EXHIBIT 10(v)
AMENDMENT NO. 9 TO
RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 9 to Receivables Purchase Agreement
(this "Amendment") is entered into as of October 22, 2003, among Graybar
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Commerce Corporation, a Delaware corporation, as Seller ("Seller"), Graybar
Electric Company, Inc., a New York corporation ("Graybar"), as Servicer,
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Falcon Asset Securitization Corporation ("Conduit"), Lloyds TSB Bank plc
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("Lloyds"), as a departing Financial Institution, and Bank One, NA (Main
Office Chicago) ("Bank One"), as Agent and as a Financial Institution.
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RECITALS,
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Each of Seller, Graybar, Conduit and Bank One, NA (Main
Office Chicago) entered into that certain Receivables Purchase Agreement,
dated as of June 30, 2000, and each of the parties thereto amended such
Receivables Purchase Agreement pursuant to the following amendments: (i)
that certain Amendment No. 1 to Receivables Purchase Agreement, dated as of
July 12, 2000, (ii) that certain Waiver and Amendment No. 2 to Receivables
Purchase Agreement, dated as of January 1, 2001, (iii) that certain
Amendment No. 3 to Receivables Purchase Agreement, dated as of June 22,
2001, (iv) that certain Amendment No. 4 to Receivables Purchase Agreement,
dated as of August 29, 2001, (v) that certain Amendment No. 5 to Receivables
Purchase Agreement, dated as of October 26, 2001, (vi) that certain
Amendment No. 6 to Receivables Purchase Agreement, dated as of December 31,
2001, (vii) that certain Amendment No. 7 to Receivables Purchase Agreement,
dated as of October 23, 2002, and (viii) that certain Amendment No. 8 to
Receivables Purchase Agreement, dated as of December 23, 2003 (such
Receivables Purchase Agreement as so amended, the "Purchase Agreement").
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Lloyds, as a departing Financial Institution, desires to
assign and transfer an undivided 100% interest in its, and Bank One desires
to acquire an undivided 100% interest in Lloyds's, rights and obligations as
a Financial Institution under the Purchase Agreement and the other
Transaction Documents as set forth herein.
Each of the parties hereto now desires to amend the
Purchase Agreement, subject to the terms and conditions hereof, to remove
Lloyds as a Financial Institution and to make such other amendments as the
parties hereto agree as more particularly described herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions Used Herein. Capitalized terms used
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herein and not otherwise defined herein shall have the respective meanings
set forth for such terms in the Purchase Agreement.
Section 2. Removal of Lloyds as a Financial Institution.
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Subject to the terms and conditions set forth herein, from and after the
effective date hereof, Lloyds shall no longer be a Financial Institution
party to the Purchase Agreement and the Commitment of Lloyds listed on
Schedule A to the Purchase Agreement is reduced to zero; provided, however,
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that the provisions of Article X of the Purchase Agreement shall continue in
effect for its benefit with respect to Purchaser Interests held by Lloyds
prior to its termination as a Financial Institution. Subject to the terms
and conditions set forth herein, on the date hereof, Lloyds shall be deemed
to have hereby transferred and assigned to Bank One without recourse,
representation or warranty of any kind, and Bank One shall be deemed to have
hereby irrevocably taken, received and assumed from Lloyds, 100% of Lloyd's
Commitment representing $55,080,000 and all rights and obligations
associated therewith under the terms hereof and of the Purchase Agreement.
Section 3. Amendment to Section 9.1(k). Subject to the
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terms and conditions set forth herein, Section 9.1(k) of the Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
(k) (i) The Leverage Ratio, as of the last day of
each fiscal quarter of Originator, shall be greater than 4.0 to 1.0 or (ii)
the Interest Coverage Ratio, as of the last day of each fiscal quarter of
Originator, shall be less than 2.5 to 1.0 or (iii) the Consolidated Tangible
Net Worth shall at any time be less than $405,000,000, increased by the sum
of (A) on a cumulative basis as of the end of each fiscal quarter of
Originator, commencing with the fiscal quarter ending June 30, 2003, an
amount equal to 50% of Consolidated Net Income (to the extent positive) for
the fiscal quarter then ended plus (B) an amount equal to 100% of the Net
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Cash Proceeds from any Equity Issuance occurring after July 30, 2003.
Section 4. Amendments to Section 10.2. Subject to the
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terms and conditions set forth herein, Section 10.2 of the Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
Section 10.2 Increased Cost and Reduced Return.
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If after the date hereof, any Funding Source shall be
charged any fee, expense or increased cost on account of the adoption of any
applicable law, rule or regulation (including any applicable law, rule or
regulation regarding capital adequacy), any accounting principles or any
change in any of the foregoing, or any change in the interpretation or
administration thereof by the Financial Accounting Standards Board ("FASB"),
any governmental authority, any central bank or any comparable agency
charged with the interpretation or administration thereof, or compliance
with any request or directive (whether or not having the force of law) of
any such authority or agency (a "Regulatory Change"): (i) that subjects any
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Funding Source to any charge or withholding on or with respect to any
Funding Agreement or a Funding Source's obligations under a Funding
Agreement, or on or with respect to the Receivables, or changes the basis of
taxation of payments to any Funding Source of any amounts payable under any
Funding Agreement (except for changes in the rate of tax on the overall net
income of a Funding Source or taxes excluded by Section 10.1) or (ii) that
imposes, modifies or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits
with or for the account of a Funding Source, or credit extended by a Funding
Source pursuant to a Funding Agreement or (iii) that imposes any other
condition the result of which is to increase the cost to a Funding Source of
performing its obligations under a Funding Agreement, or to reduce the rate
of return on a Funding Source's capital as a consequence of its obligations
under a Funding Agreement, or to reduce the amount of any sum received or
receivable by a Funding Source under a Funding Agreement or to require any
payment calculated by reference to the amount of interests or loans held or
interest received by it, then, upon demand by the Agent, Seller shall pay to
the Agent, for the benefit of the relevant Funding Source, such amounts
charged to such Funding Source or such amounts to otherwise compensate such
Funding Source for such increased cost or such reduction. For the avoidance
of doubt, if the issuance of FASB Interpretation No. 46, or any other change
in accounting standards or the issuance of any other pronouncement, release
or interpretation, causes or requires the consolidation of all or a portion
of the assets and liabilities of Graybar or Seller with the assets and
liabilities of the Agent, any Financial Institution or any other Funding
Source, such event shall constitute a circumstance on which such Funding
Source may base a claim for reimbursement under this Section.
Section 5. Amendments to Section 14.5(a). Subject to the
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terms and conditions set forth herein, Section 14.5(a) of the Purchase
Agreement is hereby amended by adding the following language at the end of
such section:
Anything herein to the contrary notwithstanding,
each Seller Party, each Purchaser, the Agent, each Indemnified Party and any
successor or assign of any of the forgoing (and each employee,
representative or other agent of any of the foregoing) may disclose to any
and all Persons, without limitation of any kind, the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation
Section 1.6011-4) of the transactions contemplated herein and all materials
of any kind (including opinions or other tax analyses) that are or have been
provided to any of the foregoing relating to such tax treatment or tax
structure, and it is hereby confirmed that each of the foregoing have been
so authorized since the commencement of discussions regarding the
transactions.
Section 6. Amendments to Exhibit I. Subject to the terms
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and conditions set forth herein, Exhibit I to the Purchase Agreement is
hereby amended by:
(a) adding thereto the following new defined
terms in proper alphabetical order:
"Accumulated Other Comprehensive Income and
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Losses" means, as of any date with respect to Originator and its Covenant
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Subsidiaries on a consolidated basis, accumulated other comprehensive income
and losses, as determined in accordance with GAAP.
"Credit Rate" means, on each day that a
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Replacement Credit Agreement is in effect, a rate per annum equal to the sum
of (i) the lowest rate available to Graybar on such date for a revolving
loan made pursuant to such Replacement Credit Agreement plus (ii) .25% per
annum.
"Excluded Amount" means collectively each of the
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amounts set forth in the table below, provided (i) for each related Site
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Location, the Excluded Amount shall not exceed (but can be equal to or less
than) the amount set forth 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 October 22, 2003 with respect to
such Site Location or (B) Graybar must own such Site Location:
Site Location Excluded Amount
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Stafford, TX $7,660,000
Austell, GA $7,452,000
Youngstown, OH $7,008,000
Xxxxxx, MN $6,600,000
Joliet, IL $9,917,744
Puyallup, WA $9,305,219
Cincinnati, OH $5,967,833
Tampa, FL $9,773,687
Taunton, NJ $9,793,000
"Replacement Credit Agreement" means any revolving
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credit agreement or similar agreement in effect on or after July 30, 2004
that replaces, amends, amends and restates, refinances, extends, or
otherwise changes the pricing of that certain Five Year Credit Agreement,
dated as of July 30, 1999, among Graybar, the banks and financial
institutions party thereto, and First Union National Bank, as administrative
agent; provided that, for any such agreement to be a "Replacement Credit
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Agreement", the term of such agreement must extend beyond October 21, 2006.
(b) amending and restating, in its entirety,
the definition of "Consolidated Tangible Net Worth" appearing
in such Exhibit I to read as follows:
"Consolidated Tangible Net Worth" means, as of
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any date with respect to Originator and its Covenant Subsidiaries on a
consolidated basis, Consolidated Total Tangible Assets minus Consolidated
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Total Liabilities, plus Accumulated Other Comprehensive Income and Losses to
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the extent it reduces shareholder's equity, all as determined in accordance
with GAAP.
(c) replacing the percentage "2%" in clause
(ii) of the definition of "Default Fee" appearing in such Exhibit I with the
percentage "3%".
(d) amending and restating, in its entirety,
the definition of "Discount Rate" appearing in such Exhibit I to read as
follows:
"Discount Rate" means, (i) (A) if a Replacement
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Credit Agreement is in effect, the Credit Rate or (B) if a Replacement Credit
Agreement is not in effect, the LIBO Rate or (ii) the Prime Rate, as
applicable, with respect to each Purchaser Interest of the Financial
Institutions.
(e) replacing the date "October 23, 2003" in
clause (i) of the definition of "Facility Termination Date" appearing in such
Exhibit I with the date "October 22, 2006".
(f) replacing the parenthetical "(excluding
for purposes hereof, Funded Debt of the type set forth in subsection (1) of
the definition of 'Covenant Indebtedness' to the extent that it is less than
$75,000,000 in the aggregate)" in clause (a) of the definition of "Leverage
Ratio" appearing in such Exhibit I with the parenthetical "(excluding for
purposes hereof, the Excluded Amount)".
(g) replacing the percentage "1.25%" in
clause (ii) of the definition of "LIBO Rate" appearing in such Exhibit I
with the percentage "3.75%".
(h) replacing the date "October 23, 2003" in
the definition of "Liquidity Termination Date" appearing in such Exhibit I
with the date "October 22, 2006".
Section 7. Amendments to Exhibit IV. Subject to the terms
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and conditions set forth herein, Exhibit IV to the Purchase Agreement is
hereby amended and restated, and replaced, in its entirety by Annex I
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hereto.
Section 8. Amendments to Exhibit V. Subject to the terms
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and conditions set forth herein, Exhibit V to the Purchase Agreement is
hereby amended and restated, and replaced, in its entirety by Annex II
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hereto.
Section 9. Amendments to Schedule A. Subject to the terms
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and conditions set forth herein, Schedule A to the Purchase Agreement is
hereby amended and restated, and replaced, in its entirety by Annex III
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hereto.
Section 10. Condition to Effectiveness of Amendment. This
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Amendment shall become effective as of October 22, 2003 (the "Effective
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Date"), upon the satisfaction of the condition precedent that:
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(a) Amendment. The Agent shall have received,
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on or before the date hereof, executed counterparts of this Amendment,
duly executed by each of the parties hereto.
(b) Fee Letter; Fees. The Agent shall have
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received, on or before the date hereof, (i) an amended and restated
fee letter, in form and substance satisfactory to the Agent, duly
executed by each of the parties thereto and (ii) all
fees, costs and expenses due and payable to the Agent or any Purchaser
on or before the effective date hereof pursuant to such amended and
restated fee letter or any other Transaction Document.
(c) Deposit Account Control Agreement. The
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Agent shall have received, on or before the date hereof, executed
counterparts of the Deposit Account Control Agreement, duly executed
by Seller, Graybar, the Agent and Bank of America, N.A.
Section 11. Representations and Warranties. By its
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execution hereof, each of Seller and Servicer shall be deemed to have
represented and warranted the following:
(a) Transaction Document Representations and
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Warranties. As of the Effective Date, both before and after giving
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effect to this Amendment, all of the representations and warranties
contained in the Purchase Agreement and in each other Transaction
Document shall be true and correct in all material respects as though
made on the Effective Date (and by its execution hereof, each of
Seller and Servicer shall be deemed to have represented and warranted
such).
(b) No Amortization Event. As of the
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Effective Date, both before and after giving effect to this
Amendment, no Amortization Event or Potential Amortization Event
shall have occurred and be continuing (and by its execution
hereof, each of Seller and Servicer shall be deemed to have
represented and warranted such).
Section 12. Miscellaneous.
