Exhibit 10.2
FIFTEENTH AMENDMENT TO
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This FIFTEENTH AMENDMENT ("Fifteenth Amendment"), dated as of
May 15, 2002, is made to the Second Amended and Restated Loan and Security
Agreement, dated as of September 20, 1999, among PW Eagle, Inc. (f/k/a/ Eagle
Pacific Industries, Inc. and herein "Borrower"), the lenders named therein
("Lenders"), and Fleet Capital Corporation ("FCC") as agent for said Lenders
("FCC, in such capacity, "Agent"). Said Second Restated Loan and Security
Agreement, as amended by an Amendment to Loan and Security Agreement dated as of
September 22, 1999, an Amendment to Loan and Security Agreement dated as of
September 24, 1999, a Third Amendment to Second Amended and Restated Loan and
Security Agreement dated as of October 8, 1999, a Fourth Amendment to Second
Amended and Restated Loan and Security Agreement dated as of March 10, 2000, a
Fifth Amendment to Second Amended and Restated Loan and Security Agreement dated
as of July 28, 2000, a Sixth Amendment to Second Amended and Restated Security
Agreement dated as of March 1, 2001, a Seventh Amendment to Second Amended and
Restated Loan and Security Agreement dated as of March 30, 2001, an Eighth
Amendment to Second Amended and Restated Loan and Security Agreement dated as of
May 14, 2001, a Ninth Amendment to Second Amended and Restated Loan and Security
Agreement dated as of August 13, 2001, a Tenth Amendment to Second Amended and
Restated Loan and Security Agreement dated as of December 6, 2001, an Eleventh
Amendment to Second Amended and Restated Loan and Security Agreement dated as of
December 31, 2001, a Twelfth Amendment to Second Amended and Restated Loan and
Security Agreement dated as of January 25, 2002, a Thirteenth Amendment to
Second Amended and Restated Loan and Security Agreement dated as of February 28,
2002 a Fourteenth Amendment to Second Amended and Restated Loan and Security
Agreement dated as of March 27, 2002, and as it may be further amended, is
hereinafter referred to as the "Loan Agreement." The terms used herein and not
otherwise defined shall have the meanings attributed to them in the Loan
Agreement.
WHEREAS, Lenders, Agent and Borrower desire to make certain
amendments and modifications to the Loan Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained and contained in the Loan Agreement, the parties
hereto hereby agree as follows:
1. Financial Covenants. Upon the Fifteenth Amendment Effective
Date, Exhibit Q to the Loan Agreement is hereby deleted and Exhibit Q attached
hereto and incorporated herein is inserted in its stead.
2. Reaffirmation of Representations and Warranties. Borrower hereby
reaffirms each of the warranties and representations contained in the Loan
Agreement and the Loan Documents as if each such representation and warranty
were made on the date hereof. Further Borrower represents and warrants to Agent
and Lenders that as of the date hereof there are no existing and continuing
Defaults or Events of Default after giving effect to this Fifteenth Amendment.
3. Conditions Precedent. This Fifteenth Amendment shall become
effective upon satisfaction of each of the following conditions precedent:
(i) Borrower, Agent and Lenders shall have
executed and delivered to each other this Fifteenth Amendment;
(ii) Borrower and the holders of the Subordinated
Notes shall have amended the Subordinated Note Documents in a
manner acceptable to Agent and Lenders so as to revise the
financial covenants contained therein; and
(iii) Agent and Lenders shall be satisfied, in the
reasonable exercise of their discretion, that, after giving
effect to this Fifteenth Amendment, the financial covenants in
the Sale
and Leaseback Agreements shall be deemed amended in a manner
comparable to the amendments to the Loan Agreement financial
covenants contained herein.
The date on which all of the foregoing conditions precedent
are satisfied shall be called the "Fifteenth Amendment Effective
Date."
4. Counterparts. This Fifteenth Amendment may be executed in any
number of separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
5. Continuing Effect. Except as otherwise specifically set out
herein, the provisions of the Loan Agreement shall remain in full force and
effect.
