Exhibit 10(v)(2)
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AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of February 6, 2001
("THIS AMENDMENT"), among the following:
(i) LESCO, INC., an Ohio corporation (herein, together with
its successors and assigns, the "BORROWER");
(ii) the Lenders a party to the Credit Agreement, as
hereinafter defined; and
(iii) NATIONAL CITY BANK, a national banking association, as a
Lender, the Swing Line Lender and as the Administrative Agent under the
Credit Agreement.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Swing Line Lender and the
Administrative Agent entered into the Credit Agreement, dated as of September
23, 1999 (as the same may from time to time be amended, restated or otherwise
modified, the "CREDIT AGREEMENT"; with the terms defined therein, or the
definitions of which are incorporated therein, being used herein as so defined).
(2) The parties hereto desire to modify certain terms and provisions of
the Credit Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS, ETC.
1.1. AMENDED DEFINITIONS. Section 1.1 of the Credit Agreement is
hereby amended to delete the definitions of "ASSET SALE", "CONSOLIDATED INTEREST
EXPENSE" and "GENERAL REVOLVING COMMITMENT" therefrom and to insert in place
thereof, respectively, the following:
"ASSET SALE" shall mean the sale, transfer or other
disposition (including by means of Sale and Lease-Back Transactions,
and by means of mergers, consolidations, and liquidations of a
corporation, partnership or limited liability company of the
interests therein of the Borrower or any Subsidiary) by the Borrower
or any Subsidiary to any person other than the Borrower or any
Subsidiary of any of their respective assets, PROVIDED that the term
Asset Sale specifically excludes (a) any sales, transfers or other
dispositions of inventory, or obsolete or excess furniture, fixtures,
equipment or other property, real or personal, tangible or
intangible, in each case in the ordinary course of business, or (b)
the sale, lease transfer or other disposition of assets in connection
with a Permitted Asset-Securitization.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
total interest expense (including that which is capitalized, that
which is attributable to Capital Leases, any Permitted Asset
Securitization and Synthetic Leases and the pre-tax equivalent of
dividends payable on Redeemable Preferred Stock) of the Borrower and
its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries
including, without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and net costs
under Hedge Agreements, BUT EXCLUDING, HOWEVER, any amortization or
write-off of deferred financing costs and any charges for prepayment
penalties on prepayment of Indebtedness.
"GENERAL REVOLVING COMMITMENT" shall mean, with respect to
each Lender, the amount, if any, set forth opposite such Lender's
name in Annex I as its "General Revolving Commitment other than
during any Commitment Increase Period" or "General Revolving
Commitment during any Commitment Increase Period", as determined in
accordance with section 4.2(e), as the same may be reduced from time
to time pursuant to section 4.1, 4.2 and/or 10.2 or adjusted from
time to time as a result of assignments to or from such Lender
pursuant to section 12.4.
1.2. AMENDMENT TO INDEBTEDNESS DEFINITION. Section 1.1 of the
Credit Agreement is hereby amended to delete subpart (vii) of the definition of
"INDEBTEDNESS" and to insert in place thereof the following:
(vii) all Capitalized Lease Obligations of such
person and all obligations of such person with respect to
any asset-securitization or other similar facility,
including, but not limited to, any Permitted Asset
Securitization;
1.3. NEW DEFINITIONS. Section 1.1 of the Credit Agreement is hereby
amended to add the following new definitions thereto:
"ADJUSTED LEVERAGE RATIO" shall mean, for any Testing Period,
the ratio of (a) Consolidated EBITDA for such Testing Period, TO (b)
(i) the aggregate of the amounts of Consolidated Total Debt on the
last day of each fiscal quarter included in such Testing Period,
divided by (ii) four (4), in each case on a consolidated basis for
the Borrower and its Subsidiaries for such Testing Period; PROVIDED,
HOWEVER, that, notwithstanding anything in this Agreement to the
contrary, in determining Consolidated Total Debt for the purposes of
calculating the Adjusted Leverage Ratio for any Testing Period, the
Borrower shall include the aggregate amount of the Permitted Asset
Securitization as of the end of each fiscal quarter included in such
Testing Period.
