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Exhibit (4)(i)(2)
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LESCO, INC.
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FIRST AMENDMENT
Dated as of August 7, 2001
to
NOTE PURCHASE AGREEMENT
Dated as of June 15, 1998
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Re: $15,000,000 6.64% Senior Notes, Series B, due June 15, 2004
$5,000,000 6.71% Senior Notes, Series C, due June 15, 2008
and
$25,000,000 7.00% Senior Notes, Series D, due June 15, 2008
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FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT dated as of August 7, 2001 (this "Amendment") to
the Note Purchase Agreement, dated as of June 15, 1998 is among LESCO, INC., an
Ohio corporation (the "Company"), and each of the institutions which is a
signatory to this Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company, Canada Life Insurance Company of America and each of
the Noteholders have heretofore entered into the Note Purchase Agreement, dated
as of June 15, 1998 (the "Note Agreement") under and pursuant to which the
Company has issued (i) its $15,000,000 6.64% Senior Notes, Series B, due June
15, 2004, (ii) its $5,000,000 6.71% Senior Notes, Series C, due June 15, 2008
and (iii) its $25,000,000 7.00% Senior Notes, Series D, due June 15, 2008
(collectively, the "Notes").
B. The Company and the Noteholders now desire to amend the Note
Agreement in the respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement, as amended hereby, unless herein defined
or the context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
Section 1.1. Section 7.3 of the Note Agreement shall be and is hereby
amended by adding the words "or any Guarantor" after the words "principal
executive office of the Company" in paragraph (a) of Section 7.3.
Section 1.2. The following shall be added as a new Section 9.7 of the
Note Agreement:
Section 9.7. Guaranty by Subsidiaries. The Company will cause any
Subsidiary which is required by the terms of the Credit Agreement to
become a party to, or otherwise guarantee, Debt outstanding under the
Credit Agreement to enter into a Guaranty Agreement, and deliver within
three Business Days thereafter to each of the holders of the Notes the
following items:
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LESCO, Inc. First Amendment to
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(a) a Guaranty Agreement in form and substance satisfactory
to the Required Holders;
(b) such Security Documents in form and substance
satisfactory to the Required Holders as may be required pursuant
to Section 10.15;
(c) such documents and evidence with respect to such
Subsidiary as any holder of the Notes may reasonably request in
order to establish the existence and good standing of such
Subsidiary; and
(d) an opinion of counsel (which may be in-house or outside
counsel of the Company or such Subsidiary) addressed to each of
the holders of the Notes satisfactory to the Required Holders, to
the effect that such Guaranty Agreement and Security Documents, if
any, have been duly authorized, executed and delivered and
constitute the legal, valid and binding contracts and agreements
of such Subsidiary enforceable in accordance with its terms,
except as an enforcement of such terms may be limited by
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting the enforcement of creditors' rights generally and by
general equitable principles.
If at any time one or more Subsidiaries which shall have
guaranteed the Debt outstanding under the Credit Agreement shall have
been released from its obligations under its guaranty in respect of the
Credit Agreement, then upon delivery to the holders of the Notes of
evidence of such release (which evidence shall be reasonably
satisfactory to the Required Holders), such Subsidiary shall be
released from its obligations under the Guaranty Agreement to which it
is a party. Neither the Company nor any Subsidiary will directly or
indirectly pay or cause to be paid any remuneration (including, without
limitation, by way of supplemental or additional interest or fee) or
grant any security, to any lender or the agent under the Credit
Agreement, or agree to any additional covenants, or make any existing
covenants more restrictive, in the Credit Agreement, as consideration
for or as an inducement to the release by any lender or the agent under
the Credit Agreement of any such guaranty in respect of the Credit
Agreement, unless such remuneration is concurrently paid, or security
is concurrently granted, on the same terms, ratably to each of the
Noteholders, or the Note Purchase Agreement is amended to include such
additional or more restrictive covenants.
Section 1.3. Section 10.3 of the Note Agreement shall be and is hereby
amended by deleting subparagraph (d) thereof and replacing it with the following
subparagraphs (d), (e) and (f):
(d) Debt of any Guarantor evidenced by a Guaranty with respect to
the Notes;
(e) Debt of any Guarantor evidenced by a guaranty of the Debt of
the Company outstanding under the Credit Agreement, provided that the
Company and such Guarantor have complied with the provisions of
Sections 9.7 and 10.15; and
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LESCO, Inc. First Amendment to
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(f) Debt of a Restricted Subsidiary in addition to that otherwise
permitted by the foregoing provisions of this Section 10.3, provided
that the total amount of all Debt of all Restricted Subsidiaries
outstanding pursuant to this subparagraph (f) does not exceed 15% of
Consolidated Net Worth.
Section 1.4. Section 10.5 of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
Section 10.5. Fixed Charges Coverage Ratio. The Company will not
permit at any time the Fixed Charges Coverage Ratio for the period of
four consecutive fiscal quarters ending on the dates specified below to
be less than the ratio set forth opposite such dates:
DATES RATIO
On or before March 31, 2001 1.25 to 1
June 30, 2001 1.00 to 1
September 30, 2001 1.15 to 1
December 31, 2001 and March 31, 2002 1.25 to 1
June 30, 2002 and thereafter 1.50 to 1
Section 1.5. Section 10.6 of the Note Agreement shall be and is hereby
amended by deleting paragraph (k) thereof and replacing it with the following
paragraphs (k) and (l):
(k) Liens granted to the Noteholders securing the Notes, and Liens
under the Security Documents in favor of the Collateral Agent for the
benefit of the Creditors as set forth in the Intercreditor Agreement;
and
(l) other Liens not otherwise permitted by paragraphs (a) through
(k), inclusive, of this Section 10.6 securing Debt of the Company or a
Restricted Subsidiary, provided that the total amount of all Debt of
the Company and its Restricted Subsidiaries secured by Liens permitted
by this paragraph (l) does not exceed 15% of Consolidated Net Worth.
Section 1.6. Paragraph (b) of Section 10.7 of the Note Agreement shall
be and is hereby amended in its entirety to read as follows:
(b) if the Company is not the Successor Corporation, such
corporation shall have executed and delivered to each holder of Notes
its assumption of the due and punctual performance and observance of
each covenant and condition of this Agreement, the Notes and the other
Operative Agreements to which the Company is a party (pursuant to such
agreements and instruments as shall be reasonably satisfactory to the
holder or holders of a majority of the principal amount of the Notes
then outstanding the approval thereof not to be unreasonably withheld
or delayed), and the Company shall have caused to be delivered to each
holder of Notes an opinion of nationally recognized independent
counsel, or other independent counsel reasonably satisfactory to the
holder or holders of a majority of the principal amount of the Notes
then outstanding, to the effect that all agreements or instruments
effecting such assumption are enforceable in accordance with
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LESCO, Inc. First Amendment to
Note Purchase Agreement
their terms, subject to customary qualifications as to creditors rights
and equitable matters and the Guarantors shall have executed and
delivered to each holder of Notes their reaffirmation that their
obligations under the Guaranty Agreements remain in full force and
effect after giving effect to such transaction (pursuant to such
agreements and instruments as shall be reasonably satisfactory to the
holder or holders of a majority of the principal amount of the Notes
then outstanding the approval thereof not to be unreasonably withheld
or delayed); and
Section 1.7. Section 10.11 of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
Section 10.11. Guaranties. The Company will not, and will not
permit any Restricted Subsidiary to, become or be liable in respect of
any Guaranty, except (a) Guaranties by the Company which are limited in
amount to a stated maximum dollar exposure or Guaranties which
constitute Guaranties of obligations incurred by any Restricted
Subsidiary in compliance with the provisions hereof, (b) Guaranties by
any Restricted Subsidiary of the Notes and (c) Guaranties by any
Guarantor of the Debt of the Company outstanding under the Credit
Agreement, provided that the Company and such Guarantor have complied
with the provisions of Sections 9.7 and 10.15.
Section 1.8. Section 10.14(b) of the Note Agreement shall be and is
hereby amended by deleting the words "Material Subsidiary" and replacing them
with the words "a Material Subsidiary or a Guarantor" in the parenthetical in
Section 10.14(b) of the Note Agreement.
Section 1.9. The following shall be added as new Sections 10.15 and
10.16 of the Note Agreement:
Section 10.15. Additional Collateral. The Company will not, and
will not permit any Guarantor or Subsidiary to, grant any Lien on any
property of the Company or any Subsidiary to secure the obligations of
the Company or any Subsidiary under the Credit Agreement, any notes
issued pursuant thereto or any guaranty related thereto unless such
Lien equally and ratably secures the Notes pursuant to the Security
Documents and the Intercreditor Agreement.
Section 10.16. Additional Covenants.
(a) Any and all negative and financial covenants contained in
the Credit Agreement or any replacement thereof (including,
without limitation, the leverage ratio under Section 9.8 of
the Credit Agreement), shall be deemed an additional covenant
of the Company under this Section 10 with respect to each
party to which such covenant is applicable, enforceable by the
holders of the Notes, the breach of which shall be deemed an
Event of Default in the same circumstances under which such a
breach would confer the right to accelerate all or part of the
Debt outstanding under the Credit Agreement or such
replacement. No inclusion of any such additional covenant
shall be construed to relieve the Company of the obligations
under any covenant expressly set forth herein. Any
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LESCO, Inc. First Amendment to
Note Purchase Agreement
such covenant, or the related default provisions may be
amended in the Credit Agreement or any replacement thereof,
but no such amendment shall be deemed to amend such covenant,
or the related default provisions, as deemed incorporated into
this Agreement pursuant to this Section 10.16 without the
necessary consent required under Section 17 of this Agreement.
Upon the written request of the Required Holders, the Company
and the holders of the Notes shall enter into one or more
written amendments to this Section 10.16 satisfactory in form
and substance to the holders reflecting such covenant and the
related default provisions and the terms of such
incorporation.
(b) Notwithstanding the foregoing, if the Credit Agreement or
any replacement thereof shall be terminated during the term of
this Agreement, the covenants incorporated herein by operation
of this Section 10.16 shall cease to be so incorporated and
shall cease to bind the Company unless expressly provided
otherwise in any amendment to this Agreement.
Section 1.10. Paragraph (d) of Section 11 of the Note Agreement shall
be and is hereby amended in its entirety to read as follows:
(d) the Company or any Guarantor defaults in the performance of or
compliance with any term contained herein (other than those referred to
in paragraphs (a), (b) and (c) of this Section 11) or in any other
Operative Agreement and such default is not remedied within 30 days
after the earlier of (i) a Responsible Officer of the Company or such
Guarantor, as the case may be, obtaining actual knowledge of such
default and (ii) the Company or such Guarantor, as the case may be,
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11); or
Section 1.11. Paragraph (e) of Section 11 of the Note Agreement shall
be and is hereby amended in its entirety to read as follows:
(e) any representation or warranty made in writing by or on behalf
of the Company or any Guarantor or by any officer of the Company or any
Guarantor in this Agreement, the Guaranty Agreements or any other
Operative Agreement or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or
Section 1.12. Paragraph (j) of Section 11 of the Note Agreement shall
be and is hereby amended by deleting the period and replacing it with "; or" at
the end of such paragraph.
Section 1.13. The following shall be added as a new paragraph (k)
immediately following paragraph (j) of Section 11 of the Note Agreement:
(k) any Guaranty Agreement shall have been declared to be
unenforceable or any Guarantor shall contest or deny in writing the
validity or enforceability of its
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LESCO, Inc. First Amendment to
Note Purchase Agreement
obligations under any Guaranty Agreement or shall take any other
affirmative action to cause any Guaranty Agreement to cease to be valid
or enforceable.
Section 1.14. Section 15.1 of the Note Agreement shall be and is hereby
amended by adding the words ", the Guaranty Agreements, the Security Documents,
the Intercreditor Agreement" after each occurrence of the words "this Agreement"
in Section 15.1.
Section 1.15. Section 15.2 of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
Section 15.2. Survival. The obligations of the Company under this
Section 15 will survive the payment or transfer of any Note, the
enforcement, amendment or waiver of any provision of this Agreement,
the Guaranty Agreements, the Security Documents, the Intercreditor
Agreement or the Notes, and the termination of this Agreement, the
Guaranty Agreements, the Security Documents and the Intercreditor
Agreement.
Section 1.16. Section 20 of the Note Agreement shall be and is hereby
amended by adding the words ", the Guaranty Agreements, the Security Documents,
the Intercreditor Agreement" after the words "holder's Notes" in clause (z) of
Section 20.
Section 1.17. The following shall be added as new definitions in
alphabetical order to Schedule B to the Note Agreement:
"Collateral" shall have the meaning set forth in the Intercreditor
Agreement.
"Collateral Agent" means Wells Fargo Northwest, National
Association, as collateral agent under the Intercreditor Agreement,
together with any successor or replacement collateral agent.
"Credit Agreement" means the Credit Agreement dated as of April
24, 2001, by and among the Company, National City Bank, as
administrative agent for the lenders described therein and as a lender,
and PNC Bank, National Association, as a lender, as amended, modified,
supplemented, joined, restated or replaced from time to time.
"Creditors" means the Noteholders, the lenders under the Credit
Agreement and the Subordinated Lien Creditor (as defined in the
Intercreditor Agreement).
"Guarantor" means the collective reference to AIM Lawn & Garden
Products, Inc., LESCO Services, Inc. and LESCO Technologies, LLC, and
any other Person who becomes a Guarantor pursuant to Section 9.7
hereof.
"Guaranty Agreements" means the separate Guaranties each dated
August 7, 2001 of the Guarantors in favor of the Noteholders, as
amended or modified from time to time, and each other Guaranty of a
Guarantor in favor of the Noteholders delivered pursuant to Section 9.7
hereof.
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"Intercreditor Agreement" means the Collateral Agency and
Intercreditor Agreement among the Collateral Agent, the Company, the
Noteholders and the other Creditors referred to therein, as amended or
modified from time to time.
"Operative Agreements" means, collectively, this Agreement, the
Notes, the Guaranty Agreements, the Security Documents, the
Intercreditor Agreement and each other document, instrument and
agreement executed and delivered by the Company, a Guarantor, a
Subsidiary, or their attorneys-in-fact in connection with this
Agreement or the other agreements listed in this definition, all as may
be amended or supplemented from time to time.
"Security Agreement" means the Security Agreement dated as of
August 7, 2001 executed by the Company, as debtor, in favor of the
Collateral Agent for the benefit of the Creditors, as secured party, as
amended or modified from time to time, and each other Security
Agreement executed and delivered by the Company in favor of the
Collateral Agent for the benefit of the Creditors, as amended or
modified from time to time.
"Security Documents" means the Security Agreement, the Subsidiary
Security Agreements and each Uniform Commercial Code financing
statement or other writing executed and delivered by the Company or any
Guarantor pursuant to which such Company or Guarantor grants to the
Collateral Agent for the benefit of the Creditors a security interest
in the Collateral or pursuant to which Company or any Guarantor
guarantees the payment and/or performance of the Notes.
"Subsidiary Security Agreements" means the separate Security
Agreements each dated as of August 7, 2001 executed by each of the
Guarantors, as debtor, in favor of the Collateral Agent for the benefit
of the Creditors, as secured party, as amended or modified from time to
time, and each other Security Agreement executed and delivered by any
Guarantor in favor of the Collateral Agent for the benefit of the
Creditors, as amended or modified from time to time.
Section 1.18. The definitions of "Material Adverse Effect", "Priority
Debt", "Responsible Officer", "Restricted Subsidiary" and "Senior Financial
Officer" contained in Schedule B of the Note Agreement shall be and are hereby
amended in their entirety to read as follows:
"Material Adverse Effect" means (a) a material adverse effect on
the business, operations, financial condition, assets or properties of
the Company and its Restricted Subsidiaries taken as a whole, or (b) a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement, the Notes or any other Operative
Agreement to which is it a party, or (c) a material adverse effect on
the ability of any Guarantor to perform its obligations under any
Guaranty Agreement, provided that the financial resources of such
Guarantor shall only be relevant for purposes of this clause (c) to the
extent that the effect on such financial resources would have a
material adverse effect on the ability of such Guarantor to perform
such obligations, or (d) a material adverse effect on the validity or
enforceability of this Agreement, any Guaranty Agreement, the
Intercreditor Agreement or the Notes.
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LESCO, Inc. First Amendment to
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"Priority Debt" means the sum of (a) all Debt of the Company
secured by Liens permitted by Section 10.6(l), (b) all Debt of
Restricted Subsidiaries permitted by Section 10.3(c) and (f), and (c)
all Attributable Debt of the Company and its Restricted Subsidiaries
permitted by Section 10.9(a), other than any Attributable Debt relating
to a Sale-and-Leaseback Transaction with respect to the Company's
facility in Avon Lake, Ohio if the Company completes such
Sale-and-Leaseback Transaction within two years after the date of
closing.
"Responsible Officer" means any Senior Financial Officer and any
other executive officer of the Company or a Guarantor, as the case may
be, with responsibility for the administration of the relevant portion
of this Agreement and the other Operative Agreements.
"Restricted Subsidiary" means (i) any Material Subsidiary, (ii)
any Guarantor and (iii) any other Subsidiary which is properly
designated as a Restricted Subsidiary by the Company in the most recent
notice (or, prior to any such notice, on Schedule 5.4) with respect to
such Subsidiary given by the Company pursuant to and in accordance with
the provisions of Section 10.14.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company
or a Guarantor, as the case may be.
Section 1.19. Paragraph (b) of the definition of "Restricted
Investment" contained in Schedule B of the Note Agreement shall be and are
hereby amended in its entirety to read as follows:
(b) (i) Investments existing on the date of the Closing and
disclosed in Schedule C, (ii) Guaranties by any Restricted Subsidiary
of the Notes and (iii) guaranties by any Guarantor of the Debt of the
Company outstanding under the Credit Agreement, provided that the
Company and such Guarantor have complied with the provisions of
Sections 9.7 and 10.15;
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this
Amendment (which representations shall survive the execution and delivery of
this Amendment), the Company represents and warrants to the Noteholders that:
(a) As of the date hereof and after giving effect to this
Amendment, no Default or Event of Default has occurred which is
continuing.
(b) The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and is in
good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the failure
to be so qualified or in good standing could not, individually or in
the aggregate, reasonably be
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LESCO, Inc. First Amendment to
Note Purchase Agreement
expected to have a Material Adverse Effect. The Company has the
corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver this
Amendment and the Security Documents and to perform the provisions
hereof and thereof;
(c) This Amendment, the Note Agreement (as amended by this
Amendment), the Notes and the other Operative Agreements to which the
Company is a party have been duly authorized by all necessary corporate
action on the part of the Company, and this Amendment, the Note
Agreement (as amended by this Amendment), the Notes and the other
Operative Agreements to which the Company is a party, when executed and
delivered, will constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(d) All factual information (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of the Company or any of
its Subsidiaries in writing to any Noteholder for purposes of or in
connection with this Amendment or any transaction contemplated herein
is true and accurate in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting
to state any material fact necessary to make such information (taken as
a whole) not misleading at such time in light of the circumstances
under which such information was provided, except that any such future
information consisting of financial projections prepared by management
of the Company is only represented herein as being based on good faith
estimates and assumptions believed by such persons to be reasonable at
the time made, it being recognized by the Noteholders that such
projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such
projections may differ materially from the projected results. Since
December 31, 2000, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any
Subsidiary except changes that individually or in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
(e) Each Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. Each such Guarantor has
the corporate or other power and authority to own or hold under lease
the properties it purports to own or hold under lease and to transact
the business it transacts and proposes to transact.
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(f) The Guaranty Agreement and the other Operative Agreements to
which each Guarantor is a party have been duly authorized by all
necessary corporate action on the part of such Guarantor, and the
Guaranty Agreement and the other Operative Agreements to which Such
Guarantor is a party, when executed and delivered, will constitute
legal, valid and binding obligations of such Guarantor enforceable
against such Guarantor in accordance with their respective terms,
except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(g) The execution, delivery and performance by the Company or any
Guarantor of this Amendment, the Note Agreement (as amended by this
Amendment), the Notes and the other Operative Agreements to which the
Company or such Guarantor is a party will not (i) contravene, result in
any breach of, or constitute a default under, or result in the creation
of any Lien in respect of any property of the Company or any Restricted
Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or
any other agreement or instrument to which the Company or any
Restricted Subsidiary is bound or by which the Company or any
Restricted Subsidiary or any of their respective properties may be
bound or affected, (ii) conflict with or result in a breach of any of
the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to
the Company or any Restricted Subsidiary or (c) violate any provision
of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Restricted Subsidiary.
(h) No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by the Company
or any Guarantor of this Amendment, the Note Agreement (as amended by
this Amendment), the Notes and the other Operative Agreements to which
the Company or such Guarantor is a party, except for the filing of
Uniform Commercial Code financing statements as contemplated herein.
(i) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company
or any Restricted Subsidiary or any property of the Company or any
Restricted Subsidiary in any court or before any arbitrator of any kind
or before or by any Governmental Authority that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(j) The Company and the Guarantors have good and sufficient title
to their respective properties that individually or in the aggregate
are Material, in each case free and clear of Liens prohibited by the
Note Agreement (as amended by this Amendment). All leases that
individually or in the aggregate are Material are valid and subsisting
and are in full force and effect in all material respects.
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SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
Section 3.1. This Amendment shall not become effective until, and shall
become effective when, each and every one of the following conditions shall have
been satisfied:
(a) the following Operative Agreements, in form and substance
satisfactory to each Noteholder:
(i) this Amendment;
(ii) the Guaranty Agreements;
(iii) the Security Agreement; and
(iv) the Subsidiary Security Agreements.
shall have been duly authorized, executed and delivered to the
Noteholders by the Company and the Guarantors, as applicable, and such
Operative Agreements shall be in full force and effect and no default
shall exist thereunder, and the Company and the Guarantors, as
applicable, shall have delivered original counterparts thereof to the
Noteholders.
(b) the Noteholders shall have received evidence satisfactory to
them that the Credit Agreement has been amended substantially as
proposed in the form annexed hereto as Exhibit A;
(c) the Noteholders shall have received (i) a certificate of the
Secretary or an Assistant Secretary of the Company certifying the names
of the officers of the Company authorized to sign this Amendment and
the other Operative Agreements to which the Company is a party,
together with the true signatures of such officers and a copy of the
resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance by the Company of this Amendment
and such other Operative Agreements, (ii) a certificate of the
Secretary or an Assistant Secretary of each Guarantor certifying the
names of the officers of such Guarantor authorized to sign the Guaranty
Agreement and the other Operative Agreements to which such Guarantor is
a party, together with the true signatures of such officers and a copy
of the resolutions of the Board of Directors of such Guarantor
authorizing the execution, delivery and performance by such Guarantor
of the Guaranty Agreement and such other Operative Agreements, and
(iii) a copy of the resolutions of the Board of Directors of the
Company authorizing execution, delivery and performance by the Company
of the Amendment to the Credit Agreement in the form annexed hereto as
Exhibit A;
(d) the Noteholders shall have received a copy of the articles of
incorporation and bylaws of each Guarantor, certified by the Secretary
or an Assistant Secretary of such Guarantor;
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LESCO, Inc. First Amendment to
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(e) the Noteholders shall have received the Intercreditor
Agreement duly executed and delivered by the parties thereto;
(f) the representations and warranties of the Company set forth in
Section 2 hereof are true and correct on and with respect to the date
hereof;
(g) the Noteholders shall have received the favorable opinion of
counsel to the Company and the Guarantors (which may be in-house or
outside counsel of the Company or such Guarantor) as to the matters set
forth in Exhibit B hereto and such other matters as the Noteholders
shall reasonably request, which opinion shall be in form and substance
satisfactory to the Noteholders;
(h) with respect to the property owned or leased by the Company
and each Subsidiary, (i) the Company shall have provided to the
Noteholders U.C.C. financing statements, registration or other similar
statements reasonably satisfactory to the Noteholders; (ii) the Company
shall have provided to the Noteholders the results of U.C.C. and other
lien searches satisfactory to the Noteholders; (iii) the Company shall
have provided to the Noteholders the results of federal and state tax
lien and judicial lien searches, satisfactory to the Noteholders; and
(iv) the Company shall have provided to the Noteholders U.C.C.
termination statements or, if applicable, other termination statements,
reflecting termination of all financing and registration statements
previously filed by any other party having a security interest in any
part of any property of the Company or any Subsidiary and not permitted
under the Note Agreement; and
(i) the Noteholders shall have received an amendment fee in the
aggregate amount equal to $150,000, which amendment fee shall be
allocated among each of the Noteholders in proportion to the respective
unpaid principal amount of the Notes held by each such Noteholder.
Upon receipt of all of the foregoing, this First Amendment shall become
effective.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company agrees to pay upon demand, the reasonable fees
and expenses of Chapman and Cutler, special counsel to the Noteholders, in
connection with the negotiation, preparation, approval, execution and delivery
of this Amendment, the Guaranty Agreements, Intercreditor Agreement and the
Security Documents.
SECTION 5. MISCELLANEOUS.
Section 5.1. This Amendment shall be construed in connection with and
as part of the Note Agreement, and except as modified and expressly amended by
this Amendment, all terms, conditions and covenants contained in the Note
Agreement and the Notes are hereby ratified and shall be and remain in full
force and effect.
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LESCO, Inc. First Amendment to
Note Purchase Agreement
Section 5.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment may refer to the Note Agreement without making specific reference to
this Amendment but nevertheless all such references shall include this Amendment
unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or parts
of this Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 5.4. This Amendment shall be governed by and construed in
accordance with the law of the State of New York.
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LESCO, Inc. First Amendment to
Note Purchase Agreement
Section 5.5. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Amendment
may be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
LESCO, INC.
By
Its____________________________________
Accepted and Agreed to:
PACIFIC LIFE INSURANCE COMPANY
By
Its____________________________________
By
Its____________________________________
PROVIDENT MUTUAL LIFE INSURANCE COMPANY
By
Its____________________________________
PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA
By
Its____________________________________
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LESCO, Inc. First Amendment to
Note Purchase Agreement
GE GROUP LIFE ASSURANCE COMPANY
(formerly known as Phoenix American
Life Insurance Company)
By
Its____________________________________
THE TRAVELERS INSURANCE COMPANY
By
Its____________________________________
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