AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
[Execution]
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT, dated November 23, 2010 (this “Amendment No.
2”), is by and among Xxxxx Fargo Bank, National Association, successor by merger to Wachovia Bank,
National Association, a national banking association, in its capacity as administrative agent
pursuant to the Loan Agreement (as hereinafter defined) acting for and on behalf of the parties
thereto as lenders (in such capacity, “Agent”), the parties to the Loan Agreement as lenders
(individually, each a “Lender” and collectively, “Lenders”), Builders FirstSource — Dallas, LLC, a
Delaware limited liability company (“Builders Dallas”), Builders FirstSource — Atlantic Group, LLC,
a Delaware limited liability company (“Builders Atlantic”), Builders FirstSource — Raleigh, LLC, a
Delaware limited liability company (“Builders Raleigh”), Builders FirstSource — Southeast Group,
LLC, a Delaware limited liability company (“Builders Southeast”), Builders FirstSource — Florida,
LLC, a Delaware limited liability company (“Builders Florida”), Builders FirstSource — Northeast
Group, LLC, a Delaware limited liability company (“Builders Northeast”), Builders FirstSource -
Ohio Valley, LLC, a Delaware limited liability company (“Builders Ohio”), Builders FirstSource -
Texas Group, L.P., a Texas limited partnership (“Builders Texas Group”), Builders FirstSource -
Texas Installed Sales, L.P., a Texas limited partnership (“Builders Texas Installed”), Builders
FirstSource — South Texas, L.P., a Texas limited partnership (“Builders South Texas” and together
with Builders Dallas, Builders Atlantic, Builders Raleigh, Builders Southeast, Builders Florida,
Builders Northeast, Builders Ohio, Builders Texas Group and Builders Texas Installed, each
individually a “Borrower” and collectively, “Borrowers”) and the companies listed on Schedule 1
hereto (each individually a “Guarantor” and collectively, “Guarantors”).
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into financing arrangements
pursuant to which Lenders (or Agent on behalf of Lenders) have made and may make loans and advances
and provide other financial accommodations to Borrowers as set forth in the Loan and Security
Agreement, dated December 14, 2007, by and among Agent, Lenders, Borrowers and Guarantors, as
amended by Amendment No. 1 to Loan and Security Agreement, dated as of March 3, 2008 (as the same
now exists and is amended and supplemented pursuant hereto and may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced, the “Loan Agreement”) and the
other Financing Agreements;
WHEREAS, Borrowers, Guarantors, Agent and Lenders have agreed to amend certain provisions of
the Loan Agreement on the terms and subject to the conditions set forth herein;
WHEREAS, by this Amendment Xx. 0, Xxxxx, Xxxxxxx, Borrowers and Guarantors desire and intend
to evidence such amendments;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements and covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Additional Definition. As used herein, the following terms shall have the
meanings given to them below and the Loan Agreement and the other Financing Agreements shall be
deemed and are hereby amended to include, in addition and not in limitation, the following
definitions:
(i) “Amendment No. 2” shall mean Amendment No. 2 to Loan and Security Agreement, dated
November ____, 2010, by and among Agent, Lenders, Borrowers and Guarantors, as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(ii) “Gross Availability” shall mean, as of any date of determination, an amount equal to the
Borrowing Base without giving effect to the subtraction of any Reserves.
(iii) “Ninety Day Average Gross Availability” shall mean, at any time, the daily average of
the Gross Availability for the immediately preceding ninety (90) calendar days.
(b) Amendments to Definitions. All references to each of the following terms herein
and in the Loan Agreement or any of the other Financing Agreements shall be deemed and each such
reference is hereby amended as follows:
(i) The definition of “Maximum Credit” set forth in Section 1.109 of the Loan Agreement
is hereby amended by deleting such definition in its entirety and replacing it with the
following:
“1.109 “Maximum Credit” shall mean the amount of $150,000,000.”
-2-
(ii) The definition of “Cash Dominion Threshold” set forth in Section 1.23 of the Loan
Agreement is hereby amended by deleting such definition in its entirety and replacing it with the
following:
“1.23 “Cash Dominion Threshold” shall mean, at any time, the applicable
amount set forth below based on the then Ninety Day Average Gross
Availability:
| Ninety Day Average | Cash Dominion | |||
| Gross Availability | Threshold | |||
Greater than $130,000,000 |
$ | 18,750,000 | ||
Less than or equal to $130,000,000 and greater than $80,000,000 |
$ | 16,250,000 | ||
Less than or equal to $80,000,000 |
$ | 10,000,000” | ||
(iii) The definition of “Commitment” set forth in Section 1.33 of the Loan Agreement is
hereby amended by deleting such definition in its entirety and replacing it with the
following:
“1.33 “Commitment” shall mean at any time, as to each Lender, the
principal amount set forth next to such Lender’s name on Exhibit A to
Amendment No. 2 or on Schedule 1 to the Assignment and Acceptance Agreement
entered into after the date of Amendment No. 2 pursuant to which such Lender
became a Lender hereunder in accordance with the provisions of Section 13.7
hereof, as the same may be adjusted from time to time in accordance with the
terms hereof; sometimes being collectively referred to herein as
“Commitments”.
