Exhibit 10.1
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
“ Amendment ” ), is made and entered into
as of May 24, 2005, by and among HUGHES SUPPLY, INC. ,
a Florida corporation (the “ Borrower ”
), the several banks and other financial institutions from time to
time party hereto (collectively, the “ Lenders
” ) and SUNTRUST BANK , in its capacity as
Administrative Agent for the Lenders (the “
Administrative Agent ” ).
W I T N
E S S E
T H :
WHEREAS, the
Borrower, the Lenders and the Administrative Agent are parties to a
certain Revolving Credit Agreement, dated as of June 14, 2004
(as amended, restated, supplemented or otherwise modified from time
to time, the “ Credit Agreement ” ;
capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Credit Agreement),
pursuant to which the Lenders have made certain financial
accommodations available to the Borrower;
WHEREAS, the
Borrower has requested that the Lenders and the Administrative
Agent amend certain provisions of the Credit Agreement to reflect
the restructuring of its Subsidiaries, and subject to the terms and
conditions hereof, the Lenders are willing to do so;
NOW, THEREFORE,
for good and valuable consideration, the sufficiency and receipt of
all of which are acknowledged, the Borrower, the Lenders and the
Administrative Agent agree as follows:
1.
Amendments .
(a)
Section 1.1 of the Credit Agreement is hereby amended by
replacing in their entirety the definitions for “Captive
Insurance Company”, “Indemnity and Contribution
Agreement”, “Material Subsidiary” and
“Subsidiary Guaranty Agreement” with the
following:
“Captive Insurance Company” shall mean
any Subsidiary of the Borrower that is an authorized insurer under
the laws of a foreign jurisdiction.
“Indemnity and Contribution Agreement”
shall mean the Indemnity, Subrogation and Contribution Agreement,
dated as June 14, 2004, as replaced by the Indemnity,
Subrogation and Contribution Agreement, dated as of
October 12, 2004, as further replaced by the Indemnity,
Subrogation and Contribution Agreement dated as of March 8,
2005 among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent, and as replaced from time to time with
agreements in substantially the same form as the Indemnity and
Contribution Agreement in effect on the date hereof.
“Material Subsidiary” shall mean at any
time any direct or indirect Subsidiary of the Borrower
(i) having or acquiring total assets in excess of $10,000,000
or (ii) that accounted for or produced more than 5% of the
Consolidated EBITR of the Borrower and its Subsidiaries determined
on a consolidated basis during any of the three most recently
completed Fiscal Years; provided , however , that the
term “Material Subsidiary” shall be deemed to exclude
any Captive Insurance Company or Securitization
Subsidiary.
“
Subsidiary Guaranty Agreement ” shall mean the
Subsidiary Guaranty Agreement, dated as of June 14, 2004, as
replaced by the Subsidiary Guaranty Agreement, dated as of
October 12, 2004, as further replaced by the Subsidiary
Guaranty Agreement, dated as of March 8, 2005, made by the
Subsidiary Loan Parties in favor of the Administrative Agent for
the benefit of the Lenders and as replaced from time to time with
agreements in substantially the same form as the Subsidiary
Guaranty Agreement in effect on the date hereof.
(b)
Section 5.10(e) is hereby amended by deleting in its
entirety the final sentence of such subparagraph so that this
subsection will read as follows:
(e) A Subsidiary
shall become an additional Subsidiary Loan Party after the Closing
Date by executing and delivering to the Administrative Agent a
Subsidiary Guaranty Supplement and an Indemnity and Contribution
Agreement Supplement, accompanied by (i) all other Loan
Documents related thereto, (ii) certified copies of
certificates or articles of incorporation or organization, by-laws,
membership operating agreements, and other organizational
documents, appropriate authorizing resolutions of the board of
directors of such Subsidiaries, and opinions of counsel comparable
to those delivered pursuant to Section 3.1(vii) , and
(iii) such other documents as the Administrative Agent may
reasonably request.
(c)
Section 7.3(a) is hereby amended by replacing
subsection (v) in its entirety with the following:
(v) any Subsidiary
may liquidate or dissolve if (A) such Subsidiary shall have
sold, transferred, leased, or otherwise disposed of all or
substantially all of its assets to the Borrower or to a Subsidiary
Loan Party as permitted under Section 7.3(a)(iv) above,
(B) such Subsidiary shall have sold, transferred, leased, or
otherwise disposed of all or substantially all of its assets in a
transaction permitted in Section 7.6(e) and shall have
transferred to the Borrower or another Subsidiary Loan Party any
net proceeds from such sale, transfer, lease, or other disposition,
or (C) such Subsidiary is not a Material Subsidiary and the
Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided , that
any such merger involving a Person that is not a
wholly-owned
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Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by
Section 7.4 .