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(a) Effect; Ratification. The amendments set
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forth herein are effective solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be
deemed to (i) be a consent to any amendment, waiver or
modification of any other term or condition of the Purchase
Agreement or of any other instrument or agreement referred to
therein; or (ii) prejudice any right or remedy which any Purchaser
or the Agent may now have or may have in the future under or in
connection with the Purchase Agreement, as amended hereby, or any
other instrument or agreement referred to therein. Each reference
in the Purchase Agreement to "this Agreement," "herein," "hereof"
and words of like import and each reference in the other
Transaction Documents to the "Receivables Purchase Agreement" or
to the "Purchase Agreement" shall mean the Purchase Agreement as
amended hereby. This Amendment shall be construed in connection
with and as part of the Purchase Agreement and all terms,
conditions, representations, warranties,
covenants and agreements set forth in the Purchase Agreement and
each other instrument or agreement referred to therein, except as
herein amended, are hereby ratified and confirmed and shall remain
in full force and effect.
(b) Transaction Documents. This Amendment is
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a Transaction Document executed pursuant to the Purchase Agreement
and shall be construed, administered and applied in accordance
with the terms and provisions thereof.
(c) Costs, Fees and Expenses. Seller agrees
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to reimburse the Agent and each Purchaser on demand for all costs,
fees and expenses incurred in connection with the preparation,
execution and delivery of this Amendment (including the reasonable
fees and expenses of counsels to the Agent, Lloyds and/or the
other Purchasers).
(d) Counterparts. This Amendment may be
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executed in any number of counterparts, each such counterpart
constituting an original and all of which when taken together
shall constitute one and the same instrument.
(e) Severability. Any provision contained in
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this Amendment which is held to be inoperative, unenforceable or
invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable or invalid without affecting the
remaining provisions of this Amendment in that jurisdiction or the
operation, enforceability or validity of such provision in any
other jurisdiction.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE
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GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ILLINOIS.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first written above.
GRAYBAR COMMERCE CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: President
GRAYBAR ELECTRIC COMPANY, INC.,
as Servicer
By:
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Name: X. X. Xxxx
Title: Vice President and Treasurer
FALCON ASSET SECURITIZATION
CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent and as a Financial Institution
By:
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Name: Xxxxxx X. Xxxxxx
Title: Director, Capital Markets
LLOYDS TSB BANK PLC,
as a departing Financial Institution
By:
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Name:
Title:
By:
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Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first written above.
GRAYBAR COMMERCE CORPORATION
By:
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Name:
Title:
GRAYBAR ELECTRIC COMPANY, INC.,
as Servicer
By:
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Name:
Title:
FALCON ASSET SECURITIZATION CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent and as a Financial Institution
By:
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Name: Xxxxxx X. Xxxxxx
Title: Director, Capital Markets
LLOYDS TSB BANK PLC,
as a departing Financial Institution
By:
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Name:
Title:
By:
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Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first written above.
GRAYBAR COMMERCE CORPORATION
By:
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Name:
Title:
GRAYBAR ELECTRIC
COMPANY, INC., as Servicer
By:
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Name:
Title:
FALCON ASSET SECURITIZATION CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE
CHICAGO), as Agent and as a Financial
Institution
By:
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Name: Xxxxxx X. Xxxxxx
Title: Director, Capital Markets
LLOYDS TSB BANK PLC,
as a departing Financial Institution
By:
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Name:
Title:
By:
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Name:
Title:
Annex I
EXHIBIT IV
NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS
Annex II
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA (Main Office Chicago), as Agent
This Compliance Certificate is furnished pursuant to that certain
Receivables Purchase Agreement, dated as of June 30, 2000, among Graybar
Commerce Corporation (the "Seller"), Graybar Electric Company, Inc. (the
"Servicer"), the Purchasers party thereto and Bank One, NA (Main Office
Chicago), as agent for such Purchasers (as amended from time to time, the
"Agreement").
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of Seller.
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2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the
transactions and conditions of Seller and its Subsidiaries during
the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which
constitutes an Amortization Event or Potential Amortization Event,
as each such term is defined under the Agreement, during or at the
end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set
forth in paragraph 6 below.
4. Schedule I attached hereto sets forth financial data and
computations evidencing the compliance with certain covenants of
the Agreement, all of which data and computations are true,
complete and correct.
5. Set forth in the table below is the Excluded Amount for each
related Site Location and a designation of whether such Site
Location is financed pursuant to the financing product in effect on
October 22, 2003 or owned by Graybar:
Site Location Excluded Amount Designation
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Stafford, TX $
Austell, GA $
Youngstown, OH $
Xxxxxx, MN $
Joliet, IL $
Puyallup, WA $
Cincinnati, OH $
Tampa, FL $
Taunton, NJ $
6. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period
during which it has existed and the action which Seller has taken,
is taking or proposes to take with respect to each such condition or
event:
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this day of
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SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of , with Section
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of the Agreement. Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
This schedule relates to the month ended:
Annex III
SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
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Financial Institution Commitment
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Bank One, NA (Main Office Chicago)
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