(c) Interpretation. For purposes of this Amendment No. 2, all terms used herein which
are not otherwise defined herein, including but not limited to, those terms used in the recitals
hereto, shall have the respective meanings assigned thereto in the Loan Agreement as amended by
this Amendment No. 2.
2. Increase in Maximum Credit. Section 2.3 of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
“2.3 Intentionally Deleted.”
3. Decrease in Maximum Credit. Section 2.4 of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
“2.4 Intentionally Deleted.”
4. Amendment Fee. In consideration of the amendments set forth herein, Borrowers
shall pay to Agent, for the ratable account of those Lenders who have executed this Amendment No. 2
on or before 2:00 p.m. (Central time) on November 23, 2010, or Agent, at its option, may charge the
loan account of Borrowers maintained by Agent, an amendment fee in the aggregate amount equal to
$50,000, which fee is fully earned and payable as of the date hereof and shall constitute part of
the Obligations.
-3-
5. Representations and Warranties. Borrowers and Guarantors represent and warrant to
Agent, Lenders and Issuing Bank the following:
(a) no Default or Event of Default exists or has occurred and is continuing as of the date of
this Amendment No. 2;
(b) this Amendment No. 2 and each other agreement to be executed and delivered by Borrowers
and Guarantors in connection herewith has been duly authorized, executed and delivered by all
necessary action on the part of each Borrower and Guarantor which is a party hereto and, if
necessary, their respective equity holders and is in full force and effect as of the date hereof,
as the case may be, and the agreements and obligations of each of the Borrowers and Guarantors, as
the case may be, contained herein and therein constitute legal, valid and binding obligations of
each of the Borrowers and Guarantors, enforceable against them in accordance with their terms,
except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors’ rights and except to the
extent that availability of the remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding therefor may be brought;
(c) the execution, delivery and performance of this Amendment No. 2 (i) are all within each
Borrower’s and Guarantor’s corporate, limited partnership or limited liability company powers and
(ii) are not in contravention of applicable law in any material respect or the terms of any
Borrower’s or Guarantor’s certificate or articles of incorporation, by laws, limited partnership
agreement, operating agreement, or other organizational documentation, or any material indenture,
agreement or undertaking to which any Borrower or Guarantor is a party or by which any Borrower or
Guarantor or its property are bound; and
(d) all of the representations and warranties set forth in the Loan Agreement and the other
Financing Agreements, each as amended hereby, are true and correct in all material respects on and
as of the date hereof, as if made on the date hereof, except to the extent any such representation
or warranty is made as of a specified date, in which case such representation or warranty shall
have been true and correct as of such date.
6. Conditions Precedent. The amendments contained herein shall only be effective upon
the satisfaction of each of the following conditions precedent in a manner satisfactory to Agent:
(a) receipt by Agent of counterparts of this Amendment No. 2, duly authorized, executed and
delivered by Borrowers, Guarantors and Required Lenders; and
(b) no Default or Event of Default shall exist or have occurred and be continuing.
-4-
7. Effect of this Amendment. Except as expressly set forth herein, no other
amendments, changes or modifications to the Financing Agreements are intended or implied, and in
all other respects the Financing Agreements are hereby specifically ratified, restated and
confirmed by all parties hereto as of the effective date hereof and Borrowers and Guarantors shall
not be entitled to any other or further amendment by virtue of the provisions of this
Amendment No. 2 or with respect to the subject matter of this Amendment No. 2. To the extent
of any conflict between the terms of this Amendment No. 2 and the other Financing Agreements, the
terms of this Amendment No. 2 shall control. The Loan Agreement and this Amendment No. 2 shall be
read and construed as one agreement.
8. Governing Law. The validity, interpretation and enforcement of this Amendment No.
2 and any dispute arising out of the relationship among the parties hereto whether in contract,
tort, equity or otherwise, shall be governed by the internal laws of the State of New York but
excluding any principles of conflicts of law or other rule of law that would cause the application
of the law of any jurisdiction other than the laws of the State of New York.
9. Binding Effect. This Amendment No. 2 shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
10. Entire Agreement. This Amendment No. 2 represents the entire agreement and
understanding concerning the subject matter hereof among the parties hereto, and supersedes all
other prior agreements, understandings, negotiations and discussions, representations, warranties,
commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or
written.
11. Headings. The headings listed herein are for convenience only and do not
constitute matters to be construed in interpreting this Amendment No. 2.
12. Counterparts. This Amendment No. 2 may be executed in any number of counterparts,
each of which shall be an original, but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of this Amendment No. 2 by telefacsimile or
other electronic method of transmission shall have the same force and effect as delivery of an
original executed counterpart of this Amendment No. 2. Any party delivering an executed
counterpart of this Amendment No. 2 by telefacsimile or other electronic method of transmission
shall also deliver an original executed counterpart of this Amendment No. 2, but the failure to do
so shall not affect the validity, enforceability, and binding effect of this Amendment No. 2.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed
and delivered by their authorized officers as of the day and year first above written.
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent and a Lender |
||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxx | |||||
| Title: | Vice President | |||||
[SIGNATURES CONTINUED ON NEXT PAGE]
Amendment No. 2 to LSA
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| BUILDERS FIRSTSOURCE — NORTHEAST GROUP, LLC BUILDERS FIRSTSOURCE — DALLAS, LLC BUILDERS FIRSTSOURCE — FLORIDA, LLC BUILDERS FIRSTSOURCE — OHIO VALLEY, LLC BUILDERS FIRSTSOURCE — ATLANTIC GROUP, LLC BUILDERS FIRSTSOURCE — RALEIGH, LLC BUILDERS FIRSTSOURCE — SOUTHEAST GROUP, LLC BUILDERS FIRSTSOURCE — TEXAS GROUP, L.P. |
||||||||
| By: Builders FirstSource — Texas GenPar, LLC, its General Partner | ||||||||
| BUILDERS FIRSTSOURCE — SOUTH TEXAS, L.P. | ||||||||
| By: BFS Texas, LLC, its General Partner | ||||||||
| BUILDERS FIRSTSOURCE — TEXAS INSTALLED SALES, L.P. | ||||||||
| By: BFS Texas, LLC, its General Partner | ||||||||
| BUILDERS FIRSTSOURCE, INC. BUILDERS FIRSTSOURCE HOLDINGS, INC BUILDERS FIRSTSOURCE — COLORADO GROUP, LLC BUILDERS FIRSTSOURCE — COLORADO, LLC BFS, LLC BUILDERS FIRSTSOURCE — FLORIDA DESIGN CENTER, LLC BUILDERS FIRSTSOURCE — TEXAS GENPAR, LLC BUILDERS FIRSTSOURCE — MBS, LLC BFS TEXAS, LLC BFS IP, LLC BUILDERS FIRSTSOURCE — INTELLECTUAL PROPERTY, L.P. |
||||||||
| By: BFS IP, LLC, its General Partner | ||||||||
| CCWP, INC. | ||||||||
| By: | /s/ M. Xxxx Xxxx | |||||||
| Name: | Xxxx Xxxx | |||||||
| Title: | Senior Vice President — Finance | |||||||
| and Chief Financial Officer | ||||||||
[SIGNATURES CONTINUED ON NEXT PAGE]
Amendment No. 2 to LSA
| UBS LOAN FINANCE LLC, as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
Amendment No. 2 to LSA
| GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Duly Authorized Agent | |||
Amendment No. 2 to LSA
| PNC BANK, NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxx X. Council IV | |||
| Name: | Xxxx X. Council IV | |||
| Title: | Vice President | |||
Amendment No. 2 to LSA
Guarantors
Builders FirstSource, Inc., a Delaware corporation (“Parent”)
Builders FirstSource Holdings, Inc., a Delaware corporation (“Builders Holdings”)
Builders FirstSource — Colorado Group, LLC, a Delaware limited liability company (“Builders
Colorado Group”)
Builders FirstSource — Texas GenPar, LLC, a Delaware limited liability company (“Builders Texas
GenPar”)
Builders FirstSource — MBS, LLC, a Delaware limited liability company (“Builders MBS”)
Builders FirstSource — Florida Design Center, LLC, a Delaware limited liability company (“Builders
Design”)
BFS, LLC, a Delaware limited liability company (“BFS”)
Builders FirstSource — Colorado, LLC, a Delaware limited liability company (“Builders Colorado”)
BFS Texas, LLC, a Delaware limited liability company (“BFS Texas”)
BFS IP, LLC, a Delaware limited liability company (“BFS IP”)
CCWP, Inc., a South Carolina corporation (“CCWP”)
Builders FirstSource — Intellectual Property, L.P., a Texas limited partnership (“Builders
Intellectual”)
Amendment No. 2 to LSA
Commitments
| Lender | Commitment | |||
Xxxxx Fargo Bank, National Association |
$ | 64,285,500 | ||
UBS Loan Finance LLC |
$ | 32,143,500 | ||
General Electric Capital Corporation |
$ | 30,000,000 | ||
SunTrust Bank |
$ | 12,856,500 | ||
PNC Bank, National Association |
$ | 10,714,500 | ||
Total |
$ | 150,000,000 | ||
Amendment No. 2 to LSA
