**Exhibit 10.1**

 

**THIRD AMENDMENT TO LOANAND SECURITY AGREEMENT**

 

ThisTHIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), datedas of April 15, 2010 (the “Execution Date”), among BOISE CASCADE,L.L.C., a Delaware limited liability company (“Boise Cascade”), BOISEBUILDING SOLUTIONS DISTRIBUTION, L.L.C., a Delaware limited liability company (“BoiseDistribution”) and BOISE BUILDING SOLUTIONS MANUFACTURING, L.L.C., aDelaware limited liability company (“Boise Manufacturing”, and togetherwith Boise Cascade and Boise Distribution, collectively, “Borrowers”),BOISE BUILDING SOLUTIONS MANUFACTURING HOLDINGS CORP., a Delaware corporation (“BoiseManufacturing Holding”), BC CHILE INVESTMENT CORPORATION, a Delawarecorporation (“BC Chile Investment”), and BC BRAZIL INVESTMENTCORPORATION, a Delaware corporation (“BC Brazil Investment”, andtogether with Boise Manufacturing Holding and BC Chile Investment,collectively, “Guarantors”), the financial institutions party to thisAmendment (collectively, “Lenders”), and BANK OF AMERICA, N.A., anational banking association, as agent for Lenders (in such capacity, “Agent”).

 

R E C I T A L S:

 

A.            WHEREAS, theBorrowers, the Guarantors, the lenders party thereto from time to time, and theAgent executed that certain Loan and Security Agreement dated as of February 22,2008 (as amended, supplemented, or otherwise modified from time to time, the “LoanAgreement”) pursuant to which the Lenders have agreed to make available tothe Borrowers a revolving line of credit; and

 

B.            WHEREAS, theBorrowers, the Guarantors, the Lenders, and the Agent desire that the LoanAgreement be amended in certain respects in accordance with the terms of thisAmendment.

 

NOW,THEREFORE, in consideration of the premises and for other valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto hereby agree as follows:

 

1.             Recitals.  The foregoing Recitals are incorporatedherein 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 Amendmentshall have the respective meanings given to them in the Loan Agreement, asamended hereby.

 

3.             Amendments toLoan Agreement.  Subject tothe terms and conditions set forth herein, as of the Third Amendment EffectiveDate (as defined below), the Loan Agreement is hereby amended as follows:

 

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(a)           Amendment to Schedule 1.1 tothe Loan Agreement.  Schedule1.1 (Commitments of Lenders) to the Loan Agreement is hereby amended andrestated in its entirety and is attached hereto as Annex I.

 

4.             Acknowledgmentof the Obligors.  TheObligors hereby acknowledge and agree that, to the best of theirknowledge:  (a) none of the Obligorshas any defense, offset, or counterclaim with respect to the payment of any sumowed to the Lenders or the Agent under the Loan Documents, or with respect tothe performance or observance of any warranty or covenant contained in the LoanAgreement or any of the other Loan Documents; and (b) the Lenders and theAgent have performed all obligations and duties owed to the Obligors throughthe date of this Amendment.

 

5.             Consent andReaffirmation of Guarantors.  The undersigned Guarantors hereby consent tothe foregoing amendments and acknowledge and agree that nothing herein shall inany way limit or diminish any of the obligations of the undersigned under theirrespective Guaranty, each such Guaranty being hereby ratified and affirmed.

 

6.             Representationsand Warranties of the Obligors.  The Obligors represents and warrant to theLenders and the Agent that:

 

(a)           Compliance with LoanAgreement.  On the datehereof, no Default or Event of Default has occurred and is continuing;

 

(b)           Representations andWarranties.  On the datehereof, and after giving effect to this Amendment, the representations andwarranties of each Obligor in the Loan Documents are true and correct in allmaterial respects (except to the extent that such representations andwarranties specifically refer to an earlier date, in which case they are trueand correct in all material respects as of such earlier date; *provided*, *however*, thatwith respect to Section 9.1.8 of the Loan Agreement, there has been noMaterial Adverse Effect since December 31, 2009);

 

(c)           Power and Authority.  Each Obligor is duly authorized to execute,deliver and perform this Amendment.  Theexecution, delivery and performance of this Amendment and the Loan Agreement,as amended hereby, have been duly authorized by all necessary action, and donot (a) require any consent or approval of any holders of Equity Interestsof any Obligor, other than those already obtained; (b) contravene theOrganic Documents of any Obligor; (c) violate or cause a default under anyApplicable Law or Material Contract; or (d) result in or require theimposition of any Lien (other than Permitted Liens) on any Property of anyObligor; and

 

(d)           Enforceability.  This Amendment and the Loan Agreement, asamended hereby, are legal, valid and binding obligations of each Obligor, enforceablein accordance with its terms, except as enforceability may be limited bybankruptcy, insolvency or similar laws affecting the enforcement of creditors’rights generally.

 

7.             Effectivenessof this Amendment. The amendment of the Loan Agreement will becomeeffective (the “Third Amendment Effective Date”) as of April 30,2010 but only if the 

 

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Agentshall have received duly executed copies of this Amendment signed by the Agent,the Borrowers, the Guarantors, and the Required Lenders and the Borrowers shallhave paid to the Agent for distribution to the Lenders a Work Fee equal inrespect of each Lender to the greater of $2,500 or 0.05% of the Commitment heldby such Lender on the Third Amendment Effective Date (after giving effect tothis Amendment).

 

8.             Effect on LoanAgreement.  Except asspecifically amended hereby, the terms and provisions of the Loan Agreement andthe other Loan Documents are, in all other respects, ratified and confirmed andremain in full force and effect.  Noreference to this Amendment need be made in any notice, writing, or othercommunication relating to the Loan Agreement and the other Loan Documents, anysuch reference to the Loan Agreement and the other Loan Documents to be deemeda reference thereto as respectively amended by this Amendment.  All references to the Loan Agreement and theother Loan Documents in any document, instrument, or agreement executed inconnection with the Loan Agreement and the other Loan Documents will be deemedto refer to the Loan Agreement and the other Loan Documents as respectivelyamended hereby.

 

9.             Fees andExpenses.  TheBorrower hereby agrees to pay all reasonable out-of-pocket expenses incurred bythe Agent in connection with the preparation, negotiation, and consummation ofthis Amendment, and all other documents related hereto, including withoutlimitation, the reasonable fees and expenses of the Lenders’ counsel.

 

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

 

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

 

12.           Consent toForum; Arbitration.

 

(a)           Forum.  EACH OBLIGOR HEREBY CONSENTS TO THENON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITHJURISDICTION OVER THE STATE OF NEW YORK, IN ANY PROCEEDING OR DISPUTERELATING IN ANY WAY TO THIS AMENDMENT, AND AGREES THAT ANY SUCH PROCEEDING SHALLBE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH OBLIGOR IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THATIT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTERJURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THEMANNER PROVIDED FOR NOTICES IN SECTION 14.3.1 OF THE LOAN AGREEMENT.  Nothing herein shall limit the right of Agentor any Lender to bring proceedings against any Obligor in any other court, norlimit the right of any party to serve process in any other manner 

 

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permittedby Applicable Law.  Nothing in thisAmendment shall be deemed to preclude enforcement by Agent of any judgment ororder obtained in any forum or jurisdiction.

 

(b)           Arbitration.  Notwithstanding any other provision of thisAmendment or any other Loan Document to the contrary, if for any reason a courthaving jurisdiction over an action among the parties relating in any way to anyObligations or Loan Documents does not uphold the waiver of jury trailcontained in Section 13 or in any provision of any other Loan Document,any controversy or claim among the parties relating in any way to anyObligations or Loan Documents, including any alleged tort, shall at the requestof any party hereto be determined by binding arbitration conducted inaccordance with the United States Arbitration Act (Title 9 U.S. Code).  Arbitration proceedings will be determined inaccordance with the Act, the then-current rules and procedures for thearbitration of financial services disputes of the American ArbitrationAssociation (“AAA”), and the terms of this Section.  In the event of any inconsistency, the termsof this Section shall control.  IfAAA is unwilling or unable to serve as the provider of arbitration or toenforce any provision of this Section, Agent may designate another arbitrationorganization with similar procedures to serve as the provider ofarbitration.  The arbitration proceedingsshall be conducted in New York.  Thearbitration hearing shall commence within 90 days of the arbitration demand andclose within 90 days thereafter.  Thearbitration 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 ofgood cause), and shall include a concise written statement of reasons for theaward.  The arbitrator shall give effectto applicable statutes of limitation in determining any controversy or claim, andfor these purposes, service on AAA under applicable AAA rules of a noticeof claim is the equivalent of the filing of a lawsuit.  Any dispute concerning this Section orwhether a controversy or claim is arbitrable shall be determined by thearbitrator.  The arbitrator shall havethe power to award legal fees to the extent provided by this Agreement.  Judgment upon an arbitration award may beentered in any court having jurisdiction. The institution and maintenance of an action for judicial relief orpursuant to a provisional or ancillary remedy shall not constitute a waiver ofthe right of any party, including the plaintiff, to submit the controversy orclaim to arbitration if any other party contests such action for judicialrelief.  No controversy or claim shall besubmitted to arbitration without the consent of all parties if, at the time ofthe proposed submission, such controversy or claim relates to an obligationsecured by Real Estate, but if all parties do not consent to submission of sucha controversy or claim to arbitration, it shall be determined as provided inthe next sentence.  At the request of anyparty, a controversy or claim that is not submitted to arbitration as providedabove shall be determined by judicial reference; and if such an election ismade, the parties shall designate to the court a referee or referees selectedunder the auspices of the AAA in the same manner as arbitrators are selected inAAA sponsored proceedings and the presiding referee of the panel (or thereferee if there is a single referee) shall be an active attorney or retiredjudge; and judgment upon the award rendered by such referee or referees shallbe entered in the court in which proceeding was commenced.  None of the foregoing provisions of this Section shalllimit the right of Agent or Lenders to exercise self-help remedies, such assetoff, foreclosure or sale of any Collateral or to obtain provisional orancillary remedies from a court of competent jurisdiction before, after orduring any arbitration proceeding.  Theexercise of a remedy does not waive the right of any party to resort toarbitration or reference.

 

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13.           Waiver of JuryTrial.  To the fullest extentpermitted by Applicable Law, each Obligor waives (a) the right to trial byjury (which Agent and each Lender hereby also waives) in any proceeding ordispute of any kind relating in any way to this Amendment, any Loan Documents,Obligations or Collateral.

 

14.           Counterparts.  This Amendment may be executed incounterparts, each of which shall constitute an original, but all of which whentaken together shall constitute a single contract.  Delivery of a signature page of any LoanDocument by telecopy or electronic mail shall be effective as delivery of amanually executed counterpart of such agreement.

 

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

 

16.           EntireAgreement.  Time is of the essence of the LoanDocuments.  This Amendment and the LoanAgreement, as amended hereby, and the other Loan Documents constitute theentire contract among the parties relating to the subject matter hereof, andsupersede any and all previous agreements and understandings, oral or written,relating to the subject matter hereof.

 

[Remainder of Page IntentionallyLeft Blank]

 

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

 
| ** ** | **BORROWERS**:                                             |
|------------|------------------------------------------------------------|
| ** ** | ** **                                                 |
|       | **BOISE CASCADE, L.L.C.**                                  |
|       | ** **                                                 |
|       | By:                                                        | /s/  Wayne Rancourt |
|       | Title:                                                     | Senior  Vice President, CFO & Treasurer |
| ** ** | ** **                                                 | ** ** |
| ** ** | **BOISE BUILDING SOLUTIONS**                               |
|       | **DISTRIBUTION, L.L.C.**                                   |
|       | ** **                                                 |
|       | By:                                                        | /s/  Wayne Rancourt |
|       | Title:                                                     | Senior  Vice President, CFO & Treasurer |
| ** ** | ** **                                                 | ** ** |
| ** ** | **BOISE BUILDING SOLUTIONS  MANUFACTURING, L.L.C.**        |
| ** ** | ** **                                                 |
|       | By:                                                        | /s/  Wayne Rancourt |
|       | Title:                                                     | Senior  Vice President, CFO & Treasurer |
|       |                                                       |   |
| ** ** | **GUARANTORS****:**                                        |
|       | ** **                                                 |   |
|       | **BOISE BUILDING SOLUTIONS  MANUFACTURING HOLDINGS CORP.** |
|       | ** **                                                 |
|       | By:                                                        | /s/  Wayne Rancourt |
|       | Title:                                                     | Senior  Vice President, CFO & Treasurer |
|       |                                                       |   |
| ** ** | **BC CHILE INVESTMENT CORPORATION**                        |
| ** ** | ** **                                                 |
|       | By:                                                        | /s/  Wayne Rancourt |
|       | Title:                                                     | Senior  Vice President, CFO & Treasurer |
|       |                                                       |   |
| ** ** | **BC BRAZIL INVESTMENT CORPORATION**                       |
| ** ** | ** **                                                 |
|       | By:                                                        | /s/  Wayne Rancourt |
|       | Title:                                                     | Senior  Vice President, CFO & Treasurer |

 

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| ** ** | **AGENT AND LENDERS**:     |
|------------|----------------------------|
|       | ** **                 |   |
|       | **BANK OF AMERICA, N.A.**, |
|       | as  Agent and Lender       |
|       |                       |   |
|       | By:                        | /s/  T. Eggertsen |
|       | Title:                     | Senior  Vice President |

 

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| ** ** | **1st FARM CREDIT SERVICES, PCA**, |
|------------|------------------------------------|
| ** ** | as  a Lender                       |
| ** ** | ** **                         |
|       | By:                                | /s/  Corey J. Waldinger |
|       | Title:                             | VP, Illinois  Capital Markets Group |

 

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|   | **AGFIRST FARM CREDIT BANK**, |
|--------|-------------------------------|
|   | as  a Lender                  |
|   |                          |
|   |                          |   |
|   | By:                           | /s/  Banks Halloran |
|   | Title:                        | Assistant  Vice President |

 

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|   | **COBANK, ACB**, |
|--------|------------------|
|   | as  a Lender     |
|   |             |
|   |             |   |
|   | By:              | /s/  Michael Tousignant |
|   | Title:           | Vice  President |

 

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|   | **GENERAL ELECTRIC CAPITAL CORPORATION**, |
|--------|-------------------------------------------|
|   | as  a Lender                              |
|   |                                      |
|   |                                      |   |
|   | By:                                       | /s/  Dwayne Coker |
|   | Title:                                    | Duly  Authorized Signatory |

 

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|   | **JPMORGAN CHASE BANK, N.A.**, |
|--------|--------------------------------|
|   | as  a Lender                   |
|   |                           |
|   |                           |   |
|   | By:                            | /s/  Peter S. Predun |
|   | Title:                         | Executive  Director |

 

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|   | **PNC BANK, NATIONAL ASSOCIATION**, |
|--------|-------------------------------------|
|   | as  a Lender                        |
|   |                                |
|   |                                |   |
|   | By:                                 | /s/  Jeanette P. Vandenbergh |
|   | Title:                              | Vice  President |

 

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|   | **TORONTO DOMINION (TEXAS) LLC**, |
|--------|-----------------------------------|
|   | as  a Lender                      |
|   |                              |
|   |                              |   |
|   | By:                               | /s/  Debbi L. Brito |
|   | Title:                            | Authorized  Signatory |

 

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|   | **U.S. BANK, NATIONAL ASSOCIATION**, |
|--------|--------------------------------------|
|   | as  a Lender                         |
|   |                                 |
|   |                                 |   |
|   | By:                                  | /s/  Lynn Gosselin |
|   | Title:                               | Vice  President |

 

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|   | **WACHOVIA BANK, N.A.**, |
|--------|--------------------------|
|   | as  a Lender             |
|   |                     |
|   |                     |   |
|   | By:                      | /s/  Katherine Houser |
|   | Title:                   | Director |

 

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Annex I

 

SCHEDULE 1.1

 

to

 

Loan and Security Agreement

 

COMMITMENTS OF LENDERS

 
| **Lender**                           | ** ** | **Revolver Commitment** | ** **     |
|--------------------------------------|------------|-------------------------|----------------|
| Bank of America, N.A.                |       | $                       | 36,428,571.43  |   |
| Wachovia Bank, N.A.                  |       | $                       | 68,971,428.57  |   |
| General Electric Capital Corporation |       | $                       | 24,285,714.29  |   |
| PNC Bank, National Association       |       | $                       | 12,142,857.14  |   |
| U.S. Bank, National Association      |       | $                       | 9,714,285.71   |   |
| CoBank, ACB                          |       | $                       | 4,857,142.86   |   |
| 1st Farm Credit Services, PCA        |       | $                       | 4,857,142.86   |   |
| Toronto Dominion (Texas) LLC         |       | $                       | 4,857,142.86   |   |
| JPMorgan Chase Bank, N.A.            |       | $                       | 2,428,571.43   |   |
| AgFirst Farm Credit Bank             |       | $                       | 1,457,142.86   |   |
| Total                                |       | $                       | 170,000,000.00 |   |

 

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