AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF 84 FINANCIAL L.P.
Exhibit
3.3
AMENDMENT
TO AGREEMENT
OF
LIMITED PARTNERSHIP
OF
84 FINANCIAL L.P.
THIS AMENDMENT (the “Amendment”) is
made and entered into as of the 19th day of
August, 2010 by and among the undersigned Partners of 84 FINANCIAL L.P, a
Delaware limited partnership (the “Partnership”).
RECITALS:
WHEREAS, the Partnership is the
successor by merger to Hardy Credit Co., a Pennsylvania limited partnership;
and
WHEREAS,
the Partnership and the undersigned Partners are governed by, and are parties
to, the Agreement of Limited Partnership of 84 FINANCIAL L.P. dated August 19,
2010 (as amended, restated, supplemented or modified from time to time, the
“Partnership Agreement”); and
WHEREAS, the Partnership’s sole limited
partner, owning of record 99% of the Partnership, is 84 Lumber Company, a
Pennsylvania limited partnership (the “Limited Partner”);
WHEREAS, the Partnership’s sole general
partner, owning of record 1% of the Partnership, is 84 LADC, LLC (“General
Partner”; the General Partner and Limited Partner, each, a “Partner” and,
together, the “Partners”);
WHEREAS, the Limited Partner is party
to (a) that certain Credit Agreement dated as of April 18, 2008 (as amended,
restated, supplemented or modified from time to time, the “Credit Agreement”)
among the lenders from time to time parties thereto (the “SunTrust Lenders”),
SunTrust Bank, as the issuing bank, administrative agent and a co-collateral
agent (“SunTrust”), Wachovia Bank, National Association, as a co-collateral
agent, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as sole bookrunner and joint lead
arranger, Wachovia Capital Markets, LLC, as joint lead arranger, Limited
Partner, as borrower, ▇▇▇▇▇▇ ▇▇▇▇▇ Limited Partnership, a Pennsylvania limited
partnership (“PHLP”), as a co-guarantor, Hardy Management Company, Inc., a
Nevada corporation (“HMC”), as a co-guarantor, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ &
Associates, a Pennsylvania limited partnership (“JAHA”), as a co-guarantor, and
(b) that certain Credit Party Pledge Agreement of even date herewith (as
amended, restated, supplemented or modified from time to time, the “Credit Party
Pledge”) in favor of SunTrust, in its capacity as a co-collateral
agent;
WHEREAS, the General Partner is party
to (a) that certain Shareholder Guaranty dated as of April 18, 2010 (as amended,
restated, supplemented or modified from time to time, the “Shareholder
Guaranty”) and (b) that certain Shareholder Pledge Agreement of even date
herewith (as amended, restated, supplemented or modified from time to time, the
“Shareholder Pledge,” with the Shareholder Guaranty, the Shareholder Pledge and
the Credit Party Pledge being collectively called the “SunTrust Pledges”), each
in favor of SunTrust, in its capacity as a co-collateral agent;
WHEREAS, the Limited Partner is party
to that certain Financing Agreement dated as of April 18, 2008 (as amended,
restated, supplemented or modified from time to time, the “Financing Agreement”)
among PHLP, as a co-borrower, HMC, as a co-borrower, Limited Partner, as a
co-guarantor, JAHA, as a co-guarantor, the lenders from time to time parties
thereto (the “Ableco Lenders”), and Ableco Finance LLC, a Delaware limited
liability company, as collateral agent and administrative agent for the Ableco
Lenders (“Ableco”);
WHEREAS, the General Partner is a
party to (a) that certain Equity Holder Pledgor Guaranty dated as of April 18,
2008 (as amended, restated, supplemented or modified from time to time, the
“Equity Pledge”) in favor of Ableco, in its capacity as a collateral agent, and
(b) that certain Equity Holder Pledge and Security Agreement dated as of April
18, 2008 (as amended, restated, supplemented or modified from time to time, the
“Security Agreement,” with the Equity Pledge and the Security Agreement being
collectively called the “Ableco Pledges”) in favor of Ableco, in its capacity as
a collateral agent;
WHEREAS, as a condition precedent to
the Lenders’ making the Loans and fulfilling all of the Lenders’ respective
obligations under the Loan Documents (as the terms “Lenders,” “Loans” and “Loan
Documents” are hereinafter defined), the Partners amended the limited
partnership agreement of the Partnership’s predecessor, Hardy Credit Co.,
effective April 18, 2008, to comply with the Credit Agreement, the Financing
Agreement, the SunTrust Pledges, and the Ableco Pledges;
WHEREAS, in connection with the merger
of Hardy Credit Co. with and into the Partnership, by which Hardy Credit Co.
