Exhibit 10.1
THIRD AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Agreement") is dated as of February 10, 2006, and is entered into by and
among BEACON SALES ACQUISITION, INC. ("Borrower") and the Domestic Subsidiary
Guarantors which are signatories hereto (together with Borrower, "Obligors");
GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), for itself as a Lender, as
L/C Issuer and as Agent; and the Lenders and Canadian Facility Lenders which are
signatories hereto.
WHEREAS, Agent, Lenders and Obligors are parties to a certain Third Amended and
Restated Loan and Security Agreement dated as of October 14, 2005 (as such
agreement has been or may hereafter be from time to time amended, supplemented
or otherwise modified, the "Loan Agreement"); and
WHEREAS, the parties have agreed to amend the Loan Agreement on the terms set
forth.
NOW THEREFORE, in consideration of the mutual conditions and agreements set
forth in the Loan Agreement and this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1
DEFINITIONS.
CAPITALIZED TERMS USED IN THIS AGREEMENT, UNLESS
OTHERWISE DEFINED HEREIN, SHALL HAVE THE MEANING ASCRIBED TO SUCH TERMS IN THE
LOAN AGREEMENT.
2
AMENDMENT TO LOAN AGREEMENT.
CLAUSE (8) OF THE DEFINITION OF
"INTEREST PERIOD" SET FORTH IN SECTION 11.1 OF THE LOAN AGREEMENT IS HEREBY
AMENDED TO READ AS FOLLOWS:
"(8) there shall be no more than ten (10) Interest Periods relating to LIBOR
Loans outstanding at any time."
3
CONDITIONS.
THE EFFECTIVENESS OF THIS AGREEMENT IS SUBJECT TO
THE FOLLOWING CONDITIONS PRECEDENT (UNLESS SPECIFICALLY WAIVED IN WRITING BY
AGENT AND REQUISITE LENDERS):
(A)
OBLIGORS, AGENT AND REQUISITE LENDERS SHALL HAVE EXECUTED AND
DELIVERED THIS AGREEMENT; AND
(B)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING.
4
REPRESENTATIONS AND WARRANTIES.
TO INDUCE AGENT, LENDERS AND
CANADIAN FACILITY LENDERS TO ENTER INTO THIS AGREEMENT, OBLIGORS REPRESENT AND
WARRANT TO AGENT, LENDERS AND CANADIAN FACILITY LENDERS:
(A)
THAT THE LOAN PARTIES HAVE ALL REQUISITE ORGANIZATIONAL POWER AND
AUTHORITY TO ENTER INTO, AND CARRY OUT THE TRANSACTIONS CONTEMPLATED BY, THIS
AGREEMENT AND ALL OTHER AGREEMENT AND DOCUMENTS EXECUTED IN CONNECTION THEREWITH
TO WHICH SUCH LOAN PARTIES ARE PARTIES.
(B)
THAT THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND
ALL OTHER AGREEMENTS AND DOCUMENTS EXECUTED IN CONNECTION THEREWITH HAVE BEEN
DULY AUTHORIZED BY ALL REQUISITE ACTION ON THE PART OF THE LOAN PARTIES WHICH
ARE PARTIES THERETO AND THAT THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED
BY BORROWER;
(C)
THAT EACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN
SECTION 4 OF THE LOAN AGREEMENT (OTHER THAN THOSE WHICH, BY THEIR TERMS,
SPECIFICALLY ARE MADE AS OF CERTAIN DATE PRIOR TO THE DATE HEREOF) ARE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE HEREOF; AND
(D)
THAT, AFTER GIVING EFFECT TO THIS AGREEMENT, NO DEFAULT OR EVENT
OF DEFAULT HAS OCCURRED AND IS