FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND CONSENT
Exhibit 10.5
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND CONSENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND CONSENT (this “Amendment”),
dated as of June 9, 2006, is entered into by and among the financial institutions signatory hereto
(each a “Lender” and collectively the “Lenders”), Wachovia Bank, National
Association, successor by merger to Congress Financial Corporation (“Wachovia”), as
administrative and collateral agent for the Lenders and for the Bank Product Providers (in such
capacity, “Administrative and Collateral Agent”), Wachovia, as a co-lead arranger for the
credit facility (in such capacity, a “Co-Lead Arranger”) and as a co-syndication agent for
the credit facility (in such capacity, a “Co-Syndication Agent”), Bank of America, N.A.,
Xxxxx Fargo Foothill, LLC, and JPMorgan Chase Bank, N.A., formerly known as JPMorgan Chase Bank, as
documentation agents (in such capacities, each a “Documentation Agent” and collectively the
“Documentation Agents”) and BlueLinx Corporation, a Georgia corporation
(“Borrower”).
RECITALS
A. Borrower, Administrative and Collateral Agent, the Co-Lead Arrangers, the Co-Syndication
Agents, the Documentation Agents and the Lenders have previously entered into that certain Loan and
Security Agreement dated May 7, 2004 (as amended, restated, supplemented or otherwise modified from
time to time, the “Loan Agreement”), pursuant to which the Lenders have made certain loans
and financial accommodations available to Borrower. Terms used herein without definition shall
have the meanings ascribed to them in the Loan Agreement.
B. Borrower, Administrative and Collateral Agent, Wachovia, as a Co-Lead Arranger and as a
Co-Syndication Agent, the Documentation Agents and the Lenders now wish to amend the Loan Agreement
on the terms and conditions set forth herein.
C. Borrower is entering into this Amendment with the understanding and agreement that, except
as specifically provided herein, none of Administrative and Collateral Agent’s, either Co-Lead
Arranger’s, either Co-Syndication Agent’s, any Documentation Agent’s or any Lender’s rights or
remedies as set forth in the Loan Agreement is being waived or modified by the terms of this
Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendments to Loan Agreement.
(a) Any references to “Adjusted Excess Availability” contained in the Loan Agreement are
hereby amended to be references to “Modified Adjusted Excess Availability”.
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(b) Effective as of June 1, 2006, Section 1.69(a) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
“(a) Subject to subsections (b) and (c) of this Section 1.69:
| (i) | as to Prime Rate Loans, a per annum rate equal to the Prime Rate; and | ||
| (ii) | as to Eurodollar Rate Loans, a per annum rate equal to the Adjusted Eurodollar Rate (based on the Eurodollar Rate applicable for the Interest Period selected by Borrower as in effect three (3) Business Days after the date of receipt by Administrative and Collateral Agent of the request of Borrower for such Eurodollar Rate Loans in accordance with the terms hereof, whether such rate is higher or lower than any rate previously quoted to Borrower) plus one and one-half of one (1.50) percentage points.” |
(c) Effective as of June 1, 2006, the reference in Section 1.69(b) to “January 1, 2006” is
hereby amended to be a reference to “June 1, 2006”.
2. Consent to Amendment of Affiliate Lease. Notwithstanding Section 9.12(a) of the
Loan Agreement, Administrative and Collateral Agent and Lenders hereby consent to the amending of
the Affiliate Lease pursuant to that certain Amended and Restated Master Lease Agreement, dated on
or about the date hereof, a copy of which is attached hereto as Exhibit A.
