Exhibit 10(xiii)
AMENDMENT NO. 2 TO
RECEIVABLES SALE AGREEMENT
This Amendment No. 2 to Receivables Sale Agreement (this
"Amendment") is entered into as of October 13, 2006, among Graybar Commerce
---------
Corporation, a Delaware corporation, as Buyer ("Buyer") and Graybar Electric
-----
Company, Inc., a New York corporation, as Originator ("Originator").
----------
RECITALS
--------
Each of Buyer and Originator entered into that certain
Receivables Sale Agreement, dated as of June 30, 2000, as amended by
Amendment No. 1 thereto, dated as of August 15, 2006 (such agreement, as so
amended, the "Sale Agreement").
--------------
Each of the parties hereto now desires to amend the Sale
Agreement, subject to the terms and conditions hereof, as more particularly
described herein.
AGREEMENT
---------
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
-----------------------
herein and not otherwise defined herein shall have the respective meanings
set forth for such terms in, or incorporated by reference into, the Sale
Agreement.
Section 2. Amendments to the Sale Agreement. Subject to
--------------------------------
the terms and conditions set forth herein, the Sale Agreement is hereby
amended as follows:
(a) (i) Each reference in the Sale Agreement to
"Bank One" shall be deemed to be a reference to "JPMorgan" and (ii) each
reference in the Sale Agreement to "Bank One, NA (Main Office Chicago)"
shall be deemed to be a
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
1
reference to "JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA
(Main Office Chicago))."
(b) Each reference in the Sale Agreement to
"Falcon Asset Securitization Corporation" shall be deemed to be a reference
to "Falcon Asset Securitization Company LLC (formerly Falcon Asset
Securitization Corporation)."
(c) Section 2.1(d) of the Sale Agreement is
hereby amended and restated in its entirety to read as follows:
(d) Governmental Authorization. Other than the filing of
--------------------------
the financing statements required hereunder and other than the
filing of an 8-K report with the SEC, no authorization or approval
or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due
execution and delivery by Originator of this Agreement and each
other Transaction Document to which it is a party and the
performance of its obligations hereunder and thereunder.
(d) Section 4.1(a)(v) of the Sale Agreement is
hereby amended by adding at the end of such section, immediately before the
period, the following:
; provided that, for purposes of this Section 4.1(a)(v), posting to
--------
XXXXX or on the website of Originator shall constitute delivery of
such statements or reports to Buyer
(e) Section 5.1(g) of the Sale Agreement is
hereby amended and restated in its entirety to read as follows:
(g) (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.
AMENDMENT XX. 0 XX
XXXXXXXXXXX XXXXXXXX XXXXXXXXX
0
(x) Section 6.1 of the Sale Agreement is hereby
amended by amending and restating clause (xiv) of such section where such
clause appears after the proviso in its entirety to read as follows:
(xiv) [Reserved]; and
(g) Exhibit III to the Sale Agreement is hereby
amended and restated in its entirety to read as set forth on Annex I hereto.
-------
Section 3. Conditions to Effectiveness of Amendment. This
----------------------------------------
Amendment shall become effective as of the date hereof (the "Effective
---------
Date"), upon the satisfaction of the conditions precedent that:
----
(a) Amendment. Buyer shall have received, on or
---------
before the date hereof, executed counterparts of this Amendment, duly
executed by each of the parties hereto.
(b) Representations and Warranties. As of the
------------------------------
Effective Date, both before and after giving effect to this Amendment, all
of the representations and warranties contained in the Sale 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,
Originator shall be deemed to have represented and warranted such).
(c) No Termination Event. As of the Effective
--------------------
Date, both before and after giving effect to this Amendment, no Termination
Event or Potential Termination Event shall have occurred and be continuing
(and by its execution hereof, Originator shall be deemed to have represented
and warranted such).
Section 4. Miscellaneous.
-------------
(a) Effect; Ratification. The amendments set 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, or an acknowledgment of, any amendment, waiver or modification of any
other term or condition of the Sale Agreement or of any other instrument or
agreement referred to therein; or (ii) prejudice any right or remedy which
Buyer may now have or may have in the future under or in connection with the
Sale Agreement, as amended hereby, or any other
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
3
instrument or agreement referred to therein. Each reference in the Sale
Agreement to "this Agreement," "herein," "hereof" and words of like import
and each reference in the other Transaction Documents to the "Receivables
Sale Agreement" or to the "Sale Agreement" shall mean the Sale Agreement as
amended hereby. This Amendment shall be construed in connection with and as
part of the Sale Agreement and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Sale 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 a
---------------------
Transaction Document executed pursuant to the Sale Agreement and shall be
construed, administered and applied in accordance with the terms and
provisions thereof.
(c) Costs, Fees and Expenses. Originator agrees
------------------------
to reimburse Buyer 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 Buyer).
(d) Counterparts. This Amendment may be 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 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
-------------
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF ILLINOIS.
(g) WAIVER OF JURY TRIAL. EACH PARTY HERETO
--------------------
HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
4
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOCUMENT EXECUTED BY ORIGINATOR
PURSUANT TO THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
(Signature Page Follows)
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
5
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, as Buyer
By:
-------------------------------------
Name:
Title:
GRAYBAR ELECTRIC COMPANY, INC.,
as Originator
By:
-------------------------------------
Name:
Title:
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
Annex I
-------
EXHIBIT III
-----------
Lock-boxes; Collection Accounts; Collection Banks
-------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
BANK OF AMERICA, N.A.
NAME ACCOUNT NO. LOCKBOX NUMBERS LOCKBOX ADDRESS
------------------------------------------------------------------------------------------------------------------------
Dallas District Lockbox 180001016 840458 Graybar Electric Co
X.X. Xxx 000000
Xxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
Minneapolis District Lockbox 0000000000 12437 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------------
Boston District Lockbox 3751997809 414426 Graybar Electric Co.
XX Xxx 000000
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
New York District Lockbox 3751997786 414396 Graybar Electric Co.
XX Xxx 000000
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
Chicago District Lockbox 3751956934 12431 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------------
St. Louis District Lockbox 3751997773 12447 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------------
Corporate Svcs. District Lockbox 3750930566 12753 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------------
Pittsburgh District Lockbox 3751956918 12444 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------------
Atlanta District Lockbox 0000000000 403052 Graybar Electric Co
X X Xxx 000000
Xxxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
Richmond District Lockbox 3751956895 403049 Graybar Electric Co
X X Xxx 000000
Xxxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
Tampa District Lockbox 3751997760 403062 Graybar Electric Co
X X Xxx 000000
Xxxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
Seattle District Lockbox 3751997757 57073 Graybar Electric Co
File 00000
Xxx Xxxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
California District Lockbox 3751997744 57071 Graybar Electric Co
File 57071
Xxx Xxxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
------------------------------------------------------------------------------------------------------------------------
BANK OF AMERICA, N.A.
NAME ACCOUNT NO. LOCKBOX NUMBERS LOCKBOX ADDRESS
------------------------------------------------------------------------------------------------------------------------
Phoenix District Lockbox 3751956882 57072 Graybar Electric Co
File 57072
Xxx Xxxxxxx XX 00000-0000
------------------------------------------------------------------------------------------------------------------------
AMENDMENT NO. 2 TO
RECEIVABLES PURCHASE AGREEMENT