6. Releases; Indemnities.
(a) In further consideration of Agent's and Lenders' execution of this
Fifteenth Amendment, Borrower, individually and on behalf of its successors
(including, without limitation, any trustees acting on behalf of Borrower and
any debtor-in-possession with respect to Borrower), assigns, subsidiaries and
Affiliates, hereby forever releases Agent and Lenders and their respective
successors, assigns, parents, subsidiaries, Affiliates, officers, employees,
directors, agents and attorneys (collectively, the "Releasees") from any and all
debts, claims, demands, liabilities, responsibilities, disputes, causes,
damages, actions and causes of actions (whether at law or in equity) and
obligations of every nature whatsoever, whether liquidated or unliquidated,
whether known or unknown, matured or unmatured, fixed or contingent
(collectively, "Claims") that Borrower may have against the Releases which arise
from or relate to any actions which the Releases may have taken or omitted to
take in connection with the Loan Agreement prior to the date of the Fifteenth
Amendment was executed including without limitation with respect to the
Obligations, any Collateral, the Loan Agreement, any other Loan Document and any
third parties liable in whole or in part for the Obligations. This provision
shall survive and continue in full force and effect whether or not Borrower
shall satisfy all other provisions of the Loan Documents or the Loan Agreement
including payment in full of all Obligations.
(b) Borrower hereby agrees that its obligation to indemnify and hold
the Releases harmless as set forth in Section 6(a) shall include an obligation
to indemnify and hold the Releases harmless with respect to any and all
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever incurred by the
Releases, or any of them, whether direct, indirect or consequential, as a result
of or arising from or relating to any proceeding by, or on behalf of any Person,
including, without limitation, officers, directors, agents, trustees, creditors,
partners or shareholders of Borrower, whether threatened or initiated, asserting
any claim for legal or equitable remedy under any statutes, regulation or common
law principle arising from or in connection with the negotiation, preparation,
execution, delivery, performance, administration and enforcement of this
Fifteenth Amendment or any other document executed in connection herewith. The
foregoing indemnity shall survive the payment in full of the Obligations and the
termination of this Fifteenth Amendment, the Loan Agreement and the other Loan
Documents.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Fifteenth Amendment has been duly executed as of the
date first written above.
PW EAGLE, INC. FLEET CAPITAL CORPORATION,
as Agent and Lender
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx By: /s/ Xxxxx Xxxxxx
----------------------------- -------------------------------
Title: Chief Financial Officer Name: Xxxxx Xxxxxx
----------------------------- ----------------------
Title: Senior Vice President
----------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------
Title: Vice President
----------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
----------------------
Title: Vice President
----------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ C. Xxxx Xxxxx
-------------------------------
Name: C. Xxxx Xxxxx
----------------------
Title: Vice President
----------------------
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EXHIBIT Q
FINANCIAL COVENANTS
Consolidated Net Income means, with respect to Borrower and its Subsidiaries for
any fiscal period, the net income (or loss) of Borrower and its Subsidiaries for
such period taken as a whole (determined in accordance with GAAP on a
consolidated basis), but excluding in any event: (a) any gains or losses on the
sale or other disposition of Investments or fixed or capital assets or from any
transaction classified as extraordinary under GAAP, any taxes on such excluded
gains and any tax deductions or credits on account of any such excluded losses;
(b) the proceeds of any life insurance policy; (c) net earnings and losses of
any business entity, substantially all the assets of which have been acquired in
any manner by Borrower, realized by such business entity prior to the date of
such acquisition; (d) net earnings and losses of any business entity which shall
have merged into Borrower earned or incurred prior to the date of such merger;
(e) net earnings of any business entity (other than a Consolidated Subsidiary)
in which Borrower has an ownership interest unless such net earnings shall have
been received by Borrower in the form of cash distributions; (f) earnings
resulting from a reappraisal, revaluation or write-up of assets; (g) any charge
to net earnings resulting from the amortization of the value of stock options
given to employees to the extent required by FASB 25; (h) any increase or
decrease of net income arising from a change in Borrower's accounting methods;
(i) any gains resulting from the forgiveness of Funded Debt or the retirement of
Funded Debt at a discount; (j) any gain arising from the acquisition of any
Securities of Borrower; and (k) any reversal of any contingency reserve, except
that provision for such contingency reserve shall have been made from income
arising during such period.
EBITDA With respect to any fiscal period, the sum of Borrower's Consolidated Net
Income plus amounts deducted in determining Consolidated Net Income in respect
of: (a) any provision for (or less any benefit from) income taxes whether
current or deferred; (b) amortization and depreciation expense; (c) Interest
Expense for such period; (d) prior to December 31, 1999, that portion of cost of
goods sold resulting from the write-up of Inventory in connection with the
Acquisition pursuant to APB 16; provided that the aggregate amount added to
EBITDA pursuant to this clause (d) shall not exceed $3,000,000; and (e) the
restructuring charge taken in the third fiscal quarter of fiscal year 2001 in
the amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00).
