EXHIBIT 10.2
SECOND AMENDMENT TO FIFTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("Second Amendment") is made as of the 11th day of October, 2006 by and among PW
Eagle, Inc., a Minnesota corporation ("Borrower"), and USPoly Company, LLC a
Minnesota limited liability company, ("USPoly" and together with Borrower,
"Co-Borrowers"), the lenders who are signatories hereto ("Lenders"), and Bank of
America, N.A., a national banking association as agent for Lenders hereunder
(Bank of America, N.A. in such capacity, being "Agent").
W I T N E S S E T H:
WHEREAS, Co-Borrowers, Agent and Lenders entered into a certain Fifth Amended
and Restated Loan and Security Agreement dated as of April 27, 2006, as amended
by a certain First Amendment to Fifth Amended and Restated Loan and Security
Agreement dated as of July 12, 2006 by and among Co-Borrowers, Lenders and Agent
(said Fifth Amended and Restated Loan and Security Agreement is hereinafter
referred to as the "Loan Agreement"); and
WHEREAS, Co-Borrowers desire to amend and modify certain provisions of the Loan
Agreement and, subject to the terms hereof, Agent and Lenders are willing to
agree to such amendments and modifications;
NOW THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and any extension of credit heretofore, now or
hereafter made by Agent and Lenders to Co-Borrowers, the parties hereto hereby
agree as follows:
1. Definitions. All capitalized terms used herein without definition shall have
the meaning given to them in the Loan Agreement.
2. Dominion Account. Subsection 6.2.4 of the Loan Agreement is hereby deleted
and the following is inserted in its stead:
"6.2.4 Maintenance of Dominion Account. Co-Borrowers shall maintain a Dominion
Account or Accounts pursuant to lockbox and blocked account arrangements
acceptable to Agent with Bank (or such other bank as is acceptable to Agent in
its discretion); provided that such blocked account arrangements shall provide
for control and springing dominion over Co-Borrowers' cash deposited into all
deposit accounts in the event (i) Availability at any time is less than
$40,000,000, (ii) an Event of Default has occurred and is continuing, (iii) the
outstanding principal balance of Revolving Credit Loans is $25,000,000 or more
or (iv) average Availability for the most recently ended 60 days is less than
$50,000,000 (the occurrence of any of the events listed in (i), (ii), (iii) or
(iv), a "Dominion Event"). Upon the occurrence of a Dominion Event, Agent shall
be entitled to deliver notice to Bank or such other bank that Bank or such other
bank shall comply with the instructions of Agent in such Dominion Account or
Accounts. Agent shall deliver a copy of any such notice to Borrowers at or about
the same time as Agent
delivers such notice to Bank or any such other bank. Each Co-Borrower shall
issue to Bank (or such other bank as is acceptable to Agent in its discretion)
an irrevocable letter of instruction (which Co-Borrowers will