"COMMITMENT INCREASE PERIOD" shall mean the period from March
1, 2001 through and including May 31, 2001 and the period from March
1 through and including May 31 of each year thereafter.
"LEVERAGE RATIO" shall mean, for any Testing Period, the ratio
of (a) Consolidated EBITDA for such Testing Period, TO (b) the amount
of Consolidated Total Debt at such time, in each case on a
consolidated basis for the Borrower and its Subsidiaries for such
Testing Period; PROVIDED, HOWEVER, that, notwithstanding anything in
this Agreement to the contrary, in determining Consolidated Total
Debt for the purposes of calculating the Leverage Ratio for any
Testing Period, the Borrower shall include the aggregate amount of
the Permitted Asset Securitization as of the end of such Testing
Period.
"PERMITTED ASSET SECURITIZATION" shall mean an
asset-securitization facility with respect to the accounts receivable
of the Borrower and its Subsidiaries entered into by the Borrower and
its Subsidiaries with a financial institution or a syndicate of
financial institutions on or before June 30, 2001, so long as (a) the
maximum amount of such facility does not exceed $60,000,000 at any
time, (b) neither the Borrower nor any of its Subsidiaries shall have
incurred any Indebtedness of any kind in connection with such
facility nor shall there be any recourse to the Borrower or any of
its Subsidiaries in connection with such facility, (c) at least
twenty days prior to the closing of the initial transaction relating
to such facility, the Borrower shall have provided written notice
thereof to Administrative Agent and the Lenders, and (d) the Borrower
shall have provided to the Administrative Agent or any Lender such
documentation or other information with respect to such facility as
the Administrative Agent or any such Lender shall reasonably request.
1.4. PRICING CHANGES. Sections 2.8(h) of the Credit Agreement is
hereby amended in its entirety to read as follows:
(H) INTEREST RATE MARGINS. As used herein the terms
"APPLICABLE PRIME RATE MARGIN" and "APPLICABLE EURODOLLAR MARGIN"
shall mean the applicable rates (subject at all times to section
2.8(d)) determined in accordance with the following provisions:
(i) for any date prior to February 1, 2001, the
Applicable Prime Rate Margin and the Applicable Eurodollar
Margin for all Loans shall be determined in accordance with
section 2.8(h) of the Credit Agreement as in effect prior to
February 1, 2001;
(ii) from February 1, 2001 through March 31, 2001,
the Applicable Prime Rate Margin shall be zero basis points
per annum and the Applicable Eurodollar Margin shall be 175
basis points per annum;
(iii) commencing on and after April 1, 2001, and
continuing with each fiscal quarter thereafter, the
Applicable Prime Rate Margin and Applicable Eurodollar
Margin shall be the particular rate per annum determined by
the Administrative Agent in accordance with the Pricing Grid
Table that appears below, based on the calculation of the
Adjusted Leverage Ratio and the following provisions:
(A) Changes in the Applicable Prime Rate
Margin and the Applicable Eurodollar Margin based
upon changes in the Adjusted Leverage Ratio shall
become effective on the first day of the month
following the receipt by the Administrative Agent
pursuant to section 8.1(a) or (b), as applicable,
of the financial statements of the Borrower,
accompanied by the certificate and calculations
referred to in section 8.1(c), demonstrating the
computation of such ratio, based upon the Adjusted
Leverage Ratio in effect at the end of the
applicable period covered (in whole or in part) by
such financial statements.
