SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.10.2
SECOND
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”),
dated as of April 26, 2006, is made among (i) BUILDING MATERIALS
HOLDING CORPORATION, a Delaware corporation (“Holdings”),
as
borrower, (ii) BMC WEST CORPORATION, a Delaware corporation (the
“Company”),
and
certain other affiliates of Holdings, as guarantors, (iii) the financial
institutions listed on the signature pages hereof under the heading “LENDERS”
(individually, each a “Lender”
and,
collectively, the “Lenders”),
(iv) SUNTRUST BANK, as Co-Lead Arranger and Syndication Agent,
(v) JPMORGAN CHASE BANK, N.A., as Co-Documentation Agent, (vi) LASALLE
BUSINESS CREDIT, LLC, as Co-Documentation Agent, (vii) U.S. BANK NATIONAL
ASSOCIATION, as Co-Documentation Agent, and (viii) XXXXX FARGO BANK,
NATIONAL ASSOCIATION (“Xxxxx
Fargo”),
as
the L/C Issuer, the Swingline Lender, the administrative agent for the Lenders
(in such capacity, the “Administrative
Agent”)
and
the Sole Book Runner and Co-Lead Arranger.
Holdings,
the Company and the other Guarantors, the Lenders and the Administrative Agent
are parties to an Amended and Restated Credit Agreement dated as of
June 30, 2005, as amended by a First Amendment to Amended and Restated
Credit Agreement dated as of August 29, 2005 (as so amended, the
“Credit
Agreement”).
Holdings has requested that the Majority Lenders agree to certain amendments
to
the Credit Agreement. The Majority Lenders have agreed to such request, subject
to the terms and conditions hereof.
Accordingly,
the parties hereto agree as follows:
SECTION
1 Definitions;
Interpretation.
(a) Terms
Defined in Credit Agreement.
All
capitalized terms used in this Amendment (including in the preamble and recitals
hereof) and not otherwise defined herein shall have the meanings assigned to
them in the Credit Agreement.
(b) Interpretation.
The
rules of interpretation set forth in Section 1.02
of the
Credit Agreement shall be applicable to this Amendment and are incorporated
herein by this reference.
SECTION
2 Amendments
to the Credit Agreement.
(a) Amendments.
The
Credit Agreement shall be amended as follows, effective as of the date of
satisfaction of the conditions set forth in Section 3
of
this Amendment (the “Effective
Date”):
(i)
|
Section
1.01 of the Credit Agreement (captioned “Certain
Defined Terms”)
shall be amended as follows:
|
(A)
|
The
defined term “L/C
Commitment”
shall be amended by deleting the dollar amount “$100,000,000” in the
fourth line thereof and inserting “$200,000,000” in its
place.
|
(B)
|
The
defined term “Capital
Expenditure Annual Limit”
shall be amended by deleting the dollar amount “$35,000,000” in clause
(i) thereof and inserting “$35,000,000 through December 31, 2005, and
$100,000,000 thereafter” in its
place.
|
(ii) |
Section
8.10 of the Credit Agreement (captioned “Lease
Obligations”)
shall be amended by deleting the dollar amount “$20,000,000” in the third
line thereof and inserting “$50,000,000” in its
place.
|
(b) References
Within Credit Agreement.
Each
reference in the Credit Agreement to “this Agreement” and the words “hereof,”
“herein,” “hereunder,” or words of like import, shall mean and be a reference to
the Credit Agreement as amended by this Amendment.
SECTION
3 Conditions
of Effectiveness.
The
effectiveness of Section 2
of
this Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) Execution.
The
Administrative Agent shall have received (i) from Holdings, the Company and
each other Guarantor a duly executed original (or, if elected by the
Administrative Agent, an executed facsimile copy) of this Amendment and
(ii) from the Majority Lenders a duly executed written consent to this
Amendment authorizing the Administrative Agent to execute and deliver this
Amendment on the Majority Lenders’ behalf.
(b) Fees
and Expenses.
Holdings shall have paid all invoiced costs and expenses then due in
accordance with Section 6(d)
of
this Amendment.
(c) Additional
Closing Documents and Actions.
