-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B8ZDfbsSpsM36DdxIou5KTOlCkPDBonsX2EZpVxLAykyfF5aGSdfhRLpK5FwW012 qU0sqm6Ln1di+7plZsxkuA== 0001341004-09-001839.txt : 20090901 0001341004-09-001839.hdr.sgml : 20090901 20090901083809 ACCESSION NUMBER: 0001341004-09-001839 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20090901 DATE AS OF CHANGE: 20090901 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Builders FirstSource, Inc. CENTRAL INDEX KEY: 0001316835 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-LUMBER & OTHER BUILDING MATERIALS DEALERS [5211] IRS NUMBER: 522084569 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81419 FILM NUMBER: 091047356 BUSINESS ADDRESS: STREET 1: 2001 BRYAN STREET, SUITE 1600 CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: (214) 880-3500 MAIL ADDRESS: STREET 1: 2001 BRYAN STREET, SUITE 1600 CITY: DALLAS STATE: TX ZIP: 75201 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BUILDING PRODUCTS, LLC CENTRAL INDEX KEY: 0001327047 IRS NUMBER: 752725894 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 450 LEXINGTON AVENUE STREET 2: SUITE 3350 CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-286-8600 MAIL ADDRESS: STREET 1: 450 LEXINGTON AVENUE STREET 2: SUITE 3350 CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: JLL BUILDING PRODUCTS LLC DATE OF NAME CHANGE: 20050513 SC 13D/A 1 sc13da.htm SCHEDULE 13-D/A sc13da.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 3)*

BUILDERS FIRSTSOURCE, INC. 
(Name of Issuer)
 

Common stock, par value $0.01 per share 
(Title of Class of Securities)
 

 
12008R-10-7 
(CUSIP Number)

Building Products, LLC
450 Lexington Avenue, 31st Floor
New York, New York 10017
(212) 286-8600
Attention: Paul S. Levy

With copies to:

Robert B. Pincus, Esq.
Steven J. Gartner, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Mark A. Cognetti, Esq.
One Rodney Square, P.O. Box 636
Willkie Farr & Gallagher LLP
Wilmington, Delaware 19899-0636
787 Seventh Avenue
(302) 651-3000
New York, NY  10019-6099
 
(212) 728-8000
 

 
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
 

 
August 31, 2009
(Date of Event Which Requires Filing of This Statement)

 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

NOTE:       Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See Rule 240.13d-7 for other parties to whom copies are to be sent.

*
The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 


  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Building Products, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
 
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
None
8
SHARED VOTING POWER
 
None
9
SOLE DISPOSITIVE POWER
 
None
10
SHARED DISPOSITIVE POWER
 
None
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
None
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0%
14
TYPE OF REPORTING PERSON
 
OO
 
 
 
2
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
JLL Partners Fund V, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
None
8
SHARED VOTING POWER
 
8,952,551.5
9
SOLE DISPOSITIVE POWER
 
None
10
SHARED DISPOSITIVE POWER
 
8,952,551.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
8,952,551.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
24.8%
14
TYPE OF REPORTING PERSON
 
PN
 

 
 
3
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
JLL Associates V, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
None
8
SHARED VOTING POWER
 
8,952,551.5
9
SOLE DISPOSITIVE POWER
 
None
10
SHARED DISPOSITIVE POWER
 
8,952,551.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
8,952,551.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
24.8%
14
TYPE OF REPORTING PERSON
 
PN

 
 
4
 

 
  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
JLL Associates G.P. V, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
None
8
SHARED VOTING POWER
 
8,952,551.5
9
SOLE DISPOSITIVE POWER
 
None
10
SHARED DISPOSITIVE POWER
 
8,952,551.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
8,952,551.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
24.8%
14
TYPE OF REPORTING PERSON
 
OO
 
 
5
 

 
SCHEDULE 13D
 
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Paul S. Levy
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States of America
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
None
8
SHARED VOTING POWER
 
8,952,551.5
9
SOLE DISPOSITIVE POWER
 
None
10
SHARED DISPOSITIVE POWER
 
8,952,551.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
8,952,551.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
24.8%
14
TYPE OF REPORTING PERSON
 
IN


 
 
6
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Warburg Pincus Private Equity IX, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
25.1%
14
TYPE OF REPORTING PERSON
 
PN
 

 
 
7
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Warburg Pincus IX, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
N/A
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
25.1%
14
TYPE OF REPORTING PERSON
 
OO

 
 
8
 

 
  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Warburg Pincus Partners, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
N/A
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
25.1%
14
TYPE OF REPORTING PERSON
 
OO
 

 
 
9
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Warburg Pincus LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
N/A
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.1%
14
TYPE OF REPORTING PERSON
 
OO
 
 
 
10
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Warburg Pincus & Co.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
N/A
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
25.1%
14
TYPE OF REPORTING PERSON
 
PN
 

 
 
11
 

  SCHEDULE 13D
CUSIP No. 12008R-10-7
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Charles R. Kaye
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
N/A
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States of America
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
25.1%
14
TYPE OF REPORTING PERSON
 
IN
 
 
 
12
 

 
 
SCHEDULE 13D
  
CUSIP No. 12008R-10-7
    
1
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF  ABOVE PERSONS (ENTITIES ONLY)
 
Joseph P. Landy
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)      o
(b)      x
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
N/A
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States of America
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
9,055,392.5
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
9,055,392.5
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
9,055,392.5
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
25.1%
14
TYPE OF REPORTING PERSON
 
IN
 
 
 
13
 
Pursuant to Rule 13d-2 promulgated under the Securities Exchange Act of 1934, as amended, this Amendment No. 3 to Schedule 13D (this “Amendment No. 3”) amends the Schedule 13D originally filed with the United States Securities and Exchange Commission on March 2, 2006 (the “Original Schedule 13D”), as amended by Amendment No. 1 thereto filed on December 8, 2006 (“Amendment No. 1”) and as further amended by Amendment No. 2 thereto filed on March 14, 2008 (“Amendment No. 2) (the Original Schedule 13D, as amended by Amendment No. 1, Amendment No. 2, and this Amendment No. 3, are collectively referred to herein as the “Schedule 13D”).

This Amendment No. 3 relates to the shares of the common stock, par value $0.01 per share (the “Common Stock”), of Builders FirstSource, Inc., a Delaware corporation  (the “Company”), owned by Building Products, LLC, a Delaware limited liability company (“Building Products LLC”); JLL Partners Fund V, L.P., a Delaware limited partnership (“JLL Fund V”); JLL Associates V, L.P., a Delaware limited partnership (“JLL Associates V”) and the general partner of JLL Fund V; JLL Associates G.P. V, L.L.C., a Delaware limited liability company (“JLL Associates G.P. ”) and the general partner of JLL Associates V; Mr. Paul S. Levy, the sole member of JLL Associates G.P. (JLL Fund V, JLL Associates V, JLL Associates G.P., and Mr. Levy collectively being the “JLL Reporting Persons”); and Warburg Pincus Private Equity IX, L.P., a Delaware limited partnership (“Warburg Pincus Fund IX”); Warburg Pincus IX, LLC, a New York limited liability company and sole general partner of Warburg Pincus Fund IX (“WP IX LLC”); Warburg Pincus Partners, LLC, a New York limited liability company and sole member of WP IX LLC (“WPP LLC”); Warburg Pincus LLC, a New York limited liability company that manages Warburg Pincus Fund IX (“WP LLC”); Warburg Pincus & Co., a New York general partnership and the managing member of WPP LLC (“WP”); and Messrs. Charles R. Kaye and Joseph P. Landy, each a Managing General Partner of WP and Co-President and Managing Member of WP LLC (Warburg Pincus Fund IX, WP IX LLC, WPP LLC, WP LLC, WP, Mr. Kaye and Mr. Landy collectively being the “Warburg Pincus Reporting Persons,” and Building Products LLC, the JLL Reporting Persons, and the Warburg Pincus Reporting Persons collectively being the “Reporting Persons”).  Except as specifically amended by this Amendment No. 3, items in the Schedule 13D are unchanged.

Information in this Amendment No. 3 with respect to each of the Reporting Persons is given solely by that particular Reporting Person, and none of the other Reporting Persons has any responsibility for the accuracy or completeness of information with respect to any other Reporting Person.  Capitalized terms used herein that are not defined herein have the meanings ascribed to them in the Schedule 13D.


Item 2.  Identity and Background

Item 2 is hereby amended by replacing it in its entirety with the following:

The business address of each of Building Products LLC and the JLL Reporting Persons is c/o JLL Partners, Inc., 450 Lexington Avenue, 31st Floor, New York, New York 10017.  The business address of each of the Warburg Pincus Reporting Persons
 
 
14
 
and each person listed on Schedule I is c/o Warburg Pincus LLC, 450 Lexington Avenue, 32nd Floor, New York, New York 10017.


Item 3.  Source and Amount of Funds or Other Consideration

Item 3 is hereby amended and supplemented by adding the following at the end thereof:

JLL Fund V and Warburg Pincus Fund IX each will obtain the funds used to acquire any securities purchased pursuant to the transactions contemplated by the Recapitalization Proposal, as described in Item 4, from capital contributions of their respective partners or from working capital.


Item 4.  Purpose of Transaction

Item 4 is hereby amended and supplemented by adding the following at the end thereof:

On August 31, 2009, representatives of JLL Fund V and Warburg Pincus Fund IX delivered to the Company’s Board of Directors a proposal to recapitalize the Company (the “Recapitalization Proposal”), a copy of which is attached hereto as Exhibit 1 and incorporated herein by reference.  The Recapitalization Proposal contemplates that (a) the Second Priority Senior Secured Floating Rate Notes due 2012 of the Company (the “Notes”) held by a limited liability company jointly owned by JLL Fund V and Warburg Pincus Fund IX (which currently approximate $98 million in aggregate principal amount) would be exchanged (the “Sponsor Exchange”) for Common Stock at the rate of 500 shares of Common Stock for each $1,000 principal amount of Notes (or a conversion price of $2.00 per share), and (b) all other holders of Notes would be offered the opportunity to exchange (the “Noteholder Exchange”) each $1,000 principal amount of their Notes for either (i) 500 shares of Common Stock, valued at $2.00 per share, or (ii) $750 principal amount of new second lien indebtedness, or (iii) any combination thereof, provided that the Company will issue no less than $20 million of Common Stock ( the “Floor”) and no more than $40 million of Common Stock ( the “Cap”) to participants in the Noteholder Exchange.  In the event that holders of Notes elect to receive in the Noteholder Exchange more shares of Common Stock than the Cap or fewer shares of Common Stock than the Floor, the available shares of Common Stock and new second lien indebtedness will be distributed to holders who elected to exchange their Notes on a pro rata basis.