(B) Notwithstanding the above provisions,
during any period when the Borrower has failed to
timely deliver its consolidated financial
statements referred to in section 8.1(a) or (b),
accompanied by the certificate and calculations
referred to in section 8.1(c), a Default under
section 10.1(a) has occurred and is continuing, or
an Event of Default has occurred and is continuing,
the Applicable Prime Rate Margin and the Applicable
Eurodollar Margin shall each be the highest rate
per annum indicated therefor in the Pricing Grid
Table, regardless of the Adjusted Leverage Ratio at
such time.
(C) Any changes in the Applicable Prime Rate
Margin or the Applicable Eurodollar Margin shall be
determined by the Administrative Agent in
accordance with the above provisions and the
Administrative Agent will promptly provide notice
of such determinations to the Borrower and the
Lenders. Any such determination by the
Administrative Agent pursuant to this section
2.8(h) shall be conclusive and binding absent
manifest error.
PRICING GRID TABLE
(EXPRESSED IN BASIS POINTS)
Adjusted Applicable Applicable Applicable
Leverage Ratio Eurodollar Margin Prime Rate Facility Fee Rate
Margin
---------------------------------------- ------------------ --------------- ------------------------
Greater than or equal to 3.00 to 1.00 175.00 0 50.00
Greater than or equal to 2.50 to 1.00 150.00 0 37.50
but less 3.00 to 1.00
Greater than or equal to 2.00 but less 125.00 0 37.50
than 2.50 to 1.00
Greater than or equal to 1.50 to 1.00 100.00 0 25.00
but less than 2.00 to 1.00
Less than 1.50 to 1.00 75.00 0 25.00
1.5. AMENDMENT TO SECTION 4.2 OF THE CREDIT AGREEMENT. The Credit
Agreement is hereby amended to delete section 4.2 therefrom in its entirety and
to insert in place thereof the following:
4.2. MANDATORY TERMINATION/ADJUSTMENTS OF COMMITMENTS, ETC.
(a) The Total Commitment (and the Commitment of each Lender)
shall terminate on September 30, 1999, unless the Closing Date has
occurred on or prior to such date.
(b) The Total Commitment shall terminate (and the Commitment
of each Lender shall terminate) on the earlier of (x) the Maturity
Date and (y) the date on which a Change of Control occurs.
(c) The Total General Revolving Commitment shall be
permanently reduced, without premium or penalty (other than any
breakage compensation pursuant to section 2.11, if any), at any time
that a mandatory prepayment of General Revolving Loans would be
required to be made pursuant to section 5.2(d) (i) or (ii). Any such
reduction shall be in the amount of the prepayment that would be
required to be made pursuant to section 5.2(d) (i) or (ii), as
applicable, and shall be applied to proportionately and permanently
reduce the General Revolving Commitment of each of the Lenders. The
Borrower shall provide at least three Business Days' prior written
notice (or telephonic notice confirmed in writing) to the
Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders)
of any reduction of the Total General Revolving Commitment pursuant
to this section 4.2(c), specifying the date and amount of the
reduction.
(d) So long as no Default or Event of Default shall exist or
immediately thereafter begin to exist, on the first day of each
Commitment Increase Period and thereafter until and including the
last day of such Commitment Increase Period, the General Revolving
Commitment of each Lender shall automatically be increased, without
notice by the Administrative Agent to the Borrower or any Lender, to
the amount set forth opposite such Lender's name in Annex I as its
"General Revolving Commitment during any Commitment Increase Period".
On the last day of any such Commitment Increase Period, the General
Revolving Commitment of each Lender shall automatically be decreased,
without notice by the Administrative Agent to the Borrower or any
Lender, to the amount set forth opposite such Lender's name in Annex
I as its "General Revolving Commitment other than during any
Commitment Increase Period". In connection with any such reduction of
the General Revolving Commitment of any Lender, the Borrower shall
make a prepayment of General Revolving Loans in accordance with
section 5.2(a) and shall pay to any Lender any breakage compensation
due to such Lender pursuant to section 2.11, if any.
1.6. AMENDMENT TO SECTION 5.2 OF THE CREDIT AGREEMENT. The Credit
Agreement is hereby amended to delete subpart (d) of section 5.2 therefrom and
to insert in place thereof the following:
(D) CERTAIN PROCEEDS OF ASSET SALES AND PERMITTED ASSET
SECURITIZATION.
(i) If the Borrower and its Subsidiaries shall have
received Net Cash Proceeds from one or more Asset Sales
consummated during any fiscal year of the Borrower in an
aggregate amount greater than 10% of the Borrower's
Consolidated Net Worth as of the end of the preceding fiscal
year (such excess being hereinafter referred to as the
"Excess Net Cash Proceeds"), then, not later than the third
Business Day following the date of receipt of such Excess
Net Cash Proceeds, the Borrower shall pay to the
Administrative Agent an amount (conforming to the
requirements as to the amount of partial prepayments
contained in section 5.1) at least equal to such Excess Net
Cash Proceeds. The amount so paid to the Administrative
Agent shall be applied as a mandatory prepayment of
principal of FIRST, Swing Line Revolving Loans and, SECOND,
after Swing Line Revolving Loans shall have been paid in
full, General Revolving Loans; PROVIDED, that if no Default
under section 10.1(a) or Event of Default shall have
occurred and be continuing, the Borrower and its
Subsidiaries expect Consolidated Capital Expenditures to be
made during the following 12 months, and the Borrower
notifies the Administrative Agent of the amount and nature
thereof and of its intention to reinvest all or a portion of
such Excess Net Cash Proceeds in such Consolidated Capital
Expenditures during such 12 month period, then no such
prepayment shall be required to the extent the Borrower so
indicates that such reinvestment will take place. If, at the
end of any such 12 month period, any portion of such Excess
Net Cash Proceeds has not been so reinvested, the Borrower
shall immediately make a prepayment of the outstanding Swing
Line Revolving Loans and General Revolving Loans as provided
above in an amount, conforming to the requirements as to
amount of prepayments contained in section 5.1, at least
equal to such remaining amount.
(ii) If, at any time, the Borrower and its
Subsidiaries have completed a Permitted Asset Securitization
pursuant to section 9.2(d), then, on the date that the
Borrower or any of its Subsidiaries receive any proceeds of
such Permitted Asset Securitization, all of such proceeds
(minus all reasonable and customary expenses incurred in
connection with such Permitted Asset Securitization) shall
be applied as a mandatory prepayment of principal of FIRST,
Swing Line Revolving Loans and, SECOND, after Swing Line
Revolving Loans shall have been paid in full, General
Revolving Loans.
(iii) On the date of any such prepayment pursuant to
subparts (i) or (ii) above, the General Revolving
Commitments of the Lenders shall be permanently reduced in
accordance with section 4.2.
1.7. AMENDMENT TO SECTION 8.1 OF THE CREDIT AGREEMENT. The Credit
Agreement is hereby amended to delete subpart (c) of section 8.1 therefrom and
to insert in place thereof the following:
(C) OFFICER'S COMPLIANCE CERTIFICATES. At
the time of the delivery of the financial statements
provided for in sections 8.1(a) and (b), a certificate on
behalf of the Borrower of the Chief Financial Officer or
other Authorized Officer of the Borrower to the effect that,
to the best knowledge of the Borrower, no Default or Event
of Default exists or, if any Default or Event of Default
does exist, specifying the nature and extent thereof, which
certificate shall set forth (i) the calculations required to
establish compliance with the provisions of sections 9.4(c),
9.5(l) and (m), and 9.6 through 9.9, inclusive of this
Agreement, (ii) the calculations required to determine the
Adjusted Leverage Ratio pursuant to section 2.8(h), and
(iii) an identification of the amounts of any financial
items of persons or business units acquired by the Borrower
for any periods prior to the date of acquisition which are
used in making the calculations set forth in the foregoing
subparts (i) and (ii).
1.8. AMENDMENT TO SECTION 9.2 OF THE CREDIT AGREEMENT. The Credit
Agreement is hereby amended to delete subpart (d) of section 9.2 therefrom and
to insert in place thereof the following:
(D) PERMITTED DISPOSITIONS. If no Default or Event of
Default shall have occurred and be continuing or would result
therefrom, the Borrower or any of its Subsidiaries may:
(i) sell all or part of the accounts receivable of
the Borrower or any Subsidiary in connection with a
Permitted Asset Securitization, so long as,
contemporaneously with the completion of such transaction,
the Borrower prepays its Loans as and to the extent required
by section 5.2;
(ii) (A) sell any property, land or building
(including any related receivables or other intangible
assets) to any person that is not a Subsidiary of the
Borrower, (B) sell the entire capital stock (or other equity
interests) and Indebtedness of any Subsidiary owned by the
Borrower or any other Subsidiary to any person that is not a
Subsidiary of the Borrower, or (C) permit any Subsidiary to
be merged or consolidated with a person that is not an
Affiliate of the Borrower, or (D) consummate any other Asset
Sale with a person that is not a Subsidiary of the Borrower;
PROVIDED that:
(1) the consideration for such transaction
represents fair value (as determined by management
of the Borrower), and at least 75% of such
consideration consists of cash,
(2) in the case of any such transaction
involving consideration in excess of $10,000,000,
at least five Business Days prior to the date of
completion of such transaction, the Borrower shall
have delivered to the Administrative Agent an
officer's certificate executed on behalf of the
Borrower by an Authorized Officer of the Borrower,
which certificate shall contain a description of
the proposed transaction, the date such transaction
is scheduled to be consummated, the estimated
purchase price or other
consideration for such transaction, a certification
that no Default or Event of Default has occurred
and is continuing, or would result from
consummation of such transaction, and, if requested
by the Administrative Agent, a certified copy of
the draft or definitive documentation pertaining
thereto, and
(3) contemporaneously with the completion of
such transaction, the Borrower shall prepay its
Loans as and to the extent required by section 5.2
hereof; and
(iii) in addition to dispositions permitted pursuant
to subpart (i) and (ii) above, the Borrower and its
Subsidiaries may sell or otherwise dispose of obsolete, worn
out or surplus equipment or fixtures at any time in the
ordinary course of business.
1.9. NEW SECTION 8.12. The Credit Agreement is hereby amended to
add the following new section 8.12 immediately after section 8.11 as follows:
8.12. SUBSIDIARY GUARANTIES. Each Subsidiary of the Borrower
or of any Subsidiary created, acquired or held subsequent to the
Closing Date, shall immediately execute and deliver to the
Administrative Agent a Guaranty of Payment of all of the Obligations,
such agreement to be in form and substance acceptable to the
Administrative Agent and the Required Lenders, along with such
corporate governance and authorization documents and an opinion of
counsel as may be deemed necessary or advisable by the Administrative
Agent and the Required Lenders; PROVIDED, HOWEVER that a Subsidiary
organized outside of the United States shall not be required to
execute a Guaranty of Payment to the extent that such Guaranty of
Payment will result in adverse tax consequences for the Borrower.
1.10. AMENDMENTS TO CERTAIN FINANCIAL COVENANTS. Sections 9.8 and
9.9 of the Credit Agreement are hereby amended such that, for any date prior to
December 31, 2000, the Borrower shall be required to comply with such sections
as in effect prior to the Amendment Effective Date, as hereinafter defined, and,
on December 31, 2000 and thereafter, such sections shall be amended in their
entirety to read as follows:
9.8. LEVERAGE RATIO. The Borrower will not at any time permit
the Leverage Ratio, at the end of any Testing Period, to exceed: (a)
3.75 to 1.00 for its Testing Period ended December 31, 2000, (b) 4.25
to 1.00 for its Testing Period ended March 31, 2001, (c) 3.00 to 1.00
for its Testing Period ended June 30, 2001, and (d) 2.75 to 1.00 for
any Testing Period thereafter.
9.9. INTEREST AND RENT COVERAGE RATIO. The Borrower will not
permit at any time its Interest and Rent Coverage Ratio to be less
than (a) 1.60 to 1.00 for its Testing Period ended December 31, 2000,
(b) 1.40 to 1.00 for its Testing Period ended March 31, 2001, (c)
1.70 to 1.00 for its Testing Period ended June 30, 2001, (d) 1.90 to
1.00 for its Testing Period ended September 30, 2001, (e) 2.00 to
1.00 for its Testing Period ended December 31, 2001, and (f) 2.50 to
1.00 for any Testing Period thereafter.
1.11. AMENDMENT TO SECTION 9.3. The Credit Agreement is hereby
amended to add the following new subpart (f) to section 9.3 immediately after
subpart (e) as follows:
(F) NOTICE FILING: the filing of UCC financing
statements for notice purposes only in connection with a
Permitted Asset Securitization, so long as the form and
content of such financing statements have been approved by the
Administrative Agent prior to the filing thereof.
1.12. ANNEX I AND II REPLACED. The Credit Agreement is hereby
amended to delete Annex I and Annex II thereof and to substitute in place
thereof a new Annex I and a new Annex II in the form of the attached Annex I and
Annex II, respectively.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. AUTHORIZATION AND VALIDITY OF AMENDMENT, ETC. This Amendment
has been duly authorized by all necessary corporate action on the part of the
Borrower, has been duly executed and delivered by a duly authorized
officer of the Borrower, and constitutes the valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
2.2. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Credit Parties contained in the Credit Agreement or in the
other Credit Documents are true and correct in all material respects on and as
of the Amendment Effective Date as though made on and as of the Amendment
Effective Date, except to the extent that such representations and warranties
expressly relate to an earlier specified date, in which case such
representations and warranties are hereby reaffirmed as true and correct in all
material respects as of the date when made.
2.3. NO EVENT OF DEFAULT. No Default or Event of Default exists or
hereafter will begin to exist.
2.4. COMPLIANCE. The Borrower is in full compliance with all
covenants and agreements contained in the Credit Agreement, as amended hereby,
and the other Credit Documents to which it is a party.
2.5. FINANCIAL STATEMENTS, ETC. The Borrower has furnished to
the Lenders and the Administrative Agent complete and correct copies of:
(a) the audited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as of December 31, 1999, and the
related audited consolidated statements of income, stockholders'
equity, and cash flows for the fiscal years then ended, accompanied
by the unqualified report thereon of the Borrower's independent
accountants; and
(b) the unaudited condensed consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as of September 30, 2000,
and the related unaudited condensed consolidated statements of income
and of cash flows of the Borrower and its consolidated Subsidiaries
for the fiscal quarter or quarters then ended, as contained in the
Form 10-Q Quarterly Report of the Borrower filed with the SEC.
All such financial statements have been prepared in accordance with GAAP,
consistently applied (except as stated therein), and fairly present, in all
material respects, the financial position of the Borrower and its consolidated
Subsidiaries as of the respective dates indicated and the consolidated results
of their operations and cash flows for the respective periods indicated, subject
in the case of any such financial statements which are unaudited, to the absence
of footnotes and to normal audit adjustments none of which will involve a
Material Adverse Effect.
2.6. NO CLAIMS, ETC. The Borrower is not aware of any claim
or offset against, or defense or counterclaim to, any of its obligations or
liabilities under the Credit Agreement or any other Credit Document.
SECTION 3. RATIFICATIONS.
