Exhibit 10(xii)
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 12 to Receivables Purchase Agreement
(this "Amendment") is entered into as of October 13, 2006, among Graybar
---------
Commerce Corporation, a Delaware corporation, as Seller ("Seller"), Graybar
------
Electric Company, Inc., a New York corporation, as Servicer ("Servicer"),
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Falcon Asset Securitization Company LLC (formerly Falcon Asset
Securitization Corporation) ("Conduit"), and JPMorgan Chase Bank, N.A.
-------
(successor by merger to Bank One, NA (Main Office Chicago)) ("JPMorgan")),
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as Agent and as a Financial Institution.
RECITALS
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Each of Seller, Servicer, Conduit and JPMorgan 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, (viii) that
certain Amendment No. 8 to Receivables Purchase Agreement, dated as of
December 23, 2002, (ix) that certain Amendment No. 9 to Receivables Purchase
Agreement, dated as of October 22, 2003, (x) that certain Amendment No. 10
to Receivables Purchase Agreement, dated as of September 26, 2005 and (xi)
that certain Amendment No. 11 to Receivables Purchase Agreement, dated as of
August 15, 2006 (such Receivables Purchase Agreement, as so amended, the
"Purchase Agreement").
------------------
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
1
Each of the parties hereto now desires to amend the
Purchase 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 Purchase
Agreement.
Section 2. Amendments to the Purchase Agreement. Subject to
------------------------------------
the terms and conditions set forth herein, the Purchase Agreement is hereby
amended as follows:
(a) (i) Each reference in the Purchase Agreement
to "Bank One" shall be deemed to be a reference to "JPMorgan," (ii) each
reference in the Purchase Agreement to "Bank One, NA (Main Office Chicago)"
shall be deemed to be a reference to "JPMorgan Chase Bank, N.A. (successor
by merger to Bank One, NA (Main Office Chicago))" and (iii) each reference
in the Purchase Agreement to "Bank One, NA" shall be deemed to be a
reference to "JPMorgan Chase Bank, N.A. (successor by merger to Bank One,
NA)."
(b) Each reference in the Purchase 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) The third sentence of Section 1.2 of the
Purchase Agreement is hereby amended by deleting the word "three" where it
appears in such sentence in its entirety and replacing such word with the
word "seven."
(d) Section 7.1(a)(v) of the Purchase Agreement
is hereby amended by adding at the end of such section, immediately before
the period, the following:
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
2
; provided that, for purposes of this Section 7.1(a)(v), posting to
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XXXXX or on the website of Graybar shall constitute delivery of
such statements or reports to the Agent
(e) Section 10.1 is hereby amended by amending
and restating clause (xv) of such section where such clause appears after
the proviso in its entirety to read as follows:
(xv) [Reserved]; and
(f) Exhibit I to the Purchase Agreement is hereby
amended by amending and restating in its entirety the definition of
"Aggregate Reserves" in such exhibit to read as follows:
"Aggregate Reserves" means, on any date of determination,
------------------
an amount equal to the sum of the Loss Reserve, the Yield Reserve
and the Dilution Reserve.
(g) Exhibit I to the Purchase Agreement is
hereby amended by deleting in its entirety the definition of "Bank One."
(h) Exhibit I to the Purchase Agreement is
hereby amended by adding, in appropriate alphabetical order, the definition
of "Credit Agreement" to such exhibit to read as follows:
"Credit Agreement" means that certain 364-Day Credit
----------------
Agreement, dated as of July 22, 2004, among Graybar, as borrower,
certain subsidiaries of Graybar, as guarantors, the financial
institutions party thereto as lenders, Wachovia Bank, National
Association, as administrative agent, and the other agents party
thereto, as such agreement may be amended, restated, amended and
restated, replaced, refinanced, extended or otherwise modified from
time to time.
(i) Exhibit I to the Purchase Agreement is
hereby amended by amending and restating in its entirety the definition of
"Credit Rate" in such exhibit to read as follows:
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
3
"Credit Rate" means, on each day that a 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 Credit Agreement plus (ii) .25% per annum.
(j) Exhibit I to the Purchase Agreement is hereby
amended by amending and restating in its entirety the definition of
"Delinquent Receivable" in such exhibit to read as follows:
"Delinquent Receivable" means a Receivable as to which any
---------------------
payment, or part thereof, remains unpaid for 91 days or more from
the invoice date of such Receivable.
(k) Exhibit I to the Purchase Agreement is hereby
amended by amending and restating in its entirety the definition of
"Designated Obligor" in such exhibit to read as follows:
"Designated Obligor" means any Obligor that the Agent,
------------------
using its reasonable business judgment, believes could negatively
impact the collectibility of the Receivables and so indicates to
Seller in writing.
(l) Exhibit I to the Purchase Agreement is hereby
amended by amending the definition of "Discount Rate" by deleting in its
entirety the phrase "Replacement Credit Agreement" where such phrase appears
in clauses (i)(A) and (i)(B) of such definition and replacing such phrase
with the phrase "Credit Agreement" in such clauses of such definition.
(m) Exhibit I to the Purchase Agreement is hereby
amended by amending clause (xxi) of the definition of "Eligible Receivable"
by deleting in its entirety the footnote where it appears at the end of such
clause of such definition.
