP. (the “ Seller ”), WESCO DISTRIBUTION, INC.
(the “ Servicer ”), the Purchasers (each, a
“ Purchaser ”) and Purchaser Agents (each, a
“ Purchaser Agent ”) party hereto, and WACHOVIA
CAPITAL MARKETS, LLC (as successor to Wachovia Securities, Inc.),
as Administrator (the “ Administrator
”).
1. The
Seller, Servicer, each Purchaser, each Purchaser Agent and the
Administrator are parties to the Second Amended and Restated
Receivables Purchase Agreement dated as of September 2, 2003
(as amended through the date hereof, the “Agreement”);
and
2. The
parties hereto desire to amend the Agreement as hereinafter set
forth.
NOW
THEREFORE , for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
Certain Defined Terms . Capitalized terms that are
used herein without definition and that are defined in
Exhibit I to the Agreement shall have the same meanings
herein as therein defined.
2.
Amendment to the Agreement . Schedule II to the
Agreement is hereby amended and restated in its entirety as
attached hereto.
3.
Representations and Warranties . The Seller and
Servicer hereby represent and warrant to each of the parties hereto
as follows:
(a)
Representations and Warranties . The representations and
warranties contained in Exhibit III of the Agreement
are true and correct as of the date hereof.
(b) No
Default . Both before and immediately after giving effect to
this Amendment and the transactions contemplated hereby, no
Termination Event or Unmatured Termination Event exists or shall
exist.
4.
Effect of Amendment . All provisions of the
Agreement, as expressly amended and modified by this Amendment
shall remain in full force and effect. On and after the Effective
Date, all references in the Agreement (or in any other Transaction
Document) to “this Agreement”, “hereof”,
“herein” or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as
amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth
herein.
5.
Effectiveness . This Amendment shall become effective
as of the date (the “ Effective Date ”) on which
the Administrator receives each of the following: (i) counterparts
of this Amendment (whether by facsimile or otherwise) executed by
each of the other parties hereto, in form and substance
satisfactory to the Administrator in its sole discretion,
(ii) counterparts of that certain Sixth Amendment to Lock-Box
Service Agreement, dated as of the date hereof, among the Seller,
the Servicer, the Administrator and each Purchaser Agent (whether
by facsimile or otherwise) executed by each of the parties thereto,
in form and substance satisfactory to the Administrator in its sole
discretion, (iii) counterparts of that certain First Amendment
to Lockbox Service Agreement, dated as of the date hereof, among
the Seller, the Servicer, the Administrator and each Purchaser
Agent (whether by facsimile or otherwise) executed by each of the
parties thereto, in form and substance satisfactory to the
Administrator in its sole discretion and (iv) such other
agreements, documents and instruments as the Administrator shall
request.
6.
Counterparts . This Amendment may be executed in any
number of counterparts and by different parties on separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute
but one and the same instrument.
7.
Governing Law; Jurisdiction .
7.1 THIS AMENDMENT
SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401
AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).
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