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Exhibit 10(v)
AMENDMENT NO. 10 TO
RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 10 to Receivables Purchase Agreement (this
"Amendment") is entered into as of September 26, 2005, among
Graybar
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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 Corporation ("Conduit"), and JPMorgan
Chase
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Bank, N.A. (successor by merger to Bank One, NA (Main Office
Chicago))
("JPMorgan")), as Agent and as a Financial Institution.
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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, and (ix) that certain Amendment No. 9 to Receivables
Purchase
Agreement, dated as of October 22, 2003 (such Receivables Purchase
Agreement
as so amended, the "Purchase Agreement").
---------------------
Each of the parties hereto now desires to amend the Purchase
Agreement, subject to the terms and conditions hereof, to remove
the
liquidity facility and to make such other amendments, in each case,
as more
particularly described herein.
AMENDMENT NO. 10 TO RECEIVABLES
PURCHASE AGREEMENT
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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
herein
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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) Section 5.1(d) of the Purchase Agreement is hereby
amended by adding the phrase "and other than the filing of an 8-K
report
with the SEC" after the phrase "Other than the financing statements
required
hereunder."
(b) Section 9.1(f) of the Purchase Agreement is hereby amended
by deleting the percentage "13.0%" where it appears therein and
inserting the
percentage "15.0%" in lieu thereof.
(c) 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
$408,165,000, 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, 2005, an
amount
equal to 50% of Consolidated Net Income (to the extent
positive)
for
the fiscal quarter then ended plus (B) as of the end of each
----
fiscal quarter of Originator, commencing with the fiscal
quarter
ending June 30, 2005, the amount (if such amount is greater
than
zero) by which the aggregate Net Cash Proceeds from all Equity
Issuances occurring during the twelve consecutive months ending
on
the
last day of such fiscal quarter exceed the aggregate amount
funded by
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Originator during such twelve month period to repurchase its
capital stock.
(d) Exhibit Ito the Purchase Agreement is hereby amended by
amending and restating in its entirety the definition of "Excluded
Amount"
in such exhibit to read as follows:
"Excluded Amount" shall mean with respect to Funded Debt of
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Originator and its Covenant Subsidiaries attributable to
certain
synthetic leases of Originator in an amount equal to the lesser
of
(a)
$70,906,000 and (b) the actual amount of Funded Debt
attributable to such synthetic leases.
Section 3. Removal of Liquidity Facility. Subject to the
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terms and conditions set forth herein, the Purchase Agreement is
hereby
amended as follows:
(a) The Preliminary Statements of the Purchase Agreement
are hereby amended by deleting the last sentence of the third
paragraph of
such Preliminary Statements.
(b) Section 2.2 of the Purchase Agreement is hereby amended
by amending and restating in its entirety the fifth sentence of
such section
to read as follows:
Each
Terminating Financial Institution shall be allocated a ratable
portion of Collections from the Liquidity Termination Date that
such
Terminating Financial Institution did not consent to extend
(as
to such Terminating Financial Institution, the "Termination
------------
Date") until such Terminating Financing Institution's Capital
shall
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be
paid in full.
(c) Section 4.1 of the Purchase Agreement is hereby amended
by amending and restating in its entirety the last sentence of such
section
to read as follows:
If
any Funding Source acquires by assignment from Conduit any
Purchaser Interest pursuant to any Funding Agreement, each
Purchaser Interest so assigned shall each be deemed to have a
new
Tranche Period commencing on the date of any such assignment
and
shall accrue Yield for each day during its Tranche Period at
either
the
LIBO Rate or the Prime Rate in accordance with the terms and
conditions hereof as if each such Purchaser Interest was held by
a
Financial Institution, and with respect to each such Purchaser
Interest, the
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assignee thereof shall be deemed to be a Financial Institution
solely for the purposes of Sections 4.1, 4.2, 4.3, 4.4 and 4.5.
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(d) Section 4.4 of the Purchase Agreement is hereby amended by
amending and restating in its entirety the last sentence of such
section to
read as follows:
Until Seller gives notice to the Agent of another Discount
Rate,
the
initial Discount Rate for any Purchaser Interest transferred to
the
Financial Institutions pursuant to the terms and conditions
hereof (or assigned or transferred to any Funding Source or to
any
other Person) shall be the Prime Rate.
(e) Article IV of the Purchase Agreement is hereby amended
by adding the following new section to the end of such article:
Section 4.6 Extension of Liquidity Termination Date.
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(a) Seller may request one or more 364-day extensions of the
Liquidity Termination Date then in effect by giving written notice
of such
request to the Agent (each such notice an "Extension Notice") at
least 60
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days
prior to the Liquidity Termination Date then in effect. After
the
Agent's receipt of any Extension Notice, the Agent shall promptly
advise
each
Financial Institution of such Extension Notice. Each Financial
Institution may, in its sole discretion, by a revocable notice (a
"Consent
--------
Notice") given to the Agent on or prior to the 30th day prior to
the
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Liquidity Termination Date then in effect (such period from the
date of the
Extension Notice to such 30th day being referred to herein as the
"Consent
--------
Period"), consent to such extension of such Liquidity Termination
Date;
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provided, however, that, except as provided in Section 4.6(b),
such
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extension shall not be effective with respect to any of the
Financial
Institutions if any one or more Financial Institutions: (i)
notifies the
Agent during the Consent Period that such Financial Institution
either does
not
wish to consent to such extension or wishes to revoke its prior
Consent
Notice or (ii) fails to respond to the Agent within the Consent
Period
(each Financial Institution that does not wish to consent to
such
extension or wishes to revoke its prior Consent Notice or fails to
respond
to
the Agent within the Consent Period is herein referred to as a
"Non-Renewing Financial Institution"). If none of the events
described in
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the
foregoing clauses (i) or (ii) occurs during the Consent Period
and
all
Consent Notices have been received, then, the Liquidity
Termination
Date
shall be
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irrevocably extended until the date that is 364 days after the
Liquidity
Termination Date then in effect. The Agent shall promptly notify
Seller of
any
Consent Notice or other notice received by the Agent pursuant to
this
Section 4.6(a).
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(b) Upon receipt of notice from the Agent pursuant to
Section 4.6(a) of any Non-Renewing Financial Institution or that
the
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Liquidity Termination Date has not been extended, one or more of
the
Financial Institutions (including any Non-Renewing Financial
Institution)
may
proffer to the Agent and Conduit the names of one or more
institutions
meeting the criteria set forth in Section 12.1(b)(i) that are
willing to
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accept assignments of and assume the rights and obligations under
this
Agreement and the other applicable Transaction Documents of the
Non-
Renewing Financial Institution. Provided the proffered name(s)
are
acceptable to the Agent and Conduit, the Agent shall notify the
remaining Financial Institutions of such fact, and the then
existing
Liquidity Termination Date shall be extended for an additional 364
days
upon
satisfaction of the conditions for an assignment in accordance
with
Section 12.1 and the Commitment of each Non-Renewing Financial
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Institution shall be reduced to zero. If the rights and
obligations
under this Agreement and the other applicable Transaction Documents
of
each
Non-Renewing Financial Institution are not assigned as
contemplated by this Section 4.6(b) (each such Non-Renewing
Financial
--------------
Institution whose rights and obligations under this Agreement and
the
other applicable Transaction Documents are not so assigned is
herein
referred to as a "Terminating Financial Institution") and at least
one
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Financial Institution is not a Non-Renewing Financial Institution,
the
then
existing Liquidity Termination Date shall be extended for an
additional 364 days; provided, however, that (i) the Purchase
Limit
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shall be reduced on the Liquidity Termination Date that such
Terminating Financial Institution did not consent to extend by
an
aggregate amount equal to the Terminating Commitment Availability
as of
such
date of each Terminating Financial Institution and shall
thereafter continue to be reduced by amounts equal to any reduction
in
the
Capital of any Terminating Financial Institution (after
application
of
Collections pursuant to Sections 2.2 and 2.3) and (ii) the
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Commitment of each Terminating Financial Institution shall
be
reduced to zero on the Termination Date applicable to such
Terminating Financial Institution. Upon reduction to zero of
the
Capital of all of the Purchaser Interests of a Terminating
Financial
Institution (after
application of Collections thereto pursuant to
Sections 2.2 and 2.3) all rights and obligations
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of
such Terminating Financial Institution hereunder shall be
terminated
and
su
