SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.1
EXECUTION
SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, dated as of July 7, 2010
(this “Amendment No. 2”), is by and among Xxxxx Fargo Bank, National Association successor by
merger to Wachovia Bank, National Association, successor by merger to Congress Financial
Corporation, a national banking association, in its capacity as administrative and collateral agent
for the Lenders (as hereinafter defined) pursuant to the Loan Agreement defined below (in such
capacity, “Administrative and Collateral Agent”), the parties to the Loan Agreement as lenders
(individually, each a “Lender” and collectively, “Lenders”), BlueLinx Corporation, a Georgia
corporation (“BlueLinx”), BlueLinx Services Inc., a Georgia corporation (“BSI”), and BlueLinx
Florida LP, a Florida limited partnership (“BFLP”, and together with BlueLinx and BSI, each
individually a “Borrower” and collectively, “Borrowers”), BlueLinx Florida Holding No. 1 Inc., a
Georgia corporation (“BFH1”) and BlueLinx Florida Holding No. 2 Inc., a Georgia corporation
(“BFH2”, and together with BFH1, each individually a “Guarantor” and collectively, “Guarantors”).
W I T N E S S E T H:
WHEREAS, Administrative and Collateral Agent, Lenders, Borrowers and Guarantors have entered
into financing arrangements pursuant to which Lenders (or Administrative and Collateral 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 Amended and Restated Loan and Security Agreement,
dated August 4, 2006, by and among Administrative and Collateral Agent, Lenders, Borrowers and
Guarantors, as amended by First Amendment to Amended and Restated Loan and Security Agreement,
dated as of October 22, 2008 (as from time to time amended, modified, supplemented, extended,
renewed, restated or replaced, the “Loan Agreement”, and together with all agreements, documents
and instruments at any time executed and/or delivered in connection therewith or related thereto,
as from time to time amended, modified, supplemented, extended, renewed, restated, or replaced,
collectively, the “Financing Agreements”);
WHEREAS, Borrowers and Guarantors desire to amend certain provisions of the Loan Agreement as
set forth herein, and Administrative and Collateral Agent and Lenders are willing to agree to such
amendments on the terms and subject to the conditions set forth herein; and
WHEREAS, by this Amendment No. 2, Administrative and Collateral Agent, Lenders, 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 Definitions. As used herein or in the Loan Agreement or any of the
other Financing Agreements, 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 Second Amendment to Amended and Restated Loan and Security
Agreement, dated as of July 7, 2010, by and among Administrative and Collateral Agent, Lenders,
Borrowers and Guarantors, as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(ii) “Amendment No. 2 Effective Date” shall mean July 7, 2010.
(iii) “Applicable Margin” shall mean, at any time, as to the Interest Rate for Prime Rate
Loans and the Interest Rate for Eurodollar Rate Loans, the applicable percentage (on a per annum
basis) set forth below if the Quarterly Average Modified Adjusted Excess Availability for the
immediately preceding fiscal quarter is at or within the amounts indicated for such percentage:
| Applicable | Applicable | |||||||||||
| Quarterly Average Modified Adjusted | Prime Rate | Eurodollar Rate | ||||||||||
| Excess Availability | Margin | Margin | ||||||||||
Tier 1 |
Greater than $150,000,000 | 2.00 | % | 3.50 | % | |||||||
Tier 2 |
Greater than $100,000,000 but equal to or less than $150,000,000 | 2.25 | % | 3.75 | % | |||||||
Tier 3 |
Equal to or less than $100,000,000 | 2.50 | % | 4.00 | % | |||||||
provided, that, (A) the Applicable Margin shall be calculated and established once
each fiscal quarter and shall remain in effect until adjusted on the first day of the next fiscal
quarter, (B) each adjustment of the Applicable Margin shall be effective as of the first day of a
fiscal quarter based on the Quarterly Average Modified Adjusted Excess Availability for the
immediately preceding fiscal quarter, and (C) notwithstanding any of the foregoing, commencing on
the Amendment No. 2 Effective Date and ending on December 31, 2010, the Applicable Margin shall be
as set forth in Tier 2 above.”
(iv) “Cash Management Excess Availability” shall mean the amount, as determined by
Administrative and Collateral Agent, calculated at any time, equal to: (a) the lesser of: (i) the
Borrowing Base and (ii) the Revolving Loan Limit (when calculated after giving effect to any
Reserves other than Reserves in respect of Letter of Credit Accommodations), minus
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(b) the
sum of: (i) the amount of all then outstanding and unpaid Obligations, plus (ii) the amount
of all Reserves then established in respect of Letter of Credit Accommodations.
(v) “Cash Management Modified Adjusted Excess Availability” shall mean the amount, as
determined by Administrative and Collateral Agent, calculated at any time, equal to: (a) Cash
Management Excess Availability minus (b) the sum of: (i) the aggregate amount of
outstanding and unpaid trade payables and other obligations of each Borrower which are more than
thirty (30) days past due as of the end of the month most recently ended, plus (ii) the
amount of checks issued by each Borrower to pay trade payables and other obligations which are more
than thirty (30) days past due as of the end of the month most recently ended.
(vi) “OFAC” shall mean The Office of Foreign Assets Control of the U.S. Department of the
Treasury.
(vii) “Patriot Act” shall have the meaning set forth in Section 8.20 of the Loan Agreement.
(viii) “Quarterly Average Modified Adjusted Excess Availability” shall mean, at any time, the
average of the aggregate amount of the Modified Adjusted Excess Availability of Borrowers for the
immediately preceding fiscal quarter as calculated by Administrative and Collateral Agent.
(ix) “Sanctioned Entity” shall mean (a) a country or a government of a country, (b) an agency
of the government of a country, (c) an organization directly or indirectly controlled by a country
or its government, and (d) a Person resident in or determined to be resident in a country, in each
case, that is subject to a country sanctions program administered and enforced by OFAC.
(x) “Sanctioned Person” shall mean a Person named on the list of Specially Designated
Nationals maintained by OFAC.
(b) Amendments to Definitions.
(i) The definition of “ACH Transaction” set forth in Section 1.1 of the Loan Agreement is
hereby amended by deleting the reference to “Administrative and Collateral Agent or any of its
Affiliates” and replacing it with “any Bank Product Provider”.
(ii) The definition of “Bank Product Providers” in Section 1.12 of the Loan Agreement is
hereby amended by deleting the reference to “Wachovia and any of its” and replacing it with “any
Lender or any of their”.
(iii) All references to the term “Bank Product Reserve” shall mean any and all reserves that
Administrative and Collateral Agent may establish from time to time, (A) in its reasonable
discretion, for obligations, liabilities or indebtedness (contingent or otherwise) of Borrowers or
Guarantors to Administrative and Collateral Agent or any Bank Product Provider arising under or in
connection with any Bank Products and (B) as required by a Bank Product
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Provider and as
Administrative and Collateral Agent may agree for obligations, liabilities or indebtedness
(contingent or otherwise) of Borrowers or Guarantors to such Bank Product
Provider arising under or in connection with any Bank Products provided by such Bank Product
Provider.
(iv) All references to the term “Compliance Period” shall mean the period commencing on any
date on which Excess Availability for three (3) consecutive Business Days or shorter period to the
extent consented to by Administrative Borrower in writing (provided, that, no
Revolving Loans or Letter of Credit Accommodations will be requested, made or issued during such
three (3) day period, or shorter period, if applicable) has been less than the greater of (A)
$40,000,000 or (B) the amount equal to fifteen (15%) percent of the lesser of (1) the Borrowing
Base or (2) the Revolving Loan Limit, and ending on a subsequent date on which Excess Availability
has been equal to or greater than the greater of (C) $40,000,000 or (D) the amount equal to fifteen
(15%) percent of the lesser of (1) the Borrowing Base or (2) the Revolving Loan Limit, for the
sixtieth (60th) consecutive day.
(v) All references to the term “Eurodollar Rate” shall mean the rate of interest (rounded
upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page (or on any
successor or substitute page of such service, or any successor to or substitute for such service as
determined by Administrative and Collateral Agent) as the London interbank offered rate for
deposits in US Dollars for a term comparable to the applicable period of fourteen (14) days, one,
two, or three months as selected by a Borrower (but if more than one rate is specified on such
page, the rate will be an arithmetic average of all such rates), and in each case subject to the
reserve percentage prescribed by governmental authorities.
(vi) The definition of “Eligible Accounts” set forth in Section 1.37 of the Loan Agreement is
hereby amended by: (A) deleting the word “and” contained at the end of clause (n) of such
definition and (B) deleting the period at the end of clause (o) of such definition and replacing it
with “; and (p) the Account Debtor with respect to such Accounts is not a Sanctioned Person or
Sanctioned Entity.”
(vii) All references to the term “Eurodollar Rate Loans” shall mean any Loans or portion
thereof on which interest is payable based on the Eurodollar Rate in accordance with the terms
hereof.
(viii) All references to the term “Excess Availability” shall mean the amount, as determined
by Administrative and Collateral Agent, calculated at any time, equal to: (a) the lesser of: (i)
the Borrowing Base and (ii) the Revolving Loan Limit (when calculated after giving effect to any
Reserves other than Reserves in respect of Letter of Credit Accommodations), plus (b) the
then available amount of all Qualified Cash minus (c) the sum of: (i) the amount of all
then outstanding and unpaid Obligations, plus (ii) the amount of all Reserves then
established in respect of Letter of Credit Accommodations.
(ix) All references to the term “Final Maturity Date” shall mean January 7, 2014.
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(x) All references to the term “Information Certificate” in the Loan Agreement or any of the
other Financing Agreements shall mean the Information Certificate of Borrowers and
Guarantors provided to Administrative and Collateral Agent in connection with Amendment No. 2.
(xi) All references to the term “Interest Rate” shall mean:
(A) Subject to clause (B) of this definition below:
(1) as to Prime Rate Loans, a per annum rate equal to the then Applicable Margin for Prime
Rate Loans plus the Prime Rate, and
(2) as to Eurodollar Rate Loans, a per annum rate equal to the then Applicable Margin for
Eurodollar Rate Loans plus the Eurodollar Rate.
(B) Notwithstanding anything to the contrary contained in clause (A) of this definition, the
Applicable Margin otherwise used to calculate the Interest Rate for Prime Rate Loans and Eurodollar
Rate Loans shall be the percentage set forth in the definition of the term Applicable Margin for
each category of Loans that is then applicable plus two (2%) percent per annum, at
Administrative and Collateral Agent’s option, either (1) for the period (x) on and after the date
of termination or non-renewal hereof until such time as all Obligations are finally paid and
satisfied in full in immediately available funds, or (y) from and after the date of the occurrence
of any Event of Default, and for so long as such Event of Default is continuing or (2) on Revolving
Loans at any time in the aggregate in excess of the Borrowing Base or any other limitation with
respect thereto provided for herein (in each case whether or not such excess(es) arise or are made
with or without Administrative and Collateral Agent’s or any Lender’s knowledge or consent and
whether made before or after an Event of Default), it being understood that the Administrative and
Collateral Agent may elect to increase the Interest Rate under this clause (B) by no more than two
(2%) percent even if the events described in each of subclauses (1) and (2) above have occurred.
(xii) The definition of “Interest Period” set forth in Section 1.70 of the Loan Agreement is
hereby amended by deleting the reference to “fourteen (14) days or one (1), two (2), three (3) or
six (6) months” and replacing it with “fourteen (14) days or one (1), two (2) or three (3) months”.
(xiii) Clause (c) of the definition of “Permitted Acquisitions” set forth in Section 1.99 of
the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“(c) either (i) both before and after giving effect to such proposed
Acquisition, Borrowers’ Fixed Charge Coverage Ratio, on a
consolidated basis, shall not be less than 1.1 to 1.0; provided,
however, if Modified 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,
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Borrowers’ Fixed Charge Coverage Ratio may be calculated, for
purposes of this clause (c) only, without giving effect to (A) any
Capital Expenditures incurred by any Borrower which are otherwise
permitted to be incurred by such Borrower under the terms of this
Agreement, (B) any dividends to Parent which are otherwise permitted
to be made by BlueLinx under the terms of this Agreement, and (C)
any payment by BlueLinx to Parent of any Mortgage Proceeds
Investment in accordance with Section 9.11(f) hereof; or (ii) (A)
Administrative and Collateral Agent shall have received (1) the most
recent annual and interim financial statements with respect to the
acquired Person (in the case of a Stock Acquisition) or the acquired
business (in the case of an Asset Acquisition) and related
statements of income and cash flows showing positive EBITDA of such
acquired Person or acquired business (for purposes of this clause
(c)(ii), EBITDA shall be calculated in accordance with Section 1 but
substituting each reference to the Borrowers and their Subsidiaries
in the definitions of “EBITDA” and “Net Income” with the acquired
Person and its Subsidiaries (or in the case of an Asset Acquisition,
the acquired business)) for the immediately preceding twelve (12)
months, as applicable, and (2) due diligence undertaken by Borrowers
or third parties in connection with such proposed acquisition
supporting such calculation of EBITDA, to the extent the same can be
provided without violation of any applicable confidentiality
restrictions, in form and substance reasonably satisfactory to
Administrative and Collateral Agent, and (B) Borrowers shall have
Modified Adjusted Excess Availability, determined on a pro forma
basis, in an amount equal to or greater than $150,000,000
immediately after giving effect to the consummation of the proposed
acquisition and at all times for the thirty (30) day period prior to
the closing date for such Acquisition;”
(xiv) All references to the term “Prime Rate” shall mean the highest of (A) the rate of
interest publicly announced by Xxxxx Fargo Bank, National Association as its “prime rate”, subject
to each increase or decrease in such prime rate, effective as of the day any such change occurs,
(B) the federal funds effective rate from time to time plus .50% or (C) the Eurodollar Rate (and to
the extent based on the London interbank offered rate, then for a one (1) month period) plus 1.50%.
(xv) All references to the term “Revolving Loan Threshold Limit” shall mean the amount,
calculated at any time, equal to Four Hundred Million Dollars ($400,000,000), subject to adjustment
as provided in Section 2.1(c) and 2.6 hereof.
(xvi) All references to the term “Sole Lead Arranger” shall mean Xxxxx Fargo Capital Finance,
LLC.
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(xvii) All references to the term “Sole Syndication Agent” shall mean Regions Bank.
(xviii) All references to the term “Sponsor Affiliated Lenders” shall mean Ableco Finance LLC,
a Delaware limited liability company, Xxxxxxxxx L.L.C., a New York limited liability company, and
funds and managed accounts which are managed or advised by such Person, Sponsor or an Affiliate of
such Person or Sponsor; provided, that, such Person executes a waiver in form and
substance reasonably satisfactory to the Administrative and Collateral Agent that it shall have no
right so long as such Person is an Affiliate of BlueLinx Corporation, Parent or Sponsor: (A) to
consent to any amendment, modification, waiver, consent or other such action with respect to any of
the terms of this Agreement or any other Financing Agreement, (B) to require Administrative and
Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with
respect to this Agreement or any other Financing Agreement, (C) otherwise to vote on any matter
related to this Agreement or any other Financing Agreement, or (D) to attend any meeting with
Administrative and Collateral Agent or any Lender or receive any information from the
Administrative and Collateral Agent or any Lender; except, that, no amendment,
modification or waiver to this Agreement or the other Financing Agreements shall deprive any
Sponsor Affiliated Lender of its Pro Rata Share of any payments to which the Lenders are entitled
to share on a pro rata basis under this Agreement.
(xix) Section 1.148 of the Loan Agreement is hereby deleted in its entirety and replaced with
the following:
“1.148 “Xxxxx Fargo” shall mean Xxxxx Fargo Bank, National
Association successor by merger to Wachovia Bank, National
Association, in its individual capacity, and its successors and
assigns.”
(xx) All references to the term “Wachovia” contained in the Loan Agreement are hereby deleted
and each such reference is replaced with “Xxxxx Fargo”.
(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. Revolving Loans. Section 2.1(c) of the Loan Agreement is hereby amended by
deleting the reference to “twenty (20)” contained in clause (i) thereof and replacing it with “five
(5)”.
3. Letter of Credit Accommodations. Section 2.2(b) of the Loan Agreement is hereby
amended by deleting the reference to “the ‘Applicable Eurodollar Rate Margin’ then in effect
pursuant to Section 1.71 hereof” contained in clause (ii) thereof and replacing it with “the then
Applicable Margin for Eurodollar Rate Loans”.
4. Term Loans. Section 2.5 of the Loan Agreement is hereby deleted in its entirety
and
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replaced with the following:
“2.5 [Reserved].”
5. Increase in Revolving Loan Threshold Limit. Section 2 of the Loan Agreement is
hereby amended by adding a new Section 2.6 to read as follows:
“2.6 Increase in Revolving Loan Threshold Limit.
(a) Administrative Borrower may, at any time, deliver a written
request to Administrative and Collateral Agent to increase the
Revolving Loan Threshold Limit. Any such written request shall
specify the amount of the increase in the Revolving Loan Threshold
Limit that Borrowers are requesting, provided, that,
(i) in no event shall the aggregate amount of any such increase in
the Revolving Loan Threshold Limit cause the Revolving Loan
Threshold Limit to exceed $500,000,000, (ii) such request shall be
for an increase of not less than $20,000,000, and (iii) in no event
shall there be more than four (4) such increases during the term of
this Agreement.
(b) Upon the receipt by Administrative and Collateral Agent of any
such written request, Administrative and Collateral Agent shall
notify each of the Lenders of such request and each Lender shall
have the option (but not the obligation) to increase the amount of
its Commitment by an amount up to the amount of the increase in the
Revolving Loan Threshold Limit requested by Administrative Borrower
as set forth in the notice from Administrative and Collateral Agent
to such Lender. Each Lender shall notify Administrative and
Collateral Agent within fifteen (15) days after the receipt of such
notice from Administrative and Collateral Agent whether it is
willing to so increase its Commitment, and if so, the amount of such
increase; provided, that, (i) the minimum increase
in the Commitments of each such Lender providing the additional
Commitments shall equal or exceed $5,000,000 (or such Lender’s Pro
Rata Share of the amount of the requested increase, if less than
$5,000,000), and (ii) no Lender shall be obligated to provide such
increase in its Commitment and the determination to increase the
Commitment of a Lender shall be within the sole and absolute
discretion of such Lender. If the aggregate amount of the increases
in the Commitments received from the Lenders does not equal or
exceed the amount of the increase in the Revolving Loan Threshold
Limit requested by Administrative Borrower, Administrative and
Collateral Agent may, after consultation with Administrative
Borrower, seek additional increases from Lenders or Commitments from
such Eligible Transferees as it may
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determine, each of which shall be reasonably acceptable to
Administrative Borrower. In the event Lenders (or Lenders and any
such Eligible Transferees, as the case may be) have committed in
writing to provide increases in their Commitments or new Commitments
in an aggregate amount in excess of the increase in the Revolving
Loan Threshold Limit requested by Borrowers or permitted hereunder,
Administrative and Collateral Agent shall then have the right to
allocate such Commitments, first to Lenders and then to Eligible
Transferees, in such amounts and manner as Administrative and
Collateral Agent may determine, after consultation with
Administrative Borrower.
(c) The Revolving Loan Threshold Limit shall be increased by the
amount of the increase in Commitments from Lenders and new
Commitments from Eligible Transferees, in each case selected in
accordance with Section 2.6(a) above, for which Administrative and
Collateral Agent has received a joinder to the Financing Agreements
or other documentation satisfactory to Administrative and Collateral
Agent, in each case as Administrative and Collateral Agent and
Administrative Borrower may agree (but subject to the satisfaction
of the conditions set forth below), whether or not the aggregate
amount of the increase in Commitments and new Commitments, as the
case may be, equal or exceed the amount of the increase in the
Revolving Loan Threshold Limit requested by Administrative Borrower
in accordance with the terms hereof, effective on the date that each
of the following conditions have been satisfied:
(i) Administrative and Collateral Agent shall have received
from each Lender or Eligible Transferee that is providing an
additional Commitment as part of the increase in the Revolving Loan
Threshold Limit, a joinder to the Financing Agreements or other
documentation satisfactory to Administrative and Collateral Agent
duly executed by such Lender or Eligible Transferee and
Administrative Borrower, provided, that, the
aggregate Commitments set forth in such Assignment and Acceptance(s)
shall be not less than $20,000,000;
(ii) the conditions precedent to the making of Revolving Loans
set forth in Section 4.2 shall be satisfied as of the date of the
increase in the Revolving Loan Threshold Limit, both before and
after giving effect to such increase;
(iii) at Administrative and Collateral Agent’s option,
Administrative and Collateral Agent shall have received an opinion
of counsel to Borrowers in form and substance and from counsel
reasonably satisfactory to Administrative and Collateral Agent and
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Lenders addressing such matters as Administrative and
Collateral Agent may reasonably request (including an opinion as to
no conflicts with other Indebtedness);
(iv) such increase in the Revolving Loan Threshold Limit on the
date of the effectiveness thereof shall not violate any applicable
law, regulation or order or decree of any court or other
Governmental Authority and shall not be enjoined, temporarily,
preliminarily or permanently;
(v) there shall have been paid to each Lender and Eligible
Transferee providing an additional Commitment in connection with
such increase in the Revolving Loan Threshold Limit all fees due and
payable to such Person on or before the effectiveness of such
increase; and
(vi) there shall have been paid to Administrative and
Collateral Agent, for the account of the Administrative and
Collateral Agent and Lenders (in accordance with any agreement among
them) all fees and expenses (including reasonable fees and expenses
of counsel) due and payable pursuant to any of the Financing
Agreements on or before the effectiveness of such increase.
(d) As of the effective date of any such increase in the Revolving
Loan Threshold Limit, each reference to the term Revolving Loan
Threshold Limit herein, and in any of the other Financing Agreements
shall be deemed amended to mean the amount of the Revolving Loan
Threshold Limit specified in the most recent written notice from
Administrative and Collateral Agent to Administrative Borrower of
the increase in the Revolving Loan Threshold Limit.
(e) On or following the effective date of any increase in the
Revolving Loan Threshold Limit pursuant to this Section 2.6,
Administrative and Collateral Agent shall provide notice thereof to
Lenders, and at Administrative and Collateral Agent’s option,
Borrowers, Guarantors and Administrative and Collateral Agent shall
enter into an amendment to this Agreement providing for such
increase in the Revolving Loan Threshold Limit and the increases in
the Excess Availability thresholds set forth in Section 2.6(f)
hereof, and Administrative and Collateral Agent is hereby authorized
to enter into such amendment on behalf of Lenders.
(f) As of the effective date of any such increase in the Revolving
Loan Threshold Limit, each reference in this Agreement to an amount
of “Excess Availability” or “Modified Adjusted Excess Availability”
(other than (i) any such reference contained in
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Section 7.1(a)(iii) of this Agreement, (ii) in the determination of
whether a Compliance Period exists under Section 7.3(d) or Section
9.20 of this Agreement, (iii) any reference to an amount of
Quarterly Average Modified Excess Availability used in the
calculation of the Applicable Margin, (iv) any such reference
contained in Section 1.99 of this Agreement, (v) any such reference
contained in Section 9.9(j) of this Agreement, (vi) any such
reference contained in Section 9.9(q) of this Agreement, (vii) any
such reference contained in Section 9.11(f) of this Agreement,
(viii) any such reference contained in Section 9.12(b) of this
Agreement and (ix) any such reference contained in Section
9.11(e)(iii) of this Agreement) shall, automatically and without any
further action, be deemed to be increased so that the ratio of each
amount of Excess Availability or Modified Adjusted Excess
Availability, as applicable, to the amount of the Revolving Loan
Threshold Amount after such increase in the Revolving Loan Threshold
Amount remains the same as the ratio of such the amount of Excess
Availability or Modified Adjusted Excess Availability, as
applicable, to the amount of the Revolving Loan Threshold Amount
prior to such increase in the Revolving Loan Threshold Amount.
(g) In no event shall the Administrative and Collateral Agent be
obligated to continue to solicit Commitments for the requested
increase in the Revolving Loan Threshold Limit if such Commitments
have not been received within forty-five (45) days after the date of
the request by Administrative Borrower for the increase or such
later date as Administrative and Collateral Agent and Administrative
Borrower may agree, provided, that, the foregoing
shall not restrict the Borrowers and their Affiliates from
continuing to solicit Commitments for such increase.
6. Interest. Section 3.1(b)(vi) of the Loan Agreement is hereby amended by deleting
the reference to “Adjusted Eurodollar Rate” contained therein and replacing it with “Eurodollar
Rate”.
7. Fees. Section 3.3(b) of the Loan Agreement is hereby amended by deleting such
Section in its entirety and replacing it with the following:
“(b) for the ratable benefit of the Revolving Loan Lenders, payable
on the first Business 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
three-quarters of one (0.75%) percent (on a per annum basis)
calculated upon the amount by which the Revolving Loan Limit exceeds
the average daily principal balance of the outstanding
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Revolving Loans and Letter of Credit Accommodations during the
immediately preceding month (or part thereof) so long as any
Obligations are outstanding. Such fees shall be calculated based on
a three hundred sixty (360) day year and actual days elapsed.
8. Collection of Accounts. Section 6.3(a) of the Loan Agreement is hereby amended by
deleting the third sentence of such Section in its entirety and replacing it with the following:
“Notwithstanding anything to the contrary contained herein or in any
Deposit Account Control Agreement relating to a Blocked Account,
Administrative and Collateral Agent shall not issue to any bank at
which a Blocked Account is maintained a notice of sole control or
other such instruction providing that the funds in such deposit
accounts are to be automatically on each Business Day remitted
directly to the Payment Account and that Borrowers are not permitted
to access or otherwise direct such funds unless either (i) an Event
of Default has occurred, (ii) a Default with respect to non-payment
of the Obligations has occurred or (iii) Cash Management Excess
Availability is less than the greater of (A) $40,000,000 or (B) the
amount equal to fifteen (15%) percent of the lesser of (1) the
Borrowing Base or (2) the Revolving Limit, for three (3) consecutive
Business Days or shorter period to the extent consented to by
Administrative Borrower in writing (provided that no Revolving Loans
or Letter of Credit Accommodations will be requested, made or issued
during such three (3) Business Day period, or shorter period, if
applicable); provided, that, if either (x) such
Event of Default is subsequently waived in accordance with the terms
of this Agreement or such Default did not mature into an Event of
Default or (y) Cash Management Modified Adjusted Excess Availability
is greater than the greater of (A) $40,000,000 or (B) the amount
equal to fifteen (15%) percent of the lesser of (1) the Borrowing
Base or (2) the Revolving Loan Limit, at all times thereafter for a
period of sixty (60) consecutive days and no Event of Default or
Default with respect to non-payment of the Obligations has occurred,
Administrative and Collateral Agent shall promptly rescind such
notice of sole control or other such instructions (any such period
during which the Blocked Accounts are subject to the sole control of
Administrative and Collateral Agent and Borrowers are not permitted
to access the Blocked Accounts is referred to herein is a “Blocked
Account Activation Period”).”
9. Payments. Section 6.4(a) of the Loan Agreement is hereby amended by deleting the
third sentence thereof in its entirety (including clauses (i) and (ii) thereof) and replacing it
with the following:
-12-
“Administrative and Collateral Agent shall apply payments received
or collected from Borrowers or Guarantors or for the account of
Borrowers or Guarantors (including the monetary proceeds of
collections or of realization upon any Collateral) as follows:
first, to pay in full all indemnities or expense
reimbursements then due to Administrative and Collateral Agent from
Borrowers and Guarantors (other than fees); second, ratably
to pay in full indemnities or expense reimbursements then due to any
other Agent or Lenders from Borrowers and Guarantors (other than
fees); third, ratably to pay in full all fees payable by
Borrowers under the Financing Agreements then due, excluding any
fees payable to any Bank Product Provider arising under or in
connection with any Bank Products provided by such Bank Product
Provider; fourth, ratably to pay in full interest due in
respect of the Loans; fifth, to pay or prepay principal in
respect of Special Agent Advances; sixth, to pay principal
in respect of the Revolving Loans then outstanding (whether or not
then due) until paid in full; seventh, at any time an Event
of Default exists or has occurred and is continuing, to provide cash
collateral for any Letter of Credit Accommodations or other
contingent Obligations (but not including for this purpose any
Obligations arising under or pursuant to any Bank Products);
eighth, to pay any Obligations due in respect of the Bank
Products; and ninth, to pay any other Obligations then due,
in such order and manner as Administrative and Collateral Agent
determines.”
10. Collateral Reporting. Section 7.1(a) of the Loan Agreement is hereby amended by
deleting clause (iii) thereof in its entirety and replacing it with the following:
“(iii) monthly, a detailed calculation of the Borrowing Base;
provided, however, if at any time Excess
Availability is less than $80,000,000 and until such time as Excess
Availability has thereafter been $80,000,000 or more for five (5)
consecutive Business Days, Borrowers shall provide Administrative
and Collateral Agent with a detailed calculation of the Borrowing
Base on a weekly basis.”
11. Inventory Covenants. Section 7.3 of the Loan Agreement is hereby amended by
deleting clause (d) thereof in its entirety and replacing it with the following:
“(d) upon Administrative and Collateral Agent’s request, Borrowers
shall deliver or cause to be delivered to Administrative and
Collateral Agent a full written appraisal as to the Inventory in
form, scope and methodology reasonably acceptable to Administrative
and Collateral Agent and by an appraiser acceptable to
Administrative and Collateral Agent, addressed to
-13-
Administrative and Collateral Agent and Lenders and upon which
Administrative and Collateral Agent and Lenders are expressly
permitted to rely, (i) two (2) times in any twelve (12) month period
at Borrowers’ expense, (ii) in addition to the appraisals delivered
pursuant to clause (i) above, one (1) additional time in such twelve
(12) month period at Borrowers’ expense if a Compliance Period is
then in effect, and (iii) in addition to the appraisals delivered
pursuant to clauses (i) and (ii) above, at any time or times as
Administrative and Collateral Agent may request at Borrowers’
expense upon the occurrence and during the continuance of an Event
of Default;”
12. Representations and Warranties. Section 8 of the Loan Agreement is hereby amended
by adding the following new Sections at the end thereof:
“8.20 Patriot Act. To the extent applicable, each Borrower
and Guarantor is in compliance, in all material respects, with the
(a) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (b) Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the
“Patriot Act”). No part of the proceeds of the Loans will be used
by any Borrower or Guarantor or any of their Affiliates, directly or
indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended.
8.21 OFAC. No Borrower or Guarantor nor any of their
respective Subsidiaries is in violation of any of the country or
list based economic and trade sanctions administered and enforced by
OFAC. No Borrower or Guarantor nor any of their respective
Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b)
has its assets located in Sanctioned Entities, or (c) derives
revenues from investments in, or transactions with Sanctioned
Persons or Sanctioned Entities. No proceeds of any Loan will be
used to fund any operations in, finance any investments or
activities in, or make any payments to, a Sanctioned Person or a
Sanctioned Entity.”
13. Indebtedness. Section 9.9(j) of the Loan Agreement is hereby amended by deleting
such Section in its entirety and replacing it with the following:
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“(j) to the extent subject to the intercompany subordination
agreement described in Section 4.1(i) and otherwise permitted under
Section 9.10 hereof: (i) Indebtedness of any Borrower or any
Guarantor or any of their respective Subsidiaries at any time owing
to any other Subsidiary or any Borrower or any Guarantor and (ii)
Indebtedness of BlueLinx at any time owing to Parent (other than
Indebtedness permitted under Section 9.9(q) hereof);
provided, that, BlueLinx shall not make any payments
in respect thereof (whether characterized as principal, interest or
otherwise) unless both immediately before and after giving effect go
any such payment each of the following conditions is satisfied: (A)
Modified Adjusted Excess Availability shall be equal to or greater
than $70,000,000; (B) no Default or Event of Default shall have
occurred and be continuing or would result from such payment; (C)
Borrowers’ Fixed Charge Coverage Ratio, on a consolidated basis,
shall not be less than 1.1 to 1.0; (D) Administrative Borrower shall
have provided Administrative and Collateral Agent with at least ten
(10) Business Days prior written notice of any such payment; and (E)
prior to the making of any such payment, Administrative and
Collateral Agent shall have received Borrowers’ unaudited internally
prepared financial statements for the month immediately preceding
the date of such payment, accompanied by a certificate of
Administrative Borrower’s chief financial officer as to Borrowers’
compliance with the terms of this Section 9.9(j)(ii) together with
such supporting documentation therefor as Administrative and
Collateral Agent may reasonably request, except,
that, the condition to any payment set forth in clause (C)
above (and, with respect to clause (1) below, the conditions set
forth in clauses (D) and (E) above) need not be satisfied in respect
of any payment of Indebtedness made on and after the Amendment No. 2
Effective Date so long as such payment: (1) is in respect of
Indebtedness attributable to general operating expenses incurred by
Parent on behalf of BlueLinx and its Subsidiaries; provided,
that, all such payments permitted to be made pursuant to
this clause (1) (together with any dividends paid during such fiscal
year of BlueLinx pursuant to Section 9.11(d)(ii)) shall not exceed
$6,000,000 in the aggregate in any fiscal year of BlueLinx; (2) is
in an aggregate amount not to exceed $15,000,000 during the term of
the Agreement; provided, that, an amount equal to
one hundred (100%) percent of the amount of each such payment of
Indebtedness is contemporaneously used by Parent (or a Subsidiary of
Parent that is not a Borrower or Guarantor) to purchase real
property (in an arm’s length transaction and for a purchase price
not in excess of the fair market value of such real
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property) to be used by Borrowers and Guarantors; or (3) is in an
aggregate amount not to exceed $7,600,000 during the term of the
Agreement provided, that, an amount equal to one
hundred (100%) percent of the amount of each such payment of
Indebtedness is contemporaneously used by Parent to make a regularly
scheduled payment of principal under the Mortgage Loan Agreement (as
in effect on the Amendment No. 2 Effective Date).”
14. Dividends and Redemptions. Section 9.11(e) of the Loan Agreement is hereby
amended by deleting clauses (iii) and (iv) thereof in their entirety and replacing them with the
following:
“(iii) both immediately before and after giving effect to the
payment of any such dividends, (1) Modified Adjusted Excess
Availability shall be at least $70,000,000 and (2) Borrowers’ Fixed
Charge Coverage Ratio, on a consolidated basis, shall not be less
than 1.1 to 1.0; except, that, the condition to the
payment of such dividends set forth in this clause (iii) need not be
satisfied in respect of dividends in an aggregate amount of up to
$15,000,000 so long as both for each of the thirty (30) days
immediately preceding any such payment and immediately after giving
effect to any such payment, Modified Adjusted Excess Availability
shall be at least $100,000,000, (iv) prior to the making of any such
dividend, Administrative and Collateral Agent shall have received
BlueLinx’s unaudited internally prepared financial statements for
the fiscal month immediately preceding the date of such dividend,
accompanied by a certificate of BlueLinx’s chief financial officer
as to BlueLinx’s compliance with the terms of this Section 9.11(e)
together with such supporting documentation therefor as
Administrative and Collateral Agent may reasonably request, and (v)
as of the Amendment No. 2 Effective Date, BlueLinx has not declared
or paid any dividends pursuant to this Section 9.11(e) during the
2010 fiscal year of BlueLinx;”
15. Transactions with Affiliates. Section 9.12(b)(vi) of the Loan Agreement is hereby
amended in its entirety and replacing it with the following:
“(vi) any amounts permitted to be paid pursuant to Section
9.9(j)(ii) hereof.”
16. Fixed Charge Coverage Ratio. Section 9.17 of the Loan Agreement is hereby amended
by deleting clause (a) of such Section in its entirety and replacing it with the following:
“(a) Fixed Charge Coverage Ratio. for which Administrative
and Collateral Agent has received financial statements of BlueLinx
and its Subsidiaries, maintain, for the most recently ended period
of twelve (12) consecutive fiscal months, on a consolidated basis, a
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Fixed Charge Coverage Ratio of not less than 1.10 to 1.0.”
17. Costs and Expenses. Section 9.20 of the Loan Agreement is hereby amended by
deleting clause (f) of such Section in its entirety and replacing it with the following:
“(f) all out-of-pocket expenses and costs heretofore and from time
to time hereafter incurred by Administrative and Collateral Agent
during the course of periodic field examinations of the Collateral
and such Borrower’s or such Guarantor’s operations, plus a per diem
charge at the then standard rate of Administrative and Collateral
Agent, per person per day for Administrative and Collateral Agent’s
examiners in the field and office (which rate is currently $1,000
per person per day); provided, however, unless a
Compliance Period is in effect or an Event of Default exists,
Borrowers and Guarantors shall not be required to pay such costs and
expenses associated with more than three (3) such field examinations
in any twelve (12) month period;”
18. Amendments and Waivers.
(a) Section 11.3(a)(i) of the Loan Agreement is hereby amended by (i) deleting the word “or”
at the end of clause (D) thereof, (ii) deleting the “;” at the end of clause (E) thereof and
replacing it with “; or” and (iii) adding a new clause (F) immediately following clause (E) thereof
to read as follows:
“(F) amend, modify or waive any of the provisions of Section 6.4;”
(b) Section 11.3(a)(ii)(C) of the Loan Agreement is hereby amended by deleting the reference
to “6.4,” contained therein.
19. Collateral Matters.
(a) Section 12.11(a) of the Loan Agreement is hereby amended by deleting the reference to “the
Required Super-Majority Lenders” contained therein and replacing it with “all Lenders other than
the Sponsor Affiliated Lenders”.
(b) Section 12.11(b) of the Loan Agreement is hereby amended by deleting clause (iv) thereof
in its entirety and replacing it with the following:
“(iv) having a value of less than $25,000,000 so long as at the time
of any such release no Event of Default exists or is continuing and
except as otherwise permitted under this Section 12.11;”
20. Failure to Respond Deemed Consent. Section 12.13 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
“12.13 [Reserved].”
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21. Legal Representation of Agents. Section 12.14 of the Loan Agreement is hereby
amended by deleting such Section in its entirety and replacing it with the following:
“12.14 Legal Representation of Agents. In connection with
the negotiation, drafting, and execution of this Agreement and the
other Financing Agreements, or in connection with future legal
representation relating to loan administration, amendments,
modifications, waivers, or enforcement of remedies, Otterbourg,
Steindler, Houston & Xxxxx, P.C. (“OSH&R”) only has represented and
only shall represent Xxxxx Fargo in its capacity as an Agent and as
a Lender. Each other Lender hereby acknowledges that OSH&R does not
represent it in connection with any such matters.”
22. Notices. Section 13.3 of the Loan Agreement is hereby amended by deleting the
notice address for Agents in its entirety and replacing it with the following:
| If to Agents: | Xxxxx Fargo Bank, National Association 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Portfolio Manager Telephone No.: (000) 000-0000 Telecopy No.: (000) 000-0000 |
|||
| with a copy to: | Otterbourg, Steindler, Houston & Xxxxx, P.C. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Attention: Xxxxxxx X. Xxxxx, Esq. Telephone No.: (000) 000-0000 Telecopy No.: (000) 000-0000 |
23. USA Patriot Act. Section 13 of the Loan Agreement is hereby amended by adding a
new Section 13.11 at the end thereof to read as follows:
“13.11 USA Patriot Act. Each Lender that is subject to the
requirements of the Patriot Act hereby notifies Borrowers and
Guarantors that pursuant to the requirements of the Patriot Act, it
is required to obtain, verify and record information that identifies
Borrowers and Guarantors, which information includes the name and
address of Borrowers and Guarantors and other information that will
allow such Lender to identify Borrowers and Guarantors in
accordance with the Patriot Act.”
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24. Schedules. Each of the Schedules to the Loan Agreement is hereby deleted in its
entirety and replaced with the corresponding Schedule in the form attached hereto as Exhibit A.
25. Cover Page. The cover page to the Loan Agreement is hereby deleted in its
entirety and replaced with the corresponding cover page in the form attached hereto as Exhibit B.
26. Bookrunners. As of the Amendment No. 2 Effective Date, each of Xxxxx Fargo
Capital Finance, LLC and Regions Bank is designated as a “Joint Bookrunner” under the Financing
Agreements. Neither Xxxxx Fargo Capital Finance, LLC nor Regions Bank shall have any right, power,
obligation, liability, responsibility or duty under the Loan Agreement or any of the other
Financing Agreements other than those applicable to all Lenders as such. Without limiting the
foregoing, neither Xxxxx Fargo Capital Finance, LLC nor Regions Bank shall have or be deemed to
have any fiduciary relationship with any Lender and no Lender shall be deemed to have relied, nor
shall any Lender rely, on Xxxxx Fargo Capital Finance, LLC or Regions Bank in deciding to enter
into this Amendment No. 2 or in taking or not taking action thereunder, under the Loan Agreement or
any of the other Financing Agreements.
27. Restatement of Term Loans as Revolving Loans.
(a) Each Borrower and Guarantor acknowledges that the principal amount of the Term Loans as of
the date hereof is $6,000,000 and all Obligations in respect of the Term Loans are unconditionally
owing by Borrowers to Administrative and Collateral Agent and Lenders as of the date hereof,
without offset, defense or counterclaim of any kind, nature and description whatsoever.
(b) Borrowers and Guarantors hereby acknowledge agree that as of the Amendment No. 2 Effective
Date, the Term Loans in the principal amount of $6,000,000 outstanding as of the Amendment No. 2
Effective Date shall (i) be deemed to constitute Revolving Loans, (ii) be repaid, together with
interest and other amounts payable thereunder, in accordance with the terms of the Loan Agreement
regarding Revolving Loans and (iii) be secured by all of the Collateral. The restatement contained
herein shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or
extinguish, or constitute a novation in respect of, any of the Indebtedness and other obligations
and liabilities of Borrowers or Guarantors evidenced by or arising under the Loan Agreement and the
other Financing Agreements, and the liens and security interests of Administrative and Collateral
Agent securing such Indebtedness and other obligations and liabilities, which shall not in any
manner be impaired, limited, terminated, waived or released, but shall continue in full force and
effect in favor of Administrative and Collateral Agent for the benefit of itself and Lenders.
28. Representations and Warranties. Borrowers and Guarantors, jointly and severally,
represent and warrant with and to Administrative and Collateral Agent and Lenders as follows, which
representations and warranties shall survive the execution and delivery hereof, the truth and
correctness of, in all material respects, together with the representations and warranties in the
other Financing Agreements, being a continuing condition of the making of any Loans by Lenders (or
Administrative and Collateral Agent on behalf of Lenders) to Borrowers:
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(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 (collectively, together with this Amendment No. 2, the
“Amendment Documents”) has been duly authorized, executed and delivered by all necessary corporate
or limited partnership 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 each Amendment Document (i) are all within each
Borrower’s and Guarantor’s corporate or limited partnership powers, as applicable, and (ii) are not
in contravention of law or the terms of any Borrower’s or Guarantor’s certificate or articles of
incorporation, by laws, or other organizational documentation, or any 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;
(d) the resolutions of the Board of Directors or Managers or the General Partner of each
Borrower and Guarantor, as applicable, delivered to Administrative and Collateral Agent by such
Borrower or Guarantor on the date of the effectiveness of the Loan Agreement have not been revoked
and are in full force and effect; and
(e) 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 in all material respects as of such date.
29. [Reserved].
30. 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
Administrative and Collateral Agent:
(a) Administrative and Collateral Agent shall have received counterparts of this Amendment No.
2, duly authorized, executed and delivered by Borrowers, Guarantors and each Lender;
(b) Administrative and Collateral Agent shall have received, in form and substance
-20-
reasonably satisfactory to Administrative and Collateral Agent, an Information Certificate
duly authorized and delivered by Borrowers and Guarantors;
(c) Administrative and Collateral Agent shall have received the fees referred to in the
Amendment Fee Letter, dated of even date herewith, by and among Borrowers, Administrative and
Collateral Agent and the Sole Lead Arranger;
(d) Administrative and Collateral Agent shall have received a true and correct copy of each
consent, waiver or approval (if any) to or of this Amendment No. 2, which Borrowers and Guarantors
are required to obtain from any other Person, and such consent, approval or waiver (if any) shall
be in form and substance reasonably satisfactory to Administrative and Collateral Agent;
(e) Administrative and Collateral Agent shall have received from Borrowers and Guarantors: (i)
all financial information, projections, budgets, business plans, cash flows and such other
information as Administrative and Collateral Agent shall have reasonably requested, including: (A)
projected monthly balance sheets, income statements, statements of cash flows and availability of
Borrowers and Guarantors for the period through the end of the 2010 fiscal year, (B) projected
annual balance sheets, income statements, statements of cash flows and availability of Borrowers
and Guarantors through the end of the 2014 fiscal year, in each case as to the projections
described in clauses (A) and (B), with the results and assumptions set forth in all of such
projections in form and substance satisfactory to Administrative and Collateral Agent
(Administrative and Collateral Agent acknowledges that it has received all of the financial
projections referred to in clauses (A) and (B) and that they are satisfactory), and (C) any updates
or modifications to the projected financial statements of Borrowers and Guarantors previously
received by Administrative and Collateral Agent, in each case in form and substance reasonably
satisfactory to Administrative and Collateral Agent, and (ii) current agings of receivables,
current perpetual inventory records and/or rollforwards of accounts and inventory through May 31,
2010, together with supporting documentation, each in form and substance reasonably satisfactory to
Administrative and Collateral Agent;
(f) No Material Adverse Change shall have occurred since March 31, 2010 and no material
pending or threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claims
with respect to Borrowers and Guarantors shall exist which if adversely determined against any
Borrower or any Guarantor would cause a Material Adverse Change; and
(g) No Default or Event of Default shall exist or have occurred and be continuing.
31. Effect of Amendment No. 2. 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 Amendment No. 2 Effective Date 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 conflict between the terms of this Amendment No. 2 and the other Financing
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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.
32. Governing Law. The validity, interpretation and enforcement of this Amendment No.
2 and any dispute arising out of the relationship between 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.
33. Jury Trial Waiver. BORROWERS, GUARANTORS, AGENT AND LENDERS EACH HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
AMENDMENT NO. 2 OR ANY OF THE OTHER FINANCING AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT NO. 2 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. BORROWERS,
GUARANTORS, AGENT AND LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT BORROWERS, GUARANTORS,
AGENT OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT NO. 2 WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
34. 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.
35. Waiver, Modification, Etc. No provision or term of this Amendment No. 2 may be
modified, altered, waived, discharged or terminated orally, but only by an instrument in writing
executed by the party against whom such modification, alteration, waiver, discharge or termination
is sought to be enforced.
36. Further Assurances. Borrowers and Guarantors shall execute and deliver such
additional documents and take such additional action as may be reasonably requested by
Administrative and Collateral Agent to effectuate the provisions and purposes set forth in this
Amendment No. 2.
37. 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.
38. Headings. The headings listed herein are for convenience only and do not
constitute
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matters to be construed in interpreting this Amendment No. 2.
39. 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 a
substantially similar electronic transmission shall have the same force and effect as the 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 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 this Amendment No. 2.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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.
| BORROWERS |
||||||||
| BLUELINX CORPORATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BLUELINX FLORIDA LP | ||||||||
| By: | BlueLinx Florida Holding No. 2 Inc., its General Partner |
|||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BLUELINX SERVICES INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| GUARANTORS | ||||||||
| BLUELINX FLORIDA HOLDING NO. 1 INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BLUELINX FLORIDA HOLDING NO. 2 INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
[SIGNATURES CONTINUED ON NEXT PAGE]
[Second Amendment to Loan and Security Agreement]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| AGENTS AND LENDERS | ||||||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as successor by merger to Wachovia Bank, National Association as successor by merger to Congress Financial Corporation, as Administrative and Collateral Agent and a Lender |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BANK OF AMERICA, N.A., as a Documentation Agent and a Lender |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), as a Documentation Agent and a Lender |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| REGIONS BANK, as Syndication Agent and a Lender |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
[SIGNATURES CONTINUED ON NEXT PAGE]
[Second Amendment to Loan and Security Agreement]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BURDALE CAPITAL FINANCE, INC., as a Lender |
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[Second Amendment to Loan and Security Agreement]