3. Mortgage Loan Agreement. Reference is hereby made to that certain Loan and
Security Agreement dated on or about the date hereof, by and among German American Capital
Corporation and certain Subsidiaries of Parent (but excluding the Borrower) (the “Mortgage Loan
Agreement”). Administrative and Collateral Agent and Lenders hereby acknowledge that the
execution, delivery and performance of the Mortgage Loan Agreement will not constitute a Default or
an Event of Default under the Loan Agreement. Administrative and Collateral Agent and Lenders
hereby consent to Parent using the excess proceeds under the Mortgage Loan Agreement to make a
capital contribution or subordinated loan to the Borrower (the “Mortgage Proceeds
Investment”). Borrower may repay the Mortgage Proceeds Investment, whether in the form of a
repayment of Debt in the case of a loan from Parent or in the form of a dividend in the case of a
capital contribution from Parent, at any time so long as (a) Modified Adjusted Excess Availability
after giving effect to any such repayment is equal to or greater than $120,000,000; (b) both before
and after giving effect to any such repayment, Borrower’s Fixed Charge Coverage Ratio for the
immediately trailing twelve month period, on a consolidated basis, is equal to or greater than
1.1:1.0 (for purposes of this Section 3(b) only, Fixed Charge Coverage Ratio shall be calculated by
excluding the amount of any such repayment and by adjusting the interest component of the
calculation to include any interest payments which would have been made by the Borrower had the
amount of Mortgage Proceeds Investment which are being repaid never been loaned or invested in the
Borrower); (c) Borrower shall have provided Administrative and Collateral Agent with at least ten
(10) Business Days prior written notice of any such repayment; (d) no Default or Event of Default
shall have occurred and be continuing or would result from such repayment; and (e) prior to the
making of any such repayment, Administrative
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and Collateral Agent shall have received Borrower’s unaudited internally prepared financial
statements for the month immediately preceding the date of such prepayment, accompanied by a
certificate of Borrower’s chief financial officer as to Borrower’s compliance with the terms of
this Section 3 together with such supporting documentation therefor as Administrative and
Collateral Agent may reasonably request. Administrative and Collateral Agent and Lenders hereby
acknowledge and agree that any repayment by Borrower of the Mortgage Proceeds Investment which is
permitted as set forth above: (1) shall not be applied to the $25,000,000 basket set forth in
Section 9.11(e)(i) of the Loan Agreement; and (2) for the purposes of the definition of “Permitted
Acquisitions” only, shall be excluded from the calculation of Fixed Charge Coverage Ratio.
4. Effectiveness of this Amendment. Administrative and Collateral Agent must have
received the following items, in form and content acceptable to Administrative and Collateral
Agent, before this Amendment is effective.
(a) Amendment. This Amendment fully executed in a sufficient number of counterparts
for distribution to all parties hereto.
(b) Collateral Access Agreements. Collateral Access Agreements by all owners, lessors
and mortgagees of any premises owned by Parent or any Affiliates of Parent and leased to Borrower,
in form and substance reasonably satisfactory to Administrative and Collateral Agent.
(c) Representations and Warranties. The representations and warranties set forth
herein and in the Loan Agreement must be true and correct.
(d) No Default. No event has occurred and is continuing that constitutes an Event of
Default.
(e) Other Required Documentation. All other documents and legal matters in connection
with the transactions contemplated by this Amendment shall have been delivered or executed or
recorded and shall be in form and substance reasonably satisfactory to Administrative and
Collateral Agent.
5. Representations and Warranties. Borrower represents and warrants as follows:
(a) Authority. Borrower has the requisite corporate power and authority to execute
and deliver this Amendment, and to perform its obligations hereunder and under the Financing
Agreements (as amended or modified hereby) to which it is a party. The execution, delivery and
performance by Borrower of this Amendment have been duly approved by all necessary corporate action
and no other corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by Borrower.
This Amendment and each Financing Agreement (as amended or modified hereby) is the legal, valid and
binding obligation of Borrower, enforceable against Borrower in accordance with its terms, and is
in full force and effect.
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(c) Representations and Warranties. The representations and warranties contained in
each Financing Agreement (other than any such representations or warranties that, by their terms,
are specifically made as of a date other than the date hereof) are correct on and as of the date
hereof as though made on and as of the date hereof.
(d) Due Execution. The execution, delivery and performance of this Amendment are
within the power of Borrower, have been duly authorized by all necessary corporate action, have
received all necessary governmental approval, if any, and do not contravene any law or any
contractual restrictions binding on Borrower.
(e) No Default. No event has occurred and is continuing that constitutes an Event of
Default.
6. Choice of Law. The validity of this Amendment, its construction, interpretation
and enforcement, the rights of the parties hereunder, shall be determined under, governed by, and
construed in accordance with the internal laws of the State of New York governing contracts only to
be performed in that State.
7. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties and separate counterparts, each of which when so executed and delivered, shall be
deemed an original, and all of which, when taken together, shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Amendment by
telefacsimile or a substantially similar electronic transmission shall have the same force and
effect as the delivery of an original executed counterpart of this Amendment. Any party delivering
an executed counterpart of this Amendment by telefacsimile or a substantially similar electronic
transmission shall also deliver an original executed counterpart, but the failure to do so shall
not affect the validity, enforceability or binding effect of such agreement.
8. Reference to and Effect on the Financing Agreements.
(a) Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement
to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement,
and each reference in the other Financing Agreements to “the Loan Agreement”, “thereof” or words of
like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as
modified and amended hereby.
(b) Except as specifically amended above, the Loan Agreement and all other Financing
Agreements, are and shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations
of Borrower to Administrative and Collateral Agent, the Co-Lead Arrangers, the Co-Syndication
Agents, the Documentation Agents and the Lenders.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of Administrative and Collateral
Agent, either Co-Lead Arranger, either Co-Syndication Agent, either Documentation Agent or any
Lender under any of the Financing Agreements, nor constitute a waiver of any provision of any of
the Financing Agreements.
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(d) To the extent that any terms and conditions in any of the Financing Agreements shall
contradict or be in conflict with any terms or conditions of the Loan Agreement, after giving
effect to this Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Loan Agreement as modified or amended
hereby.
9. Ratification. Borrower hereby restates, ratifies and reaffirms each and every term
and condition set forth in the Loan Agreement, as amended hereby, and the Financing Agreements
effective as of the date hereof.
10. Estoppel. To induce Administrative and Collateral Agent and Lenders to enter into
this Amendment and to continue to make advances to Borrower under the Loan Agreement, Borrower
hereby acknowledges and agrees that, as of the date hereof, there exists no right of offset,
defense, counterclaim or objection in favor of Borrower as against Administrative and Collateral
Agent, either Co-Lead Arranger, either Co-Syndication Agent, any Documentation Agent or any Lender
with respect to the Obligations.
11. JURY TRIAL WAIVER. BORROWER, EACH AGENT AND EACH LENDER HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AMENDMENT, THE
LOAN AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT, THE LOAN
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. BORROWER, EACH AGENT AND EACH LENDER HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
12. Integration. This Amendment, together with the other Financing Agreements,
incorporates all negotiations of the parties hereto with respect to the subject matter hereof and
is the final expression and agreement of the parties hereto with respect to the subject matter
hereof.
13. Severability. In case any provision in this Amendment shall be invalid, illegal
or unenforceable, such provision shall be severable from the remainder of this Amendment and the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| BORROWER | ||||
| BLUELINX CORPORATION | ||||
By:
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/s/ Xxxxx X. Xxxxxx | |||
Name:
|
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Title:
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| AGENTS | ||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, | ||||
| as successor by merger to Congress Financial Corporation, as Administrative and Collateral Agent, Co-Lead Arranger and Co-Syndication Agent | ||||
By:
|
/s/ Xxxxx X’Xxxxxxx | |||
Name:
|
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Title:
|
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Fourth Amendment to Loan Agreement
|
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| DOCUMENTATION AGENTS | ||||
| BANK OF AMERICA, N.A., | ||||
| as a Documentation Agent | ||||
By:
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/s/ Xxxxxx Xxxxxxxxx | |||
Name:
|
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Title:
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| XXXXX FARGO FOOTHILL, LLC, | ||||
| as a Documentation Agent | ||||
By:
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/s/ Xxxxx X. Xxxx | |||
Name:
|
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Title:
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| JPMORGAN CHASE BANK, N.A. | ||||
| (formerly known as JPMorgan Chase Bank), as a Documentation Agent |
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By:
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/s/ Xxxx X. Xxxxxxxxx | |||
Name:
|
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Title:
|
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Fourth Amendment to Loan Agreement
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| LENDERS | ||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, | ||||
| as successor by merger to Congress Financial Corporation | ||||
By:
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/s/ Xxxxx X’Xxxxxxx | |||
Name:
|
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Title:
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| BANK OF AMERICA, N.A. | ||||
By:
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/s/ Xxxxxx Xxxxxxxxx | |||
Name:
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Title:
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| XXXXX FARGO FOOTHILL, LLC | ||||
By:
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/s/ Xxxxx X. Xxxx | |||
Name:
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Title:
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| GENERAL ELECTRIC CAPITAL CORPORATION | ||||
By:
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/s/ Xxxxx X. Xxxxxxx | |||
Name:
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Title:
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Fourth Amendment to Loan Agreement
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| GMAC COMMERCIAL FINANCE LLC | ||||
By:
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/s/ Xxxxxx X. Xxxxxxx | |||
Name:
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Title:
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| ING CAPITAL LLC | ||||
By:
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/s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name:
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Title:
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| THE CIT GROUP/BUSINESS CREDIT, INC. | ||||
By:
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/s/ Xxxxxx Xxxxxx | |||
Name:
|
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Title:
|
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| JPMORGAN CHASE BANK, N.A. | ||||
| (formerly known as JPMorgan Chase Bank) | ||||
By:
|
/s/ Xxxx X. Xxxxxxxxx | |||
Name:
|
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Title:
|
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Fourth Amendment to Loan Agreement
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S-4
EXHIBIT A
See attached.
