Attached files
file | filename |
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8-K - FORM 8-K - BlueLinx Holdings Inc. | c21523e8vk.htm |
EX-10.1 - EXHIBIT 10.1 - BlueLinx Holdings Inc. | c21523exv10w1.htm |
EX-99.1 - EXHIBIT 99.1 - BlueLinx Holdings Inc. | c21523exv99w1.htm |
Exhibit 10.2
FOURTH AMENDMENT
to
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
to
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, dated as of August 11,
2011 (this Amendment No. 4), is by and among Wells Fargo Bank, National Association, 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, Second Amendment to Amended and Restated Loan and Security Agreement,
dated as of July 7, 2010 and Third Amendment to Amended and Restated Loan and Security Agreement,
dated as of May 10, 2011 (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. 4, 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. 4 shall mean Fourth Amendment to Amended and Restated Loan and
Security Agreement, dated as of August 11, 2011, 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) BlueLinx Canada shall mean BlueLinx Building Products Canada Ltd., a company
organized under the laws of British Columbia, together with its Subsidiaries (if any), and their
respective successors and assigns.
(iii) CIBC shall mean CIBC Asset-Based Lending Inc. and its successors and assigns.
(iv) U.S. Dollars, US$ and $ shall each mean lawful currency of
the United States of America.
(b) Interpretation. For purposes of this Amendment No. 4, 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. 4.
2. Liens. Section 9.8 of the Loan Agreement is hereby amended by (a) deleting the word
and at the end of clause (l) thereof, (b) deleting the period at the end of clause (m) thereof
and replacing it with ; and and (c) adding a new clause (n) immediately following clause (m)
thereof to read as follows:
(m) the security interests and liens of CIBC on the assets and properties of BlueLinx
Canada arising on or after the Amendment No. 4 Effective Date to secure Indebtedness of
BlueLinx Canada permitted under Section 9.9(r)..
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3. Indebtedness. Section 9.9 of the Loan Agreement is hereby amended by (a) deleting
the word and at the end of clause (p) thereof, (b) deleting the period at the end of clause (q)
thereof and replacing it with ; and and (c) adding a new clause (r) immediately following clause
(q) thereof to read as follows:
(r) Indebtedness of BlueLinx Canada arising after the Amendment No. 4 Effective Date, (i)
pursuant to loans and advances in cash or other immediately available funds received by
BlueLinx Canada from CIBC or (ii) consisting of obligations and liabilities, contingent
or otherwise, of BlueLinx Canada, in respect of letters of credit, acceptances and similar
instruments issued for the account of BlueLinx Canada by CIBC; provided,
that, (A) the proceeds of the loans and advances or letter of credit or similar
instruments issued, in each case giving rise to such Indebtedness shall be used for cash
requirements (or as to letters of credit, acceptances or similar instruments otherwise
required) for the conduct of the business of BlueLinx Canada, (B) Administrative and
Collateral Agent shall have received true, correct and complete copies of all agreements,
documents and instruments evidencing or otherwise related to such Indebtedness, (C) no
Borrower or Guarantor shall guarantee or otherwise have any liability or obligation,
directly or indirectly, in connection with such Indebtedness, (D) the maximum principal
amount of such Indebtedness outstanding at any time (whether now existing or arising after
the date hereof) shall not exceed the $20,000,000, (E) such Indebtedness shall be on terms
and conditions reasonably acceptable to Administrative and Collateral Agent, and (F) as of
the date of incurring such Indebtedness and after giving effect thereto, no Event of Default
shall exist or have occurred and be continuing..
4. Limitation of Restrictions Affecting Subsidiaries. Section 9.16 of the Loan
Agreement is hereby amended by (a) deleting the word and at the end of clause (ii)(E) thereof,
(b) deleting the period at the end of the proviso to clause (ii)(F) thereof and replacing it with
, and and (c) adding a new clause (ii)(G) immediately following the proviso to clause (ii)(F)
thereof to read as follows:
(G) any agreement relating to Indebtedness of BlueLinx Canada permitted under Section
9.9(r)..
5. 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, together with the representations and warranties in the other
Financing Agreements, shall survive the execution and delivery hereof, and the truth and
correctness thereof, in all material respects, being a continuing condition of the making of any
Loans by Lenders (or Administrative and Collateral Agent on behalf of Lenders) to Borrowers:
(a) no Default or Event of Default exists or has occurred and is continuing as of the date of
this Amendment No. 4;
(b) this Amendment No. 4 and each other agreement to be executed and delivered by Borrowers
and Guarantors in connection herewith (collectively, together with this Amendment No. 4, 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;
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(c) the execution, delivery and performance of each Amendment Document (i) are all within each
Borrowers and Guarantors corporate or limited partnership powers, as applicable, and (ii) are not
in contravention of law or the terms of any Borrowers or Guarantors 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.
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
Administrative and Collateral Agent (the Amendment No. 4 Effective Date):
(a) Administrative and Collateral Agent shall have received counterparts of this Amendment No.
4, duly authorized, executed and delivered by Borrowers, Guarantors and Required Lenders;
(b) 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. 4, 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;
(c) all of the representations and warranties set forth in the Loan Agreement and the other
Financing Agreements, each as amended by Amendment No. 4, shall be 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; and
(d) no Default or Event of Default shall exist or have occurred and be continuing.
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7. Effect of Amendment No. 4. 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. 4 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. 4 or with respect to the subject matter of this Amendment No. 4. To the extent
of conflict between the terms of this Amendment No. 4 and the other Financing Agreements, the terms
of this Amendment No. 4 shall control. The Loan Agreement and this Amendment No. 4 shall be read
and construed as one agreement.
8. Governing Law. The validity, interpretation and enforcement of this Amendment No.
4 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.
9. Jury Trial Waiver. BORROWERS, GUARANTORS, ADMINISTRATIVE AND COLLATERAL 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. 4 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. 4 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, ADMINISTRATIVE AND COLLATERAL 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, ADMINISTRATIVE AND COLLATERAL AGENT
OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT NO. 4 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
10. Binding Effect. This Amendment No. 4 shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
11. Waiver, Modification, Etc. No provision or term of this Amendment No. 4 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.
12. 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. 4.
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13. Entire Agreement. This Amendment No. 4 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.
14. Headings. The headings listed herein are for convenience only and do not
constitute matters to be construed in interpreting this Amendment No. 4.
15. Counterparts. This Amendment No. 4 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. 4 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. 4. Any party delivering an executed
counterpart of this Amendment No. 4 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. 4.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly executed
and delivered by their authorized officers as of the day and year first above written.
BORROWERS BLUELINX CORPORATION |
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By: | /s/ H. Douglas Goforth | |||
Name: | H. Douglas Goforth | |||
Title: | Treasurer and CFO | |||
BLUELINX FLORIDA LP |
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By: | BlueLinx Florida Holding No. 2 Inc., | |||
its General Partner | ||||
By: | /s/ H. Douglas Goforth | |||
Name: | H. Douglas Goforth | |||
Title: | Treasurer | |||
BLUELINX SERVICES INC. |
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By: | /s/ H. Douglas Goforth | |||
Name: | H. Douglas Goforth | |||
Title: | Treasurer | |||
GUARANTORS BLUELINX FLORIDA HOLDING NO. 1 INC. |
||||
By: | /s/ H. Douglas Goforth | |||
Name: | H. Douglas Goforth | |||
Title: | Treasurer | |||
BLUELINX FLORIDA HOLDING NO. 2 INC. |
||||
By: | /s/ H. Douglas Goforth | |||
Name: | H. Douglas Goforth | |||
Title: | Treasurer |
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ADMINISTRATIVE AND COLLATERAL AGENT AND LENDERS WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative and Collateral Agent and a Lender |
||||||||||
By: | /s/ Thomas A. Martin | |||||||||
Name: | Thomas A. Martin | |||||||||
Title: | Vice President | |||||||||
BANK OF AMERICA, N.A., as a Documentation Agent and a Lender |
||||||||||
By: | /s/ Robert Scalzitti | |||||||||
Name: | Robert Scalzitti | |||||||||
Title: | Senior Vice President | |||||||||
JPMORGAN CHASE BANK, N.A., as a Documentation Agent and a Lender |
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By: | /s/ Mario Quintanilla | |||||||||
Name: | Mario Quintanilla | |||||||||
Title: | Vice President | |||||||||
REGIONS BANK, as Syndication Agent and a Lender |
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By: | /s/ James Barwis | |||||||||
Name: | James Barwis | |||||||||
Title: | SVP | |||||||||
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
BURDALE CAPITAL FINANCE, INC., as a Lender | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||