The Recapitalization Proposal also contemplates a rights offering for up to an aggregate of $75 million of the Company’s Common Stock to be made to all stockholders of the Company on a pro rata basis pursuant to which stockholders may elect to acquire shares of Common Stock at a subscription price of $2.00 per share (the “Rights Offering”).  Holders of Notes who receive shares of the Company’s Common Stock in the Noteholder Exchange would be permitted to participate in the Rights Offering on an “as converted” basis.  JLL Fund V and Warburg Pincus Fund IX would agree to purchase all shares of Common Stock not subscribed for in the Rights Offering.

 
15
 
As a condition of the Noteholder Exchange, holders of no less than 85% of the outstanding aggregate principal amount of Notes (other than JLL Fund V and Warburg Pincus Fund IX or their affiliates) must participate in the exchange, and holders of the requisite principal amount of Notes must consent to certain amendments to the Indenture, dated as of February 11, 2005, governing the Notes that would eliminate certain restrictive covenants and release the collateral from the liens securing the Notes.  The Sponsor Exchange, Noteholder Exchange, and Rights Offering will each be conditioned upon the consummation of each of the other transactions described in the Recapitalization Proposal.  In addition, the transactions described in the Recapitalization Proposal will be conditional on, among other things, approval by the Company’s stockholders of the issuance of shares of the Company’s Common Stock in connection with the Sponsor Exchange, Noteholder Exchange, and Rights Offering.

A copy of the press release announcing the delivery of the Recapitalization Proposal to the Board of Directors of the Company is attached hereto as Exhibit 2 and incorporated herein by reference.

As of the date of this Schedule 13D, other than the Recapitalization Proposal, there are no current plans or proposals of the Reporting Persons that relate to or would result in any of the actions identified in Item 4(a) through Item 4(j).

The JLL Reporting Persons and the Warburg Pincus Reporting Persons intend to review their respective investments in the Company on a continuing basis and will routinely monitor a wide variety of investment considerations, including, without limitation, current and anticipated future trading prices for the Common Stock, Notes, and other securities of the Company, if any; the Company’s financial position, operations, liquidity, assets, prospects, strategic direction and business, and other developments affecting the Company and its subsidiaries; the Company’s management and Board of Directors; conditions in the securities and financial markets, tax considerations, general market, economic, and industry conditions, other investment and business opportunities available to the JLL Reporting Persons or the Warburg Pincus Reporting Persons, as the case may be, and other factors considered relevant.  The JLL Reporting Persons and the Warburg Pincus Reporting Persons may from time to time take such actions with respect to their respective investments in the Company as they deem appropriate, including, without limitation, (i) acquiring additional shares of Common Stock, Notes, or other securities of the Company or disposing of some or all of their shares of Common Stock, Notes, or other securities of the Company or engaging in discussions with the Company and its subsidiaries concerning future transactions with the Company and its subsidiaries, including, without limitation, the Recapitalization Proposal, extraordinary corporate transactions, and acquisitions or dispositions of shares of capital stock, Notes, or other securities of the Company or any subsidiary thereof; (ii) changing their current intentions with respect to any or all matters referred to in this Schedule 13D; and (iii) engaging in hedging, derivative, or similar transactions with respect to any securities of the Company.  Any acquisition or disposition of the Company’s securities may be made by means of open-market purchases or dispositions, privately negotiated transactions, direct acquisitions from or dispositions to the Company or a subsidiary thereof or otherwise.

 
16
 
As part of each of the JLL Reporting Persons’ and the Warburg Pincus Reporting Persons’ continuing evaluation of, and preservation of the value of, their respective investments in the Common Stock, Notes, or other securities of the Company, the JLL Reporting Persons and the Warburg Pincus Reporting Persons may from time to time engage in discussions with, respond to inquiries from, or make proposals to various persons, including, without limitation, the Company’s management, the Board of Directors, existing or potential strategic partners of the Company, other stockholders, industry analysts, and others concerning the Company and the JLL Reporting Persons’ and the Warburg Pincus Reporting Persons’ respective investments in the Common Stock, Notes, or other securities of the Company, including, without limitation, the business, operations, prospects, governance, management, strategy and the future plans of the Company.


Item 5.  Interest in Securities of the Issuer

Item 5(c) is hereby amended by replacing it in its entirety with the following:

No transactions in the Company’s Common Stock were effected by any of the Reporting Persons during the sixty days preceding the date of this Amendment No. 3.


Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 is hereby amended and supplemented by adding the following at the end thereof:

The information provided in Item 4 of this Amendment No. 3 is incorporated by reference to this Item 6.

During the one-month period ending on or about May 15, 2009, an affiliate of JLL Fund V acquired approximately $98 million in aggregate principal amount of Notes through open market purchases.  On August 31, 2009, Warburg Pincus Fund IX acquired 50% of the membership interests in JWP LLC, a Delaware limited liability company (“JWP LLC”), through which JLL Fund V then held such Notes. As a result, each of JLL Fund V and Warburg Pincus Fund IX owns 50% of the outstanding limited liability company interests of JWP LLC, which is the owner of approximately $98 million in aggregate principal amount of Notes.  The Amended and Restated Limited Liability Company Agreement of JWP LLC, dated as of August 31, 2009 (the “JWP Operating Agreement”) provides, among other things, that each of JLL Fund V and Warburg Pincus Fund IX is deemed to own 50% of the Notes (and any securities received with respect thereto) held by JWP LLC (plus any Notes (and securities received with respect thereto) acquired by JWP LLC on behalf of JLL Fund V or Warburg Pincus Fund IX or contributed to JWP LLC by either such member, and less any Notes transferred by JWP LLC on such member’s behalf).  Under the terms of the JWP Operating Agreement, each of JLL Fund V and Warburg Pincus Fund IX may cause JWP LLC to transfer any or all of the Notes deemed to be owned by such member.  On any matter on which JWP LLC is entitled to vote, each of JLL Fund V and Warburg Pincus Fund IX will direct the voting of the Notes deemed to be owned
 
 
17
 
 
by it as it sees fit, without any agreement, arrangement, or understanding between them regarding the voting of the subject Notes.

A copy of the JWP Operating Agreement is attached hereto as Exhibit 3 and incorporated herein by reference.


Item 7.  Material to be Filed as Exhibits
 
   
Exhibit 1
Letter, dated August 31, 2009, to Mr. Floyd F. Sherman, President and Chief Executive Officer of Builders FirstSource, Inc.
   
Exhibit 2
Press release, dated September 1, 2009, of JLL Partners Fund V, L.P. and Warburg Pincus Private Equity IX, L.P.
   
Exhibit 3
Amended and Restated Limited Liability Company Agreement of JWP LLC, dated as of August 31, 2009.


 
18
 

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 31, 2009

 
BUILDING PRODUCTS, LLC
   
 
  /s/ Paul S. Levy
 
Paul S. Levy, Manager


After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 31, 2009

 
JLL PARTNERS FUND V, L.P.
   
 
By its General Partner, JLL Associates V, L.P.
 
By its General Partner, JLL Associates G.P. V, L.L.C.
   
 
  /s/ Paul S. Levy
 
Paul S. Levy, as Managing Member of JLL Associates G.P. V, L.L.C.


After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 31, 2009

 
JLL ASSOCIATES V, L.P.
   
 
By its General Partner, JLL Associates G.P. V, L.L.C.
   
 
  /s/ Paul S. Levy
 
Paul S. Levy, as Managing Member of JLL Associates G.P. V, L.L.C.

 
 
 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 31, 2009


 
JLL ASSOCIATES G.P. V, L.L.C.
   
 
  /s/ Paul S. Levy
 
Paul S. Levy, as Managing Member


After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 31, 2009


 
  /s/ Paul S. Levy
 
Paul S. Levy


 
 
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009


 
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
   
 
By its General Partner, Warburg Pincus IX, LLC
 
By its Sole Member, Warburg Pincus Partners, LLC
 
By its Managing Member, Warburg Pincus & Co.
   
 
  /s/ Scott A. Arenare
 
Scott A. Arenare
 
Partner


After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009


 
WARBURG PINCUS IX, LLC
   
 
By its Sole Member, Warburg Pincus Partners, LLC
 
By its Managing Member, Warburg Pincus & Co.
   
 
  /s/ Scott A. Arenare
 
Scott A. Arenare
 
Partner


After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009


 
WARBURG PINCUS PARTNERS, LLC
   
 
By its Managing Member, Warburg Pincus & Co.
   
 
  /s/ Scott A. Arenare
 
Scott A. Arenare
 
Partner
 

 
 
 
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009


 
WARBURG PINCUS LLC
   
 
  /s/ Scott A. Arenare
 
Scott A. Arenare
 
Managing Director


After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009


 
WARBURG PINCUS & CO.
   
   
 
  /s/ Scott A. Arenare
 
Scott A. Arenare
 
Partner

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009

 
/s/ Scott A. Arenare
 
Charles R. Kaye
 
By:  Scott A. Arenare
 
       Attorney-in-Fact

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 1, 2009

 
  /s/ Scott A. Arenare
 
Joseph P. Landy
 
By:  Scott A. Arenare
 
       Attorney-in-Fact
 
 

 
 
 EX-1 2 ex1.htm EXHIBIT 1 LETTER TO CEO AND EXHIBIT A TO THE LETTER ex1.htm
 

 
 JLL Partners Fund V, L.P.   Warburg Pincus Private Equity IX, L.P.
 
                           

August 31, 2009


VIA ELECTRONIC TRANSMISSION

Mr. Floyd F. Sherman
CEO and President
Builders FirstSource, Inc.
2001 Bryan Street, Suite 1600
Dallas, Texas 75201

Dear Floyd:

As you know, the current downturn in the homebuilding industry is unprecedented.  On behalf of JLL Partners Fund V, L.P. (“JLL”) and Warburg Pincus Private Equity IX, L.P. (“Warburg Pincus”), both of which are significant stockholders and holders of floating rate notes (“Notes”) of Builders FirstSource, Inc. (the “Company”), we want to acknowledge the outstanding job that you and the rest of the executive team have done in leading the organization through these extremely difficult industry conditions.  While this downturn has caused several of the other leading pro dealers to enter bankruptcy proceedings, you have made the difficult decisions that have allowed the Company to preserve its viability while positioning the Company for a recovery in the housing market.  Notwithstanding your efforts to minimize the Company’s operational cash burn, the severity and duration of this downturn is taxing the Company’s financial resources.  As significant stakeholders of the Company, we are concerned about the Company’s liquidity as this downturn extends into the second half of 2009 and into 2010.  We believe that the Company needs to raise more capital to preserve financial flexibility and pre-empt any issues associated with a lack of liquidity.

Accordingly, we are pleased to present the following proposal, which we believe capitalizes the Company with sufficient liquidity to survive the current downturn while also addressing the near-term maturity of its Notes.  Our proposal contemplates the following transactions:

 
·
The Company will raise $75 million of new common equity through a rights offering (the “Rights Offering”).  JLL and Warburg Pincus will fully backstop the Rights Offering at a price of $2.00 per share.
 
 
·
The Notes owned by entities affiliated with JLL and Warburg Pincus (currently, approximately $98 million in aggregate principal amount, or approximately 35% of the outstanding aggregate principal amount of Notes) will be exchanged for common stock of the Company valued at $2.00 per share.
 
 
 
 
Mr. Floyd Sherman
August 31, 2009
Page 2
2
 
 
 
·
At least 85% in aggregate principal amount of the remaining Notes will elect to exchange each $1,000 principal amount of Notes into either (i) $750 principal amount of a new debt security (the “New Notes”) substantially similar to the existing Notes, except with a maturity of 2017 and an interest rate of LIBOR plus 7.5%, or (ii) equity on the same basis as the JLL / Warburg Pincus Notes, or (iii) any combination thereof; provided that no more than $40 million of new common stock and no less than $20 million of new common stock will be issued in the exchange.  Any Noteholders (other than JLL and Warburg Pincus) who elect to exchange into equity may also participate in the Rights Offering.

Pro forma for the transactions, the Company’s total debt would be reduced by between approximately $150 million and $172 million, depending on Noteholder exchange and conversion participation, and cash would be increased by approximately $75 million, less fees and expenses.  Additional details of our proposal are set forth in Exhibit A.

We believe this transaction will create significant value for all stakeholders of the Company.

 
·
Noteholders:  With less debt on its balance sheet, the credit profile of the Company will be improved, and the position of the Noteholders will be enhanced.  We believe that the proposed new interest rate reflects a fair “mark-to-market” rate for the New Notes.  The Noteholders will also have the option to participate in the equity upside associated with any recovery in the housing market.  Finally, we believe that the value of the New Notes, when issued, will reflect an immediate and significant accretion in value from the price currently quoted for the Notes, which is approximately 50% of par.

 
·
Common stockholders:  First, to the extent that they wish to do so, existing stockholders can participate in the Rights Offering.  Moreover, the proposed Rights Offering backstop to be provided by JLL and Warburg Pincus will ensure that the Company has adequate capital.  In addition, our proposal will leave the Company with substantially less debt and hence greater financial flexibility over the next several years.  Finally, the extended maturities of the New Notes will provide the Company time to recover from the current industry downturn.

 
·
Other stakeholders:  Following the proposed recapitalization, the Company will be well positioned to survive the current downturn and to thrive as the housing market recovers, and we expect that the Company’s customers and trade creditors will have greater confidence in its long term viability.

Following consummation of this transaction, we would expect that the number of shares of common stock authorized to be issued under the Company’s employee stock option plans would be increased, in light of the dilutive nature of transaction, so that immediately following the transaction the number of shares available for award thereunder, plus all awards then
 
 
 
Mr. Floyd Sherman
August 31, 2009
Page 3
3
 
outstanding, would be equal to approximately ten percent of the then outstanding shares on a fully diluted basis.

We expect that a Special Committee of Independent Directors will be appointed to review and negotiate our proposal and other alternative transactions that they believe are in the best interests of the Company.  The Special Committee should recognize that JLL and Warburg Pincus are committed to remain substantial investors in the Company and are not interested in selling our shares at this time, including as part of any change in control transaction.

Although we have not discussed this proposal with any other Noteholders, we expect that our financial advisor, Evercore Partners, will engage in such discussions during the period that the Special Committee is considering this proposal.

JLL and Warburg Pincus are committed to the Company’s success and are prepared to commit the resources necessary to complete the recapitalization of the Company on a prompt basis.

This letter is a non-binding indication of interest in pursuing a recapitalization of the Company and is subject to the terms and conditions set forth in Exhibit A.  This letter is not intended to be, and does not constitute, a legally binding obligation of any party hereto, nor will any legally binding obligations be created unless and until definitive agreements are entered into with all parties.

We look forward to discussing our proposal with you and the other members of the Board of Directors at your earliest convenience.

 
  Sincerely,  
     
     
/s/  Kevin Kruse                         
  
/s/  Paul S. Levy                        
Kevin Kruse
  
Paul S. Levy
     

cc:       Cleveland A. Christophe
Robert C. Griffin
Craig A. Steinke

 
 
 

 
 
EXHIBIT A
  

BUILDERS FIRSTSOURCE, INC.
PROPOSED RECAPITALIZATION

I.  Exchange Offers

Structure and Consideration
Exchange of issued and outstanding Second Priority Senior Secured Floating Rate Notes due 2012 (the “Notes”) for shares of the Company’s common stock, par value $0.01 per share:
 
·     Exchange with JLL and Warburg Pincus (the “Sponsor Exchange”):
 
o   for each $1,000 principal amount of Notes, JLL and Warburg Pincus will receive 500 shares of common stock (or a conversion price of $2.00 per share).
 
·   Exchange with all other holders of Notes (the “Noteholder Exchange”):
 
o   for each $1,000 principal amount of Notes, the other holders of Notes may elect to receive either:
 
(a)   500 shares of common stock, valued at $2.00 per share; or
 
(b)   $750 principal amount of new second lien indebtedness; or
 
(c)   any combination thereof,
 
provided that the Company will issue no less than $20 million of common stock (the “Floor”) and no more than $40 million of common stock (the “Cap”) to participants in the Noteholder Exchange, and, in the event that holders elect to receive more shares of common stock than the Cap or fewer shares of common stock than the Floor, the available shares of common stock and new second lien indebtedness will be distributed on a pro rata basis.
 
·   Sponsor Exchange and Noteholder Exchange will be conducted through private exchanges.
Minimum Tender Condition
Holders of no less than 85% of the outstanding aggregate principal amount of Notes (exclusive of JLL and Warburg Pincus) must participate in the Noteholder Exchange.
Consent Solicitation
Consent solicitation seeking consents to proposed amendments to the Indenture, dated as of February 11, 2005 (the “Old Indenture”), governing the Notes that would eliminate certain restrictive covenants and release all of the collateral from the liens securing the Notes.

II.  Rights Offering

Structure and Consideration
Distribution to stockholders of subscription rights to subscribe for and purchase up to an aggregate of $75 million of common stock.
·   Subscription price of $2.00 per share.
·   Offering will be open for at least twenty business days.
·   Noteholders who have exchanged Notes for common stock in the Noteholder
 
 
 
 
 
 
 
Exchange may participate on an “as converted” basis.  For the avoidance of doubt, JLL and Warburg Pincus will not participate in the rights offering with respect to shares received in exchange for their Notes.
·   Over-subscription privilege allows participating stockholders (including participants in the Noteholder Exchange) to subscribe for and purchase, on a pro rata basis, shares not subscribed for by other stockholders or Noteholders.
·   Rights will be non-transferable.
Backstop Commitment
JLL and Warburg Pincus will agree to purchase all shares not subscribed for in the rights offering up to the full amount of $75 million for a commitment fee of $4.5 million (6% of the rights offering issuance), payable in common stock valued at $2.00 per share.

 
III.  Conditions to the Recapitalization

Stockholder Approval
JLL and Warburg Pincus will commit to tender their Notes in the Sponsor Exchange and to vote their shares in favor of the issuance of shares in connection with the transactions contemplated by this term sheet.
 
The Company will hold, and solicit proxies for, a special meeting of its stockholders for the purpose of approving the issuance of shares in connection with the transactions contemplated by this term sheet.
 
General Conditions
The Sponsor Exchange, Noteholder Exchange, and rights offering will each be conditioned on the consummation of each of the other transactions.
 
Since June 30, 2009, the Company shall have been operated solely in the ordinary course of business, and there shall not have occurred any material adverse effect upon the Company’s business or results of operations.
 
A registration statement relating to the rights offering shall have been declared effective by the Securities and Exchange Commission, and no stop order shall have been issued.
 
Stockholders shall have approved the transactions contemplated by this term sheet as required by the rules of The Nasdaq Stock Market.
 
Other customary conditions will apply, including receipt of any required regulatory or third-party approvals.
 
Other
JLL and Warburg Pincus shall have entered into a registration rights agreement with the Company.
 
The Company shall pay the fees and expenses incurred by JLL and Warburg Pincus in connection with the transactions contemplated by this term sheet.
 

 
 
2
 
 
IV.  New Second Lien Notes (“New Notes”)

Issuer
Builders FirstSource, Inc.
Guarantors
All wholly owned domestic subsidiaries of the Issuer.
Principal
No more than $118 million.
Maturity
February 15, 2017 (the “Maturity Date”).
 
All obligations then outstanding under the New Notes shall be payable in full on the Maturity Date.
Interest Rate
3-month LIBOR plus 7.5%.
 
Payable quarterly on the 15th of February, May, August, and November of each year.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.
Default Rate
Additional 1.00%
Amortization
None.
Optional Prepayments
 Prior to February 15, 2011                  
After February 15, 2011, prior to February 15, 2012
After February 15, 2012 
102%
101%
100%
Offer to Purchase with Asset Sale Proceeds
Same as set forth in the Old Indenture.
Collateral
All amounts owed in connection with the New Notes shall be secured by a perfected, second priority lien on and security interest in all of the assets and all other property of Issuer and Guarantors (as defined in the Old Indenture).
Collateral Trust Fee
TBD
Covenants
Same as set forth in the Old Indenture.
Events of Default
Same as set forth in the Old Indenture.
Closing Date
The effective date of the recapitalization.
Allocation
The New Notes will be issued as part of the contemplated recapitalization proposal.
Conditions Precedent to Closing
Satisfaction of all conditions to the closing of the Sponsor Exchange, Noteholder Exchange, and rights offering.
Registration Rights
TBD

This term sheet is a non-binding statement of interest.  Notwithstanding anything in this term sheet that may be deemed to the contrary, unless and until any definitive agreements are executed and delivered by the parties providing for the recapitalization (and subject to the terms and conditions set forth therein), no party or person is under any obligation of any kind whatsoever with respect to this term sheet, any matter referred to in this term sheet, or any oral or other expression with respect or relating to the foregoing.
 
 3
EX-2 3 ex2.htm EXHIBIT 2 PRESS RELEASE ex2.htm
JLL PARTNERS AND WARBURG PINCUS PROPOSE RECAPITALIZATION OF
BUILDERS FIRSTSOURCE, INC.

NEW YORK, September 1, 2009/PRNewsWire/-- JLL Partners Fund V, L.P. (“JLL”), a fund managed by JLL Partners, Inc., and Warburg Pincus Private Equity IX, L.P. (“Warburg Pincus”), an affiliate of Warburg Pincus LLC, announced today that they delivered to the Board of Directors of Builders FirstSource, Inc. (the “Company”) a proposal to recapitalize the Company.  JLL and Warburg Pincus are both significant stockholders and holders of floating rate notes due 2012 (“Notes”) issued by the Company.

The recapitalization proposal contemplates the following transactions:

 
·
A $75 million rights offering by the Company to existing stockholders at a subscription price of $2.00 per share, which will be backstopped by JLL and Warburg Pincus.
 
 
·
The approximately $98 million of Notes owned by entities affiliated with JLL and Warburg Pincus will be exchanged for common stock of the Company valued at $2.00 per share.
 
 
·
Holders of the remaining Notes may elect to exchange each $1,000 principal amount of Notes (which are currently quoted at approximately 50% of par) into either (i) $750 principal amount of a new debt security (the “New Notes”) substantially similar to the existing Notes, except with a maturity of 2017 and an interest rate of LIBOR plus 7.5%, or (ii) equity on the same basis as the JLL / Warburg Pincus Notes, or (iii) any combination thereof; provided that no more than $40 million of new common stock and no less than $20 million of new common stock will be issued in the exchange.  Any noteholders (other than JLL and Warburg Pincus) who elect to exchange into equity may also participate in the rights offering.

JLL and Warburg Pincus believe that the transactions described in their proposal will create significant value for all stakeholders of the Company.  Pro forma for the transactions, the Company’s total debt would be reduced by between approximately $150 million and $172 million, depending on noteholder exchange and conversion participation, and cash would be increased by approximately $75 million, less fees and expenses.  With less debt and more cash on its balance sheet, the Company will have greater financial flexibility and an improved credit profile, and the position of noteholders and stockholders alike will be enhanced.  Following the proposed recapitalization, JLL and Warburg Pincus believe the Company will be well positioned to participate in a recovery of the housing market.

A Special Committee of Independent Directors is expected to be appointed to consider and negotiate the recapitalization proposal.  The recapitalization proposal is conditional on, among other things, approval by the Special Committee, stockholder approval of the issuance of shares pursuant to the proposal, and the participation of at least 85% in aggregate principal amount of the Notes not owned by JLL and Warburg Pincus in the exchange offer.

JLL and Warburg Pincus are committed to remaining substantial investors in the Company and are not interested in selling their shares at this time.
 

 
 
 
 
About Builders FirstSource, Inc.

Headquartered in Dallas, Texas, Builders FirstSource is a leading supplier and manufacturer of structural and related building products for residential new construction. The company operates in 9 states, principally in the southern and eastern United States, and has 55 distribution centers and 51 manufacturing facilities, many of which are located on the same premises as our distribution facilities. Manufacturing facilities include plants that manufacture roof and floor trusses, wall panels, stairs, aluminum and vinyl windows, custom millwork and pre-hung doors. Builders FirstSource also distributes windows, interior and exterior doors, dimensional lumber and lumber sheet goods, millwork and other building products. For more information about Builders FirstSource, visit the company’s Web site at www.bldr.com.

About JLL Partners, Inc.

JLL Partners, Inc. is a New York-based leading private equity investment firm with approximately $3.0 billion of capital under management.  JLL’s investment philosophy is to partner with outstanding management teams and invest with them in companies that they can continue to grow into market leaders.  JLL invests across a number of different industries, with specific focus on financial services, building products and healthcare services. More information on JLL can be found on the website www.jllpartners.com.

About Warburg Pincus

Warburg Pincus is a leading global private equity firm.  The firm has more than $25 billion in assets under management.  Its active portfolio of more than 100 companies is highly diversified by stage, sector and geography.  Warburg Pincus is a growth investor and an experienced partner to management teams seeking to build durable companies with sustainable value. Founded in 1966, Warburg Pincus has raised 12 private equity funds which have invested more than $29 billion in approximately 600 companies in 30 countries.  The firm has offices in Beijing, Frankfurt, Hong Kong, London, Mumbai, New York, San Francisco, Shanghai and Tokyo.  For more information, please visit www.warburgpincus.com.

Forward-Looking Statements

Certain statements made in this press release are forward-looking statements that involve risks and uncertainties.  Often, but not always, forward-looking statements can be identified by the use of words such as “plans”, “expects”, “expected”, “scheduled”, “estimates”, “intends”, “anticipates”, or “believes”, or variations of such words and phrases, or state that certain actions, events or results “may”, “could”, “would”, “might” or “will” be taken, occur or be achieved.  These forward-looking statements reflect the best judgment of JLL and Warburg Pincus, based on current information, factors and assumptions, and although they base these statements on circumstances that they believe to be reasonable when made, there can be no assurance that future events will not affect the accuracy of such forward-looking information.  As such, the forward-looking statements are not guarantees of future performance or actions, and actual performance and actions may vary materially from the actions and expectations discussed in this documentation. JLL and Warburg Pincus disclaim any
 
 
 
 
 
intention or obligation to update or revise any forward looking information whether as a result of new information, future events or otherwise, except as required by applicable law.

The Financial Advisor to JLL and Warburg Pincus is:
 
Evercore Partners
55 East 52nd Street
New York, New York 10055
Telephone:  (212) 857-3100

Media Contacts

Warburg Pincus – Rory Mackin – (212) 878-9322

 
 
EX-3 4 ex3.htm EXHIBIT 3 A&R LIMITED LIABILITY COMPANY AGREEMENT ex3.htm
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
JWP LLC
 
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of JWP LLC (the “Company”) is made and entered into as of this 31st day of August, 2009, by and among JLL Partners Fund V, L.P., a limited partnership organized under the laws of the State of Delaware (“JLL Fund V” and, collectively with any Affiliate or Affiliates (as hereinafter defined) of JLL Fund V to which JLL Fund V Transfers Interests (as hereinafter defined) pursuant to Section 8.1 hereof, the “JLL Members”), Warburg Pincus Private Equity IX, L.P., a limited partnership organized under the laws of the State of Delaware (“WP” and, collectively with any Affiliate or Affiliates of WP to which WP Transfers Interests pursuant to Section 8.1 hereof, the “WP Members”), and each individual or business entity subsequently admitted as a member of the Company pursuant to the terms of this Agreement.  JLL Fund V, WP and any Affiliates of JLL Fund V or WP to which Interests are Transferred and who are subsequently admitted as members of the Company and bound by this Agreement shall be known as and referred to collectively as “Members” and individually as a “Member.”
 
RECITALS
 
WHEREAS, JLL Fund V formed the Company on August 24, 2009, by filing with the Secretary of State of the State of Delaware a certificate of formation and in connection therewith entered into a limited liability company agreement dated as of August 24, 2009 (the “Initial Operating Agreement”); and
 
WHEREAS, the Members desire to amend and restate the Initial Operating Agreement in its entirety to read as set forth herein; and
 
WHEREAS, the Members have determined to hold Interests in the Company in accordance with the terms of this Agreement.
 
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members and the Company agree as follows:
 
ARTICLE I
 
DEFINED TERMS
 
 1.1.           Certain Definitions.  As used in this Agreement, the following terms have the following meanings:
 
“Act” has the meaning set forth in Section 2.1.
 
 
 
 
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with, such Person.
 
“Agreement” has the meaning set forth in the preamble.
 
“BFS” has the meaning set forth in Section 2.3.
 
“Business Day” means any day other than a Saturday, Sunday or a day on which commercial banks located in New York, New York are required or authorized by law to be closed.
 
“Capital Account” has the meaning set forth in Section 5.4(a).
 
“Capital Contribution” means, with respect to any Member, the total amount of cash or value of other property contributed to the Company by such Member pursuant to this Agreement; provided that the Managing Members shall determine in their reasonable discretion the value of any property other than cash contributed by any Member.
 
“Claims” has the meaning set forth in Section 12.2.
 
“Code” means the U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.  Any reference to a section of the Code shall include a reference to any successor provision thereto.
 
“Company” has the meaning set forth in the preamble.
 
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and “Controlled” has a correlative meaning.
 
“Corporate Opportunity” has the meaning set forth in Section 12.3(b).
 
“Covered Person” and “Covered Persons” shall have the meaning set forth in Section 12.1.
 
“Distribution” has the meaning set forth in Section 6.2(a).
 
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.  Any reference to a section of ERISA shall include a reference to any successor provision thereto.
 
“Event of Dissolution” has the meaning set forth in Article X.
 
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time.
 
“Fiscal Year” has the meaning set forth in Section 7.4.
 
 
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“GAAP” means U.S. generally accepted accounting principles in effect from time to time.
 
“Interests” shall have the meaning set forth in Section 3.2.
 
“Investment Company Act” means the U.S. Investment Company Act of 1940, as amended from time to time.
 
“JLL Fund V” has the meaning set forth in the preamble.
 
“JLL Member” has the meaning set forth in the preamble.
 
“Managing Members” means JLL Fund V and WP.
 
“Member” or “Members” has the meaning set forth in the preamble.
 
“Member Ratio” means, as of any date, with respect to each Member, the quotient obtained by dividing (a) the aggregate principal amount of Notes deemed to be owned by such Member as of such date, by (b) the aggregate principal amount of Notes held by the Company as of such date, as set forth on Schedule A hereto, as amended from time to time pursuant to the terms of this Agreement.
 
“Notes” has the meaning set forth in Section 2.12.
 
“Person” means any individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
 
“Regulation” has the meaning set forth in Section 3.10(d).
 
“Securities Act” means the U.S. Securities Act of 1933, as amended from time to time.
 
“Transfer” means, with respect to any security (including without limitation the Interests or Notes), (i) a transfer, sale, exchange, assignment, pledge, hypothecation or other encumbrance or disposition, including the grant of an option or other right, whether directly or indirectly, whether voluntarily, involuntarily or by operation of law, of such security or (ii) any dividend, distribution or other conveyance of such security by a Member to the limited partners, members, stockholders or other direct or indirect equity holders of such Member.  “Transferred” and “Transferee” each have a correlative meaning.
 
“Treasury Regulations” means the income tax regulations promulgated under the Code, as amended from time to time (including any successor regulations).
 
“WP” has the meaning set forth in the preamble.
 
“WP Members” has the meaning set forth in the preamble.
 
 
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 1.2.           Other Interpretive Provisions.
 
(a)           The meanings of defined terms are equally applicable to the singular and plural forms thereof.
 
(b)           The words “hereof”, “herein”, “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and any subsection, Section, Exhibit, Schedule and Annex references are to this Agreement unless otherwise specified.
 
(c)           The term “including” is not limiting and means “including without limitation.”
 
(d)           The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
 
(e)           Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms.
 
ARTICLE II
 
THE LIMITED LIABILITY COMPANY
 
 2.1.           Formation.  JLL Fund V previously formed the Company as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act and any successor statute, as amended from time to time (the “Act”).  A certificate of formation for the Company has been filed in the Office of the Secretary of State of the State of Delaware in conformity with the Act.  Each of the Members shall execute or cause to be executed from time to time all other instruments, certificates, notices and documents and shall do or cause to be done all such acts and things (including keeping books and records and making publications or periodic filings) as may now or hereafter be required for the formation, valid existence and, when appropriate, termination of the Company as a limited liability company under the laws of the State of Delaware and as may be necessary in order to protect the liability of the Members as members under the laws of the State of Delaware.
 
 2.2.           Name.  The name of the Company shall be “JWP LLC,” and its business shall be carried on in such name with such variations and changes as the Managing Members shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s operations are conducted.
 
 2.3.           Business Purpose.  The Company was formed for the purposes of (i) acquiring, holding and disposing of securities (including, without limitation, the Notes) of Builders FirstSource, Inc., a Delaware corporation (“BFS”), (ii) receiving dividends, interest, the return of principal or other passive type of income and gains in connection therewith and (iii) engaging in such activities in connection with the foregoing as the Managing Members deem necessary, advisable or incidental to the foregoing.
 
 
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 2.4.           Registered Office and Agent.  The location of the registered office of the Company shall be Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.  The Company’s Registered Agent at such address shall be The Corporation Trust Company.
 
 2.5.           Term.  The term of the Company commenced on the date of filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware and shall continue until the Company is dissolved pursuant to Article X below.
 
 2.6.           Company Powers.  In furtherance of the business purpose specified in Section 2.3 and without limiting the generality of Section 4.1(a), the Company and the Managing Members, acting on behalf of the Company, shall be empowered to do or cause to be done any and all acts, subject to the provisions of Section 2.7, deemed by the Managing Members to be necessary or advisable in furtherance of the business purpose of the Company, including, without limitation, the power and authority:
 
(a)           to acquire, hold, manage, own, sell, transfer, convey, assign, exchange, pledge or otherwise dispose of the Company’s interest in securities (including, without limitation, the Notes) or any other investments made or other property held by the Company, including without limitation investments in capital stock, bonds, notes, debentures and other obligations, investment contracts, partnership interests, limited liability company interests, options, warrants and other securities;
 
(b)           to establish, have, maintain or close one or more offices within or without the State of Delaware and in connection therewith to rent or acquire office space and to engage personnel;
 
(c)           to open, maintain and close bank and brokerage accounts, including the power to draw checks or other orders for the payment of moneys, and to invest such funds as are temporarily not otherwise required for Company purposes;
 
(d)           to bring and defend actions and proceedings at law or in equity or before any governmental, administrative or other regulatory agency, body or commission;
 
(e)           to hire consultants, custodians, attorneys, accountants and such other agents, officers and employees of the Company as it may deem necessary or advisable, and to authorize each such agent and employee to act for and on behalf of the Company;
 
(f)           to make all elections, investigations, evaluations and decisions, binding the Company thereby, that may, in the sole judgment of the Managing Members, be necessary or appropriate for the acquisition, holding or disposition of securities by the Company;
 
(g)           to enter into, perform and carry out contracts and agreements of every kind necessary or incidental to the accomplishment of the Company’s business purpose, and to take or omit to take such other action in connection with the business of the Company as may be necessary or desirable to further the business purpose of the Company; and
 
(h)           to carry on any other activities necessary to, in connection with, or incidental to any of the foregoing or the Company’s business.
 
 
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 2.7.           Limitation on Company Powers.  Notwithstanding any provision of this Agreement, the Company shall not be permitted to incur any indebtedness for borrowed money.
 
 2.8.           Unrelated Business Taxable Income.  The Company shall use its best efforts to conduct the business of the Company at all times in a manner that will not result in realization of unrelated business taxable income under Section 512(a) of the Internal Revenue Code of 1986, as amended.
 
 2.9.           United States Real Property Interests.  The Company shall not make any investment in an interest classified as a United States real property interest within the meaning of Section 897(c)(1) of the Internal Revenue Code of 1986, as amended.
 
 2.10.         Business Transactions of a Member with the Company.  In accordance with Section 18-107 of the Act, a Member may transact business with the Company and, subject to applicable law, shall have the same rights and obligations with respect to any such matter as a Person who is not a Member.
 
 2.11.         Principal Place of Business.  The principal place of business of the Company shall be at such location as the Managing Members may, from time to time, select.
 
 2.12.         Title to Notes.  JLL Fund V represents and warrants to WP that, as of the date of this Agreement, the Company owns $97,818,000 in aggregate principal amount of Second Priority Senior Secured Floating Rate Notes due 2012 issued by BFS (“Notes”).
 
 2.13.         Title to Company Property.  Legal title to all property of the Company shall be held and vested and conveyed in the name of the Company.  Other than with respect to the Notes and all securities received with respect thereto, no real or other property of the Company shall be deemed to be owned by any Member individually.  The Interests (as hereinafter defined) of the Members in the Company shall constitute personal property.
 
ARTICLE III
 
THE MEMBERS
 
 3.1.           The Members.  The name and address of each Member are set forth on Schedule A hereto, as such Schedule may be amended from time to time to reflect the admission of new Members and the Transfer of Interests or Notes, each as permitted by the terms of this Agreement.
 
 3.2.           Capital Structure.  The capital structure of the Company shall consist solely of common interests (the “Interests”).  The rights, powers, preferences, duties, liabilities and obligations of holders of the Interests shall be as set forth herein.  Each Member shall hold such number of Interests as shall equal, as of any date, the aggregate principal amount of Notes deemed to be owned by such Member pursuant to the provisions of Section 3.6 hereof.
 
 
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 3.3.           Member Meetings.
 
(a)           Actions by the Members; Meetings.  The Members may vote, approve a matter or take any action by the vote of Members at a meeting, in person or by proxy, or without a meeting by the written consent of Members pursuant to subparagraph (b) below.  Meetings of the Members shall be held upon at least two (2) days’ prior written notice of the time and place of such meeting delivered to each holder of Interests.  Notice of any meeting may be waived by any Member before or after any meeting.  Meetings of the Members may be conducted in person or by conference telephone facilities.
 
(b)           Action by Written Consent.  Any action may be taken by the Members without a meeting if authorized by the written consent of the Members holding Interests sufficient to approve such action pursuant to the terms of this Agreement, provided that a copy of the action taken by written consent must be promptly sent to all Members not executing such written consent and filed with the records of the Company.
 
(c)           Quorum; Voting.  For any meeting of Members, the presence in person or by proxy of Members owning greater than 80% of the Member Ratio shall constitute a quorum for the transaction of any business.  Members shall have voting rights in the Company based upon their Member Ratio; provided, however, that, subject to Article XIII and Section 5.3 hereof, the approval of any matter submitted to a vote of the Members, including a vote on the dissolution of the Company as contemplated by Article X, shall require the affirmative vote of Members owning greater than 80% of the Member Ratio.
 
 3.4.           Liability of Members.  All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member.
 
 3.5.           Power to Bind the Company.  Except as contemplated by Section 3.6 and Section 3.7, no Member (acting in its capacity as such) shall have any authority to bind the Company to any third party with respect to any matter except pursuant to a resolution expressly authorizing such action which resolution is duly adopted by the Managing Members by the affirmative vote required for such matter pursuant to this Agreement.
 
 3.6.           Notes Held on Behalf of Members.  For purposes of this Agreement, each Member shall be deemed to own an aggregate principal amount of Notes equal to (w) $48,909,000, plus (x) the aggregate principal amount of any Notes acquired by the Company and deemed to be owned by such Member, plus (y) the aggregate principal amount of any Notes contributed to the Company by such Member, to the extent permitted by this Agreement, less (z) the aggregate principal amount of any Notes deemed to be owned by such Member that are Transferred by the Member in accordance with this Agreement; provided, however, that each Member shall also be deemed to own all securities received with respect to such Notes Transferred by exchange, conversion, or similar means; provided further that, with respect to such Notes, Members shall have only those rights set forth in this Agreement.  To the extent that Notes deemed to be owned by any Member are Transferred by the Company in accordance with this Agreement, the net proceeds of such Transfer shall be distributed to the Member on whose
 
 
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behalf such Notes are Transferred and each Member’s Member Ratio shall be adjusted based upon the aggregate principal amount of Notes deemed to be owned by each Member after giving effect to such Transfer.  In furtherance of the foregoing, for all purposes under this Agreement, a Member’s Membership Ratio shall be adjusted to take into account any Notes Transferred by the Company on such Member’s behalf such that, from and after any such Transfer, such Member’s Membership Ratio shall be equal to the ratio of (i) the aggregate principal amount of Notes held by the Company and deemed to be owned by such Member after giving effect to such Transfer to (ii) the aggregate principal amount of Notes held by the Company after giving effect to such Transfer.
 
 3.7.           Voting of Notes.  On any matter on which the Company is entitled to vote, the Company shall vote the aggregate principal amount of Notes held by it as directed by each Member in proportion to (i) such Member’s Member Ratio multiplied by (ii) the aggregate principal amount of Notes held by the Company.  The Company shall not vote any Notes held by the Company as to which it has not received instructions from the Member deemed to own such Notes.  In furtherance of the foregoing, promptly following receipt of notice of a matter on which it is entitled to vote, the Company shall deliver to each Member an irrevocable proxy, which shall be deemed to be coupled with an interest, to vote, on all matters submitted to a vote of the holders of Notes, an aggregate principal amount of Notes equal to the aggregate principal amount of Notes held by the Company on the record date for such vote multiplied by such Member’s Member Ratio on such date.  The Company shall also execute and deliver any such additional documents and instruments and perform such additional acts as may be necessary or appropriate to permit each Member to vote such Notes, express consent or dissent in respect thereof or otherwise effectuate and carry out the provisions of this Section 3.7 on behalf of the Company.
 
 3.8.           [Intentionally Omitted.]
 
 3.9.           [Intentionally Omitted.]
 
 3.10.         General Provisions Regarding Management Rights.  For so long as a Member directly or through one or more conduit subsidiaries owns any Interests in the Company, each Member will be entitled to the contractual management rights set forth in this Section 3.10.
 
(a)           Inspection and Access.  The Company shall (i) provide to each Member, true and correct copies of all documents, reports, financial data and other information as such Member may reasonably request and (ii) permit any authorized representatives designated by each Member to visit and inspect, during normal business hours, any of the properties of the Company, including its and their books of account, and to discuss its and their affairs, finances and accounts with its and their officers, all at such times as such Member may reasonably request.
 
(b)           Right of Consultation.  Representatives of each Member shall have the right to consult with and advise the management of the Company upon reasonable notice at reasonable times from time to time, on all matters relating to the operation of the Company.
 
 
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(c)           Adjustment to Rights.
 
(i)           The aforementioned rights are intended to satisfy the requirement of management rights for purposes of qualifying each Member’s direct or indirect investment in the Company as a “venture capital investment” for purposes of United States Department of Labor Regulation ss.  2510.3-101 (the “Regulation”).  In the event that a Member’s counsel determines that the rights set forth herein are not satisfactory for such purpose, the Company and such Member shall reasonably cooperate in good faith to agree upon mutually satisfactory management rights that satisfy the Regulations.
 
(ii)           All rights granted pursuant to this Section 3.10 to a Member are in addition to the rights provided to such Member in its capacity as a holder of Interests and nothing set forth in this Section 3.10 shall be construed to limit, restrict or impair any claim, right or privilege available, or granted, to a Member pursuant to any other contractual arrangements with the Company or otherwise.
 
(iii)           In the event a Member Transfers all or any portion of its direct or indirect investment in the Company to an Affiliate that is intended to qualify as a “venture capital operating company” under the Regulation, such Affiliate shall be afforded the same rights with respect to the Company afforded to such Member hereunder.
 
(d)           Each Member shall notify the Company in writing at such time as such Member ceases to own any Interests in the Company.
 
ARTICLE IV
 
MANAGING MEMBERS
 
 4.1.           Management by Managing Members.
 
(a)           Subject to such matters which are expressly reserved hereunder or under the Act to the Members for decision, the business and affairs of the Company shall be managed by the Managing Members, which shall be responsible for policy setting, approving the overall direction of the Company, and making all decisions affecting the business and affairs of the Company, subject to the limitations set forth herein.  Notwithstanding anything to the contrary contained herein, in no event shall the Managing Members have the authority to cause the voting of any Notes held by the Company or cause the Transfer of any Notes (or securities received with respect thereto) held by the Company other than, in each such case, as directed by the Member deemed to own such Notes (or securities received with respect thereto) and otherwise in compliance with the terms of this Agreement.
 
(b)           All actions of the Managing Members shall require the affirmative vote of both Managing Members.
 
 
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(c)           Each of WP and JLL Fund V shall remain a Managing Member until such time as it is no longer a Member or until it has resigned from the position of Managing Member.
 
 4.2.           Power to Bind Company.  No Member (acting in his capacity as such) shall have any authority to bind the Company to any third party with respect to any matter except pursuant to a resolution expressly authorizing such action which resolution is duly adopted by the Managing Members by the affirmative vote required for such matter pursuant to this Agreement.
 
 4.3.           Officers and Related Persons.  The Managing Members shall have the authority to appoint and terminate officers of the Company and retain and terminate employees, agents and consultants of the Company and to delegate such duties to any such officers, employees, agents and consultants as the Managing Members deem appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties.
 
ARTICLE V
 
MEMBER RATIOS AND CAPITAL ACCOUNTS
 
 5.1.           Member Ratio.  Each Member shall have the Member Ratio set forth on Schedule A hereto, as adjusted from time to time pursuant to the terms of this Agreement.
 
 5.2.           Capital Contributions.  No Member shall be obligated to make Capital Contributions to the Company without the consent of such Member, nor shall any Member be entitled to make any Capital Contribution without the prior consent of the Managing Members.  The Company shall amend Schedule A to reflect the acquisition or disposition of any Interests by any Member and the making of any additional Capital Contributions by any Member and the issuance of any additional Interests.
 
 5.3.           Additional Members.  The Company shall not admit additional Members without the approval of each Member, provided, however, that, subject to the provisions of this Article V, the Company may admit one or more additional Members to the Company that have acquired Interests pursuant to a Transfer permitted by Section 8.1.  An additional Member shall execute a counterpart to this Agreement.  The Company shall amend Schedule A to reflect the admission of any additional Members.
 
 5.4.           Capital Accounts.
 
(a)           The Company shall maintain separate capital accounts (a “Capital Account”) for each Member.  Each Member’s Capital Account shall be equal to the amount set forth opposite such Member’s name on Schedule A.  Capital Accounts shall be maintained in accordance with the following provisions:
 
(i)           Each Member’s Capital Account shall be increased by the amount of such Member’s Capital Contributions, any Company income or gain allocated to such Member pursuant to Section 6.1(b), and the amount of any
 
 
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Company liabilities assumed by such Member or secured by any Company assets distributed to such Member.
 
(ii)           Each Member’s Capital Account shall be decreased by the amount of cash and the gross fair market value (as determined by the Managing Members) of any other Company property distributed to such Member pursuant to any provision of this Agreement, any expenses or losses allocated to such Member pursuant to Section 6.1(b) (including the Member’s share of expenditures described in Treasury Regulation Section 1.704-1(b)(2)(iv)(i)) and the amount of any liabilities of such Member assumed by the Company.
 
(iii)           In the event all or any portion of a Member’s Interests are Transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of such Member to the extent such Capital Account relates to the Transferred Interests.
 
(iv)           The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations issued under Section 704(b) of the Code and shall be interpreted and applied in a manner consistent with such Treasury Regulations.  The Managing Members shall be authorized to make appropriate amendments to the allocations of items pursuant to this Section 5.4 if necessary in order to comply with Section 704 of the Code or applicable Treasury Regulations thereunder; provided that no such change shall have an adverse effect upon the amount distributable to any Member pursuant to this Agreement.
 
 5.5.           Return of Capital.  Except upon the dissolution of the Company or as otherwise provided herein, no Member shall have the right to withdraw from the Company or to demand or to receive the return of all or any part of its Capital Account or its Capital Contributions.
 
 5.6.           No Interest on Capital Contribution or Capital Account.  No Member shall be paid interest on any of its Capital Contributions or on its Capital Account.
 
ARTICLE VI
 
ALLOCATIONS AND DISTRIBUTIONS
 
 6.1.           Allocations.
 
(a)           Calculation of Profits and Losses.  The profits and losses of the Company shall be determined for each Fiscal Year in accordance with GAAP.
 
(b)           Allocation of Profits and Losses.
 
(i)           Except as otherwise set forth in this Section 6.1(b), for Capital Account purposes, all items of income, gain, loss and deduction shall be allocated among the Members in a manner such that if the Company were
 
 
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dissolved, its affairs wound up and its assets distributed to the Members in accordance with their respective Capital Account balances immediately after making such allocation, such distributions would, as nearly as possible, be equal to the distributions that would be made pursuant to Section 6.2.
 
(ii)           For federal, state and local income tax purposes, items of income, gain, loss, deduction and credit shall be allocated to the Members in accordance with the allocations of the corresponding items for Capital Account purposes under this Section 6.1(b), except that items with respect to which there is a difference between tax and book basis will be allocated in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder, and Treasury Regulations Section 1.704-1(b)(4)(i).
 
(iii)           Notwithstanding any provision of this Section 6.1(b), no item of deduction or loss shall be allocated to a Member to the extent the allocation would cause a negative balance in such Member’s Capital Account (after taking into account the adjustments, allocations and distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) that exceeds the amount that such Member would be required to reimburse the Company pursuant to this Agreement or under applicable law.  In the event some but not all of the Members would have such excess Capital Account deficits as a consequence of such allocation of loss or deduction, the limitation set forth in this Section 6.1(b)(iii) shall be applied on a Member-by-Member basis so as to allocate the maximum permissible deduction or loss to each Member under Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations.  In the event any loss or deduction shall be specially allocated to a Member pursuant to the preceding sentence, an equal amount of income of the Company shall be specially allocated to such Member prior to any allocation pursuant to Section 6.1(b)(i).
 
(iv)           In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate as quickly as possible any deficit balance in its Capital Account in excess of that permitted under Section 6.1(b)(iii) created by such adjustments, allocations or distributions.  Any special allocations of items of income or gain pursuant to this Section 6.1(b)(iv) shall be taken into account in computing subsequent allocations pursuant to this Section 6.1(b) so that the net amount of any items so allocated and all other items allocated to each Member pursuant to this Section 6.1(b) shall, to the extent possible, be equal to the net amount that would have been allocated to each such Member pursuant to the provisions of this Section 6.1(b) if such unexpected adjustments, allocations or distributions had not occurred.
 
(v)           In the event the Company incurs any nonrecourse liabilities, income and gain shall be allocated in accordance with the “minimum
 
 
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gain chargeback” provisions of Section 1.704-1(b)(4)(iv) and 1.704-2 of the Treasury Regulations.
 
(vi)           The Capital Accounts of the Members shall be adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f) to reflect the fair market value (as determined by the Managing Members in their good faith judgment) of Company property whenever Interests are relinquished to the Company, whenever an additional Member is admitted to the Company in accordance with Section 5.3, upon any termination of the Company within the meaning of Section 708 of the Code, and when the Company is liquidated pursuant to Article X, and shall be adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(e) in the case of a distribution of any property (other than cash).
 
(vii)           All elections, decisions and other matters concerning the allocation of income, gains and losses among the Members, and accounting procedures, not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Managing Members in good faith.
 
 6.2.           Distributions.
 
(a)           Except as otherwise expressly provided for herein (including pursuant to a Transfer contemplated by Section 8.2), distributions to the Members (each, a “Distribution”) shall be made at such times and in such amounts as the Members shall agree and, except as expressly set forth below, any such Distributions shall be made pro rata in accordance with the Members’ respective Member Ratios.  The Managing Members shall make Distributions to the Members as follows: (i) all interest, principal payments, other payments and non-cash distributions (including, without limitation, securities, evidence of indebtedness or other property) received by the Company in respect of the Notes shall be distributed by the Company to the Members in accordance with their respective Member Ratios as soon as practicable after receipt thereof by the Company; and (ii) the net proceeds received by the Company from the Transfer of any Notes held by the Company shall be distributed by the Company to the Member deemed to own such Notes as soon as practicable after receipt thereof by the Company.
 
(b)           All Distributions shall be made in the form received by the Company, unless the Members shall otherwise agree.  Distributions may be comprised of both cash and property, as applicable; provided that any such Distributions to the Members shall consist of the same relative composition of cash and/or property to each Member, except as otherwise expressly permitted herein.
 
 6.3.           Limitations on Distributions.  Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a Distribution to any Member on account of its Interests if such Distribution would violate Section 18-607 of the Act or other applicable law.
 
 
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ARTICLE VII
 
ACCOUNTS
 
 7.1.           Books.  The Managing Members shall cause to be maintained complete and accurate books of account of the Company’s affairs at the Company’s principal place of business.  Such books shall be kept on such method of accounting as the Managing Members shall select.  For purposes of the Company’s financial statements, the Company’s assets and liabilities and statements of operations and cash flows shall be prepared in conformity with generally accepted accounting principles.  The Company’s accounting period shall be as determined by the Managing Members.
 
 7.2.           Reports.  The books of account of the Company shall be closed after the close of each calendar year, and there shall be prepared and sent to each Member a statement of the profits and losses of the Company for that period and a statement of such Member’s distributive share of income and expense for income tax reporting purposes.
 
 7.3.           Federal Tax Matters.  The Tax Matters Member, which shall be considered the tax matters partner for purposes of Section 6231 of the Code, shall be designated from time to time by the Members owning greater than 80% of the Member Ratio.  The initial Tax Matters Member shall be JLL Fund V.  The Tax Matters Member shall cause to be prepared and shall sign all tax returns of the Company, which returns shall be reviewed in advance of filing by an independent certified public accountant and the other Members.  The Tax Matters Member may make any election which is available to the Company with the consent of the Members owning greater than 80% of the Member Ratio, and shall monitor any governmental tax authority in any audit that such authority may conduct of the Company’s books and records or other documents and promptly provide the other Members notices of each material development and event in respect of each such audit.
 
 7.4.           Fiscal Year.  The fiscal year of the Company (the “Fiscal Year”) for financial statement and U.S. federal income tax purposes shall be determined by the Managing Members.
 
ARTICLE VIII
 
TRANSFERS
 
 8.1.           Restriction on Transfers of Interests.
 
(a)           No Member may Transfer any or all of its Interests other than to an Affiliate of such Member in compliance with the terms of this Section 8.1.  Any Affiliate to which Interests are Transferred pursuant to this Article VIII shall remain an Affiliate of the Transferring Member at all times during which such Transferee holds the Transferred Interests.  In the event that an Affiliate to which Interests are Transferred pursuant to this Article VIII shall cease to be an Affiliate of the Member that Transferred the Interests to such Transferee, then the Transferee shall promptly arrange for the Transfer of the Interests held by such Transferee to a JLL Member or a WP Member, as applicable.  In the event of the Transfer of less than all of a
 
 
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Member’s Interest, each Transferee of an Interest pursuant to this Section 8.1, together with its transferor, shall be deemed to be a single Member for purposes of Section 5.3 and Article XIII of this Agreement.
 
(b)           Any Transferee of Interests shall be required, at the time of and as a condition to such Transfer, to become a party to this Agreement by executing and delivering such documents as may be necessary, in the reasonable opinion of the Managing Members, to make such Person a party thereto, whereupon such Transferee will be treated as a Member for all purposes of this Agreement.  Such Transferee shall, among other things, provide to the Secretary of the Company the address of such Transferee to which notices hereunder shall be sent.  In addition, no Member shall be entitled to Transfer any Interests or any other rights under this Agreement (including to an Affiliate) at any time unless the Managing Members are reasonably satisfied that such Transfer would not:
 
(i)           violate the Securities Act or any state (or other jurisdiction) securities or “Blue Sky” laws applicable to the Company or the Interests;
 
(ii)           cause the Company to become subject to the registration requirements of the Investment Company Act;
 
(iii)           be a “prohibited transaction” under ERISA or the Code or cause all or any portion of the assets of the Company to constitute “plan assets” under ERISA or Section 4975 of the Code; and
 
(iv)           cause the Company to become a “publicly-traded partnership”, as such term is defined in Sections 469(k)(2) or 7704 of the Code.
 
(c)           Any purported Transfer of Interests other than in accordance with this Agreement shall be null and void ab initio, and the Company shall refuse to recognize any such Transfer for any purpose and shall not reflect in its records any change in record ownership of Interests pursuant to any such Transfer.
 
(d)           Any Member that proposes to Transfer Interests in accordance with the terms and conditions hereof shall be responsible for any expenses incurred by the Company in connection with such Transfer.
 
 8.2.           Transfers of Notes.
 
(a)           Any Member may cause the Company to Transfer any or all of the Notes (and all securities received with respect thereto and deemed to be owned by such Member) held by the Company on behalf of such Member, in one transaction or a series of transactions, including in a Transfer to such Member or an Affiliate of such Member; provided that any such Transfer complies with all applicable laws, including federal and state securities laws.  Any purported Transfer of Notes (or securities received with respect thereto) other than in accordance with this Agreement shall be null and void ab initio, and the Company shall refuse to recognize any such Transfer for any purpose.
 
 
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(b)           If, at any time, a Transferring Member causes the Company to Transfer all of the Notes held by the Company on behalf of such Transferring Member, upon the effectiveness of such Transfer (i) the Transferring Member will no longer be deemed a Member under this Agreement and (ii) all Interests held by such Member shall be cancelled.
 
ARTICLE IX
 
[INTENTIONALLY OMITTED]
 

 
ARTICLE X
 
EVENTS OF DISSOLUTION
 
The Company shall be dissolved upon the occurrence of any of the following events (each, an “Event of Dissolution”):
 
(a)           Any Member requests dissolution; or
 
(b)           A judicial dissolution of the Company under Section 18-802 of the Act.
 
No other event, including the retirement, withdrawal, insolvency, liquidation, dissolution, insanity, resignation, expulsion, bankruptcy, death, incapacity or adjudication of incompetency of a Member, shall cause the existence of the Company to terminate.
 
ARTICLE XI
 
TERMINATION
 
 11.1.         Liquidation.  In the event that an Event of Dissolution shall occur, then the Company shall be liquidated and its affairs shall be wound up.  All proceeds from such liquidation shall be distributed in accordance with the provisions of Section 18-804 of the Act, and distributions to the Members shall be made in accordance with the positive balances in their respective Capital Accounts, after taking into account all adjustments for all periods.  All Interests in the Company shall be cancelled.
 
 11.2.         Final Accounting.  In the event of the dissolution of the Company, prior to any liquidation, a proper accounting shall be made to the Members from the date of the last previous accounting to the date of dissolution.
 
 11.3.         Distribution in Kind.  In the event the Managing Members determine in connection with the liquidation of the Company that a portion of the Company’s assets are best distributed in kind to the Members, then such assets shall be so distributed in kind to the Members on a pro rata basis in accordance with their relative Member Ratios.
 
 11.4.         Certificate of Cancellation.  Upon the completion of the winding up of the Company’s affairs and distribution of the Company’s assets, the Company shall be terminated
 
 
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and the Members shall cause the Company to execute and file a Certificate of Cancellation in accordance with Section 18-203 of the Act.
 
ARTICLE XII
 
EXCULPATION AND INDEMNIFICATION
 
 12.1.          Exculpation.  Notwithstanding any other provisions of this Agreement, whether express or implied, or obligation or duty at law or in equity, none of the Members, or any officers, directors, stockholders, partners, managers, members, employees, representatives or agents of any of the foregoing, nor any officer, employee, representative or agent of the Company or any of its Affiliates (individually, a “Covered Person” and, collectively, the “Covered Persons”) nor any former Covered Person shall be liable to the Company or any other Person for any act or omission (in relation to the Company, this Agreement, any related document or any transaction or investment contemplated hereby or thereby) taken or omitted in good faith by a Covered Person, in the absence of fraud, willful misconduct, or gross negligence, and in the reasonable belief that such act or omission is in or is not contrary to the best interests of the Company and is within the scope of authority granted to such Covered Person by this Agreement.
 
 12.2.         Indemnification.  To the fullest extent permitted by law, the Company shall indemnify and hold harmless each Covered Person and each former Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative (“Claims”), in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs.  A Covered Person or former Covered Person shall not be entitled to indemnification under this Section 12.2 with respect to (i) any Claim with respect to which such Covered Person has engaged in fraud, willful misconduct, bad faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or part thereof) (A) was brought to enforce such Covered Person’s rights to indemnification hereunder or (B) was authorized or consented to by the Managing Members.  Expenses incurred by a Covered Person in defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company as authorized by this Section 12.2.  Notwithstanding the foregoing, no Covered Person shall be indemnified by the Company in respect of any Claim by a Member of the Company.
 
 12.3.         Corporate Opportunity.
 
(a)           If a Member (or any of its officers, directors, agents, stockholders, members, partners, Affiliates or subsidiaries) acquires knowledge of a potential transaction or matter which may be a Corporate Opportunity or otherwise is then exploiting any Corporate Opportunity, the Company shall have no interest in such Corporate Opportunity and no expectancy that such Corporate Opportunity be offered to it, any such interest or expectancy
 
 
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being hereby renounced, so that such Person shall have no duty to present such Corporate Opportunity to the Company and shall have the right to hold any such Corporate Opportunity for its (and its officers’, directors’, agents’, stockholders’, members’, partners’, Affiliates’ or subsidiaries’) own account or to direct, sell, assign or transfer such Corporate Opportunity to Persons other than the Company.  Such Person shall not breach any fiduciary duty by reason of the fact that such Person does not present such Corporate Opportunity to the Company or pursues or acquires such Corporate Opportunity for itself or directs, sells, assigns or transfers such Corporate Opportunity to another Person.
 
(b)           For purposes of this Section 12.3, (i) the term the “Company” shall mean the Company and all corporations, partnerships, joint ventures, associations and other entities in which the Company beneficially owns (directly or indirectly) 50% or more of the outstanding voting stock, voting power, partnership interests or similar voting interests (other than BFS); and (ii) the term “Corporate Opportunity” shall mean an investment or business opportunity or prospective economic advantage in which the Company could, but for the provisions of this Section 12.3 have an interest or expectancy.
 
 12.4.         Amendments.  Any repeal or modification of this Article XII shall not adversely affect any rights of such Covered Person or any other person entitled to the protections of Section 12.3 pursuant to this Article XII, including the right to indemnification and to the advancement of expenses of a Covered Person existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
 
ARTICLE XIII
 
AMENDMENT TO AGREEMENT
 
This Agreement and the Certificate of Formation may only be amended, and the observance of any term hereof may be waived, with (and only with) the written consent of each Member.
 
ARTICLE XIV
 
GENERAL PROVISIONS
 
 14.1.         Notices.  Unless otherwise specifically provided in this Agreement, all notices and other communications required or permitted to be given hereunder shall be in writing and shall be (i) delivered by hand, (ii) delivered by a nationally recognized commercial overnight delivery service, (iii) mailed postage prepaid by first class mail in any such case directed or addressed to the respective addresses set forth on Schedule A hereto or (iv) transmitted by facsimile transmitted to:
 
If to JLL Fund V, to:
  
JLL Partners Fund V, LP
   
450 Lexington Avenue, 31st Floor
  
 
 
 
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New York, New York  10017
  
   
Attention: Ramsey A. Frank
  
   
Fax:  (212) 286-8626
  


with a copy to:
  
(which shall not constitute notice)
   
Skadden, Arps, Slate, Meagher & Flom LLP
   
One Rodney Square
   
P.O.  Box 636
   
Wilmington, Delaware 19899-0636
   
Attention:  Robert B. Pincus, Esq.
   
Fax: (302) 651-3001

 
If to WP, to:
  
Warburg Pincus Private Equity IX, L.P.
   
c/o Warburg Pincus LLC
   
450 Lexington Avenue
   
New York, NY 10017-3147
   
Attention:  David Barr
   
                 Kevin Kruse
   
Fax:  (212) 878-9100
 
with a copy to:
  
(which shall not constitute notice)
   
Willkie Farr & Gallagher LLP
   
787 Seventh Avenue
   
New York, N.Y. 10019-6099
   
Attention:  Steven J. Gartner, Esq.
   
                 Mark A. Cognetti, Esq.                
    Fax: (212) 728-8111
     
If to the Company, to:
  
JWP LLC
   
c/o JLL Partners
   
450 Lexington Avenue, 31st Floor
   
New York, New York  10017
   
Attention: Ramsey A. Frank
   
Fax:  (212) 286-8626

with a copy to:
   (which shall not constitute notice)
   
Warburg Pincus Private Equity IX, L.P.
   
c/o Warburg Pincus LLC
   
450 Lexington Avenue
   
New York, NY 10017-3147
   
Attention:  David Barr
   
                 Kevin Kruse
   
Fax:  (212) 878-9100

Such notices shall be effective: (a) in the case of hand deliveries, when received; (b) in the case of an overnight delivery service, on the next Business Day after being placed in the possession of
 
 
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such delivery service, with delivery charges prepaid; (c) in the case of mail, five (5) days after deposit in the postal system, first class mail, postage prepaid; and (d) in the case of facsimile notices, when electronic indication of receipt is received.  Any party may change its address and telecopy number by written notice to the other parties given in accordance with this Section 14.1.
 
 14.2.         Entire Agreement, etc.  This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior contracts, agreements and understandings between them.  No course of prior dealings between the parties shall be relevant to supplement or explain any term used in this Agreement.  Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or the acquiescing party has knowledge of the nature of the performance and an opportunity for objection.  No provisions of this Agreement may be waived, amended or modified orally, but only by an instrument in writing executed by a duly authorized officer.  No waiver of any terms or conditions of this Agreement in one instance shall operate as a waiver of any other term or condition or as a waiver in any other instance.
 
 14.3.         Construction Principles.  As used in this Agreement words in any gender shall be deemed to include all other genders.  The singular shall be deemed to include the plural and vice versa.  The captions and article and section headings in this Agreement are inserted for convenience of reference only and are not intended to have significance for the interpretation of or construction of the provisions of this Agreement.
 
 14.4.         Counterparts.  This Agreement may be executed in two or more counterparts by the parties hereto, each of which when so executed will be an original, but all of which together will constitute one and the same instrument.
 
 14.5.         Severability.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the Members’ expectations regarding this Agreement.  Otherwise, the Members agree to replace any invalid or unenforceable provision with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
 
 14.6.         Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of laws thereof.
 
 14.7.         Binding Effect.  This Agreement shall be binding upon, and inure to the benefit of the Members.
 
 14.8.         Additional Documents and Acts.  Each Member agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and of the transactions contemplated hereby.
 
 
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 14.9.         No Third-Party Beneficiary.  Except with respect to Sections 12.1 and 12.2, this Agreement is made solely for the benefit of the parties hereto and no other Person shall have any rights, interest, or claims hereunder or otherwise be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
 
 14.10.       Limited Liability Company.  The parties to this Agreement agree to form a Limited Liability Company and do not intend to form a partnership under the laws of the State of Delaware or any other laws; provided, however, that, to the extent permitted by U.S. law, the Company will be treated as a partnership for U.S. federal, state and local income tax purposes and as an “investment partnership” as defined in Section 731(c) of the Code.  The Members agree not to take, and cause the Company not to take, any action inconsistent with the Company’s classification as a partnership for U.S. federal income tax purposes and as an “investment partnership” as defined in Section 731(c) of the Code.
 
[SIGNATURE PAGE FOLLOWS]
 
 
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IN WITNESS WHEREOF, each Member has duly executed this Agreement as of the day first above written.
 
 
JLL PARTNERS FUND V, L.P.
   
 
By:  JLL Associates V, L.P., its general partner
   
 
By:  JLL Associates, G.P. V, LLC, its general partner
   
   
 
By: /s/  Paul S. Levy                            
 
Name: Paul S. Levy
 
Title:   Managing Member


 
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
   
 
By:  Warburg Pincus IX LLC, General Partner
   
 
By:  Warburg Pincus Partners, LLC, Sole Member
   
 
By:  Warburg Pincus & Co., Managing Member
   
   
 
By: /s/  Kevin Kruse                            
 
Name:
 
Title

 
 
 
 

Schedule A

 
Member
Capital Account
Interests
Member Ratio
JLL PARTNERS FUND V, L.P.
450 Lexington Avenue, 31st Floor
New York, New York 10017
 
 $48,909,000 48,909,000 50%
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
450 Lexington Avenue
New York, New York 10017-3147
 $48,909,000 48,909,000 50%

 
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