merged out of existence and the Partnership, among other things, succeeded to
the rights, privileges and powers, as well as the debts, liabilities and duties,
of Hardy Credit Co., the Partners desire to amend the limited partnership
agreement of the Partnership to comply with the Credit Agreement, the Financing
Agreement, the SunTrust Pledges, and the Ableco Pledges.
NOW, THEREFORE, for and in
consideration of the mutual covenants, rights and obligations set forth in this
Amendment, the benefits to be derived therefrom, and other good and valuable
consideration, and intending to be legally bound hereby, the undersigned
Partners agree as follows:
1. Modification
of Partnership Agreement; Financing Transaction. This
Amendment is the “Amendment” referenced in Section 17.14 of the Partnership
Agreement and modifies the Partnership Agreement. This Amendment shall be
executed by the Partners concurrently with the Partnership Agreement and, for
avoidance of doubt, shall become effective simultaneously with the Partnership
Agreement. This Amendment together with the Partnership Agreement, as
amended hereby, constitute the written agreement of the Partners that governs
the affairs of the Partnership and the conduct of its business. This
Amendment is being entered into in furtherance of certain financing transactions
entered into by SunTrust, Ableco, the SunTrust Lenders and the Ableco Lenders on
or about April 18, 2008, pursuant to which the Limited Partner, JAHA, and PHLP
have refinanced substantially all of their respective
indebtedness.
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2. Definitions;
Amendments to Section 2.1. Capitalized terms used but not
defined in this Amendment shall have the meanings ascribed to them in the
Partnership Agreement. The following terms used in this Amendment
shall have the meanings set forth below, and the Partnership Agreement is hereby
amended by incorporating such definitions in their appropriate alphabetical
order in Section 2.1 of the Partnership Agreement:
(a)
“Ableco” shall mean Ableco Finance LLC, a Delaware limited liability company, in
its capacity as a collateral agent for the Ableco Lenders, and its successors
and assigns.
(b) “Ableco
Lenders” shall have the meaning set forth in the recitals to the
Amendment.
(c) “Ableco
Loan Documents” shall have the meaning ascribed to the term “Loan Documents” in
the Financing Agreement, as amended from time to time.
(d) “Ableco
Obligations” shall have the meaning ascribed to the term “Obligations” in the
Ableco Pledges, as amended from time to time.
(e) “Ableco
Pledges” shall have the meaning set forth in the recitals to the
Amendment.
(f)
“Amendment” shall mean the Amendment to Agreement of Limited
Partnership of 84 FINANCIAL L.P. dated __________________, 2010.
(g) “Commitments”
shall mean (i) the “Commitments,” as defined in the Credit Agreement and (ii)
the “Commitments,” as defined in the Financing Agreement.
(h) “Credit
Agreement” shall have the meaning set forth in the recitals to the
Amendment.
(i)
“Credit Party Pledge” shall have the meaning set forth in the
recitals to the Amendment.
(j)
“Equity Pledge” shall have the meaning set forth in the
recitals to the Amendment.
(k)
“Event of Default” shall mean (i) any “Event of Default,” as that term is
defined in the SunTrust Loan Documents, and (ii) any “Event of Default,” as that
term is defined in the Ableco Loan Documents.
(l)
“Financing Agreement” shall have the meaning set forth
in the recitals to the Amendment.
(m) “HMC”
shall have the meaning set forth in the recitals to the
Amendment.