The
Administrative Agent shall have received the following, in form and substance
satisfactory to it: a certificate of a Responsible Officer of Holdings and
the
Company, stating that (i) the representations and warranties contained in
Section 4
of
this Amendment are true and correct on and as of the date of such certificate
as
though made on and as of the Effective Date, and (ii) on and as of the
Effective Date, after and giving effect to this Amendment, no Default shall
have
occurred and be continuing.
(d) Representations
and Warranties; No Default.
On
the Effective Date, after giving effect to the amendment of the Credit Agreement
contemplated hereby:
(i) the
representations and warranties contained in Section 4
of
this Amendment shall be true and correct on and as of the Effective Date as
though made on and as of such date; and
(ii) no
Default shall have occurred and be continuing.
(e) Additional
Documents.
The
Administrative Agent shall have received, in form and substance satisfactory
to
it, such additional approvals, opinions, documents and other information as
the
Administrative Agent or the Majority Lenders (through the Administrative Agent)
may reasonably request.
SECTION
4 Representations
and Warranties.
To
induce the Lenders to enter into this Amendment, Holdings and the Company hereby
confirm and restate, as of the date hereof, the representations and warranties
made by them in Article VI of the Credit Agreement and in the other Loan
Documents; provided,
however,
any
representations and warranties which relate solely to an earlier date shall
not
be deemed confirmed and restated as of the date hereof; provided,
further,
however,
that
such representations and warranties shall be true, correct and complete as
of
such earlier date. For the purposes of this Section 4,
(i) each
reference in Article VI of the Credit Agreement to “this Agreement,” and
the words “hereof,” “herein,” “hereunder,” or words of like import in such
Section, shall mean and be a reference to the Credit Agreement as amended by
this Amendment and shall take into account any amendments to the schedules
and
other disclosures made in writing by Holdings to the Administrative Agent and
the Lenders after the Closing Date and approved by the Administrative Agent
and
the Majority Lenders, and (ii) Section 6.11
of the
Credit Agreement shall be deemed instead to refer to the last day of the most
recent fiscal quarter and fiscal year for which financial statements have then
been delivered.
SECTION
5 Reaffirmation
of Liens and Guarantees.
(a) Each
Loan Party hereby reaffirms that the Liens granted to the Administrative Agent,
for itself and on behalf of and for the ratable benefit of the other Secured
Parties, under the Security Agreement and the other Collateral Documents remain
in full force and effect and constitute, and shall constitute on and after
the
Effective Date, valid and perfected Liens on the Collateral (subject only to
Permitted Liens) to secure the Secured Obligations. As used herein, “Secured
Parties” and “Secured Obligations” shall have the meanings given to such terms
in the Security Agreement.
(b) Each
of
the undersigned Guarantors, in its capacity as a Guarantor, does hereby consent
to this Amendment and to the documents and agreements referred to herein, and
nothing herein shall in any way limit any of the terms or provisions of the
Guaranty of such Guarantor or the Collateral Documents executed by such
Guarantor or any other Loan Document executed by such Guarantor (as the same
may
be amended from time to time), all of which are hereby ratified and affirmed
in
all respects.
SECTION
6 Miscellaneous.
(a) Notice.
The
Administrative Agent shall notify Holdings, the Company and the Lenders of
the
occurrence of the Effective Date and promptly thereafter distribute to Holdings,
the Company and the Lenders copies of all documents delivered under Section 3
of
this Amendment.
(b) Credit
Agreement Otherwise Not Affected.
Except as expressly amended pursuant hereto, the Credit Agreement and the other
Loan Documents shall remain unchanged and in full force and effect and are
hereby ratified and confirmed in all respects. The Lenders’ and the
Administrative Agent’s execution and delivery of, or acceptance of, this
Amendment and any other documents and instruments in connection herewith
(collectively, the “Amendment
Documents”)
shall not be deemed to create a course of dealing or otherwise create any
express or implied duty by any of them to provide any other or further
amendments, consents or waivers in the future.
(c) No
Reliance.
Each
of Holdings, the Company and each other Guarantor hereby acknowledges and
confirms to the Administrative Agent and the Lenders that it is executing this
Amendment and the other Amendment Documents on the basis of its own
investigation and for its own reasons without reliance upon any agreement,
representation, understanding or communication by or on behalf of any other
Person.
