Exhibit 10.9
AMENDMENT NO. 10 (this
"Amendment"), dated as of September __,
2003, by and among PW EAGLE, INC., a
Minnesota corporation (the "Company")
and the investors party to the
Securities Purchase Agreement referred
to below on the date hereof (the
"Investors").
WHEREAS, the Company and the Investors are parties to a Securities Purchase
Agreement, dated as of September 20, 1999 (as amended, supplemented or otherwise
modified through the date hereof, including pursuant to Amendments No.1 through
No. 9, the "Purchase Agreement") pursuant to which the Investors purchased
$32,500,000 principal amount of the Company's senior subordinated notes; and
WHEREAS, the Company has requested, and the Investors party hereto are
willing (subject to the terms and conditions hereof), to amend certain
provisions of the Purchase Agreement as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined in
this Amendment shall have the meanings given to them in the Purchase Agreement.
2. Amendment to Leverage Ratio Covenant. Section 8.9(a) of the Purchase
Agreement is hereby amended by deleting the portion of the table contained in
such Section (as set forth in Section 2 of Amendment No. 6) addressing the (i)
trailing 12-month period ending September 30, 2003 and (ii) trailing 12-month
period ending December 31, 2003, and substituting in lieu thereof the following:
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Trailing 12-month period ending 8.75 to 1.00
September 30, 2003
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28.75 railing 12-month period ending .50 to 1.00
December 31, 2003
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3. Amendment to Interest Coverage Ratio Covenant. Section 8.9(b) of the
Purchase Agreement is hereby amended by deleting the portion of the table
contained in such Section (as set forth in Section 3 of Amendment No. 6)
addressing the (i) trailing 12-month period ending September 30, 2003 and (ii)
trailing 12-month period ending December 31, 2003, and substituting in lieu
thereof the following:
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Trailing 12-month period ending 0.35 to 1.00
September 30, 2003
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1. Trailing 12-month period ending 0.65 to 1.00
December 31, 2003
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4. Amendments to the Notes and Section 3.3 of the Purchase Agreement.
Notwithstanding anything to the contrary contained in the Purchase Agreement,
the Notes or otherwise, effective as of the Effective Date (x) the Stated Rate
shall be amended to equal 16% per annum and (y) the maximum amount of interest
the Company may elect to defer on any Interest Payment Date shall be an amount
equal to the interest accrued on the Notes during such Interest Period at a rate
equal to 4% per annum; provided, that any adjustment of the Stated Rate or the
maximum amount of interest the Company may elect to defer on any Interest
Payment Date (in each case as such adjustments are contemplated by Section 7 of
Amendment No. 9 to the Purchase Agreement) shall be effective in accordance with
the terms thereof.
5. Representations and Warranties. In order to induce the Investors to
enter into this Amendment, the Company hereby represents and warrants that, (w)
no Default or Event of Default exists on the Effective Date, after giving effect
to this Amendment, (x) no Event of Default (as defined in the Sale and Leaseback
Documents) exists on the Effective Date, (y) no Default or Event of Default (in
each case as defined in the Senior Credit Agreement) exists on the Effective
Date, after giving effect to the amendment of the Senior Credit Agreement
referred to herein and (z) all of the representations and warranties contained
in the Note Documents shall be true and correct in all respects on the Effective
Date, after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Effective Date (it
being understood that any representation or warranty made as of a specified date
shall be true and correct in all material respects as of such specific date), in
each case except as previously disclosed in writing to the Investors.
6. Effectiveness of this Amendment.
This Amendment shall become effective on the date (the "Effective Date")
when:
(i) the Company and the Required Investors shall have signed a
counterpart hereof (whether the same or different counterparts), and
(ii) each Investor shall have received, by wire transfer to an
account designated by such Investor, an amendment fee in an amount for such
Investor equal to 0.50% of the outstanding principal amount of the Notes
held by such Investor (and such amendment fee shall be fully earned and
non-refundable on the Effective Date), and
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(iii) the Company shall have paid all fees and expenses of
O'Melveny & Xxxxx LLP incurred by the Investors in connection with or
relating to the preparation, execution or delivery of this Amendment and
all other unpaid fees and expenses of O'Melveny & Xxxxx LLP incurred by the
Investors in connection with the Purchase Agreement to the extent the
amount thereof has been provided to the Company prior to the execution and
delivery of this Amendment; provided, however, that nothing in this
Amendment shall limit the generality of Section 12.4 of the Purchase
Agreement, and
(iv) the Investors shall have received a copy of a duly
executed amendment of, and consent with respect to the increase in the
Stated Rate contemplated by this Amendment, the Senior Credit Agreement in
form and substance reasonably satisfactory to the Required Investors.
7. Miscellaneous.
(a) This Amendment is limited as specified and shall not
constitute an amendment, modification or waiver of any other provision of
the Purchase Agreement or any other Note Document.
(b) This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
(c) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
(d) The parties hereby agree that this Amendment shall be a
Note Document for all purposes under the Purchase Agreement. From and after
the Effective Date, all references in the Purchase Agreement and each of
the other Note Documents to the Purchase Agreement shall be deemed to be
references to the Purchase Agreement as amended hereby.
(e) All notices, demands and requests of any kind to be
delivered to any party hereto in connection with this Amendment shall be
delivered in accordance with the notice provisions contained in the
Purchase Agreement.
(f) The headings used herein are for convenience of reference
only and shall not affect the construction of, nor shall they be taken into
consideration in interpreting, this Amendment.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
AMENDMENT NO. 10 to be duly executed and delivered as of the date first above
written.
PW EAGLE, INC.
By: /s/ Xxxxxx West
-----------------------------------
Name: Xxxxxx West
Title: CAO
X.X. XXXXXX PARTNERS (23A SBIC), LLC
By: X.X. XXXXXX PARTNERS (23A SBIC
MANAGER), INC., Its
Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Advisor
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing is executed on behalf
of MassMutual Corporate Investors,
organized under a Declaration of
Trust, dated September 13, 1985, as
amended from time to time.The
obligations of such Trust
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are not personally binding upon, nor
shall resort to be had to the
property of, any of the Trustees,
shareholders, officers, employees or
agents of such Trust, but the Trust's
property only shall be bound.
MASSMUTUAL PARTICIPATION
INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing is executed on behalf of
MassMutual Participation Investors,
organized under a Declaration of
Trust, dated April 7, 1988, as amended
from time to time. The obligations of
such Trust are not binding upon, nor
shall resort be had to the property
of, any of the Trustees, shareholders,
officers, employees or agents of such
Trust individually, but the Trust's
assets and property only shall be
bound.
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By: Xxxxx X. Xxxxxx & Company Inc.
under delegated authority from
Massachusetts Mutual Life
Insurance Company, as
Investment Manager
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
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