Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT
TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
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as of July 20, 2006, among GRAYBAR ELECTRIC COMPANY, INC., a New York
corporation (the "Borrower"), certain Material Domestic Subsidiaries of the
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Borrower as may from time to time become parties to this Amendment (the
"Guarantors"), the Lenders identified on the signature pages hereto as the
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existing Lenders (the "Existing Lenders"), the Lenders identified on the
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signature pages hereto as the new Lenders (the "New Lenders", and together
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with the Existing Lenders, the "Lenders") and WACHOVIA BANK, NATIONAL
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ASSOCIATION, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
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RECITALS
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WHEREAS, the Borrower, the Guarantors, the Existing Lenders and the
Administrative Agent, are party to that certain 364-Day Credit Agreement
dated as of July 22, 2004 (as amended by that certain First Amendment to
Credit Agreement dated as of July 21, 2005, and as further amended or
modified prior to the date hereof, the "Existing Credit Agreement"). Unless
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otherwise defined herein or the context otherwise requires, terms used in
this Amendment, including its preamble and recitals, have the meanings
provided in the Existing Credit Agreement.
WHEREAS, the Borrower has requested to extend the Revolving
Commitment Termination Date for an additional 364-day period, and certain
Existing Lenders have agreed to extend their respective Revolving
Commitments and amend the Existing Credit Agreement in accordance with such
request and as provided herein.
WHEREAS, the Borrower, the Existing Lenders and the New Lenders
have agreed that the New Lenders shall become parties to the Existing Credit
Agreement (as amended hereby).
WHEREAS, the Borrower and the Lenders have agreed to amend certain
provisions of the Existing Credit Agreement as more fully set forth below.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
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I. AMENDMENTS TO EXISTING CREDIT AGREEMENT.
Subject to the satisfaction of the conditions precedent set forth
in Article IV, Section 3 below, from and after the Second Amendment
Effective Date, the Existing Credit Agreement (together with the Schedules
attached thereto) is hereby amended in the following respects:
1. The Existing Credit Agreement is hereby amended by deleting each
reference to "$100,000,000" therein and replacing it with a reference to
"$150,000,000".
2. The Existing Credit Agreement is hereby amended by deleting each
reference to "ONE HUNDRED MILLION" therein and replacing it with a reference
to "ONE HUNDRED FIFTY MILLION".
3. Section 1.1 of the Existing Credit Agreement is hereby amended
by amending the definition of "Applicable Margin" by (i) replacing the first
reference in the last paragraph thereof to "Level I" with a reference to
"Level II", (ii) replacing the reference in the last paragraph thereof to
"June 30, 2004" with a reference to "June 30, 2006" and (iii) deleting the
pricing grid in its entirety and replacing it with the following:
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Alternate
Leverage Base Rate LIBOR Rate Facility
Level Ratio Margin Margin Fee
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I > 3.00 to 1.0 0.50% 1.25% 0.50%
-
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II < 3.00 to 1.0 but 0.25% 1.15% 0.35%
> 2.25 to 1.0
-
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III < 2.25 to 1.0 but 0.00% 0.95% 0.30%
> 1.50 to 1.0
-
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IV < 1.50 to 1.0 0.00% 0.75% 0.25%
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4. Section 1.1 of the Existing Credit Agreement is hereby amended
by amending the definition of "Pro Forma Compliance Certificate" by (i)
deleting the reference to "," immediately prior to the word "Interest" and
replacing it with the phrase "and the" and (ii) deleting the phrase "and the
Consolidated Tangible Net Worth".
5. Section 1.1 of the Existing Credit Agreement is hereby amended
by amending and restating the following definitions in their entirety as
follows:
"Excluded Amount" shall mean collectively each of the
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amounts set forth in the table below, provided that (i) for each
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related "Site Location" the Excluded Amount shall not exceed (but
can be equal to or less than) the amount set forth opposite such
Site Location in the table below and (ii) for each related Site
Location, either (A) the Excluded Amount must relate to the
synthetic lease or other financing product in existence on the
Closing Date with respect to such Site Location or (B) the Borrower
must own such Site Location:
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Site Location Excluded Amount
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Stafford, TX $ 7,660,000
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Austell, GA $ 7,452,000
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Youngstown, OH $ 7,008,000
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Joliet, IL $ 9,917,744
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Tampa, FL $ 9,773,687
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Taunton, MA $ 9,793,000
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Maximum Excluded Amount: $51,604,431
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"Revolving Commitment Termination Date" shall mean July 19, 2007.