Except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective on February 6, 2001 (the
"AMENDMENT EFFECTIVE DATE"), subject to the satisfaction of the following
conditions on or before such date:
(a) this Amendment shall have been executed by the Borrower
and the Administrative Agent, and counterparts hereof as so executed
shall have been delivered to the Administrative Agent;
(b) the Borrower shall have duly executed and delivered to
each Lender a replacement General Revolving Note in the maximum
amount of such Lender's General Revolving Commitment, and otherwise
conforming to the requirements of the Credit Agreement. After a
Lender receives such new General
Revolving Note, such Lender shall xxxx the General Revolving Note being
replaced thereby "Replaced" and return the same to the Administrative
Agent for redelivery to the Borrower;
(c) the Borrower shall have provided to the Administrative
Agent, for the benefit of the Lenders, a Guaranty of Payment, in form
and substance satisfactory to the Administrative Agent, executed by
each Subsidiary, together with such corporate governance and
authorization documents and an opinion of counsel as may be deemed
necessary or advisable by the Administrative Agent and the Required
Lenders;
(d) the Borrower shall have paid to the Administrative Agent,
for the pro rata benefit of the Lenders, an amendment fee (based upon
the maximum amount of the General Revolving Commitment) in the amount
of $175,000; and
(e) the Administrative Agent shall have been notified by the
Required Lenders that such Lenders have consented to the changes in
the Credit Agreement effected by this Amendment (which notification
may be by facsimile or other written confirmation of such consent).
and thereafter this Amendment shall be binding upon and inure to the benefit of
the Borrower, Administrative Agent and each Lender and their respective
permitted successors and assigns. After this Amendment becomes effective, the
Administrative Agent shall promptly furnish a copy of this Amendment to each
Lender and the Borrower.
SECTION 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Administrative Agent or any
Lender or any subsequent Loan or other Credit Event shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and
all other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. EXPENSES. As provided in the Credit Agreement, but without
limiting any terms or provisions thereof, the Borrower shall pay on demand all
reasonable costs and expenses incurred by the Administrative Agent in connection
with the preparation, negotiation, and execution of this Amendment, including
without limitation the reasonable costs and fees of the Administrative Agent's
special legal counsel, regardless of whether this Amendment becomes effective in
accordance with the terms hereof, and all reasonable costs and expenses incurred
by the Administrative Agent or any Lender in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment
held by a court of competent jurisdiction to be invalid or unenforceable shall
not impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the term or provision so held to be invalid or
unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Ohio without regard to
conflicts of laws provisions.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to
the matters expressly set forth herein. This Amendment and all other
instruments, agreements and documentation executed and delivered in connection
with this Amendment embody the final, entire agreement among the parties hereto
with respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or discussions
of the parties hereto. There are no oral agreements among the parties hereto
relating to the subject matter hereof or any other subject matter relating to
the Credit Agreement. Except as set forth herein, the Credit Agreement shall
remain in full force and effect and be unaffected hereby.
5.8. WAIVER OF CLAIMS. The Borrower, by signing below, hereby
waives and releases Administrative Agent and each of the Lenders and their
respective directors, officers, employees, attorneys, affiliates and
subsidiaries from any and all claims, offsets, defenses and counterclaims of
which Borrower is aware, such waiver and release being with full knowledge and
understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto.
5.9. COUNTERPARTS. This Amendment may be executed by the parties
hereto separately in one or more counterparts and by facsimile signature, each
of which when so executed shall be deemed to be an original, but all of which
when taken together shall constitute one and the same agreement.
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5.10. JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO
HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
LESCO, INC.
By: /s/ R. Xxxxx Xxxxx
-----------------------------------
R. Xxxxx Xxxxx, Vice President and
Chief Financial Officer
NATIONAL CITY BANK,
as a Lender, the Swing Line Lender
and the Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, Senior Vice
President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, Vice President
& Managing Director
BANK ONE, MICHIGAN
By: /s/ Xxxxxxx Xxxxx Coerdt
-----------------------------------
Xxxxxxx Xxxxx Xxxxxx, Managing
Director