Fixed Charge Coverage Ratio - With respect to any period of determination, the
ratio of (i) EBITDA of Borrower for such period minus income taxes paid in cash
and non-financed Capital Expenditures during such period to (ii) Fixed Charges.
Fixed Charges - For any period of determination, the sum of (a) scheduled
principal payments of Funded Debt (including the principal portion of scheduled
payments of Capital Lease Obligations), (b) Interest Expense paid in cash
included in the determination of Consolidated Net Income, and (c) dividends paid
on Borrower's capital stock.
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Funded Debt - means: (i) Indebtedness arising from the lending of money by any
Person to Borrower, including, without limitation, the Obligations; (ii)
Indebtedness, whether or not in any such case arising from the lending by any
Person of money to Borrower (A) which is represented by notes payable or drafts
accepted that evidence extensions of credit, (B) which constitutes obligations
evidenced by bonds, debentures, notes or similar instruments, or (C) upon which
interest charges are customarily paid (other than accounts payable) or that was
issued or assumed as full or partial payment for Property; (iii) Indebtedness
that constitutes a Capitalized Lease Obligation; (iv) reimbursement obligations
with respect to letters of credit or guaranties of letters of credit and (v)
Indebtedness of Borrower under any guaranty of obligations that would constitute
Funded Debt under clauses (i) through (iv) hereof if owed directly by Borrower
or any guaranty having the economic effect of guaranteeing any of the
obligations of any other Person. In computing the amount of Funded Debt, the
Subordinated Notes will be valued at full face value (less any payments thereon)
without giving effect to any original issue discount.
Funded Debt to EBITDA Ratio - With respect to any date, the ratio of (i) total
funded Funded Debt as of such date to (ii) EBITDA. For purposes of the Funded
Debt to EBITDA Ratio, (i) for the period from 10/1/99 through 12/31/99, the
period from 7/1/01 through 9/30/01 and the period from 1/1/02 to 3/31/02, EBITDA
for such periods shall be actual EBITDA for such period multiplied by four (4);
(ii) for the period from 10/1/99 through 3/31/2000, the period from 7/1/01
through 12/31/01 and the period from 1/1/02 to 6/30/02, EBITDA for such period
shall be actual EBITDA for such periods multiplied by two (2); and (iii) for the
period from 10/1/99 through 6/30/00, the period from 7/1/01 through 3/31/02 and
the period from 1/1/02 to 9/30/02, EBITDA for such period shall be actual EBITDA
for such period multiplied by four-thirds (4/3).
Interest Coverage Ratio - With respect to any period of determination, the ratio
of (i) EBITDA for such period to (ii) Interest Expense paid in cash for such
period, all as determined in accordance with GAAP.
Interest Expense - With respect to any fiscal period, the interest expense
incurred for such period excluding interest income as determined in accordance
with GAAP.
Investment - All investments in the property or assets of any person, in cash or
property, whether by way of advance, loan, extension of credit by Borrower or
any of its Subsidiaries (by way of guaranty or otherwise) or capital
contribution, or purchase of stock, bonds, notes, debentures or other securities
or any assets constituting the purchase of a business or line of business.
Net Worth - Book net worth of the Borrower as determined in accordance with
GAAP. For purposes of this Exhibit Q, Net Worth shall include any unamortized
value assigned to the Warrants issued in connection with the Subordinated Notes
which value was calculated in accordance with GAAP and is contained in
Borrower's Consolidated Financial Statements.
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Interest Coverage Ratio - Borrower shall not permit the Interest Coverage Ratio
as of the last date of the period set forth below to be less than the ratio set
forth opposite such period below:
-------------------------------------------------------------------------------
Period Ratio
-------------------------------------------------------------------------------
For 3 months ending 3/31/2002 N.A.
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For 6 months ending 6/30/2002 1.50 to 1
-------------------------------------------------------------------------------
For 9 months ending 9/30/2002 1.80 to 1
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For 12 months ending 12/31/2002 1.65 to 1
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Trailing 12 month period ending 3/31/2003 and each 6/30, 1.70 to 1
9/30, 12/31 and 3/31 thereafter
-------------------------------------------------------------------------------
Fixed Charge Coverage Ratio - Borrower shall not permit the Fixed Charge
Coverage Ratio as of the last date of the period set forth below to be less than
the ratio set forth opposite such period below:
-------------------------------------------------------------------------------
Period Ratio
-------------------------------------------------------------------------------
For 3 months ending 3/31/2002 N.A.
