Exhibit 10.7
AMENDMENT NO. 8 AND CONSENT
(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. 7, 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 consent to certain actions by
the Company 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. Consent to Phoenix, Arizona Real Property Sale. In reliance upon
and subject to the accuracy of the representations set forth in this Amendment,
upon the Effective Date, the Investors hereby consent to the sale by the Company
of the real property, facility, and fixtures located at Phoenix, Arizona (the
"Phoenix Sale"); provided, that (i) the aggregate net cash proceeds to the
Company received in respect of the Phoenix Sale shall be at least $2,300,000,
(ii) the Company shall pay (as soon as practicable but in any event within 24
hours of the closing of the Phoenix Sale) the entire net cash proceeds to the
Senior Bank Agent for prepayment of the Term Loan (as defined in the Senior
Credit Agreement), (iii) the Phoenix Sale shall be a bona fide arm's length
transaction, (iv) the documentation in respect of the Phoenix Sale shall be
reasonably satisfactory in all material respects to the Required Investors (it
being agreed that the Purchase Agreement dated July 24, 2003 between the Company
and MGP Corp. Managing General Partners is satisfactory), and (v) if the Phoenix
Sale is not consummated within 90 days after the date hereof, then this
Amendment shall be null and void ab initio.
3. Representations and Warranties. In order to induce the Investors
to enter into this Amendment, the Company hereby represents and warrants that
(v) the Company has provided to the Investors a true and complete copy of the
Purchase Agreement dated July 24, 2003 between the Company and MGP Corp.
Managing
General Partners, (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, and no Event
of Default (as defined in the Sale and Leaseback Documents) shall subsequently
exist due to the actions contemplated by Section 2 hereof, (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.
4. 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) the Company shall have paid all fees and
expenses of O'Melveny & Myers 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 & Myers 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
(iii) the Investors shall have received a copy of a
duly executed amendment or amendments of the Senior Credit Agreement
consenting to the actions contemplated by Section 2; provided that in each
case each such amendment or amendments shall be in a form reasonably
satisfactory to the Required Investors and provided, further, that the
reasonable satisfaction of each such amendment or amendments shall be
acknowledged in writing by the Required Investors.
5. 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.
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(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. 8 to be duly executed and delivered as of the date first above
written.
PW EAGLE, INC.
By: /s/ Dobson West
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Name: Dobson West
Title: CAO
J.P. MORGAN PARTNERS (23A SBIC), LLC
By: J.P. MORGAN PARTNERS (23A
SBIC MANAGER), INC., Its
Managing Member
By: /s/ Richard D. Waters
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Name: Richard D. Waters
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: David L. Babson & Company Inc. as
Investment Advisor
By:
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Name:
Title:
MASSMUTUAL CORPORATE INVESTORS
By:
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Name:
Title:
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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 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:
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Name:
Title:
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: David L. Babson & Company Inc.
under delegated authority from
Massachusetts Mutual Life
Insurance Company, as Investment
Manager
By:
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Name:
Title:
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