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6. Section 1.1 of the Existing Credit Agreement is hereby amended
by deleting the following definitions in their entirety: "Consolidated
Tangible Net Worth", "Consolidated Total Liabilities" and ""Consolidated
Total Tangible Assets".
7. Section 4.2 of the Existing Credit Agreement is hereby amended
by (i) deleting clause (f) in its entirety and (ii) replacing the reference
to "(f)" in the last paragraph thereof with a reference to "(e)".
8. Section 5.1 of the Existing Credit Agreement is hereby amended
by deleting clause (c) in its entirety.
9. Section 5.8 of the Existing Credit Agreement is hereby amended
by deleting clause (c) in its entirety.
10. Section 6.10 of the Existing Credit Agreement is hereby amended
by deleting the language following clause (d) its entirety and replacing it
with the following:
"unless (i) the aggregate amount of all Restricted
Payments made during the period from and after the Second Amendment
Effective Date to and including the date of the making of the
Restricted Payment in question would not exceed the sum of (x)
$20,000,000 plus (y) 50% of cumulative Consolidated Net Income for
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such period (or less 100% of cumulative Consolidated Net Income
incurred for such period if such Consolidated Net Income for such
period is a deficit figure) plus (z) the aggregate Net Cash
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Proceeds of the issuance or sale of the Borrower's capital stock
during such period and (ii) no Default or Event of Default shall
have occurred or would occur as a result of such Restricted
Payment. However, so long as no Event of Default shall have
occurred and be continuing nothing herein shall restrict the
Borrower's ability to (i) repurchase
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capital stock of the Borrower in an aggregate amount of up to
$7,000,000 during the period from the Second Amendment Effective
Date through the Revolving Commitment Termination Date and such
repurchases of less than $7,000,000 shall not constitute Restricted
Payments and (ii) make payments or optional prepayments with
respect to the Senior Notes."
11. The Schedules to the Existing Credit Agreement are hereby
amended by deleting each of Schedule 2.1(a), Schedule 3.18, Schedule 6.1(b),
Schedule 6.2, Schedule 6.5 and Schedule 9.2 in their entirety and replacing
each with the corresponding Schedules attached hereto as Exhibits A through
Exhibit F, respectively.
II. GUARANTORS
From and after the Second Amendment Effective Date, by execution of
this Amendment, each Person identified as a "Guarantor" on the signature
pages hereto hereby acknowledges, agrees and confirms that, by its execution
of this Amendment, such Person will be deemed to be a party to the Existing
Credit Agreement and a "Guarantor" for all purposes of the Existing Credit
Agreement, and shall have all of the obligations of a Guarantor thereunder
as if it had executed the Existing Credit Agreement (it being understood and
agreed that as of the Second Amendment Effective Date the Borrower has no
Material Domestic Subsidiaries, and therefore there are no "Guarantors"
identified on the signature pages hereto). Such Person hereby ratifies, as
of the date hereof, and agrees to be bound by, all of the terms, provisions
and conditions contained in the applicable Credit Documents, including
without limitation (a) all of the representations and warranties set forth
in Article III of the Existing Credit Agreement and (b) all of the
affirmative and negative covenants set forth in Articles V and VI of the
Existing Credit Agreement. Without limiting the generality of the foregoing
terms of this Article II, each Guarantor hereby guarantees, jointly and
severally together with the other Guarantors, the prompt payment of the
Obligations in accordance with Article X of the Existing Credit Agreement.
III. JOINDER OF NEW LENDERS
From and after the Second Amendment Effective Date, each of the New
Lenders shall be a party to and be bound by the provisions of the Existing
Credit Agreement (as amended hereby) and shall have the rights and
obligations of a Lender thereunder.
Each New Lender (i) confirms that it has received a copy of the
Existing Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Amendment; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the
Existing Credit Agreement (as amended hereby); (iii) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Existing Credit Agreement (as
amended hereby) as are delegated to the Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably
incidental thereto; (iv) agrees
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that it will perform in accordance with their terms all of the obligations
that by the terms of the Existing Credit Agreement (as amended hereby) are
required to be performed by it as a Lender; and (v) which is not a United
States person shall have attached all forms required under Section 2.18(b)
of the Existing Credit Agreement.
IV. MISCELLANEOUS
1. Representations and Warranties. Each of the Credit Parties
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represents and warrants to the Lenders and the Administrative Agent as
follows:
(i) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(ii) This Amendment has been duly executed and delivered
by such Credit Party and constitutes such Credit Party's legal,
valid and binding obligation, enforceable in accordance with its
terms, except as such enforceability may be limited (x) by general
principles of equity and conflicts of laws (whether enforcement is
sought by proceedings in equity or at law) or (y) by bankruptcy,
reorganization, insolvency, moratorium or other laws of general
application relating to or affecting the enforcement, of creditors'
rights.
(iii) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
Governmental Authority or Person is required in connection with the
execution, delivery or performance by such Credit Party of this
Amendment (except for those which have been obtained on or prior to
the Second Amendment Effective Date and the filing of a Form 8-K
with the SEC).
(iv) The execution and delivery of this Amendment does not
diminish or reduce its obligations under the Credit Documents in
any manner, except as specifically set forth herein.
(v) Such Credit Party has no claims, counterclaims,
offsets, or defenses to the Credit Documents and the performance of
its obligations thereunder, or if such Credit Party has any such
claims, counterclaims, offsets, or defenses to the Credit Documents
or any transaction related to the Credit Documents, the same are
hereby waived, relinquished and released in consideration of the
Lenders' execution and delivery of this Amendment.
(vi) The representations and warranties of the Credit
Parties set forth in Article III of the Existing Credit Agreement
are true and correct in all material respects as of the date hereof
(except those that expressly relate to an earlier date) and all of
the provisions of the Credit Documents, except as amended hereby,
are in full force and effect.
(vii) Subsequent to the execution and delivery of this
Amendment and after giving effect hereto, no unwaived event has
occurred and is continuing on the date hereof which constitutes a
Default or an Event of Default.
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2. Effect of Amendment. Except as expressly modified and amended in
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this Amendment, all of the terms, provisions and conditions of the Credit
Documents shall remain unchanged and in full force and effect. The Credit
Documents and any and all other documents heretofore, now or hereafter
executed and delivered pursuant to the terms of the Existing Credit
Agreement are hereby amended so that any reference to the Existing Credit
Agreement shall mean a reference to the Existing Credit Agreement as amended
hereby.
3. Conditions Precedent. This Amendment shall become effective as
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of July 20, 2006 on the day (the "Second Amendment Effective Date") on which
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each of the following conditions precedent has been satisfied:
(a) Execution of Agreement. The Administrative Agent shall
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have received (i) counterparts of this Amendment, executed by a
duly authorized officer of each party hereto and (ii) for the
account of each Lender, Revolving Notes and for the account of the
Swingline Lender, a Swingline Note.
(b) Authority Documents. The Administrative Agent shall
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have received the following:
(i) Articles of Incorporation. Copies of the
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articles of incorporation or other charter documents, as
applicable, of each Credit Party certified to be true and complete
as of a recent date by the appropriate governmental authority of
the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the
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board of directors or the executive committee of each Credit Party
approving and adopting the Amendment, the transactions contemplated
herein and authorizing execution and delivery hereof, certified by
an officer of such Credit Party as of the Second Amendment
Effective Date to be true and correct and in force and effect as of
such date.
(iii) Bylaws. A copy of the bylaws of each Credit
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Party certified by an officer of such Credit Party as of the Second
Amendment Effective Date to be true and correct and in force and
effect as of such date.
(iv) Good Standing. Copies of (A) certificates of
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good standing, existence or its equivalent with respect to each
Credit Party certified as of a recent date by the appropriate
governmental authorities of the state of incorporation and each
other state in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material Adverse
Effect on the business or operations of such Credit Party and its
Subsidiaries and (B) a certificate indicating payment of all
corporate franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
(v) Incumbency. An incumbency certificate of each
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Credit Party certified by a secretary or assistant secretary to be
true and correct as of the Second Amendment Effective Date.
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(c) Legal Opinions of Counsel. The Administrative Agent
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shall have received an opinion of Xxxxx Xxxx LLP and the General
Counsel of the Borrower, in each case on behalf of the Credit
Parties, dated the Second Amendment Effective Date and addressed to
the Administrative Agent and the Lenders, in form and substance
acceptable to the Administrative Agent.
(d) Fees and Expenses. The Administrative Agent shall have
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received all fees and expenses owed by the Borrower to the Lenders
and the Administrative Agent.
(e) Officer's Certificate. The Administrative Agent shall
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have received a certificate executed by a Responsible Officer of
the Borrower as of the Second Amendment Effective Date stating that
immediately after giving effect to this Amendment, the other Credit
Documents and all the transactions contemplated herein and therein
to occur on such date, (A) no Default or Event of Default exists
and (B) all representations and warranties contained herein and in
the other Credit Documents are true and correct in all material
respects.
(f) Additional Conditions to Revolving Loans. If a Loan is
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made pursuant to Section 2.1 of the Existing Credit Agreement (as
amended hereby), all conditions set forth in such Section shall
have been satisfied.
(g) Additional Conditions to Swingline Loan. If a Loan is
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made pursuant to Section 2.3 of the Existing Credit Agreement (as
amended hereby), all conditions set forth in such Section shall
have been satisfied.
(h) Additional Matters. All other documents and legal
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matters in connection with the transactions contemplated by this
Amendment shall be reasonably satisfactory in form and substance to
the Administrative Agent and its counsel.
4. Construction. This Amendment is a Credit Document executed
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pursuant to the Existing Credit Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Existing Credit Agreement as
amended hereby.
5. Counterparts. This Amendment may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute one and the same instrument.
6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
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THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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7. Binding Effect. This Amendment, the Existing Credit Agreement as
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amended hereby and the other Credit Documents embody the entire agreement
between the parties and supersede all prior agreements and understandings,
if any, relating to the subject matter hereof, and represent the final
agreement between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties.
8. Severability. If any provision of this Amendment is determined
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to be illegal, invalid or unenforceable, such provision shall be fully
severable and the remaining provisions shall remain in full force and effect
and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the
date first above written.
BORROWER: GRAYBAR ELECTRIC COMPANY, INC.
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By:
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Name:
Title:
ADMINISTRATIVE AGENT: WACHOVIA BANK, NATIONAL ASSOCIATION,
-------------------- as Administrative Agent
By:
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Name:
Title:
EXISTING LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
---------------- as a Lender
By:
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Name:
Title:
[OTHERS]
BANK OF AMERICA, N.A.
By:
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Name:
Title:
JPMORGAN CHASE BANK N.A.
(SUCCESSOR BY MERGER TO BANK ONE,
NA (MAIN OFFICE CHICAGO))
By:
---------------------------------
Name:
Title:
SUNTRUST BANK
By:
---------------------------------
Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
NATIONAL CITY BANK OF THE MIDWEST
By:
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Name:
Title:
FIFTH THIRD BANK, A MICHIGAN
BANKING CORPORATION
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
XXXXXX X.X. (SUCCESSOR BY MERGER TO
XXXXXX TRUST AND SAVINGS BANK)
By:
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Name:
Title:
COMERICA BANK
By:
---------------------------------
Name:
Title:
COMMERCE BANK, N.A.
By:
---------------------------------
Name:
Title:
FIRST BANK
By:
---------------------------------
Name:
Title:
