Exhibit 10.1
SECOND AMENDMENT TO LOAN AND
SECURITY AGREEMENT
This SECOND AMENDMENT TO LOAN AND
SECURITY AGREEMENT (this “ Amendment ”), dated
as of May 28, 2009, among BOISE CASCADE, L.L.C., a Delaware
limited liability company (“ Boise Cascade ”),
BOISE BUILDING SOLUTIONS DISTRIBUTION, L.L.C., a Delaware limited
liability company (“ Boise Distribution ”) and
BOISE BUILDING SOLUTIONS MANUFACTURING, L.L.C., a Delaware limited
liability company (“ Boise Manufacturing ”, and
together with Boise Cascade and Boise Distribution, collectively,
“ Borrowers ”), BOISE BUILDING SOLUTIONS
MANUFACTURING HOLDINGS CORP., a Delaware corporation (“
Boise Manufacturing Holding ”), BC CHILE INVESTMENT
CORPORATION, a Delaware corporation (“ BC Chile
Investment ”), and BC BRAZIL INVESTMENT CORPORATION, a
Delaware corporation (“ BC Brazil Investment ”,
and together with Boise Manufacturing Holding and BC Chile
Investment, collectively, “ Guarantors ”), the
financial institutions party to this Amendment (collectively,
“ Lenders ”), and BANK OF AMERICA, N.A., a
national banking association, as agent for Lenders (in such
capacity, “ Agent ”).
RECITALS :
A.
WHEREAS, the
Borrowers, the Guarantors, the lenders party thereto from time to
time, and the Agent executed that certain Loan and Security
Agreement dated as of February 22, 2008 (as amended,
supplemented, or otherwise modified from time to time, the “
Loan Agreement ”) pursuant to which the Lenders have
agreed to make available to the Borrowers a revolving line of
credit; and
B.
WHEREAS, the
Borrowers, the Guarantors, the Lenders, and the Agent desire that
the Loan Agreement be amended in certain respects in accordance
with the terms of this Amendment.
NOW, THEREFORE, in consideration of
the premises and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1.
Recitals . The foregoing Recitals are incorporated
herein and made a part hereof for all purposes.
2.
Definitions
. Unless otherwise defined in
this Amendment, all initially capitalized terms and phrases
wherever used in this Amendment shall have the respective meanings
given to them in the Loan Agreement, as amended hereby.
3.
Amendments to Loan
Agreement . Subject
to the terms and conditions set forth herein, as of the Second
Amendment Effective Date (as defined below), the Loan Agreement is
hereby amended as follows:
(a)
Amendment to Section 9.1.8
of the Loan Agreement . Section 9.1.8 of the Loan
Agreement is hereby amended by deleting the reference to
“December 31, 2007” and replacing it with
“December 31, 2008”.
(b)
Amendment to Schedule 1.1 to the
Loan Agreement .
Schedule 1.1 (Commitments of Lenders) to the Loan Agreement
is hereby amended and restated in its entirety and is attached
hereto as Annex I .
4.
Acknowledgment of the
Obligors . The
Obligors hereby acknowledge and agree that, to the best of their
knowledge: (a) none of the Obligors has any defense,
offset, or counterclaim with respect to the payment of any sum owed
to the Lenders or the Agent under the Loan Documents, or with
respect to the performance or observance of any warranty or
covenant contained in the Loan Agreement or any of the other Loan
Documents; and (b) the Lenders and the Agent have performed
all obligations and duties owed to the Obligors through the date of
this Amendment.
5.
Consent and Reaffirmation of
Guarantors . The
undersigned Guarantors hereby consent to the foregoing amendments
and acknowledge and agree that nothing herein shall in any way
limit or diminish any of the obligations of the undersigned under
their respective Guaranty, each such Guaranty being hereby ratified
and affirmed.
6.
Representations and Warranties of
the Obligors . The
Obligors represents and warrants to the Lenders and the Agent
that:
(a)
Compliance with Loan
Agreement . On the
date hereof, no Default or Event of Default has occurred and is
continuing;
(b)
Representations and
Warranties . On the
date hereof, and after giving effect to this Amendment, the
representations and warranties of each Obligor in the Loan
Documents are true and correct in all material respects (except to
the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date);
(c)
Power and Authority
. Each Obligor is duly
authorized to execute, deliver and perform this Amendment.
The execution, delivery and performance of this Amendment and the
Loan Agreement, as amended hereby, have been duly authorized by all
necessary action, and do not (a) require any consent or
approval of any holders of Equity Interests of any Obligor, other
than those already obtained; (b) contravene the Organic
Documents of any Obligor; (c) violate or cause a default under
any Applicable Law or Material Contract; or (d) result in or
require the imposition of any Lien (other than Permitted Liens) on
any Property of any Obligor; and
2
(d)
Enforceability
. This Amendment and the Loan
Agreement, as amended hereby, are legal, valid and binding
obligations of each Obligor, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors’ rights generally.
7.
Effectiveness of this
Amendment . The amendment
of the Loan Agreement will become effective (the “ Second
Amendment Effective Date ”) as of the date of this
Amendment only upon the receipt by the Agent of this Amendment duly
executed by the Agent, the Borrowers, the Guarantors, and the
Required Lenders.
8.
Effect on Loan
Agreement . Except
as specifically amended hereby, the terms and provisions of the
Loan Agreement and the other Loan Documents are, in all other
respects, ratified and confirmed and remain in full force and
effect. No reference to this Amendment need be made in any
notice, writing, or other communication relating to the Loan
Agreement and the other Loan Documents, any such reference to the
Loan Agreement and the other Loan Documents to be deemed a
reference thereto as respectively amended by this Amendment.
All references to the Loan Agreement and the other Loan Documents
in any document, instrument, or agreement executed in connection
with the Loan Agreement and the other Loan Documents will be deemed
to refer to the Loan Agreement and the oth
