LIMITED WAIVER AGREEMENT
Exhibit
10.10.2.1
[EXECUTION
COPY]
THIS LIMITED WAIVER
AGREEMENT (this “Waiver”), dated as of
March 11, 2009, 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 Lenders
party to the Credit Agreement referenced below, and (iv) XXXXX FARGO BANK,
NATIONAL ASSOCIATION (“Xxxxx Fargo”), as the
L/C Issuer, the
Swingline Lender and the administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”).
Accordingly, the
parties hereto agree as follows:
SECTION 1
Definitions;
Interpretation.
SECTION 2
Limited
Waiver.
(a) Subject
to the terms and conditions of this Waiver, the Majority Lenders hereby
temporarily waive (i) the requirements of Section 8.02(h)(i) of
the Credit Agreement, (ii) the requirements of Section 8.19(b) of
the Credit Agreement for the month ended February 28, 2009, and the month ending
Xxxxx 00, 0000, (xxx) the requirements of Sections 5.03(b),
5.03(c) and
5.03(d) of the
Credit Agreement with respect to additional Revolving Loans requested by
Holdings on or after the Effective Date (as defined in Section 3 below), (iv)
the certifications required under paragraphs (b) and (c) of any Notice of
Borrowing with respect to additional Revolving Loans requested by Holdings on or
after the Effective Date (as defined in Section 3 below), in the case of each of
the preceding clauses (i), (ii), (iii) and (iv), insofar as such requirements or
certifications cannot be satisfied due solely to the occurrence of the Specified
Defaults, and (v) the right to exercise default remedies pursuant to the Loan
Documents or applicable law arising solely as a result of the existence of the
Specified Defaults; provided, that (1)
such temporary waiver shall terminate on the earlier to occur of (A) the
occurrence of an Event of Default (other than the Specified Defaults) and (B)
5:00 p.m. (Pacific time) on April 15, 2009 (the earliest to occur of (A) and
(B), the “Waiver
Termination Date”), and (2) the Effective Amount of all Revolving Loans
shall not exceed $20,000,000 in the aggregate at any time outstanding, subject
to availability under the Borrowing Base.
SECTION 3
Conditions of
Effectiveness. The effectiveness of Section 2 of
this Waiver shall be subject to the satisfaction of each of the following
conditions precedent (the date on which such conditions are satisfied, the
“Effective
Date”):
2
SECTION 4
Representations and
Warranties. To induce the Lenders to enter into this Waiver,
Holdings, the Company and each other Loan Party hereby represents and warrants
to the Administrative Agent and the Lenders that all representations and
warranties made by each such Person in Article VI of the
Credit Agreement and in the other Loan Documents are true and correct on and as
of the date hereof, except for any inaccuracy of the representations and
warranties in Section
6.06 or Section
6.11(b) resulting from the existence of the Specified
Defaults. 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 Article, shall mean and
be a reference to the Credit Agreement as supplemented by this Waiver, and each
reference in such Article to “the Loan Documents” shall mean and be a reference
to the Loan Documents as supplemented as contemplated hereby, (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, and (iii) any representations and warranties which
relate solely to an earlier date shall not be deemed confirmed and restated as
of the date hereof (provided that such
representations and warranties shall be true and correct as of such earlier
date).
SECTION 5
Waiver
Fee. Holdings shall pay to Administrative Agent, for the
account of each Lender that approves this Waiver, a waiver fee in the amount of
(x) 10 basis points multiplied by
(y) (1) the Revolving Commitment plus (2) the
outstanding principal amount of Term B Loans of each such Lender that approves
this Waiver (the “Waiver
Fee”). Such Waiver Fee shall be fully earned on the Effective
Date and shall be paid only to those Lenders that approve this Waiver by
returning to the Administrative Agent a written consent to this Waiver by no
later than 5:00 p.m. New York time on March 11, 2009.
3
SECTION 6
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 Waiver 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 7
Miscellaneous.
4
(f)
Governing
Law. THIS
WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CALIFORNIA.
[Signature
Pages Follow]
5
THE
BORROWER
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BUILDING
MATERIALS HOLDING
CORPORATION
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President &
Chief
Financial Officer
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THE
GUARANTORS
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BMC WEST
CORPORATION
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President &
Chief
Financial Officer
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SELECTBUILD
CONSTRUCTION, INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President &
Chief
Financial Officer
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SELECTBUILD
NORTHERN
CALIFORNIA,
INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
DISTRIBUTION, INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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[SIGNATURE PAGE 1
TO LIMITED WAIVER AGREEMENT]
C
CONSTRUCTION, INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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TWF
CONSTRUCTION, INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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H.N.R.
FRAMING SYSTEMS INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD,
L.P.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
SOUTHERN
CALIFORNIA,
INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
NEVADA, INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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[SIGNATURE
PAGE 2 TO LIMITED WAIVER AGREEMENT]
SELECTBUILD
ARIZONA, LLC
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
MID-ATLANTIC, LLC
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
FLORIDA, LLC
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
TRIM, LLC
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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KBI STUCCO,
INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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[SIGNATURE
PAGE 3 TO LIMITED WAIVER AGREEMENT]
KBI WINDOWS,
INC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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A-1 BUILDING
COMPONENTS, LLC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
MECHANICAL, LLC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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SELECTBUILD
ILLINOIS, LLC.
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By
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/s/ Xxxxxxx
X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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[SIGNATURE
PAGE 4 TO LIMITED WAIVER AGREEMENT]
THE
ADMINISTRATIVE AGENT
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XXXXX FARGO
BANK, NATIONAL
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ASSOCIATION,
as Administrative Agent
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By
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/s/ Xxxx X.
Xxxxxxx
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Name: Xxxx X.
Xxxxxxx
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Title: Senior
Vice President
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[SIGNATURE
PAGE 5 TO LIMITED WAIVER AGREEMENT]
EXHIBIT
A
Notice
Letter
[Please see
attached]
XXXX
Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX
00000
February 26,
2009
Via
Email and Messenger Delivery
Xx. Xxxx Xxxxxxx,
Senior Vice President
Xxxxx Xxxxx
Xxxx
XXX
X0000-000
000 Xxxxxx Xxxxxx,
0xx Xxxxx
Xxx Xxxxxxxxx, XX
00000
Re: SECOND AMENDED
AND RESTATED CREDIT AGREEMENT (as amended to date, the "Credit Agreement"; capitalized terms used herein and
not otherwise defined are used as defined in the Credit Agreement) entered into
as of November 10, 2006, by and among (i) BUILDING MATERIALS HOLDING CORPORATION
("Holdings"), as borrower, (ii) BMC WEST
CORPORATION (the "Company"), and certain other affiliates of
Holdings, as guarantors, (iii) the several financial institutions from time to
time party to the Credit Agreement (individually, a "Lender" and, collectively, the "Lenders"), (iv) 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")
Dear Xx.
Xxxxxxx:
Reference is made
to Section 8.19(b) of the Credit Agreement (the "Financial Covenant"). At this time, Holdings continues
to finalize the closure of its financial books for the month ended February 28,
2009. In connection therewith it has become apparent to us that when that
closure is completed, Holdings may not be in compliance with the Financial
Covenant for the period ended February 28, 2009. Without conceding that a
Default has occurred at this time, we would like to discuss with you and the
other Lenders the possibility of relief from the Financial Covenant for the
period ended February 28, 2009, as well as certain future periods, all as
described in the presentation transmitted to you contemporaneously herewith. In
addition, notwithstanding any Default that occurs in respect of the Financial
Covenant for the period ended February 28, 2009 or otherwise, we would request
that the Lenders allow Holdings to continue to request and obtain additional
Credit Extensions under the Credit Agreement of up to $20,000,000 in aggregate
principal amount, pending negotiations with the Lenders to amend the Credit
Agreement to reflect current market conditions. In that regard, we propose a
forbearance period through April 15, 2009 during which the Lenders would forbear
from the exercise of default remedies, during which time Holdings would have
access to the above referenced Credit Extensions and negotiations with the
Lenders could be commenced and an amendment documented.
Very truly
yours,
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BUILDING
MATERIALS HOLDING
CORPORATION
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: |
Xxxxxxx X.
Xxxxxx
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Title: |
Senior Vice
President and
Chief
Financial Officer
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