Exhibit 10.49
AMENDMENT NO. 13 AND TERMINATION
AGREEMENT (this “
Amendment ”), dated as of October 25, 2004, 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. 12, 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 desires to pay
the Investors $37,304,577 representing the unpaid principal
balance, plus accrued but unpaid interest and applicable prepayment
premium such that all Obligations under the Notes and the Purchase
Agreement are satisfied in full;
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. Termination of Agreement .
The Investors hereby agree that all provisions of the Purchase
Agreement, including Section 12.2, are terminated and shall be of
no further force and effect and that all Obligations of the Company
under the Notes and the Purchase Agreement are satisfied in full;
provided , however , that each indemnity and expense
reimbursement provision in the Notes and the Purchase Agreement
shall survive and; provided , further , that to the
extent an Obligor makes a payment or payments to the Investors
under the Notes or the Purchase Agreement, which payment or
payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be
repaid to a trustee, receiver or any other party under any
bankruptcy, insolvency or similar state or United States federal
law, common law or equitable cause, then, to the extent of such
payment or repayment, the Obligation or part thereof intended to be
satisfied shall be revived and continued in full force and effect
as if such payment had not been received by the
Investors.
3. Agreement upon Amounts .
The Investors and the Company hereby agree as follows:
(a) as of October 25, 2004, the
aggregate unpaid principal balance (including without limitation,
the Deferred Interest Amount) of the Notes equals
$36,306,158,
(b) as of October 25, 2004, the
aggregate amount of unpaid, due and owing interest in respect of
the Notes equals $635,358, and
(c) as of October 25, 2004, the
Applicable Prepayment Premium in respect of the Notes being repaid
equals $363,062.
4. Return of Notes; Further
Assurances . The Investors agree to return to the Company all
originally executed Notes and Subsidiary Guarantees and, upon
written request by the Company, to execute such documents and other
instruments and take such further actions as may reasonably be
required or desirable to carry out the provisions hereof and
consummate the transactions contemplated hereby.
5. Effectiveness of this
Amendment . This Amendment shall become effective on the date
(the “ Effective Date ”) when:
(a) all amounts set forth in Section
3 above shall have been received by the Investors,
(b) the Company and the Investors
shall have signed a counterpart hereof (whether the same or
different counterparts), and
(c) 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 to the extent the amount
thereof has been provided to the Company prior to the execution and
delivery of this Amendment.
6. Mutual Release
.
(a) The Company, on behalf of
itself, its subsidiaries and their respective successors, assigns,
and other legal representatives, hereby, jointly and severally,
absolutely, unconditionally and irrevocably releases, remises and
forever discharges the Investors, their successors and assigns, and
their respective present and former shareholders, affiliates,
subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives (the
Investors and all such other parties being hereinafter referred to
collectively as the “ Investor Releasees ” and
individually as an “ Investor Releasee ”), of
and from all demands, actions, causes of action, suits, covenants,
contracts, controversies, agreements, pr