(d) Costs
and Expenses.
Holdings agrees to pay to the Administrative Agent on demand the reasonable
out-of-pocket costs and expenses of the Administrative Agent, and the reasonable
fees and disbursements of counsel to the Administrative Agent, in connection
with the negotiation, preparation, execution and delivery of this Amendment
and
any other documents to be delivered in connection herewith.
(e) Binding
Effect.
This
Amendment shall be binding upon, inure to the benefit of and be enforceable
by
Holdings, the Company and each other Guarantor, the Administrative Agent and
each Lender and their respective successors and assigns.
(f) Governing
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF CALIFORNIA.
(g) Complete
Agreement; Amendments.
This
Amendment, together with the other Amendment Documents and the other Loan
Documents, contains the entire and exclusive agreement of the parties hereto
and
thereto with reference to the matters discussed herein and therein. This
Amendment supersedes all prior commitments, drafts, communications, discussion
and understandings, oral or written, with respect thereto. This Amendment may
not be modified, amended or otherwise altered except in accordance with the
terms of Section 11.01
of the
Credit Agreement.
(h) Severability.
Whenever possible, each provision of this Amendment shall be interpreted in
such
manner as to be effective and valid under all applicable laws and regulations.
If, however, any provision of this Amendment shall be prohibited by or invalid
under any such law or regulation in any jurisdiction, it shall, as to such
jurisdiction, be deemed modified to conform to the minimum requirements of
such
law or regulation, or, if for any reason it is not deemed so modified, it shall
be ineffective and invalid only to the extent of such prohibition or invalidity
without affecting the remaining provisions of this Amendment, or the validity
or
effectiveness of such provision in any other jurisdiction.
(i) Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one
and
the same instrument.
(j) Loan
Documents.
This
Amendment and the other Amendment Documents shall constitute Loan
Documents.
[Signature
Pages Follow.]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of
the
date first above written.
THE
BORROWER
By
_______________________________________
Name:
Title:
THE
GUARANTORS
BMC
WEST CORPORATION
By
_______________________________________
Name:
Title:
BMC
WEST CORPORATION SOUTHCENTRAL
By
_______________________________________
Name:
Title:
BMCW
SOUTHCENTRAL, L.P.
By:
BMC
WEST CORPORATION SOUTHCENTRAL,
its General Partner
By
_______________________________________
Name:
Title:
BMCW,
LLC
By:
BMC
WEST CORPORATION, its Managing Member
By
_______________________________________
Name:
Title:
SIGNATURE
PAGE 1 TO
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
SELECTBUILD
CONSTRUCTION, INC.
(formerly
known as BMC Construction, Inc.)
By
_______________________________________
Name:
Title:
KBI
CONSTRUCTION, LLC
By:
SELECTBUILD CONSTRUCTION, INC., its Managing Member
By
_______________________________________
Name:
Title:
KB
INDUSTRIES LIMITED PARTNERSHIP
By:
BUILDING MATERIALS HOLDING CORPORATION, its General Partner
By
_______________________________________
Name:
Title:
XXXXXX
ROAD, L.L.C.
By:
SELECTBUILD CONSTRUCTION, INC., its Sole Member
By
_______________________________________
Name:
Title:
C
CONSTRUCTION, INC. (successor
by
merger to KBI Concrete, LLC and Total Concrete, LLC)
By
_______________________________________
Name:
Title:
SIGNATURE
PAGE 2 TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
KBI
CONSTRUCTION, LLC
By:
SELECTBUILD CONSTRUCTION, INC., its Sole Member
By
_______________________________________
Name:
Title:
RJ
NORCAL, LLC
By:
SELECTBUILD CONSTRUCTION, INC., its Sole Member
By
_______________________________________
Name:
Title:
KBI
NORCAL GENERAL PARTNERSHIP
By
_______________________________________
Name:
Title:
KBI
NORCAL WINDOWS, INC.
By
_______________________________________
Name:
Title:
KBI
STUCCO, INC.
By
_______________________________________
Name:
Title:
THE
ADMINISTRATIVE AGENT
XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as Administrative Agent
By
_______________________________________
Name:
Title:
SIGNATURE
PAGE 3 TO SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT