THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT 99.1
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of
January 26, 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 and Xxxxxxx Xxxxx Credit Partners, L.P., a
Bermuda limited partnership (“GSCP”), as co-lead arrangers for the credit facility (in such
capacities, each a “Co-Lead Arranger” and collectively the “Co-Lead Arrangers”) and
as co-syndication agents for the credit facility (in such capacities, each a “Co-Syndication
Agent” and collectively the “Co-Syndication Agents”), 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, the Co-Lead Arrangers, the Co-Syndication
Agents, 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, either 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) Section 1.55 of the Loan Agreement is hereby amended and restated to read in its entirety
as follows:
“ ‘Final Maturity Date’ shall mean May 7, 2011.”
(b) Sections 1.69(a) and (b) of the Loan Agreement are hereby amended and restated to read in
their 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 plus
one-quarter of one (0.25) percentage point; 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
three-quarters of one (1.75) percentage points.
(b) So long as no Event of Default has occurred and is continuing, for each
Interest Period commencing after delivery of Borrower’s financial statements
required to be delivered pursuant to this Agreement for each fiscal quarter ending
after January 1, 2006, effective on the first day of such Interest Period, the
Interest Rate will be adjusted to be: (i) as to Prime Rate Loans, a per annum rate
equal to the Prime Rate plus the “Applicable Prime Rate Margin” set forth below
based on (A) Borrower’s EBITDA as of the end of such fiscal quarter for the prior
12 month period then ended and (B) the average month end amount of Adjusted Excess
Availability, as determined by Administrative and Collateral Agent, for such fiscal
quarter then ended; 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 the
“Applicable Eurodollar Rate Margin” set forth below based on (A) Borrower’s EBITDA
as of the end of such fiscal quarter for the prior 12 month period then ended and
(B) the average month end amount of Adjusted Excess Availability, as determined by
Administrative and Collateral Agent, for such fiscal quarter then ended;
provided, however, in each case, if the Borrower has not delivered
the financial statements required to be delivered to Administrative and Collateral
Agent hereunder within the time frames specified herein, without limiting any other
provision of this Agreement, until such financial statements are delivered to
Administrative and Collateral Agent
in accordance with this Agreement, the Interest Rate shall be calculated using the
highest Applicable Prime Rate Margin or the highest Applicable Eurodollar Rate
Margin, as applicable, set forth below:
| Applicable | Applicable | |||||||||
| Average Adjusted | Prime Rate | Eurodollar Rate | ||||||||
| EBITDA | Excess Availability | Margin | Margin | |||||||
Greater than |
Greater than | |||||||||
$160,000,000 |
$250,000,000 | 0.00 | 1.00 | |||||||
| Greater than | ||||||||||
Greater |
$200,000,000 but | |||||||||
than |
equal to or less | |||||||||
$160,000,000 |
than $250,000,000 | 0.00 | 1.25 | |||||||
Greater
than |
Equal to or less | |||||||||
$160,000,000 |
than $200,000,000 | 0.00 | 1.50 | |||||||
Greater than
$130,000,000
but equal
to or less
than |
Greater than | |||||||||
$160,000,000 |
$250,000,000 | 0.00 | 1.25 | |||||||
Greater than
$130,000,000
but equal |
Greater than | |||||||||
to or less |
$200,000,000 but | |||||||||
than |
equal to or less | |||||||||
$160,000,000 |
than $250,000,000 | 0.00 | 1.50 | |||||||
Greater than
$130,000,000
but equal
to or less
than |
Equal to or less | |||||||||
$160,000,000 |
than $200,000,000 | .25 | 1.75 | |||||||
Greater than
$100,000,000
but equal
to or less
than |
Greater than | |||||||||
$130,000,000 |
$250,000,000 | 0.00 | 1.50 | |||||||
Greater than
$100,000,000
but equal |
Greater than | |||||||||
to or less |
$200,000,000 but | |||||||||
than |
equal to or less | |||||||||
$130,000,000 |
than $250,000,000 | .25 | 1.75 | |||||||
Greater than
$100,000,000
but equal
to or less
than |
Equal to or less | |||||||||
$130,000,000 |
than $200,000,000 | .50 | 2.00 | |||||||
| Applicable | Applicable | |||||||||
| Average Adjusted | Prime Rate | Eurodollar Rate | ||||||||
| EBITDA | Excess Availability | Margin | Margin | |||||||
Greater than
$70,000,000
but equal
to or less
than |
Greater than | |||||||||
$100,000,000 |
$250,000,000 | .25 | 1.75 | |||||||
Greater than
$70,000,000
but equal |
Greater than | |||||||||
to or less |
$200,000,000 but | |||||||||
than |
equal to or less | |||||||||
$100,000,000 |
than $250,000,000 | .50 | 2.00 | |||||||
Greater than
$70,000,000
but equal
to or less
than |
Equal to or less | |||||||||
$100,000,000 |
than $200,000,000 | .75 | 2.25 | |||||||
Equal to or
less than |
Greater than | |||||||||
$70,000,000 |
$250,000,000 | .50 | 2.00 | |||||||
| Greater than | ||||||||||
Equal to or |
$200,000,000 but | |||||||||
less than |
equal to or less | |||||||||
$70,000,000 |
than $250,000,000 | .75 | 2.25 | |||||||
Equal to or
less than |
Equal to or less | |||||||||
$70,000,000 |
than $200,000,000 | 1.00 | 2.50” | |||||||
(c) Section 1.93.1(c) of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
“(c) both before and after giving effect to such proposed Acquisition, Borrower’s
Fixed Charge Coverage Ratio, on a consolidated basis, shall not be less than 1.1 to
1.0; provided, however, if Adjusted Excess Availability is greater
than $120,000,000 at all times for the thirty (30) day period prior to the closing
date for such Acquisition, and on the closing date for such Acquisition after
giving effect to such proposed Acquisition, Borrower’s Fixed Charge Coverage Ratio
may be calculated, for purposes of this Section 1.93.1(c) only, without giving
effect to (i) any Capital Expenditures incurred by Borrower which are otherwise
permitted to be incurred by Borrower under the terms of this Agreement, and (ii)
any dividends to Parent which are otherwise permitted to be made by Borrower under
the terms of this Agreement;”
(d) Section 3.3(b) of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
“(b) for the ratable benefit of the Revolving Loan Lenders, payable on the first
day of each month in arrears while this Agreement is in effect and for so long
thereafter as any of the Obligations are outstanding, an unused line fee at a rate
equal to one-quarter of one percent (0.25%) per annum calculated upon the amount by
which the Revolving Loan Limit exceeds the average daily principal balance of the
outstanding Revolving Loans and Letter of Credit Accommodations during the
immediately preceding month, or part thereof.”
2. Consent to Amendment of Affiliate Lease. Notwithstanding Section 9.12(a) of the
Loan Agreement, Lenders hereby consent to the amending of the Affiliate Lease to provide for an
annual rent increase so long as the annual rent payable by Borrower thereunder does not exceed
$35,000,000.
3. 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) Accommodation Fee. For the ratable benefit of the Lenders, a non-refundable
accommodation fee in the amount of Four Hundred Thousand Dollars ($400,000), which fee is fully
earned as of and due and payable on the date hereof.
(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.
4. 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.
(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.
5. 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.
6. 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.
7. 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.
(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.
8. 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.
9. Estoppel. To induce 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, either Documentation Agent or any Lender with respect to the Obligations.
10. 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.
11. 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.
12. 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.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
BORROWER |
||||
BLUELINX CORPORATION |
||||
By:
|
/s/ Xxxxx X. Xxxxxx | |||
Name:
|
Xxxxx X. Xxxxxx | |||
Title:
|
CFO & Treasurer | |||
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:
|
Xxxxx X’Xxxxxxx | |||
Title:
|
Vice President | |||
DOCUMENTATION AGENTS |
||||
BANK OF AMERICA, N.A., as a Documentation Agent |
||||
By:
|
/s/ Jang X. Xxx | |||
Name:
|
Jang X. Xxx | |||
Title:
|
Vice President | |||
XXXXX FARGO FOOTHILL, LLC, as a Documentation Agent |
||||
By:
|
/s/ Xxxxx X. Xxxx | |||
Name:
|
Xxxxx X. Xxxx | |||
Title:
|
Vice President | |||
JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), as a Documentation Agent |
||||
By:
|
/s/ Xxxx X. Hariackzyi | |||
Name:
|
Xxxx X. Hariackzyi | |||
Title:
|
Vice President | |||
LENDERS |
||||
WACHOVIA BANK, NATIONAL ASSOCIATION, as successor by merger to Congress Financial Corporation |
||||
By:
|
/s/ Xxxxx X’Xxxxxxx | |||
Name:
|
Xxxxx X’Xxxxxxx | |||
Title:
|
Vice President | |||
BANK OF AMERICA, N.A. |
||||
By:
|
/s/ Xxxx Xxx | |||
Name:
|
Xxxx Xxx | |||
Title:
|
Vice President | |||
XXXXX FARGO FOOTHILL, LLC |
||||
By:
|
/s/ Xxxxx X. Xxxx | |||
Name:
|
Xxxxx X. Xxxx | |||
Title:
|
Vice President | |||
GENERAL ELECTRIC CAPITAL CORPORATION |
||||
By:
|
/s/ Xxxxx X. Xxxxx | |||
Name:
|
Xxxxx X. Xxxxx | |||
Title:
|
Duly Authorized Signatory | |||
GMAC COMMERCIAL FINANCE LLC |
||||
By:
|
/s/ Xxxxxx Xxxxxx | |||
Name:
|
Xxxxxx Xxxxxx | |||
Title:
|
Director | |||
ING CAPITAL LLC |
||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name:
|
Xxxxxxx X. Xxxxxxxxxx | |||
Title:
|
Vice President | |||
THE CIT GROUP/BUSINESS CREDIT, INC. |
||||
By:
|
/s/ Xxxxxx Xxxxxx | |||
Name:
|
Xxxxxx Xxxxxx | |||
Title:
|
AVP | |||
JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank) |
||||
By:
|
/s/ Xxxx X. Hariackzyi | |||
Name:
|
Xxxx X. Hariackzyi | |||
Title:
|
Vice President | |||