(n) Exhibit I to the Purchase Agreement is hereby
amended by amending and restating in its entirety the definition of
"Facility Termination Date" in such exhibit to read as follows:
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
4
"Facility Termination Date" means the earliest to occur of
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(i) October 13, 2009, (ii) the Liquidity Termination Date and (iii)
the Amortization Date.
(o) Exhibit I to the Purchase Agreement is hereby
amended by adding, in appropriate alphabetical order, the definition of
"JPMorgan" to such exhibit to read as follows:
"JPMorgan" means JPMorgan Chase Bank, N.A. (successor by
--------
merger to Bank One, NA (Main Office Chicago)) in its individual
capacity and its successors.
(p) Exhibit I to the Purchase Agreement is hereby
amended by amending and restating in its entirety the definition of
"Liquidity Termination Date" in such exhibit to read as follows:
"Liquidity Termination Date" means October 13, 2009.
--------------------------
(q) Exhibit I to the Purchase Agreement is hereby
amended by amending and restating in its entirety the definition of
"Purchase Limit" in such exhibit to read as follows:
"Purchase Limit" means $215,000,000.
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(r) Exhibit I to the Purchase Agreement is hereby
amended by deleting in its entirety the definition of "Replacement Credit
Agreement."
(s) Exhibit I to the Purchase Agreement is hereby
amended by deleting in its entirety the definition of "Year 2000 Problem."
(t) Exhibit IV to the Purchase Agreement is hereby
amended and restated in its entirety to read as set forth on Annex I hereto.
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(u) Exhibit V to the Purchase Agreement is hereby
amended by deleting in its entirety paragraph 5 of such exhibit.
(v) Schedule A to the Purchase Agreement is hereby
amended and restated in its entirety to read as set forth on Annex II
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hereto.
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
5
Section 3. Conditions to Effectiveness of Amendment. This
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Amendment shall become effective as of the date hereof (the "Effective
---------
Date"), upon the satisfaction of the conditions precedent that:
----
(a) Amendment. The Agent and each Purchaser shall
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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 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).
(c) No Amortization Event. As of the 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 4. Miscellaneous.
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(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 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
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
6
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 Purchase Agreement and shall
be construed, administered and applied in accordance with the terms and
provisions thereof.
(c) Costs, Fees and Expenses. Seller agrees 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 and/or the other Purchasers).
(d) Counterparts. This Amendment may be executed
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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.
(g) WAIVER OF JURY TRIAL. EACH PARTY HERETO
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HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE)
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY
DOCUMENT EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS AMENDMENT OR THE
RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
7
(Signature Page Follows)
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
8
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
COMPANY LLC (formerly Falcon Asset
Securitization Corporation)
By:
---------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main
Office Chicago)),
as Agent and as sole Financial Institution
By:
---------------------------------------
Name:
Title:
AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
Annex I
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EXHIBIT IV
NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS
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BANK OF AMERICA, N.A.
NAME ACCOUNT NO. LOCKBOX NUMBERS LOCKBOX ADDRESS
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Dallas District Lockbox 180001016 840458 Graybar Electric Co
X.X. Xxx 000000
Xxxxxx XX 00000-0000
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Minneapolis District Lockbox 0000000000 12437 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
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Boston District Lockbox 3751997809 414426 Graybar Electric Co.
XX Xxx 000000
Xxxxxx, XX 00000-0000
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New York District Lockbox 3751997786 414396 Graybar Electric Co.
XX Xxx 000000
Xxxxxx, XX 00000-0000
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Chicago District Lockbox 3751956934 12431 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
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St. Louis District Lockbox 3751997773 12447 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
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Corporate Svcs. District Lockbox 3750930566 12753 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
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Pittsburgh District Lockbox 3751956918 12444 Graybar Electric Co
00000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx XX 00000
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Atlanta District Lockbox 0000000000 403052 Graybar Electric Co
X X Xxx 000000
Xxxxxxx XX 00000-0000
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Richmond District Lockbox 3751956895 403049 Graybar Electric Co
X X Xxx 000000
Xxxxxxx XX 00000-0000
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Tampa District Lockbox 3751997760 403062 Graybar Electric Co
X X Xxx 000000
Xxxxxxx XX 00000-0000
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Seattle District Lockbox 3751997757 57073 Graybar Electric Co
File 00000
Xxx Xxxxxxx XX 00000-0000
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California District Lockbox 3751997744 57071 Graybar Electric Co
File 57071
Xxx Xxxxxxx XX 00000-0000
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AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
------------------------------------------------------------------------------------------------------------------------
BANK OF AMERICA, N.A.
NAME ACCOUNT NO. LOCKBOX NUMBERS LOCKBOX ADDRESS
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Phoenix District Lockbox 3751956882 57072 Graybar Electric Co
File 57072
Xxx Xxxxxxx XX 00000-0000
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Annex II
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SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
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Financial Institution Commitment
--------------------- ----------
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JPMorgan Chase Bank, N.A. (successor by merger to $219,300,000
Bank One, NA (Main Office Chicago))
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AMENDMENT NO. 12 TO
RECEIVABLES PURCHASE AGREEMENT
