EXHIBIT 99.1
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of July 14, 2005, is entered into by and among the
financial institutions signatory hereto (each a "Lender" and collectively the
"Lenders"), Wachovia Bank, National Association, successor by merger to Congress
Financial Corporation ("Wachovia"), as administrative and collateral agent for
the Lenders and for the Bank Product Providers (in such capacity,
"Administrative and Collateral Agent"), Wachovia and Goldman Sachs Credit
Partners, L.P., a Bermuda limited partnership ("GSCP"), as co-lead arrangers for
the credit facility (in such capacities, each a "Co-Lead Arranger" and
collectively the "Co-Lead Arrangers") and as co-syndication agents for the
credit facility (in such capacities, each a "Co-Syndication Agent" and
collectively the "Co-Syndication Agents"), Bank of America, N.A., Wells Fargo
Foothill, LLC, and JPMorgan Chase Bank, N.A., formerly known as JPMorgan Chase
Bank, as documentation agents (in such capacities, each a "Documentation Agent"
and collectively the "Documentation Agents") and BlueLinx Corporation, a Georgia
corporation ("Borrower").
RECITALS
A. Borrower, Administrative and Collateral Agent, the Co-Lead Arrangers,
the Co-Syndication Agents, the Documentation Agents and the Lenders have
previously entered into that certain Loan and Security Agreement dated May 7,
2004, as amended by that certain First Amendment to Loan and Security Agreement
and Consent, dated as of October 26, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement"), pursuant to which
the Lenders have made certain loans and financial accommodations available to
Borrower. Terms used herein without definition shall have the meanings ascribed
to them in the Loan Agreement.
B. Borrower, Administrative and Collateral Agent, the Co-Lead Arrangers,
the Co-Syndication Agents, the Documentation Agents and the Lenders now wish to
amend the Loan Agreement on the terms and conditions set forth herein.
C. Borrower is entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of Administrative
and Collateral Agent's, either Co-Lead Arranger's, either Co-Syndication
Agent's, either Documentation Agent's or any Lender's rights or remedies as set
forth in the Loan Agreement is being waived or modified by the terms of this
Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments to Loan Agreement.
(a) The following is hereby added to the Loan Agreement as Section
1.133.1
" 'Term Loans' shall have the meaning set forth in Section 2.5
hereof; sometimes being referred to herein individually as a 'Term
Loan.' "
(b) The following is hereby added to the Loan Agreement as Section
1.137.1:
" 'Term Notes' shall mean, collectively, those certain Term
Promissory Notes, dated as of July 14, 2005, issued by Borrower to
each Revolving Loan Lender, as the same now exist or may hereafter
be amended, modified, supplemented, extended, renewed, restated or
replaced."
(c) Section 1.15(b) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(b) the lesser of: (i) 70% (or 75% during the Seasonal Period) of
the sum of (A) the Value of Eligible Inventory, (B) the Value of
Eligible Domestic In-Transit Inventory, (C) the Value of Eligible
International In-Transit Inventory and (D) the Value of Eligible
Re-Load Inventory or (ii) 85% of the sum of the Net Orderly
Liquidation Value; provided, however, Revolving Loans outstanding
with respect to Eligible Domestic In-Transit Inventory, Eligible
International In-Transit Inventory and Eligible Re-Load Inventory
shall not exceed, in the aggregate at any one time outstanding,
$85,000,000, minus"
(d) Section 1.57 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
" 'Fixed Charge Coverage Ratio' shall mean the ratio, as of any date
of determination, calculated either for the trailing twelve-month
period ending on such date of determination (or, if such date of
determination occurs prior to the first anniversary of the Closing
Date, on an annualized basis in the case of clause (b) below), of
(a) EBITDA (or Adjusted EBITDA if such date of determination occurs
prior to the first anniversary of the Closing Date) to (b) the sum
of cash payments for income taxes, Interest Expense, cash dividends
or stock redemptions, principal payments on Debt (other than with
respect to principal payments made on account of a revolving line of
credit and other than with respect to the prepayment in full of the
Indebtedness of Borrower under the Term Loan Agreement on December
21, 2004) and Capital Expenditures."
(e) Section 1.75 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
" 'Loans' shall mean the Revolving Loans, the Term Loan, Special
Agent Advances and Letter of Credit Accommodations."
(f) Section 1.119 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
" 'Revolving Loan Commitment' shall mean, as to any Lender: (a) at
any time prior to the termination of the Revolving Loan Commitments,
the amount of such Lender's revolving loan commitment as set forth
on Schedule 1.119 hereto or on Schedule 1 to the Assignment and
Acceptance Agreement pursuant to which such Lender became a Lender
under this Agreement, as such amount may be adjusted from time to
time in accordance with the provisions of Section 13.6 hereof, and
(b) after the termination of the Revolving Loan Commitments, the
unpaid amount of Revolving Loans, Term Loan and Special Agent
Advances made by such Lender and such Lender's interest in the
outstanding Letter of Credit Accommodations, in each case as the
same may be required to be adjusted from time to time in accordance
with the terms hereof."
(g) Section 1.122 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
" 'Revolving Loan Limit' shall mean the amount, calculated at any
time, equal to (a) Eight Hundred Million Dollars ($800,000,000)
minus (b) the then outstanding principal amount of the Term Loan;
unless Borrower shall have exercised its right to reduce such amount
pursuant to Section 2.1(c) hereof, in which event Revolving Loan
Limit shall mean such reduced amount."
(h) Section 1.124 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
" 'Seasonal Period' shall mean, collectively, (i) the period
beginning on January 1 and ending on June 30 of each year; and (ii)
the period beginning on November 1 and ending on December 31 of each
year."
(i) Section 2.3 of the Loan Agreement is hereby amended and restated
to read in its entirety as follows:
"2.3 Commitments. The aggregate amount of each Revolving Loan
Lender's Pro Rata Share of the Revolving Loans, Term Loan and Letter
of Credit Accommodations shall not exceed the amount of such
Lender's Revolving Loan Commitment, as the same may from time to
time be amended in accordance with the terms of this Agreement."
(j) The following is hereby added to the Loan Agreement as Section
2.5:
"2.5 Term Loan.
(a) Subject to the terms and conditions contained herein, each
Revolving Loan Lender severally (and not jointly) agrees to make a
term loan to Borrower (each a "Term Loan" and collectively the "Term
Loans") on July 14, 2005 (the "Term Loan Funding Date") in an amount
equal to such Revolving Loan Lender's Pro Rate Share of Six Million
Dollars ($6,000,000), the proceeds of which shall be used to
refinance and consolidate certain loans previously made by Revolving
Loan Lenders to Borrower. Except as Administrative and Collateral
Agent and Revolving Loan Lenders may otherwise agree, each Revolving
Loan Lender shall make the amount of such Revolving Loan Lender's
Term Loan available to Administrative Agent in immediately available
funds by no later than 12:00 noon Los Angeles time on the Term Loan
Funding Date. After Agent's receipt of the proceeds, Administrative
and Collateral Agent shall make the proceeds of such Term Loans
available to Borrower as provided in Section 6.10 hereof.
(b) The Term Loans are (i) evidenced by the Term Notes duly executed
and delivered by Borrower to each Revolving Loan Lender, (ii) to be
repaid, together with interest and other amounts, in accordance with
this Agreement, the Term Notes and the other Financing Agreements,
and (iii) secured by all of the Collateral. The principal amount of
the Term Loan shall be due and payable on the Final Maturity Date
(or earlier as provided herein)."
(k) Section 6.4(a)(i)(F) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(F) sixth, to pay principal in respect of the Revolving Loans then
outstanding (whether or not then due) until paid in full, and then
to pay principal in respect of the Term Loan then outstanding
(whether or not then due) until paid in full;"
(l) The following is hereby added to the end of Section 6.8(a) of
the Loan Agreement:
", and the making of Term Loans shall be made among the Revolving
Loan Lenders based on their respective Pro Rate Shares thereof;"
(m) Section 9.10(b)(i) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(i) any Revolving Loans or Term Loans are then outstanding,"
(n) For purposes of the definition of "Excess Availability" in
Section 1.51 of the Loan Agreement only, Obligations shall not include the
outstanding principal amount of the Term Loan.
(o) Schedule 1.119 attached hereto is hereby added to the Loan
Agreement as Schedule 1.119 thereto.
2. Lenders' Acknowledgements. Each Lender acknowledges and agrees that
notwithstanding anything contained in any Assignment and Acceptance Agreement to
which it is a party, as of the date hereof, each Lender's Revolving Loan
Commitment is as set forth beside such Lender's name on Schedule 1.119 hereto.
3. Amendment Fee Letter. Borrower agrees to pay to Administrative and
Collateral Agent such additional fees for the benefit of such Persons as are
specified in the amendment fee letter dated as of the date hereof, between
Administrative and Collateral Agent and Borrower (the "Amendment Fee Letter").
4. Effectiveness of this Amendment. Administrative and Collateral Agent
must have received the following items, in form and content acceptable to
Administrative and Collateral Agent, before this Amendment is effective.
(a) Amendment. This Amendment fully executed in a sufficient number
of counterparts for distribution to all parties hereto.
(b) Amendment Fee Letter. The Amendment Fee Letter fully executed in
a sufficient number of counterparts for distribution to all parties thereto
along with the fees that are due and payable by Borrower as of the date hereof
pursuant to the terms thereof.
(c) Stock Pledge Agreement. A Stock Pledge Agreement, in form and
substance reasonably satisfactory to Administrative and Collateral Agent,
executed and delivered by Borrower to Administrative Agent with respect to the
pledge of no more than sixty-five percent (65%) of the stock of BlueLinx
Building Products Canada Ltd., a company organized under the laws of British
Columbia, owned by Borrower.
(d) Term Notes. The Term Notes executed and delivered by Borrower to
each Revolving Loan Lender.
(e) Representations and Warranties. The representations and
warranties set forth herein and in the Loan Agreement must be true and correct.
(f) No Default. No event has occurred and is continuing that
constitutes an Event of Default.
(g) Other Required Documentation. All other documents and legal
matters in connection with the transactions contemplated by this Amendment shall
have been delivered or executed or recorded and shall be in form and substance
reasonably satisfactory to Administrative and Collateral Agent.
5. Representations and Warranties. Borrower represents and warrants as
follows:
(a) Authority. Borrower has the requisite corporate power and
authority to execute and deliver this Amendment, and to perform its obligations
hereunder and under the Financing Agreements (as amended or modified hereby) to
which it is a party. The execution, delivery and performance by Borrower of this
Amendment have been duly approved by all necessary corporate action and no other
corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by Borrower. This Amendment and each Financing Agreement (as amended
or modified hereby) is the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, and is in full force
and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Financing Agreement (other than any such
representations or warranties that, by their terms, are specifically made as of
a date other than the date hereof) are correct on and as of the date hereof as
though made on and as of the date hereof.
(d) Due Execution. The execution, delivery and performance of this
Amendment are within the power of Borrower, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval,
if any, and do not contravene any law or any contractual restrictions binding on
Borrower.
(e) No Default. No event has occurred and is continuing that
constitutes an Event of Default.
6. Choice of Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of New York governing contracts only to be performed in that
State.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment 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.
Any party delivering an executed counterpart of this Amendment 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 such agreement.
8. Reference to and Effect on the Financing Agreements.
(a) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Loan Agreement, and each reference in the
other Financing Agreements to "the Loan Agreement", "thereof" or words of like
import referring to the
Loan Agreement, shall mean and be a reference to the Loan Agreement as modified
and amended hereby.
(b) Except as specifically amended above, the Loan Agreement and all
other Financing Agreements, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of Borrower to
Administrative and Collateral Agent, the Co-Lead Arrangers, the Co-Syndication
Agents, the Documentation Agents and the Lenders.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Administrative and Collateral Agent, either Co-Lead
Arranger, either Co-Syndication Agent, either Documentation Agent or any Lender
under any of the Financing Agreements, nor constitute a waiver of any provision
of any of the Financing Agreements.
(d) To the extent that any terms and conditions in any of the
Financing Agreements shall contradict or be in conflict with any terms or
conditions of the Loan Agreement, after giving effect to this Amendment, such
terms and conditions are hereby deemed modified or amended accordingly to
reflect the terms and conditions of the Loan Agreement as modified or amended
hereby.
9. Ratification. Borrower hereby restates, ratifies and reaffirms each and
every term and condition set forth in the Loan Agreement, as amended hereby, and
the Financing Agreements effective as of the date hereof.
10. Estoppel. To induce Lenders to enter into this Amendment and to
continue to make advances to Borrower under the Loan Agreement, Borrower hereby
acknowledges and agrees that, as of the date hereof, there exists no right of
offset, defense, counterclaim or objection in favor of Borrower as against
Administrative and Collateral Agent, either Co-Lead Arranger, either
Co-Syndication Agent, either Documentation Agent or any Lender with respect to
the Obligations.
11. JURY TRIAL WAIVER. BORROWER, EACH AGENT AND EACH LENDER HEREBY WAIVE
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i)
ARISING UNDER THIS AMENDMENT, THE LOAN AGREEMENT OR ANY OF THE OTHER FINANCING
AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT, THE LOAN AGREEMENT
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. BORROWER, EACH AGENT AND EACH LENDER HEREBY
AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF
THIS AMENDMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
12. Integration. This Amendment, together with the other Financing
Agreements, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.
13. Severability. In case any provision in this Amendment shall be
invalid, illegal or unenforceable, such provision shall be severable from the
remainder of this Amendment and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
[Remainder of Page Left Intentionally Blank]
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
BORROWER
BLUELINX CORPORATION
By: /s/ David J. Morris
--------------------
Name: David J. Morris
Title: CFO & Treasurer
AGENTS
WACHOVIA BANK, NATIONAL ASSOCIATION,
as successor by merger to Congress
Financial Corporation, as Administrative
and Collateral Agent, Co-Lead Arranger
and Co-Syndication Agent
By: /s/ James O'Connell
-------------------
Name: James O'Connell
Title: Associate
GOLDMAN SACHS CREDIT PARTNERS, L.P.,
as Co-Lead Arranger and Co-Syndication Agent
By: /s/ Elizabeth Fischer
------------------------
Name: Elizabeth Fischer
Title: Authorized Signatory
DOCUMENTATION AGENTS
BANK OF AMERICA, N.A.,
as a Documentation Agent
By: /s/ Jang Kim
--------------
Name: Jang Kim
Title: VP
WELLS FARGO FOOTHILL, LLC,
as a Documentation Agent
By: /s/ Juan Barrera
--------------------
Name: Juan Barrera
Title: Vice President
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank), as a
Documentation Agent
By: /s/ Jeffrey S. Ackerman
-----------------------
Name: Jeffrey S. Ackerman
Title: Vice President
LENDERS
WACHOVIA BANK, NATIONAL ASSOCIATION,
as successor by merger to Congress Financial
Corporation
By: /s/ James O'Connell
-------------------
Name: James O'Connell
Title: Associate
BANK OF AMERICA, N.A.
By: /s/ Jang Kim
--------------
Name: Jang Kim
Title: VP
WELLS FARGO FOOTHILL, LLC
By: /s/ Juan Barrera
--------------------
Name: Juan Barrera
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Rafael J. Bota
---------------------
Name: Rafael J. Bota
Title: Its Duly Authorized Signatory
GMAC COMMERCIAL FINANCE LLC
By: /s/ Robert J. Brandon
------------------------
Name: Robert J. Brandon
Title: Director
ING CAPITAL LLC
By: /s/ Bennett C. Whitehurst
----------------------------
Name: Bennett C. Whitehurst
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Anthony Lavinio
-----------------------
Name: Anthony Lavinio
Title: Vice President
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank)
By: /s/ Jeffrey S. Ackerman
-----------------------------
Name: Jeffrey S. Ackerman
Title: Vice President
SCHEDULE 1.119
COMMITMENTS
LENDER REVOLVER LOAN COMMITMENT
------ ------------------------
Wachovia Bank, National Association $ 125,000,000
Bank of America, N.A. $ 105,000,000
Wells Fargo Foothill, LLC $ 100,000,000
General Electric Capital Corporation $ 120,000,000
GMAC Commercial Finance LLC $ 75,000,000
ING Capital LLC $ 80,000,000
The CIT Group/Business Credit, Inc. $ 95,000,000
JPMorgan Chase Bank, N.A. $ 100,000,000
----------------------
All Lenders $ 800,000,000
======================