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


 


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(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 other Loan
Documents as respectively amended hereby.


 


9.                                       Fees and Expenses. 
The Borrower hereby agrees to pay all reasonable out-of-pocket expenses
incurred by the Agent in connection with the preparation, negotiation, and
consummation of this Amendment, and all other documents related hereto,
including without limitation, the reasonable fees and expenses of the Lenders’
counsel.


 


10.                                 Successors.  This
Amendment will be binding upon and inure to the benefit of the Borrowers, the
Guarantors, the Lenders, the Agent, and their respective successors and
assigns, provided, however,
that no interest herein may be assigned by any Obligor without the prior
written consent of the Agent and each Lender.


 


11.                                 Governing Law. 
THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO
FEDERAL LAWS RELATING TO NATIONAL BANKS).


 


12.                                 Consent to Forum; Arbitration.


 


(a)                                  Forum.  EACH OBLIGOR
HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT
SITTING IN OR WITH JURISDICTION OVER THE STATE OF NEW YORK, IN ANY PROCEEDING
OR DISPUTE RELATING IN ANY WAY TO THIS AMENDMENT, AND AGREES THAT ANY SUCH
PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT.  EACH OBLIGOR IRREVOCABLY WAIVES ALL CLAIMS,
OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL
OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM.  EACH 


 


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PARTY HERETO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1
OF THE LOAN AGREEMENT.  Nothing herein
shall limit the right of Agent or any Lender to bring proceedings against any
Obligor in any other court, nor limit the right of any party to serve process
in any other manner permitted by Applicable Law.  Nothing in this Amendment shall be deemed to
preclude enforcement by Agent of any judgment or order obtained in any forum or
jurisdiction.


 


(b)                                 Arbitration. 
Notwithstanding any other provision of this Amendment or any other Loan
Document to the contrary, if for any reason a court having jurisdiction over an
action among the parties relating in any way to any Obligations or Loan
Documents does not uphold the waiver of jury trail contained in Section 13
or in any provision of any other Loan Document, any controversy or claim among
the parties relating in any way to any Obligations or Loan Documents, including
any alleged tort, shall at the request of any party hereto be determined by
binding arbitration conducted in accordance with the United States Arbitration
Act (Title 9 U.S. Code).  Arbitration
proceedings will be determined in accordance with the Act, the then-current rules and
procedures for the arbitration of financial services disputes of the American
Arbitration Association (“AAA”), and the terms of this Section.  In the event of any inconsistency, the terms
of this Section shall control.  If
AAA is unwilling or unable to serve as the provider of arbitration or to
enforce any provision of this Section, Agent may designate another arbitration
organization with similar procedures to serve as the provider of
arbitration.  The arbitration proceedings
shall be conducted in New York.  The
arbitration hearing shall commence within 90 days of the arbitration demand and
close within 90 days thereafter.  The
arbitration award must be issued within 30 days after close of the hearing
(subject to extension by the arbitrator for up to 60 days upon a showing of
good cause), and shall include a concise written statement of reasons for the
award.  The arbitrator shall give effect
to applicable statutes of limitation in determining any controversy or claim,
and for these purposes, service on AAA under applicable AAA rules of a
notice of claim is the equivalent of the filing of a lawsuit.  Any dispute concerning this Section or
whether a controversy or claim is arbitrable shall be determined by the
arbitrator.  The arbitrator shall have
the power to award legal fees to the extent provided by this Agreement.  Judgment upon an arbitration award may be
entered in any court having jurisdiction. 
The institution and maintenance of an action for judicial relief or
pursuant to a provisional or ancillary remedy shall not constitute a waiver of
the right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if any other party contests such action for judicial
relief.  No controversy or claim shall be
submitted to arbitration without the consent of all parties if, at the time of
the proposed submission, such controversy or claim relates to an obligation
secured by Real Estate, but if all parties do not consent to submission of such
a controversy or claim to arbitration, it shall be determined as provided in
the next sentence.  At the request of any
party, a controversy or claim that is not submitted to arbitration as provided
above shall be determined by judicial reference; and if such an election is
made, the parties shall designate to the court a referee or referees selected
under the auspices of the AAA in the same manner as arbitrators are selected in
AAA sponsored proceedings and the presiding referee of the panel (or the
referee if there is a single referee) shall be an active attorney or retired
judge; and judgment upon the award rendered by such referee or referees shall
be entered in the court in which proceeding was commenced.  None of the foregoing provisions of this Section shall
limit the right of Agent or Lenders to exercise self-help remedies, such as
setoff, foreclosure or sale of 


 


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any Collateral or to
obtain provisional or ancillary remedies from a court of competent jurisdiction
before, after or during any arbitration proceeding.  The exercise of a remedy does not waive the
right of any party to resort to arbitration or reference.


 


13.                                 Waiver of Jury Trial. 
To the fullest extent permitted by Applicable Law, each Obligor waives (a) the
right to trial by jury (which Agent and each Lender hereby also waives) in any
proceeding or dispute of any kind relating in any way to this Amendment, any
Loan Documents, Obligations or Collateral.


 


14.                                 Counterparts. 
This Amendment may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract.  Delivery of a signature
page of any Loan Document by telecopy or electronic mail shall be
effective as delivery of a manually executed counterpart of such agreement.


 


15.                                 Severability. 
Wherever possible, each provision of this Amendment shall be interpreted
in such manner as to be valid under Applicable Law.  If any provision is found to be invalid under
Applicable Law, it shall be ineffective only to the extent of such invalidity
and the remaining provisions of this Amendment shall remain in full force and
effect.


 


16.                                 Entire Agreement. 
Time is of the essence of the Loan Documents.  This Amendment and the Loan Agreement, as
amended hereby, and the other Loan Documents constitute the entire contract
among the parties relating to the subject matter hereof, and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof.


 


[Remainder of Page Intentionally Left Blank]


 


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IN WITNESS WHEREOF, this Amendment has been
executed and delivered as of the date set forth above.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  BOISE
  CASCADE, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wayne Rancourt

  
	
   

  	
  Title: 

  	
  Vice President and
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOISE
  BUILDING SOLUTIONS DISTRIBUTION, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Wayne Rancourt

  
	
   

  	
  Title: 

  	
  Vice President and
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOISE
  BUILDING SOLUTIONS MANUFACTURING, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Wayne Rancourt

  
	
   

  	
  Title: 

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  BOISE
  BUILDING SOLUTIONS MANUFACTURING HOLDINGS CORP.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Wayne Rancourt

  
	
   

  	
  Title: 

  	
  Vice President and
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BC
  CHILE INVESTMENT CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Wayne Rancourt

  
	
   

  	
  Title: 

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BC
  BRAZIL INVESTMENT CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Wayne Rancourt

  
	
   

  	
  Title: 

  	
  Vice President and
  Treasurer

  



 

















 


	
   

  	
  AGENT
  AND LENDERS:

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as Agent and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ T. Eggertsen

  
	
   

  	
  Title: 

  	
  Vice President

  



 

















 


	
   

  	
  1st FARM
  CREDIT SERVICES, PCA,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Dale A. Richardson

  
	
   

  	
  Title: 

  	
  VP, Illinois Capital
  Markets Group

  



 

















 


	
   

  	
  COBANK,
  ACB,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Michael Tousignant

  
	
   

  	
  Title: 

  	
  Vice President

  



 
















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter S. Predun

  
	
   

  	
  Title:

  	
  Executive Director

  



 

















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeanette P.
  Vandenbergh

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  TORONTO
  DOMINION (TEXAS) LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Murray

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 

















 


	
   

  	
  WACHOVIA BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Rhodes

  
	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  WELLS
  FARGO FOOTHILL, LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Fong

  
	
   

  	
  Title:

  	
  Account Executive, AVP

  



 

















 


Annex I


 


SCHEDULE 1.1


to


Loan and Security
Agreement


 


COMMITMENTS OF
LENDERS


 


	
  Lender

  	
   

  	
  Revolver Commitment

  	
   

  
	
  Bank of America,
  N.A.

  	
   

  	
  $

  	
  62,142,857.14

  	
   

  
	
  Wells Fargo
  Foothill, LLC

  	
   

  	
  $

  	
  59,657,142.86

  	
   

  
	
  General Electric
  Capital Corporation

  	
   

  	
  $

  	
  41,428,571.43

  	
   

  
	
  Wachovia Bank,
  N.A.

  	
   

  	
  $

  	
  33,142,857.14

  	
   

  
	
  Textron
  Financial Corporation

  	
   

  	
  $

  	
  24,857,142.86

  	
   

  
	
  PNC Bank,
  National Association

  	
   

  	
  $

  	
  20,714,285.71

  	
   

  
	
  U.S. Bank,
  National Association

  	
   

  	
  $

  	
  16,571,428.57

  	
   

  
	
  CoBank, ACB

  	
   

  	
  $

  	
  8,285,714.29

  	
   

  
	
  1st Farm Credit
  Services, PCA

  	
   

  	
  $

  	
  8,285,714.29

  	
   

  
	
  Toronto Dominion
  (Texas) LLC

  	
   

  	
  $

  	
  8,285,714.29

  	
   

  
	
  JPMorgan Chase
  Bank, N.A.

  	
   

  	
  $

  	
  4,142,857.14

  	
   

  
	
  AgFirst Farm
  Credit Bank

  	
   

  	
  $

  	
  2,485,714.29

  	
   

  
	
  Total

  	
   

  	
  $

  	
  290,000,000.00