EXHIBIT 10.38
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as
of June 26, 2000, is made among Building Materials Holding Corporation, a
Delaware corporation ("HOLDINGS"), as borrower, BMC West Corporation, a Delaware
corporation (the "COMPANY"), and certain other affiliates of Holdings, as
guarantors, the financial institutions listed on the signature pages hereof
under the heading "THE EXISTING BANKS" (each an "Existing Bank" and,
collectively, the "EXISTING BANKS"), the financial institution listed on the
signature pages hereof under the heading "THE NEW BANK" (the "NEW BANK"), First
Union National Bank, KeyBank National Association, South Trust Bank, N.A., U.S.
Bank National Association and Wells Fargo Bank, N.A., as senior managing agents,
Union Bank of California, N.A., and First Security Bank, N.A., as co-agents, and
Bank of America, N.A., as letter of credit issuing bank and swingline bank and
as administrative agent for itself and the Banks (in such capacity, the
"AGENT").
Holdings, the Company, the other Loan Parties, the Existing Banks and
the Agent are parties to a Credit Agreement dated as of November 30, 1999 (the
"Credit Agreement"). Holdings has requested that the Existing Banks agree to an
amendment of the Credit Agreement in order to (i) increase the size of the
aggregate Revolving Commitments thereunder from $125,000,000 to $138,900,000,
(ii) make available an additional $11,100,000 for borrowing under the aggregate
Additional Term Commitments, (iii) permit the New Bank to become party to the
Credit Agreement, and (iv) amend the definition of "Funded Debt" set forth in
Section 1.01 of the Credit Agreement to include both current and long-term
indebtedness.
The parties hereto desire to amend the Credit Agreement as set forth
in this Amendment, 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 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
4 hereof (the "EFFECTIVE DATE"): (i) SCHEDULE 2.01 to the Credit Agreement shall
be amended and restated in its
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entirety in the form of SCHEDULE 2.01 attached hereto (for convenience of
reference, the Revolving Commitment, Additional Term Commitment and Pro Rata
Share of each Existing Bank and the New Bank are set forth opposite its name in
amended and restated Schedule 2.01 hereto, in addition to the prior Revolving
Commitment, prior Term Commitment and prior Pro Rata Share of each Bank under
the respective headings, "Prior Revolving Commitment," "Prior Term Commitment"
and "Prior Pro Rata Share"); (ii) Schedule 2.09 of the Credit Agreement shall be
amended and restated in its entirety in the form of Schedule 2.09 attached
hereto; (iii) Schedule 11.02 of the Credit Agreement shall be amended to include
the addresses for notices and lending office of the New Bank, as such
information is set forth in Attachment 11.02 hereto; and (iv) the definition of
"Funded Debt" set forth in Section 1.01 of the Credit Agreement shall be amended
and restated in its entirety as follows:
""FUNDED DEBT" means, as of any date of determination, all
Indebtedness of Holdings and its Subsidiaries on such date, on a
consolidated basis in accordance with GAAP, including all
Revolving Loans and all Term Loans, but excluding all L/C
Obligations."
(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 ADDITIONAL TERM LOANS. Each of the Existing Banks that is
increasing its Commitment pursuant to this Amendment (the "INCREASING BANKS")
and the New Bank severally agrees, on the terms and conditions set forth herein,
to make a single loan denominated in Dollars to Holdings (each such loan, an
"Additional Term Loan") on the Effective Date in an amount not to exceed the
amount set forth opposite such Bank's name on SCHEDULE 2.01 hereto under the
heading "Additional Term Commitment" (such amount, such Bank's "ADDITIONAL TERM
COMMITMENT"); PROVIDED, HOWEVER, that after giving effect to any Borrowing of
Additional Term Loans, the Effective Amount of all outstanding Revolving Loans
PLUS the Effective Amount of all Swingline Loans PLUS the Effective Amount of
all L/C Obligations PLUS the Effective Amount of all outstanding Term Loans
shall not exceed the Aggregate Commitment (after giving effect to this
Amendment). Amounts borrowed as Additional Term Loans which are repaid or
prepaid by Holdings may not be reborrowed. If on the Effective Date the
aggregate Additional Term Commitments shall exceed the outstanding principal
amount of the Additional Term Loans made, such unused portion of the Additional
Term Commitments shall automatically terminate on the Effective Date. The
Additional Term Loans of the Increasing Banks and the New Bank shall be deemed
to be Term Loans of such Banks under and for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 4 CONDITIONS OF EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) EXECUTED AMENDMENT. The Agent shall have received an executed
counterpart of this Amendment from each of Holdings, the Company and each other
Loan Party, each of the Existing Banks and the New Bank.
2.
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(b) ADDITIONAL CLOSING DOCUMENTS AND ACTIONS. The Agent shall have
received a certificate of a Responsible Officer of Holdings dated the Effective
Date, stating that (A) the representations and warranties contained in Section 5
hereof are true and correct on and as of the Effective Date, and (B) on and as
of the Effective Date, after giving effect to the amendment of the Credit
Agreement contemplated hereby and the borrowing of the Additional Term Loans, no
Default shall have occurred and be continuing.
(c) CORPORATE DOCUMENTS. The Agent shall have received a certificate
of the Secretary or Assistant Secretary of Holdings, dated the Effective Date,
certifying (A) the resolutions of the Board of Directors of Holdings, the
Company and each other Loan Party authorizing the execution, delivery and
performance of this Amendment, and (B) the incumbency, authority and signature
of each officer of Holdings, the Company and each other Loan Party authorized to
execute and deliver this Amendment.
(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 5
hereof 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) LEGAL OPINION. The Agent shall have received a legal opinion from
Gibson Dunn & Crutcher LLP, counsel to Holdings, the Company and each other Loan
Party, in substantially the form of EXHIBIT A hereto.
(f) ADDITIONAL DOCUMENTS. The Agent shall have received, in form and
substance satisfactory to the Existing Banks and the New Bank, such additional
approvals, documents and other information as the Agent or any Existing Bank or
the New Bank (through the Agent) may reasonably request.
(g) FEES. Holdings shall have paid to the Agent, for the benefit of
(i) the New Bank and (ii) each Existing Bank whose Commitment is being increased
hereunder, an upfront fee in the aggregate amount set forth in the letter
agreement dated June 26, 2000, between Holdings and the Agent.
For purposes of determining compliance with the foregoing conditions specified
in this Section 4, each of the Existing Banks and the New Bank that has executed
this Amendment shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter either sent by the Agent to
such Existing Bank or New Bank for consent, approval, acceptance or
satisfaction, or required hereunder to be consented to or approved by or
acceptable or satisfactory to, such Existing Bank or New Bank.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND THE COMPANY.
To induce the Existing Banks and the New Bank to enter into this Amendment,
Holdings and the Company each hereby confirms and restates, as of the date
hereof, the representations and warranties made by each of them in Article VI of
the Credit Agreement and in the other Loan
3.
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Documents. For the purposes of this Section 5, (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 amended by this Amendment, and each
reference in such Article to "the Loan Documents" shall mean and be a reference
to the Loan Documents as amended as contemplated hereby, (ii) the representation
and warranty set forth in 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, (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, correct and complete as of such
earlier date), and (iv) the preceding clause (i) shall take into account any
amendments to the Schedules and other disclosures made in writing by Holdings or
the Company to the Agent and the Banks after the Closing Date and approved by
the Agent and the Majority Banks.
SECTION 6 REPRESENTATIONS AND WARRANTIES OF NEW BANK. The New Bank
represents and warrants to the Agent, the Existing Banks, Holdings and the
Company that (i) it is duly organized and existing and it has full power and
authority to take, and has taken, all action necessary to execute and deliver
this Amendment and any other documents required or permitted to be executed or
delivered by it in connection with this Amendment, and to fulfill its
obligations hereunder and under the Credit Agreement; (ii) no notices to, or
consents, authorizations or approvals of, any Person are required for its due
execution, delivery and performance of this Amendment; and apart from any
agreements or undertakings or filings required by the Credit Agreement, no
further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Amendment has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of the New Bank, enforceable against the New Bank in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv) it is
an Eligible Assignee.
SECTION 7 NEW BANK ACCEDES TO CREDIT AGREEMENT. With effect on and
after the Effective Date, the New Bank shall be a party to the Credit Agreement
and accede to all of the rights and be obligated to perform all of the
obligations of a Bank under the Credit Agreement, including the requirements
concerning confidentiality and the payment of indemnification, with a Revolving
Commitment and an Additional Term Commitment in the amounts set forth in
SCHEDULE 2.01 hereto opposite the name of the New Bank. The New Bank agrees that
it shall perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank.
The New Bank hereby appoints and authorizes the Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
Banks pursuant to the terms of the Credit Agreement and such other Loan
Documents.
SECTION 8 REPLACEMENT NOTES. At the request of any Bank whose
Commitment increases or decreases as a result of the amendments contemplated
hereby, the Company shall promptly provide a replacement Note(s) to each such
requesting Bank reflecting such Bank's new Revolving Commitment or such Bank's
Term Loans after giving effect to any Additional Term Loans made by such Bank on
the Effective Date. Each such Bank requesting a
4.
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replacement Note(s) shall, upon its receipt of such replacement Note(s), return
its existing Note(s), if any, to the Agent for cancellation.
SECTION 9 CERTAIN TRANSITIONAL MATTERS. On the Effective Date, the
amount of Revolving Loans then outstanding and held by each Bank shall be
adjusted to reflect the changes in the Banks' Pro Rata Shares of the Revolving
Loans, subject to Section 4.04 of the Credit Agreement. Each Bank having
Revolving Loans then outstanding and whose Pro Rata Share in respect of
Revolving Loans has been decreased on the Effective Date as a result of the
amendments contemplated hereby shall be deemed to have assigned on the Effective
Date, without recourse, to each Bank increasing its Revolving Commitment on the
Effective Date such portion of such Revolving Loans as shall be necessary to
effectuate such adjustment. Each such Bank increasing its Revolving Commitment
on the Effective Date shall (i) be deemed to have assumed such portion of such
Revolving Loans and (ii) fund on the Effective Date such assumed amounts to the
Agent for the account of the assigning Bank in accordance with the provisions
hereof in the amount notified to such increasing Bank by the Agent.
SECTION 10 CONSENT OF GUARANTORS. Each of the Company and the other
Guarantors, in its capacity as a Guarantor, acknowledges that its consent to
this Amendment and the amendments to the Credit Agreement contemplated hereby is
not required, but each of such Persons nevertheless does hereby consent to this
Amendment and the amendments to the Credit Agreement contemplated hereby and to
the documents and agreements referred to herein. Nothing herein shall in any way
limit any of the terms or provisions of the Guaranty of the Company or any of
the other Guarantors or the Collateral Documents executed by the Company or any
of the other Guarantors in the Agent's and the Banks' favor, or any other Loan
Document executed by the Company or any of the other Guarantors (as the same may
be amended from time to time), all of which are hereby ratified and affirmed in
all respects.
SECTION 11 REAFFIRMATION OF LIENS. Without limiting the generality of
the preceding Section 10, Holdings, the Company and each other Loan Party hereby
ratifies and affirms that the Liens granted to the Agent for the benefit of the
Banks and the other Secured Parties under the Security Agreement and the other
Collateral Documents constitute valid and perfected first priority Liens on the
Collateral (subject only to Permitted Liens) and secure the Obligations arising
under the Credit Agreement, as amended hereby, and the other Loan Documents.
SECTION 12 MISCELLANEOUS.
(a) NOTICE. The Agent shall notify Holdings, the Company, the
Existing Banks and the New Bank of the occurrence of the Effective Date.
(b) CREDIT AGREEMENT OTHERWISE NOT AFFECTED. Except as expressly
amended and restated pursuant hereto, the Credit Agreement shall remain
unchanged and in full force and effect and is hereby ratified and confirmed in
all respects. The Existing Banks', the New Bank's and the 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.
5.
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(c) NO RELIANCE BY LOAN PARTIES. Holdings, the Company and each other
Loan Party hereby acknowledges and confirms to the Agent, the Existing Banks and
the New Bank that each of Holdings, the Company and each other Loan Party 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) INDEPENDENT CREDIT DECISION BY NEW BANK. The New Bank (a)
acknowledges that it has received a copy of the Credit Agreement and the
Schedules and Exhibits thereto, together with copies of the most recent
financial statements referred to in Section 7.01 of the Credit Agreement, and
such other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Amendment; and (b)
agrees that it will, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal decisions in
taking or not taking action under the Credit Agreement and the other Loan
Documents.
(e) COSTS AND EXPENSES. Holdings agrees to pay to the Agent on demand
the reasonable out-of-pocket costs and expenses of the Agent, and the reasonable
fees and disbursements of counsel to the Agent, in connection with the
negotiation, preparation, execution and delivery of this Amendment and any other
documents to be delivered in connection herewith.
(f) BINDING EFFECT. This Amendment shall be binding upon, inure to
the benefit of and be enforceable by Holdings, the Company, each other Loan
Party, the Agent and each Bank and their respective successors and assigns.
(g) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(h) 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.
(i) 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.
6.
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(j) 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 agreement.
(k) INTERPRETATION. This Amendment and the other Amendment Documents
are the result of negotiations among and have been reviewed by counsel to the
Agent, Holdings, the Company and the other parties hereto and are the product of
all parties hereto. Accordingly, this Amendment and the other Amendment
Documents shall not be construed against any of the Banks or the Agent merely
because of the Agent's or any Bank's involvement in the preparation thereof.
(l) LOAN DOCUMENTS. This Amendment and the other Amendment Documents
shall constitute Loan Documents.
[SIGNATURE PAGES FOLLOW.]
7.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, as of the date first above written.
THE LOAN PARTIES
BUILDING MATERIALS HOLDING CORPORATION
By: /s/ ELLIS C. GOEBEL
---------------------------------------
Name: Ellis C. Goebel
Title: Vice President, Finance & Treasurer
BMC WEST CORPORATION
By: /s/ ELLIS C. GOEBEL
---------------------------------------
Name: Ellis C. Goebel
Title: Vice President, Finance & Treasurer
BMC WEST CORPORATION SOUTHCENTRAL
By: /s/ ELLIS C. GOEBEL
---------------------------------------
Name: Ellis C. Goebel
Title: Vice President, Finance & Treasurer
BMCW SOUTHCENTRAL, L.P.
By: BMC WEST CORPORATION
SOUTHCENTRAL, its General Partner
By: /s/ ELLIS C. GOEBEL
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Name: Ellis C. Goebel
Title: Vice President, Finance & Treasurer
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BMCW, LLC
By: /s/ LESA D. THOMAS
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Name: Lesa D. Thomas
Title: Manager
BMHC FRAMING, INC.
By: /s/ ELLIS C. GOEBEL
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Name: Ellis C. Goebel
Title: Vice President, Finance & Treasurer
THE AGENT
BANK OF AMERICA, N.A., as Agent
By: /s/ KEVIN LEADER
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Name: Kevin Leader
Title: Managing Director
THE EXISTING BANKS
BANK OF AMERICA, N.A., as Issuing Bank,
Swingline Bank and a Bank
By: /s/ KEVIN LEADER
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Name: Kevin Leader
Title: Managing Director
COMERICA BANK
By: /s/ DAVID WEISMILLER
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Name: David Weismiller
Title: Corporate Banking Officer
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FIRST SECURITY BANK, N.A.
By: /s/ BRIAN W. COOK
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Name: Brian W. Cook
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ DAVID C. HAUGLID
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Name: David C. Hauglid
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ JIM PUTNAM
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Name: Jim Putnam
Title: Vice President/Senior
Portfolio Manager
SOUTH TRUST BANK, N.A.
By: /s/ J. PAUL VOURHIES
---------------------------------------
Name: J. Paul Vourhies
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. ROBERT GARRETT
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Name: J. Robert Garrett
Title: Regional Vice President
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ J.W. HENKEN
---------------------------------------
Name: J.W. Henken
Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ TRACEY A. HANSON
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Name: Tracey A. Hanson
Title: Vice President
WM BUSINESS BANK A DIVISION OF
WASHINGTON MUTUAL
By: /s/ S.C. SCHUMACHER
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Name: S.C. Schumacher
Title: Vice President & Manager
THE NEW BANK
BNP PARIBAS
By: /s/ DEBRA WRIGHT
---------------------------------------
Name: Debra Wright
Title: Vice President
By: /s/ JEFFREY S. KAJISA
---------------------------------------
Name: Jeffrey S. Kajisa
Title: Vice President
