WAIVER TO SECOND LIEN CREDIT AGREEMENT
Exhibit 10.26
EXECUTION VERSION
WAIVER
TO SECOND LIEN CREDIT AGREEMENT
WAIVER TO CREDIT AGREEMENT (this “Waiver”), dated as of April 6, 2017 to that certain Credit Agreement, dated as of August 20, 2015 (as amended as of June 1, 2016 and October 5, 2016 and as further amended, supplemented, waived or otherwise modified, the “Credit Agreement”), among LBM Midco, LLC, a Delaware limited liability company (“Holding”), LBM Borrower, LLC, a Delaware limited liability company (the “Borrower”), the Lenders party hereto (the “Consenting Lenders”) and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the “Administrative Agent”) and as Collateral Agent (in such capacity, the “Collateral Agent”).
WITNESSETH:
WHEREAS, the Borrower has engaged Deloitte & Touche LLP (“Deloitte”) as its independent auditors in 2016, replacing Xxxxx Xxxxxxx LLP, the auditors which audited the Borrower’s financial statements for the year ended December 31, 2015 and prior years;
WHEREAS, Deloitte was engaged to audit the Borrower’s financial statements for the years ended December 31, 2014, 2015 and 2016;
WHEREAS, during this audit, Deloitte identified a number of adjustments to the Borrower’s historical financial statements;
WHEREAS, the Borrower has requested that the Lenders waive any Default or Event of Default (as such terms are defined in the Credit Agreement), if any, that has arisen or may arise directly or indirectly as a result of or in connection with the Restatement (as defined below) or any action taken or any failure to take action while any such Default or Event of Default was continuing to the existence such action or failure to take action would have been permitted but for the existence of such Default or Event of Default;
WHEREAS, pursuant to Subsection 10.1 of the Credit Agreement, the Consenting Lenders have agreed to waive any such Default or Event of Default and its consequences on the terms and conditions set forth herein; and
WHEREAS, the Consenting Lenders constitute no less than the Required Lenders.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE — Defined Terms.
Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
SECTION TWO — Waiver and Consent.
The Consenting Lenders hereby waive any existing or future Default or Event of Default, if any, that has arisen or may arise, directly or indirectly, as a result of or in connection with the Restatement or any action taken or any failure to take action while any such existing or future Default or Event of Default was continuing to the extent such action or failure to take action would have been permitted but for the existence of such Default or Event of Default (with all prior calculations of incurrence ratios, if applicable, calculated based on the Prior Financials (as defined below)), including without limitation any Default or Event of Default that has arisen or may arise directly or indirectly (i) from any breach of the representations and warranties contained in Sections 4.1 and 4.7 of the Credit Agreement or of any other representations and warranties contained in the Loan Documents (or any amendment, modification or supplement thereto) or contained in any certificate furnished at any time by or on behalf of any Loan Party pursuant to the Credit Agreement or any other Loan Document, (ii) from any request for or incurrence of any Incremental Commitments under the Credit Agreement after the occurrence and during the continuance of any such Default or Event of Default, (iii) from any failure to comply with any covenant or other obligation, condition or restriction under Sections 6.1, 6.2 and 6.7 of the Credit Agreement or with any other covenants and conditions in the Loan Documents and (iv) under Section 8.1(e) of the Credit Agreement or otherwise under Section 8 of the Credit Agreement, in each case as a result of or in connection with the Restatement, if any. For purposes of this Waiver, “Restatement” shall mean any restatement of, or revision or adjustment to, one or more of the annual or quarterly financial statements of the Borrower and its consolidated Subsidiaries or, as the case may be, of the Target and its consolidated Subsidiaries delivered or referred to under the Credit Agreement or otherwise issued by the Borrower from time to time in each case for periods ended prior to December 31, 2016 (the “Prior Financials”).
SECTION THREE — Condition to Effectiveness. This Waiver shall become effective on the date (the “Effective Date”) when each of the following conditions has been satisfied:
(1) Holding, the Borrower and the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered such counterpart to the Administrative Agent;
(2) each Guarantor shall have delivered a duly executed counterpart of the acknowledgement and consent attached to this Waiver (the “Acknowledgment”) to the Administrative Agent;
(3) the Administrative Agent shall have received for the account of each Consenting Lender who executed and delivered a signature page to this Waiver on or prior to 5:00 PM New York City time on Thursday, April 6, 2017 a consent fee equal to 0.05% of the aggregate principal amount of Term Loans held by the applicable Consenting Lender on the Effective Date; and
(4) the Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including reimbursement or payment of all out-of-
pocket expenses required to be reimbursed or paid by the Borrower in connection with the transactions contemplated hereby.
SECTION FOUR — Representations and Warranties.
As of the date hereof, the Borrower represents and warrants as follows:
(1) Corporate Existence; Compliance with Law. Each of the Loan Parties (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the Borrower), to the extent that the failure to be organized, existing and in good standing would not reasonably be expected to have a Material Adverse Effect, (b) has the legal right to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that the failure to have such legal right would not be reasonably expected to have a Material Adverse Effect, (c) is duly qualified as a corporation or limited liability company and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and in good standing would not be reasonably expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
(2) Corporate Power; Authorization; Enforceable Obligations. Each of the Loan Parties has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform, in the case of Holding and the Borrower, this Waiver and, in the case of each Guarantor, the Acknowledgment and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance thereof. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of any Loan Party in connection with the execution, delivery, performance, validity or enforceability of this Waiver or the Acknowledgment, except for consents, authorizations, notices and filings which the failure to obtain or make would not reasonably be expected to have a Material Adverse Effect. This Waiver has been duly executed and delivered by the Borrower and the Acknowledgment has been duly executed and delivered on behalf of each Guarantor. This Waiver constitutes a legal, valid and binding obligation of the Borrower and the Acknowledgment and each other Loan Document to which any Loan Party is a party which has been executed and delivered constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(3) No Legal Bar. The execution, delivery and performance of this Waiver or the Acknowledgment by any of the applicable Loan Parties (a) will not violate any Requirement of
Law or Contractual Obligation of such Loan Party in any respect that would reasonably be expected to have a Material Adverse Effect, (b) will not result in, or require the creation or imposition of any Lien (other than Liens permitted under the Credit Agreement) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation and (c) will not violate any provision of the Organizational Documents of such Loan Party, except (other than with respect to the Borrower) as would not reasonably be expected to have a Material Adverse Effect.
(4) No Default. On the date hereof after giving effect to this Waiver, no Default or Event of Default has occurred and is continuing.
(5) Other Representations. After giving effect to this Waiver, the representations and warranties set forth in Section 4 of the Credit Agreement are true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality, Material Adverse Effect or words of similar import, in all respects) on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall have been true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality, Material Adverse Effect or words of similar import, in all respects) as of such earlier date.
SECTION FIVE — Effect of Waiver; Acknowledgement.
(1) Except as expressly set forth herein, this Waiver shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any Agent, any Lender or any Loan Party under the Loan Documents, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents, all of which (including with respect to the security interests and liens granted to the Agents and the other Secured Parties under the Loan Documents) are ratified and affirmed in all respects and shall continue in full force and effect except that, on and after the effectiveness of this Waiver, each reference to the Credit Agreement in the Loan Documents and all references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, mean and be a reference to the Credit Agreement as modified by this Waiver. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents in similar or different circumstances. This Waiver is a Loan Document executed pursuant to the Credit Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof.
(2) Without limiting the foregoing, each of the Loan Parties party to the Guarantee and Collateral Agreement or any other Security Documents, in each case as amended, supplemented or otherwise modified from time to time, hereby (i) acknowledges and agrees that all of its obligations under the Guarantee and Collateral Agreement and the other Security Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis, (ii)
reaffirms each Lien granted by each Loan Party to the Collateral Agent for the benefit of the Secured Parties and reaffirms the guaranties made pursuant to the Guarantee and Collateral Agreement, (iii) acknowledges and agrees that the grants of security interests by and the guaranties of the Loan Parties contained in the Guarantee and Collateral Agreement and the other Security Documents are, and shall remain, in full force and effect after giving effect to the Waiver, and (iv) agrees that the Borrower Obligations and the Guarantor Obligations (each as defined in the Guarantee and Collateral Agreement) include, among other things and without limitation, the prompt and complete payment and performance by the Borrower when due and payable (whether at the stated maturity, by acceleration or otherwise) of principal and interest on any Loan incurred after the Effective Date pursuant to the Credit Agreement, as modified by this Waiver.
(3) For the avoidance of doubt, (x) this Waiver does not constitute an acknowledgement by the Borrower or its Subsidiaries that any Restatement would result in a Default or Event of Default under the Loan Documents and the Borrower and its Subsidiaries reserve all of their respective rights under the Loan Documents in connection therewith, and (y) it is agreed all Term Loans (as defined in the Credit Agreement) and Term Loans (as defined in the First Lien Credit Agreement) outstanding as of the date hereof are permitted to have been incurred, to be outstanding and to be secured by a Lien (as defined in each of the Credit Agreement and the First Lien Credit Agreement, as applicable) on the Collateral (as defined in each of the Credit Agreement and the First Lien Credit Agreement, as applicable) pursuant to subsections 7.1 and 7.2 of each of the Credit Agreement and the First Lien Credit Agreement.
SECTION SIX — Successors and Assigns. This Waiver shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted under Subsection 10.6 of the Credit Agreement.
SECTION SEVEN — Severability. Any provision of this Waiver which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION EIGHT — Counterparts. This Waiver may be executed by one or more of the parties to this Waiver on any number of separate counterparts (including by telecopy and other electronic transmission), and all of such counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Waiver signed by all the parties shall be delivered to the Borrower and the Administrative Agent.
SECTION NINE — Governing Law, etc. The provisions of the Credit Agreement under the headings “Governing Law”, “Submission to Jurisdiction; Waivers” and “Waiver of Jury Trial” are incorporated by reference herein, mutatis mutandis.
[Remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed and delivered by their respective duly authorized officers as of the date first above written.
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LBM BORROWER, LLC | ||
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By: |
/s/ Xxxxx Xxxx | |
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Name: |
Xxxxx Xxxx |
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Title: |
Assistant Vice President |
[Signature Page to 2L Waiver]
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LBM MIDCO, LLC | |
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By: |
/s/ [ILLEGIBLE] |
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Name: |
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Title: |
[Signature Page to 2L Waiver]
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Acknowledged by: | ||
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent and Collateral Agent | ||
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By: |
/s/ Xxxxxxxxxxx Xxx | |
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Name: |
Xxxxxxxxxxx Xxx |
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Title: |
Authorized Signatory |
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By: |
/s/ Xxxx Xxxx | |
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Name: |
Xxxx Xxxx |
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Title: |
Authorized Signatory |
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BLACKSTONE/GSO STRATEGIC CREDIT FUND |
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BY: GSO / Blackstone Debt Funds Management LLC |
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as Collateral Manager |
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By: |
/s/ Xxxxxx Xxxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxxx |
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Title: |
Authorized Signatory |
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By: |
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Name: |
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Title: |
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Citi Loan Funding Chelt LLC | ||
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By: Citibank, N.A., | ||
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By: |
/s/ Xxxxxxx Xxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxx |
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Title: |
Associate Director |
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By: |
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Name: | |
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Title: | |
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COLUMBUS CIRCLE FUNDING ULC | ||
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By: |
/s/ Xxxxxxx Xxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxx |
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Title: |
Authorized Signatory |
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By: |
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Name: | |
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Title: | |
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FS Investment Corporation IV | ||
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By: GSO / Blackstone Debt Funds Management LLC, as Sub- | ||
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Adviser | ||
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By: |
/s/ Xxxxxx Xxxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxxx |
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Title: |
Authorized Signatory |
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By: |
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SMRS-XXXX, LLC, | |
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as a Tranche B Term Lender | |
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By: HVST-XXXX LLC | |
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Its Managing Member | |
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By: HarbourVest Partners L.P. | |
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Its Manager | |
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By: HarbourVest Partners, LLC | |
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Its General Partner | |
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By: |
/s/ Xxx Xxxx |
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Xxx Xxxx |
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Managing Director |
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BLT 37 LLC, | ||
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By: |
/s/ Xxxxxx Xxxxxx | |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Authorized Signatory |
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/s/ Xxxxxxx Xxxxxxxxxx | |
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Xxxxxxx Xxxxxxxxxx | |
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Authorized Signatory | |
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LSTAR CAYMAN LOAN COMPANY, LTD. | ||
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By: |
/s/ Xxxxxx Xxxxxxx | |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Vice President |
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CQS Credit Multi Asset Fund, a sub-fund of | ||
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CQS Global Funds (Ireland) plc | ||
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Xxxxxx QIF Fund plc (in respect of Xxxxxx | ||
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Multi-Asset Credit Fund) | ||
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CQS Aiguille du Chardonnet MF S.C.A. SICAV- | ||
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SIF | ||
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Authorized Signatory |
Each Guarantor acknowledges and consents to each of the foregoing provisions of this Waiver. Each Guarantor further acknowledges and agrees that all Obligations with respect to the Commitments and the Loans under the Credit Agreement as modified by this Waiver shall be fully guaranteed and secured pursuant to the Guarantee and Collateral Agreement and the other applicable Loan Documents to which such Guarantor is a party in accordance with the terms and provisions thereof.
[Signature Page to follow]
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GUARANTORS: |
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LBM Midco, LLC |
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US LBM Holdings, LLC |
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BEP/Xxxxx, LLC |
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Xxxxxxxxx Lumber - US LBM, LLC |
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Direct Cabinet Sales - US LBM, LLC |
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Xxxxxx Enterprises - US LBM, LLC |
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Standard Supply & Lumber - US LBM, LLC |
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Coastal Roofing Supply - US LBM, LLC |
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Lumber Specialties - US LBM, LLC |
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Fond du Lac Property - US LBM, LLC |
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East Haven Builders Supply - US LBM, LLC |
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Bellevue Builders Supply - US LBM, LLC |
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Kentucky Indiana Lumber - US LBM, LLC |
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Desert Lumber - US LBM, LLC |
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Xxxxx Lumber - US LBM, LLC |
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Bear Truss - US LBM, LLC |
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Bear Truss Property, LLC |
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H & H Lumber - US LBM, LLC |
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American Masons & Building Supply - US LBM, LLC |
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LS Property, LLC |
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Xxxxxxxxxx Gypsum - US LBM, LLC |
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Universal Supply Company, LLC |
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Wisconsin Building Supply - US LBM, LLC |
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Wallboard Supply Company - US LBM, LLC |
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Xxxxxxx Yards - US LBM, LLC |
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Xxxxx Buildings Supply - US LBM, LLC |
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Xxxxxxxx Property - US LBM, LLC |
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Hampshire Property - US LBM, LLC |
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EHBS Manchester Properties, LLC |
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Xxxx X. Xxxxx & Son - US LBM, LLC |
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Xxxxx Materials of Nevada LLC |
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Xxxxx Brick America, LLC |
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Xxxxx Materials, LLC |
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Xxxxxxx Lumber - US LBM, LLC |
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Gold & Xxxxx - US LBM, LLC |
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LouMac Distributors - US LBM, LLC |
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GBS Building Supply - US LBM, LLC |
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GBS Property, LLC |
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Gypsum Acquisition, LLC |
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Xxxxxx Lumber - US LBM, LLC |
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Building Supply Association - US LBM, LLC |
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NextGen - US LBM, LLC |
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NextGen Property, LLC |
[Signature Page to 2L Waiver]
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Xxxxxx’x Building Supply - US LBM, LLC | ||
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Xxxxx Doors, LLC | ||
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Total Trim, LLC | ||
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B & C Fasteners, Inc. | ||
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Alco Doors, LLC | ||
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Xxxxxxx Building Supply LLC | ||
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US LBM Xxxxxx Holdings, LLC | ||
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US LBM Corporate Holdings, Inc. | ||
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US LBM Xxxxxx Asset Holdings, LLC | ||
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Arkansas Wholesale Lumber, LLC | ||
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Xxxxxx Contractor Outlet of Fayetteville, LLC | ||
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Xxxxxx Door Manufacturing, LLC | ||
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Xxxxxx Lumber Company of Batesville, LLC | ||
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Xxxxxx Lumber Company of Benton, LLC | ||
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Xxxxxx Lumber Company of Cabot, LLC | ||
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Xxxxxx Lumber Company of Jonesboro, LLC | ||
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Xxxxxx Lumber Company of Joplin, LLC | ||
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Xxxxxx Lumber Company of Xxxxxx, LLC | ||
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Xxxxxx Lumber Co. of Russellville, Inc. | ||
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Xxxxxx Lumber Co. of Xxxxxx, Inc. | ||
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Xxxxxx Lumber Co. of Xxxxxx, Inc. | ||
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By: |
/s/ Xxxxx Xxxx | |
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Name: |
Xxxxx Xxxx |
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Title: |
Authorized Signatory |
[Signature Page to 2L Waiver]