-------------------------------------------------------------------------------
For 6 months ending 6/30/2002 1.00 to 1
-------------------------------------------------------------------------------
For 9 months ending 9/30/2002 1.20 to 1
-------------------------------------------------------------------------------
Trailing 12 month period ending 12/31/2002 1.05 to 1
-------------------------------------------------------------------------------
Trailing 12 month period ending 3/31/2003 and each 6/30, 1.10 to 1
9/30, 12/31 and 3/31 thereafter
-------------------------------------------------------------------------------
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Net Worth - Borrower shall achieve Net Worth as of the last day of each period
set forth below of not less than the amount set forth opposite such period
below:
-------------------------------------------------------------------------------
Period Ratio
-------------------------------------------------------------------------------
For Quarter ending 3/31/2002 N.A.
-------------------------------------------------------------------------------
For Quarter ending 6/30/2002 $16,000,000
-------------------------------------------------------------------------------
For Quarter ending 9/30/2002 $16,000,000
-------------------------------------------------------------------------------
For Quarter ending 12/31/2002 $14,000,000
-------------------------------------------------------------------------------
For Quarter ending 3/31/2003 $13,500,000
-------------------------------------------------------------------------------
For Quarter ending 6/30/2003 $14,800,000
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For Quarter ending 9/30/2003 $14,700,000
-------------------------------------------------------------------------------
For Quarter ending 12/31/2003 $14,400,000
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For Quarter ending 3/31/2004 $12,900,000
-------------------------------------------------------------------------------
For Quarter ending 6/30/2004 and each Quarter thereafter $13,500,000
-------------------------------------------------------------------------------
Funded Debt to EBITDA Ratio - Borrower shall not permit the Funded Debt to
EBITDA Ratio for any period set forth below to be greater than the ratio set
forth opposite such period below:
------------------------------------------------------------------------------
Period Ratio
------------------------------------------------------------------------------
3 months ending 3/31/2002 N.A.
------------------------------------------------------------------------------
6 months ending 6/30/2002 6.10 to 1
------------------------------------------------------------------------------
9 months ending 9/30/2002 4.80 to 1
------------------------------------------------------------------------------
Trailing 12 month period ending 12/31/2002 6.40 to 1
------------------------------------------------------------------------------
Trailing 12 month period ending 3/31/2003 6.40 to 1
------------------------------------------------------------------------------
Trailing 12 month period ending 6/30/2003 6.40 to 1
------------------------------------------------------------------------------
Trailing 12 month period ending 9/30/2003 6.40 to 1
------------------------------------------------------------------------------
Trailing 12 month period ending 12/31/2003 5.60 to 1
------------------------------------------------------------------------------
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-------------------------------------------------------------------------------
Trailing 12 month period ending 3/31/2004 5.30 to 1
-------------------------------------------------------------------------------
Trailing 12 month period ending 6/30/2004 and each 9/30, 4.90 to 1
12/31, 3/31 and 6/30 thereafter
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Minimum Availability - Have at times during each of the periods listed below,
Availability equal to or greater than the Availability set forth opposite such
period in the following schedule:
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Period Availability
-------------------------------------------------------------------------------
February 28, 2002 to April 15, 2002 $1,000,000
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April 16, 2002 to May 15, 2002 $3,000,000
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May 16, 2002 to December 15, 2002 $6,000,000
-------------------------------------------------------------------------------
December 16, 2002, to March 15, 2003 $2,000,000
-------------------------------------------------------------------------------
March 16, 2003, to December 15, 2003 $6,000,000
-------------------------------------------------------------------------------
December 16, 2003, to March 15, 2004 $2,000,000
-------------------------------------------------------------------------------
March 16, 2004, and thereafter $6,000,000
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Borrower, Agent and Lenders agree that the Minimum Availability required by the
preceding two sentences may only be modified or amended with the consent of
Borrower, Agent and each Lender. Other financial covenants contained in this
Exhibit Q may continue to be amended with the consent of Borrower and Required
Lenders.
Minimum EBITDA - Borrower shall achieve EBITDA of Four Hundred Thousand Dollars
($400,000) or more for the three month period ended March 31, 2002.
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