FIRST AMENDMENTTO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

EX-10.1 2 v411403_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”) is entered into as of May 21, 2015, among:

 

LUMBER LIQUIDATORS, INC., a Delaware corporation (the “Lead Borrower”);

 

the BORROWERS party hereto (together with the Lead Borrower, collectively, the “Borrowers”);

 

the GUARANTORS party hereto;

 

the LENDERS party hereto; and

 

BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent (the “Agent”).

 

WHEREAS, reference is made to that certain Second Amended and Restated Credit Agreement, dated as of April 24, 2015 (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”), among the Lead Borrower and the other Borrowers, the Guarantors party thereto, the Lenders party thereto, and the Agent; and

 

WHEREAS, the Borrowers and the other Loan Parties have requested that the Agent and the Lenders agree to amend the Credit Agreement as set forth herein; and

 

WHEREAS, the Agent and the Lenders party hereto are willing to agree to the requests of the Borrowers and the other Loan Parties, in each case on the terms and conditions set forth herein.

 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 

1.Defined Terms. Capitalized terms used in this Amendment shall have the respective meanings assigned to such terms in the Credit Agreement unless otherwise defined herein.

 

2.Amendment to the Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Change of Control” in its entirety as follows:

 

Change of Control” means an event or series of events by which:

 

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% or more of the Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such Equity Interests that such “person” or “group” has the right to acquire pursuant to any option right); or

 

 
 

 

(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

 

(c) any “change in control” or similar event as defined in any Organizational Document of any Loan Party or in any Material Contract, or any document governing Material Indebtedness of any Loan Party; or

 

(d) the Parent fails at any time to own, directly or indirectly, 100% of the Equity Interests of each other Loan Party free and clear of all Liens (other than the Liens in favor of the Agent and Permitted Encumbrances), except where such failure is as a result of a transaction permitted by the Loan Documents.

 

3.Ratification of Loan Documents. Except as otherwise expressly provided herein, all terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The Loan Parties hereby ratify, confirm, and reaffirm that all representations and warranties of the Loan Parties contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (except to the extent that any such representation and warranty is already qualified by materiality, in which case such representation and warranty shall be true and correct in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent that any such representation and warranty is already qualified by materiality, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date. The Guarantors hereby acknowledge, confirm and agree that the Guaranteed Obligations of the Guarantors under, and as defined in, the Facility Guaranty include, without limitation, all Obligations of the Loan Parties at any time and from time to time outstanding under the Credit Agreement and the other Loan Documents, as such Obligations have been amended pursuant to this Amendment. The Loan Parties hereby acknowledge, confirm and agree that the Security Documents and any and all Collateral previously pledged to the Agent, for the benefit of the Credit Parties, shall continue to secure all applicable Obligations of the Loan Parties at any time and from time to time outstanding under the Credit Agreement and the other Loan Documents, as such Obligations have been amended pursuant to this Amendment.

 

4.Conditions to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent has been fulfilled or waived:

 

a.The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by each of the parties hereto.

 

b.All action on the part of the Loan Parties necessary for the valid execution, delivery and performance by the Loan Parties of this Amendment and the documents, instruments and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.

  

c.No Default or Event of Default shall have occurred and be continuing.

 

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5.Representations and Warranties.

 

a.The execution, delivery and performance by the Loan Parties of this Amendment and the performance of each such Person’s obligations hereunder have been duly authorized by all necessary corporate or other organizational action, do not and shall not: (i) contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach, termination, or contravention of, or constitute a default under or require any payment to be made under (x) any Material Contract or any Material Indebtedness to which such Person is a party or affecting such Person or the properties of such Person, or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which it or its property is subject, except, in each case referred to in this clause (ii), to the extent that any such conflict, breach, termination, contravention, default or payment could not reasonably be expected to have a Material Adverse Effect; (iii) result in or require the creation of any Lien upon any of its assets (other than Liens in favor of the Agent under the Security Documents); or (iv) violate any applicable Law, except to the extent that any such violation could not reasonably be expected to have a Material Adverse Effect.

 

b.This Amendment has been duly executed and delivered by each of the Loan Parties. This Amendment constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

6.Miscellaneous.

 

a.The Lenders and the Loan Parties hereby irrevocably authorize the Administrative Agent to correct patent errors and fill in any blanks in this Amendment or any prior amendment to the Credit Agreement or other Loan Document.

 

b.This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous letters of intent, commitment letters, agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) shall be as effective as delivery of a manually executed counterpart of this Amendment.

 

c.If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

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d.The Loan Parties represent and warrant that they have consulted with independent legal counsel of their selection in connection with this Amendment and are not relying on any representations or warranties of the Agent or the Lenders or their counsel in entering into this Amendment.

 

e.THIS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.

 

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first above written.

 

  BORROWERS:  
       
  LUMBER LIQUIDATORS, INC., as Lead Borrower and as a Borrower
       
       
  By: /s/ E. Livingston B. Haskell  
  Name: E. Livingston B. Haskell  
  Title: Secretary  
       
  LUMBER LIQUIDATORS SERVICES, LLC, as a Borrower
       
  By: LUMBER LIQUIDATORS, INC., its Manager  
   
       
  By: /s/ E. Livingston B. Haskell  
  Name: E. Livingston B. Haskell  
  Title: Secretary  
       
  GUARANTORS:  
       
  LUMBER LIQUIDATORS HOLDINGS, INC., as Parent and as a Guarantor
       
       
  By: /s/ E. Livingston B. Haskell  
  Name: E. Livingston B. Haskell  
  Title: Secretary  

 

  LUMBER LIQUIDATORS LEASING, LLC, as a Guarantor
       
  By: LUMBER LIQUIDATORS, INC., its Manager  
     
       
  By: /s/ E. Livingston B. Haskell  
  Name: Livingston B. Haskell  
  Title: Secretary  

 

     

 

Signature Page to First Amendment to Second Amended and Restated Credit Agreement
 

 

       
  LUMBER LIQUIDATORS PRODUCTION, LLC, as a Guarantor
       
  By: LUMBER LIQUIDATORS SERVICES, LLC, its Manager
       
  By: LUMBER LIQUIDATORS, INC.,  its Manager
       
       
  By: /s/ E. Livingston B. Haskell  
  Name: E. Livingston B. Haskell  
  Title: Secretary  
       
  Lumber Liquidators Foreign Holdings, LLC, as a Guarantor
       
   By: LUMBER LIQUIDATORS HOLDINGS, INC., its Manager
 

 

 

 
       
  By: /s/ E. Livingston B. Haskell  
  Name:  E. Livingston B. Haskell  
  Title: Secretary  
       
  Lumber Liquidators Foreign Operations LLC, as a Guarantor
       
  By: LUMBER LIQUIDATORS FOREIGN HOLDINGS, LLC, its Manager
       
  By: LUMBER LIQUIDATORS HOLDINGS, INC., its Manager
     
       
  By: /s/ E. Livingston B. Haskell  
  Name:  E. Livingston B. Haskell  
  Title: Secretary  
       

 

Signature Page to First Amendment to Second Amended and Restated Credit Agreement
 

 

  bank of america, n.a., as Agent  
       
       
  By: /s/ Joseph Becker  
  Name: Joseph Becker  
  Title: Managing Director  
       
       
       
  bank of america, n.a., as a Lender and L/C Issuer
       
       
  By: /s/ Joseph Becker  
  Name: Joseph Becker  
  Title: Managing Director  

 

Signature Page to First Amendment to Second Amended and Restated Credit Agreement