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(n) “JAHA”
shall have the meaning set forth in the recitals to the Amendment.
(o) “Lenders”
shall mean (i) the SunTrust Lenders and (ii) the Ableco Lenders.
(p) “Lien”
shall mean (i) any “Lien,” as defined in the Credit Agreement and/or (ii) any
“Lien,” as defined in the Financing Agreement.
(q) “Loan
Documents” shall mean (i) the SunTrust Loan Documents and (ii) the Ableco Loan
Documents.
(r)
“Loans” shall mean (i) the “Loans,” as defined in the Credit
Agreement, and (ii) the “Loans,” as defined in the Financing
Agreement.
(s)
“Obligations” shall mean (i) the SunTrust Obligations and (ii) the Ableco
Obligations.
(t)
“PHLP” shall have the meaning set forth in the recitals to the
Amendment.
(u) “Pledged
Interests” shall have the meaning set forth in Section 12.13(a)
hereof.
(v) “Security
Agreement” shall have the meaning set forth in the recitals to the
Amendment.
(w) “Shareholder
Pledge” shall have the meaning set forth in the recitals to the
Amendment.
(x) “SunTrust”
shall mean SunTrust Bank, in its capacity as a co-collateral agent for the
SunTrust Lenders, and its successors and assigns.
(y) “SunTrust
Lenders” shall have the meaning set forth in the recitals to the
Amendment.
(z) “SunTrust
Loan Documents” shall have the meaning ascribed to the term “Loan Documents” in
the Credit Agreement, as amended from time to time.
(aa) “SunTrust
Obligations” shall mean, collectively, (i) the “Obligations” as defined in the
Credit Agreement and (ii) the “Secured Obligations” as defined in the SunTrust
Pledges, as each may be amended from time to time.
(bb) “SunTrust
Pledges” shall have the meaning set forth in the recitals to
the Amendment.
(cc) “Term
Debt Intercreditor Agreement” shall have the meaning set forth in the Credit
Agreement.
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3. Amendment
to Section 12.1. Section 12.1 of the Partnership Agreement is
hereby amended as follows:
(a) by
adding the following words to the first sentence thereof immediately
following the words, “Except as expressly permitted in Section
12.2”:
“or
Section 12.13,”.
(b) by
adding the following words to the second sentence thereof immediately following
the words “Section 12.2”:
“or
Section 12.13”.
4. Amendment
to Section 12.3. Section 12.3 of the Partnership Agreement is
hereby amended by adding the following sentence as the last sentence
thereof:
Notwithstanding
the foregoing, neither the Partnership nor any Partner shall have the right of
first refusal set forth in this Section 12.3 with respect to any transfers to or
from SunTrust, Ableco, the Lenders or their respective designees in accordance
with the terms of Section 12.13 and the terms of the Loan
Documents.
5. Amendment
to Section 12.4. Section 12.4 of
the Partnership Agreement is hereby amended and restated in its entirety as
follows:
Section 12.4. Restrictions
on Transfer of Interests in the Partnership. Any provision of
this Agreement to the contrary notwithstanding, except for sales, transfers or
assignments by SunTrust or Ableco or their respective designees, no interest in
the Partnership may be sold, transferred or assigned in whole or in part if it
would cause the termination of the Partnership for Federal income tax purposes,
unless the General Partners (or, if applicable, the majority in interest of the
Limited Partners), subject to the prior written consent of SunTrust and Ableco,
agree in writing to such sale, transfer or assignment.
6. Amendment
to Section 12.5(a). Section 12.5(a)
of the Partnership Agreement is hereby amended and restated in its entirety as
follows:
(a) Except as otherwise
expressly provided in this Article XII, other than with respect to transfers,
assignments or purchases by or from SunTrust or Ableco or their respective
designees, the transferee, assignee or purchaser of a Partner’s interest in the
Partnership shall not be admitted as a Partner of the Partnership without the
prior written consent of the General Partners and a majority in interest of the
nontransferring Limited Partners, which consent may be granted or withheld in
such Partners’ absolute discretion. Upon any exercise of remedies by
SunTrust or Ableco under the Loan Documents upon the occurrence of an Event of
Default, either SunTrust or Ableco, as the case may be, or their respective
designees shall be automatically admitted to the Partnership without any further
action or consent by the General Partners or the Limited
Partners.
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7. Amendment
to Section 12.5(b). The first clause
of Section 12.5(b) of the Partnership Agreement is hereby amended and restated
in its entirety as follows:
(b) Other than with respect
to transfers, assignments or purchases by or from SunTrust or Ableco or their
respective designees, unless the General Partners agree otherwise, no
transferee, assignee or purchaser of a Partner’s interest in the Partnership
shall be admitted as a Partner of the Partnership until such transferee,
assignee or purchaser satisfactorily completes the following:
8. Amendment
to Section 12.6. Section 12.6 of the Partnership Agreement is
hereby amended by inserting the following words at the beginning of the first
sentence thereof:
“Except
as may be expressly provided in a separate written instrument executed by the
General Partners and the transferee,”.
9. Amendment
to Section 12.7. Section 12.7 of the Partnership Agreement is
hereby amended by adding the following to the beginning of the second sentence
thereto:
“Other
than with respect to transfers, assignments or purchases by or from SunTrust or
Ableco or their respective designees,”.
10. Amendment
to Section 12.10. Section 12.10 of the Partnership Agreement
is hereby amended by adding the following words immediately following the words,
“Upon the acquisition of all of the interest in the Partnership of any
Partner,”:
“except
for any acquisition by SunTrust or Ableco or their respective designees pursuant
to Section 12.13,”.
11. Amendment
to Section 12.11. The introductory paragraph of Section 12.11
of the Partnership Agreement is hereby amended and restated in its entirety as
follows:
Section
12.11. Admission of Additional
Partners. Additional Partners may be admitted to the
Partnership from time to time only with the agreement of all of the Partners;
provided that no agreement or other consent is required for the admission of
SunTrust or Ableco or their respective designees pursuant to Section
12.13. Except for SunTrust or Ableco or their respective designees
admitted pursuant to Section 12.13, no Person shall be admitted as a Partner
pursuant to this Section 12.11 until:
12. New
Section 12.13. ARTICLE XII of the Partnership Agreement is
hereby amended by adding the following new Section 12.13 to the end
thereof:
Section
12.13. Pledge of
Interests. Notwithstanding anything to the contrary contained
in this Agreement, until the Obligations have been satisfied in full and the
Commitments have been terminated, each of the Partners acknowledge, authorize,
consent and agree to the following:
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(a) A
pledge of, a grant of a security interest in and a grant of a Lien upon all of
the interests of the Partnership described in (i), (ii), and (iii) below, in
favor of SunTrust and Ableco, respectively, to secure, among other things, the
payment and performance of the Obligations, the SunTrust Pledges and the Ableco
Pledges (collectively, the “Pledged Interests”):
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(i)
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all
interests, including, without limitation, limited partnership interests,
in the Partnership held by the Limited
Partner;
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(ii)
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all
interests, including, without limitation, general partnership interests,
held by the General Partner; and
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(iii)
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all
other interests in the Partnership held by any other Person from time to
time.
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(b) The
Partnership’s books and records shall be marked to reflect the pledges of,
grants of security interests in and Liens upon the Pledged Interests in favor of
SunTrust and Ableco, respectively.
(c) No
Pledged Interest or any rights related thereto shall be further encumbered,
sold, assigned, or otherwise transferred by any Partner or the Partnership
without the prior written consent of SunTrust and Ableco.
(d) The
Partners and the Partnership, as applicable, shall comply with all provisions of
the SunTrust Pledges (including, without limitation, the covenants set forth in
Sections 6 and 7 of the Shareholder Pledge and Section 5 of the Credit Party
Pledge), the Ableco Pledges (including, without limitation, the covenants set
forth in Section 6 thereof) and the other Loan Documents.
(e) If
the Partners or the Partnership are advised by SunTrust or Ableco that an Event
of Default has occurred under either the Credit Agreement or the Financing
Agreement, as the case may be, the Partners and the Partnership shall comply
with all of the provisions of the SunTrust Pledges (including, without
limitation, SunTrust’s rights upon the occurrence of an Event of Default, as set
forth in Sections 1, 8 and 13 of the Shareholder Pledge and Sections 1, 6 and 11
of the Credit Party Pledge), the Ableco Pledges (including, without limitation,
Ableco’s rights upon the occurrence of an Event of Default, as set forth in
Section 9 thereof) and the other Loan Documents. No further action
shall be necessary or required on the part of the Partnership or any Partner to
permit either SunTrust or Ableco or their respective designees to be admitted as
a Partner of the Partnership and to otherwise exercise such rights, including,
without limitation, SunTrust’s right to request, after the occurrence and during
the continuation of an Event of Default, that Pledged Interests subject to the
SunTrust Pledges be registered in SunTrust’s name or in the name of its
nominees, which registration shall not be subject to the restrictions on
transfer set forth in ARTICLE XII hereof.
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(f) No
exercise by Ableco or SunTrust of either of their respective rights under the
Credit Agreement, the Financing Agreement, the SunTrust Pledges, the Ableco
Pledges or the other Loan Documents shall constitute a violation of, or be
prohibited by, this Agreement, notwithstanding any provision contained herein to
the contrary.
(g) Notwithstanding
anything to the contrary set forth in Section 16.1 or elsewhere in this
Agreement, the General Partner shall amend and/or modify this Agreement if
SunTrust or Ableco reasonably requests in writing (with a copy to the
nonrequesting party) that the General Partner amend and/or modify this Agreement
to ensure to SunTrust and/or Ableco:
(i) the benefits of the SunTrust
Pledges and the Ableco Pledges, respectively, and the Liens upon and security
interests in the Pledged Interests; and
(ii) the ability to exercise and
enforce their respective rights and remedies pursuant to the SunTrust Pledges,
the Ableco Pledges and the other Loan Documents,
provided
that any such amendment shall require the consent of both SunTrust and
Ableco.
13. Amendment
to Section 13.1. Section 13.1 of the Partnership Agreement is
hereby amended as follows:
(a) by
amending and restating clause (e)(iv) thereof to read as follows:
(iv)
except as set forth in Section 12.13 with respect to SunTrust and Ableco, a
creditor of a General Partner attaching the General Partner’s interest in the
Partnership and such attachment not being discharged or vacated within ninety
(90) days from the date it becomes effective;
(b) by
adding the following immediately after clause (e)(vii) thereof:
Anything
in the above to the contrary notwithstanding, so long as any Obligations under
the Loan Documents and Commitments thereunder are outstanding, neither the
Partnership nor any of the Partners shall:
(a)
permit the term of the Partnership to expire;
(b) elect
to dissolve the Partnership;
(c)
terminate the business of the Partnership;
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(d)
permit any General Partner to withdraw from the Partnership; or
(e) act,
or fail to act, in any manner that would, or could reasonably be expected to,
result in the dissolution of the Partnership.
14. Amendment
to Section 13.2. Section 13.2 of the Partnership Agreement is
hereby amended and restated in its entirety as follows:
Section 13.2 Election to Continue
Partnership. In the event of the happening of any of the
events described in Section 13.1(e) above, the remaining Partners hereby
unanimously elect to continue the Partnership; provided, however, to the extent
such preemptive election is insufficient under applicable law to continue the
Partnership, the Partners hereby agree that promptly upon the occurrence of an
event described in Section 13.1(e) (but in any event within 30 days after such
event) to hold a vote regarding the continuation of the Partnership, and each of
the Partners hereby agrees to vote to continue the Partnership, such agreement
to be evidenced in writing by each of the Partners. The election
under 6 Del. C. § 17-801 is hereby approved by all of the Partners; the General
Partners shall take any affirmative action required to effectuate such
election. Upon the Partnership being continued pursuant to this
Section 13.2, the interest of the General Partner described in Section 13.1(e)
above shall immediately and automatically be converted to that of a Limited
Partner with the same interest in the capital and the profits of the Partnership
which such Partner had immediately prior to such conversion, and the Limited
Partners shall promptly (but in any event within 30 days after the occurrence of
an event described in Section 13.1(e)) select a successor general partner
acceptable to both SunTrust and Ableco to be the General Partner of the
Partnership.
15. Amendment
to Section 16.1. Section 16.1 of the Partnership Agreement is
hereby amended and restated in its entirety as follows:
Section 16.1. Amendment of
Agreement. Except as otherwise expressly provided for in this
Agreement, including, without limitation, Section 12.13(g), subject to the terms
of the SunTrust Pledges and the Ableco Pledges, this Agreement may be modified
or amended only by a writing signed by all of the General Partners and a
majority in interest of the limited partnership interests of the Partnership,
SunTrust and Ableco.
16. Disagreement. In
the event of any conflict, disagreement or discrepancy between the terms of this
Amendment and the Partnership Agreement, then the terms of this Amendment shall
govern and control. In the event of any conflict, disagreement or
discrepancy between the terms of this Amendment and the Partnership Agreement,
on the one hand, with the terms of the Loan Documents, on the other hand, which
conflict, disagreement or discrepancy relates to the pledge of, grant of a
security interest in, or grant of a Lien upon any Pledged Interests of the
Partnership, then the applicable Loan Documents shall govern and
control. Notwithstanding the foregoing, with respect to the relative
rights and priorities of SunTrust, Ableco, the SunTrust Lenders and the Ableco
Lenders hereunder, the Term Debt Intercreditor Agreement shall govern and
control.
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17. Sunset
Provision. The provisions amending the Partnership Agreement
set forth in the Amendment shall automatically terminate and shall be of no
further force or effect upon the last to occur of the following
events: (a) satisfaction of all Obligations pursuant to the SunTrust
Loan Documents, (b) satisfaction of all Obligations pursuant to the Ableco Loan
Documents, (c) termination of all Commitments pursuant to the SunTrust Loan
Documents and (d) termination of all Commitments pursuant to the Ableco Loan
Documents. Such automatic termination shall require no action on the
part of any party to the Amendment or any third party including, without
limitation, any party to the Loan Documents. Upon the full and final
satisfaction of all Obligations and the termination of all Commitments with
respect to the SunTrust Loan Documents, any obligation of the Partnership or of
any Partner under the Partnership Agreement owing to SunTrust shall be
discharged, and any other action by, notice to, or consent of SunTrust shall no
longer apply or be otherwise required. Upon the full and final
satisfaction of all Obligations and the termination of all Commitments with
respect to the Ableco Loan Documents, any obligation of the Partnership or of
any Partner under the Partnership Agreement owing to Ableco shall be discharged,
and any other action by, notice to, or consent of Ableco shall no longer apply
or be otherwise required.
18. Partnership
Interests Not Securities. The Partners hereby confirm and
ratify that none of the interests in the Partnership (limited, general or other)
may be considered to be a security within the meaning of the applicable version
of Article 8 of the Uniform Commercial Code, and that the foregoing may be
amended only with the consent of SunTrust and Ableco.
19. Confirmation
and Ratification of Partnership Agreement. In all other
respects, the Partnership Agreement is confirmed and ratified in all
respects.
20. Consent
of Partners. Each of the
Partners hereby consents to the execution, delivery, and performance by the
Partnership and the other Partners of the Loan Documents to which each such
Person is a party.
Remainder
of page left blank; signatures on following page
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IN WITNESS WHEREOF, the undersigned
have executed and delivered this Amendment as of the date first above
written.
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SOLE GENERAL PARTNER:
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84
LADC, LLC
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By:
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/s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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President
and Manager
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LIMITED
PARTNER:
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84
LUMBER COMPANY
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By:
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Hardy
Holdings, Inc., General Partner
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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President
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