(d)
Section 7.6 is hereby amended by adding the following as a new
paragraph at the end of that Section:
In connection with
any sale of the stock of a Subsidiary Loan Party permitted by
Section 7.6(e) , the Administrative Agent shall execute
on behalf of all Lenders a release (in form and substance
reasonably satisfactory to the Administrative Agent) of the
Subsidiary Loan Party whose stock has been sold or is being sold in
such a transaction from the Subsidiary Guaranty Agreement, the
Indemnity and Contribution Agreement, and any other
responsibilities in respect of the Obligations upon the
Administrative Agent’s receipt of (i) a written request
from the Borrower for such release and (ii) a certificate of a
Responsible Officer certifying (A) either that (1) such
sale of the stock of the Subsidiary Loan Party complied in all
respects with the requirements of Section 7.6(e) , or
(2) the Borrower or another Subsidiary Loan Party has a
contract for the sale of the stock of such Subsidiary Loan Party on
terms that comply in all respects with Section 7.6(e)
and that the such release will be effective only upon consummation
of such sale, and (B) that the release of the Subsidiary Loan
Party as requested does not and will not result in a Default or
Event of Default. If the Responsible Officer’s certificate
accompanying such request for release indicates that the release is
being sought in connection with a prospective sale contemplated by
clause (ii)(A)(2) above, the Administrative Agent shall use
commercially reasonable efforts to execute and deliver the release
in time for the closing of the sale of the stock of such Subsidiary
Loan Party but such release shall be conditioned on the actual and
timely closing of the sale of the stock of such Subsidiary Loan
Party as set forth in the Responsible Officer’s
certificate.
(e)
Section 9.8 is hereby amended by adding the following
sentence to the end of such section:
Each Lender also
authorizes the Administrative Agent to execute on behalf of all
Lenders a release of a Subsidiary Loan Party whose stock has been
or is being sold in a transaction under Section 7.6(e)
of this Agreement upon the Administrative Agent’s receipt of
the Borrower request and certificate of a Responsible Officer as
contemplated under the last sentence of Section 7.6(e)
.
2.
Conditions to Effectiveness of this Amendment .
Notwithstanding any other provision of this Amendment and without
affecting in any manner the rights of the Lenders hereunder, it is
understood and agreed that this Amendment shall not become
effective, and the Borrower shall have no rights under this
Amendment, until the Administrative Agent shall have received each
of the following documents:
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(a) executed
counterparts to this Amendment from the Borrower, the Subsidiary
Loan Parties, the Agent and the Required Lenders, in accordance
with Section 10.2(b) ;
(b) a certificate
of the Secretary or Assistant Secretary of each Loan Party
attaching and certifying copies of its bylaws or membership
operating agreements, and other organizational documents, together
with appropriate authorizing resolutions of the board of directors
or managers of all Loan Parties and of the resolutions of its
boards of directors or comparable authorizations, authorizing the
execution, delivery and performance of this Amendment to which it
is a party and certifying the name, title and true signature of
each officer of such Loan Party executing this
Amendment;
(c) certified
copies of certificates or articles of incorporation or organization
or limited partnership, together with certificates of good standing
or existence, as may be available from the Secretary of State of
the jurisdiction of organization of such Loan party and each other
jurisdiction where such Loan Party is required to be qualified to
do business as a foreign corporation and a failure to be so
qualified would have a Material Adverse Effect; and
(d) opinion of
in-house counsel, in form and substance substantially similar to
the opinion given pursuant to Section 5.10 of the
Credit Agreement and otherwise satisfactory to Agent’s
attorneys.
3.
Representations and Warranties . To induce the
Lenders and the Administrative Agent to enter into this Amendment,
the Borrower hereby represents and warrants to the Lenders and the
Agent that:
(a) The execution,
delivery and performance by each Loan Party of this Amendment: (i)
are within such Loan Party’s power and authority;
(ii) have been duly authorized by all necessary corporate,
shareholder or other action; (iii) are not in contravention of
any provision of such Loan Party’s certificate of
incorporation or bylaws or other organizational documents;
(iv) will not result in a Material Adverse Effect; (v) do
not violate any law or regulation, or any order or decree of any
Governmental Authority; (vi) do not conflict with or result in
the breach or termination of, constitute a default under or
accelerate any performance required by, any indenture, mortgage,
deed of trust, lease, agreement or other instrument to which Loan
Party or any of its Subsidiaries is a party or by which Loan Party
or any such Subsidiary or any of their respective property is
bound; (vii) do not result in the creation or imposition of
any Lien upon any of the property of Loan Party or any of its
Subsidiaries; (viii) do not require the consent or approval of
any Governmental Authority or any other person; and (ix) will
not result in any of the Loan Parties being “insolvent”
as such term is defined in § 101 of Title 11 of the United
States Code, as amended from time to time, or be unable to pay its
debts generally as such debts become due, or have an unreasonably
small capital to engage in any business or transaction, whether
current or contemplated;
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(b) Borrower has
recently completed a corporate streamlining that greatly reduced
the number of its Subsidiaries, either through dissolution of such
Subsidiaries or merger into other Subsidiaries, and Borrower also
has renamed a number of the Subsidiaries that were not merged or
dissolved. In addition, Borrower has formed one new Subsidiary that
has executed and delivered a Subsidiary Guaranty Supplement and an
Indemnity and Contribution Agreement Supplement. As a consequence
of those actions (i) the Subsidiaries listed on Annex I
to this Amendment constitute all of the Subsidiaries as of the date
hereof (including, without limitation, all Material Subsidiaries),
and all of the Subsidiaries listed on Annex I are Subsidiary
Loan Parties that have executed and delivered the Subsidiary
Guaranty Agr
