SUPPLEMENTAL INDENTURE
Exhibit 10.1
This SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), is made as of January 8,
2010, by BUILDERS FIRSTSOURCE, INC. (the “Company”), each of the Guarantors listed on the
signature pages hereto, and WILMINGTON TRUST COMPANY, as Trustee (the “Trustee”).
R E C I T A L S
WHEREAS, the Company, the Guarantors, and the Trustee have entered into the Indenture, dated
as of February 11, 2005 (the “Indenture”), providing for the issuance by the Company of
$275,000,000 of Second Priority Senior Secured Floating Rate Notes due 2012 (the “Notes”);
and
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate principal amount
of the Notes then outstanding and, in the case of an amendment that has the effect of releasing all
or substantially all of the Collateral from the Liens securing the Notes, with the consent of the
Holders of at least 66 2/3% in aggregate principal amount of the Notes then
outstanding; and
WHEREAS, the Holders of at least 66 2/3% in aggregate principal amount of the
Notes (other than affiliates of the Company) have consented to amend certain provisions of the
Indenture as provided herein (the “Amendments”);
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall have the respective
meanings provided therefor in the Indenture.
2. Amendments to the Indenture.
(a) The following sections and article of the Indenture, and any corresponding provisions
in the Notes, are hereby deleted in their entirety and replaced with “Intentionally
Omitted”:
Existing Section or Article | Caption | |
Section 4.07
|
Restricted Payments | |
Section 4.08
|
Dividend and Other Payment Restrictions Affecting Subsidiaries | |
Section 4.09
|
Incurrence of Indebtedness and Issuance of Preferred Stock | |
Section 4.10
|
Asset Sales | |
Section 4.11
|
Transactions with Affiliates | |
Section 4.12
|
Liens |
Existing Section or Article | Caption | |
Section 4.15
|
Offer to Repurchase Upon Change of Control | |
Section 4.16
|
Limitation on Issuances and Sales of Equity Interests in Wholly-Owned Subsidiaries | |
Section 4.17
|
Limitation on Issuances of Guarantees of Indebtedness | |
Section 4.18
|
Payments for Consent | |
Section 4.19
|
Additional Note Guarantees | |
Section 4.20
|
Designation of Restricted and Unrestricted Subsidiaries | |
Section 5.01
|
Merger, Consolidation or Sale of Assets | |
Section 8.04
|
Conditions to Legal or Covenant Defeasance | |
Article 10
|
Collateral and Security |
(b) The following sub-sections of the Indenture, and any corresponding provisions in the
Notes, are hereby deleted in their entirety and replaced with “Intentionally Omitted”:
Existing Sub-section | Caption | |
Section 6.01(3)
|
Events of Default | |
Section 6.01(4)
|
Events of Default | |
Section 6.01(5)
|
Events of Default | |
Section 6.01(6)
|
Events of Default | |
Section 6.01(7)
|
Events of Default |
(c) Section 3.03 of the Indenture is hereby amended as follows:
(i) The words “at least 30 days but not more than 60 days before a redemption
date” in the first paragraph thereof are deleted and replaced with “on or prior to
a redemption date.”
(ii) The words “at least 45 days prior to the redemption date” in the last
paragraph thereof are deleted and replaced with “on or prior to the redemption
date.”
(d) Section 5(a) of the Notes is hereby amended as follows:
The words “upon not less than 30 nor more than 60 days’ notice” are deleted and
replaced with “on or prior to a redemption date.”
(e) Section 8 of the Notes is hereby amended as follows:
The words “at least 30 days but not more than 60 days before the redemption date”
are deleted and replaced with “on or prior to the redemption date.”
(f) Section 7.12 of the Indenture is hereby replaced in its entirety with the following:
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“Each holder agrees to the appointment of Trustee, as the initial trustee for the
benefit of Holders under this Indenture. Each Holder authorizes the Trustee,
through its agents or employees, to execute and deliver any Note Documents and take
such actions on its behalf under the provisions of this Indenture and the other
Note Documents and to exercise such powers and perform such duties as are expressly
delegated to such Trustee by the terms of this Indenture and the other Note
Documents, together with such actions and powers as are reasonably incidental
thereto.”
(g) The definition of “Notes” in the preamble of the Indenture is hereby amended and
restated in its entirety to read as follows:
“Floating Rate Notes due 2012,”
and all corresponding references to “Notes” in the Notes shall mean and be references to
the Notes as defined herein; and all references to “Second Priority Senior Secured Floating
Rate Notes due 2012” in the Indenture and in the Notes shall be amended and restated to be
references to “Floating Rate Notes due 2012.”
(h) Any definition in the Indenture and Notes, reference to which would be eliminated as a
result of the elimination of the covenants set forth in Section 2(a) hereof, is hereby
deleted.
3. Indenture Ratified. Except as expressly modified hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full
force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder shall be bound hereby and entitled to the benefits hereof.
4. Operation of Amendments. This Supplemental Indenture will become effective upon the
execution and delivery of this Supplemental Indenture by the Company, the Guarantors, and the
Trustee; provided, however, that the Amendments contained herein will become
operative only subject to and upon completion of the Debt Exchange (as that term is defined in the
Support Agreement, dated as of October 23, 2009, as amended, by and among the Company and certain
holders of outstanding Notes).
5. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6. Severability. Should any provision of this Supplemental Indenture for any reason be
declared invalid or unenforceable, such decision shall not affect the validity or enforceability of
any of the other provisions of this Supplemental Indenture, which other provisions shall remain in
full force and effect and the application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or unenforceable shall be valid and
be enforced to the fullest extent permitted by law.
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7. Counterparts. This Supplemental Indenture may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. Facsimile copies of any of the pages of this Supplemental Indenture shall have
the same effect as originals.
8. Effect of Headings. The headings of sections herein are for convenience only and shall not
affect the construction of this Supplemental Indenture.
9. Trustee Not Responsible for Recitals. The recitals in this Supplemental Indenture shall be
taken as the statements solely of the Company and the Guarantors, and the Trustee assumes no
responsibility for the correctness thereof.
[Signature pages follow.]
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IN WITNESS WHEREOF, this Supplemental Indenture has been duly executed and delivered by the
parties hereto as of the date first written above.
BUILDERS FIRSTSOURCE, INC. | ||||||
a Delaware Corporation | ||||||
By: Name: |
/s/ Xxxxxx X. XxXxxxxxx
|
|||||
Title: | Senior Vice President |
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GUARANTORS | ||
BUILDERS FIRSTSOURCE — NORTHEAST GROUP, LLC, a Delaware limited
liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — TEXAS GENPAR, LLC, a Delaware limited liability
company, as Guarantor |
||
BUILDERS FIRSTSOURCE — MBS, LLC, a Delaware limited liability company,
as Guarantor |
||
BUILDERS FIRSTSOURCE — TEXAS GROUP, L.P., a Texas limited partnership,
as Guarantor |
||
BFS TEXAS, LLC, a Delaware limited liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — SOUTH TEXAS, L.P., a Texas limited partnership,
as Guarantor |
||
BUILDERS FIRSTSOURCE — TEXAS INSTALLED SALES, L.P., a Texas limited
partnership, as Guarantor |
||
BFS IP, LLC, a Delaware limited liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — INTELLECTUAL PROPERTY, L.P., a Texas limited
partnership, as Guarantor |
||
BUILDERS FIRSTSOURCE HOLDINGS, INC., a Delaware corporation, as
Guarantor |
||
BUILDERS FIRSTSOURCE — DALLAS, LLC, a Delaware limited liability
company, as Guarantor |
||
BUILDERS FIRSTSOURCE — FLORIDA, LLC, a Delaware limited liability
company, as Guarantor |
||
BUILDERS FIRSTSOURCE — FLORIDA DESIGN CENTER, LLC, a Delaware limited
liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — OHIO VALLEY, LLC, a Delaware limited liability
company, as Guarantor |
||
BFS, LLC, a Delaware limited liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — ATLANTIC GROUP, LLC, a Delaware limited
liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — SOUTHEAST GROUP, LLC, a Delaware limited
liability company, as Guarantor |
||
CCWP, INC, a South Carolina close corporation, as Guarantor |
||
BUILDERS FIRSTSOURCE — RALEIGH, LLC, a Delaware limited liability
company, as Guarantor |
||
BUILDERS FIRSTSOURCE — COLORADO GROUP, LLC, a Delaware limited
liability company, as Guarantor |
||
BUILDERS FIRSTSOURCE — COLORADO, LLC, a Delaware limited liability
company, as Guarantor |
By: Name: |
/s/ Xxxxxx X. XxXxxxxxx
|
|||||
Title: | Senior Vice President |
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WILMINGTON TRUST COMPANY, | ||||||
as Trustee | ||||||
By: Name: |
/s/ Xxxxxxxx X. Xxxxx
|
|||||
Title: | Senior Financial Services Officer |
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