EXHIBIT 10.15
CONSENT AND THIRD AMENDMENT AGREEMENT
This CONSENT AND THIRD AMENDMENT AGREEMENT ("Agreement") is made and entered
into as of May 1, 1997 by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ MEZZANINE CAPITAL FUND,
L.P., an Illinois limited partnership ("▇▇▇▇▇"); and EAGLE PLASTICS, INC., a
Nebraska corporation ("Eagle"), PACIFIC PLASTICS, INC., an Oregon corporation
("Pacific"), ARROW PACIFIC PLASTICS, INC., a Utah corporation ("Arrow"), and
EAGLE PACIFIC INDUSTRIES, INC., a Minnesota corporation ("EPII") (Eagle,
Pacific, Arrow and EPII are sometimes referred to herein collectively as the
"Company").
R E C I T A L S
A. Pursuant to that certain Plan of Recapitalization dated as of March 16, 1995
by and among ▇▇▇▇▇, Eagle and EPII (f/k/a Black Hawk Holdings, Inc.), the
parties entered into a Debenture Acquisition Agreement of even date therewith
(the "Debenture Acquisition Agreement"), and ▇▇▇▇▇ was issued, among other
things, a senior subordinated debenture of Eagle having a principal amount of
$7,500,000 (the "Debenture") ($4,500,000 of which remains unpaid on the date
hereof).
B. As an inducement for ▇▇▇▇▇'▇ consent to a refinancing of the Company's senior
indebtedness by Fleet Capital Corporation ("Fleet") as of May 10, 1996, the
parties hereto amended selected terms of the Debenture Acquisition Agreement and
the Debenture in exchange for certain financial accommodations to ▇▇▇▇▇ pursuant
to an Amendment Agreement of even date therewith.
C. The parties again amended selected terms of the Debenture Purchase Agreement
as of February 14, 1997, consistent with certain amendments made by Eagle,
Pacific and Arrow to their credit facility with Fleet.
D. In connection with the execution of a Preferred Stock Purchase Agreement of
even date herewith (the "MassMutual Purchase Agreement") between EPII, as
seller, and Massachusetts Mutual Life Insurance Company, MassMutual Corporate
Investors, MassMutual Participation Investors and MassMutual Corporate Value
Partners Limited, as purchasers (collectively, "MassMutual"), the Company is
seeking ▇▇▇▇▇'▇ consent thereto and waiver of certain of its rights with respect
thereto and, in connection therewith, desires to again amend selected terms and
conditions of the Debenture Acquisition Agreement, all as hereinafter set forth.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the agreements set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated herein by
reference and made a part of this Agreement.
2. Amendment of the Debenture Acquisition Agreement. Subject to the Company's
performance of its obligations to ▇▇▇▇▇ hereunder on the date hereof, (x) ▇▇▇▇▇
hereby consents to the terms of the MassMutual Purchase Agreement and (y) the
parties hereto agree to amend the terms of the Debenture Acquisition Agreement
as follows:
(a) The following definition shall be inserted immediately after the definition
of "Lien" contained in Section 1.1 of the Debenture Acquisition Agreement:
"'MassMutual Purchase Agreement' shall mean that certain Preferred Stock
Purchase Agreement dated as of May 1, 1997 between Eagle Pacific Industries,
Inc., as seller, and Massachusetts Mutual Life Insurance Company, MassMutual
Corporate Investors, MassMutual Participation Investors and MassMutual Corporate
Value Partners Limited, as purchasers."
(b) Section 5.2(g) of the Debenture Acquisition Agreement shall be deleted in
its entirety and replaced with the following:
"(g) Restricted Transactions. Neither Borrower nor any Guarantor shall directly
or indirectly (i) declare or pay any Dividends on its capital stock, (ii) make
or incur any liability to make any Stock Purchase or (iii) make any Restricted
Investments. Notwithstanding the foregoing and provided that, in any of the
following cases, no Event of Default has then occurred and is continuing or
would result from the taking of such action, Borrower and/or Guarantor may: (A)
to the extent permitted by, provided for and contemplated by the Statement of
Designation of Shares filed by Eagle Pacific Industries, Inc. with the Secretary
of State of Minnesota on May 9, 1997, declare and pay Dividends on Eagle Pacific
Industries, Inc.'s 8% Convertible Preferred Stock outstanding on May 9, 1997
(the "8% Preferred"), until such time as the 8% Preferred is converted as
provided herein; (B) declare and pay up to $3,000 in annual Dividends on Eagle
Pacific Industries, Inc.'s other convertible preferred stock outstanding on May
9, 1997 (the "EPII Preferred"); (C) convert all or a portion of the shares of
the EPII Preferred or 8% Preferred into common stock of Eagle Pacific
Industries, Inc. pursuant to the terms and conditions contained in, and as
provided in, the statements of designation with respect thereto, as in effect on
May 9, 1997; and (D) acquire the shares of capital stock of Borrower held by
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as of May 9, 1997 pursuant to the Eagle Stock Agreement as in
effect on May 9, 1997, provided that the aggregate purchase price for such
shares does not exceed the lesser of (x) the purchase price per share of such
common stock multiplied by 157,000 shares, or (y) $1,000,000, for each calendar
year ending December 31, 1997 and December 31, 1998."
3. Performance of the Company's Obligations. On the date hereof, EPII shall
deliver to ▇▇▇▇▇ a certificate (the form and substance of which are satisfactory
to ▇▇▇▇▇ and its counsel), signed by the secretary or an assistant secretary of
EPII, certifying as to (a) the names of the officers of the Company authorized
to sign this Agreement and all other documents and instruments executed and/or
delivered in connection herewith or therewith, (b) specimens of the true
signatures of such officers, on which ▇▇▇▇▇ may conclusively rely, and (c) the
truth and correctness of documents and instruments executed and/or delivered in
connection herewith and therewith (including, without limitation, those entered
into with MassMutual).
4. Affirmation of Guarantee. EPII, Pacific and Arrow hereby acknowledge that the
Debenture Acquisition Agreement is being amended hereby and hereby also
acknowledge and affirm that (a) their respective Guarantees are in full force
and effect and the liability of each of EPII, Pacific and Arrow as Guarantors
therewith continue in accordance with the terms thereof and are in no way
affected or impaired by such amendment to the Debenture Acquisition
Agreement, (b) ▇▇▇▇▇'▇ agreement to such amendment is in ▇▇▇▇▇'▇ sole
discretion, (c) ▇▇▇▇▇ is not required to provide notice to anyone of such
amendment and (d) ▇▇▇▇▇'▇ provision of such notice to each of EPII, Pacific and
Arrow, as guarantors, shall not operate as a waiver of ▇▇▇▇▇'▇ right to agree to
further amendments in their sole discretion without notice to each of EPII,
Pacific and Arrow or any other person that is or shall be a guarantor of the
Company's obligations under the Debenture Acquisition Agreement.
5. Representations and Warranties of the Company. As a further inducement for
▇▇▇▇▇ to consent to the transactions contemplated by the MassMutual Purchase
Agreement, the Company hereby represents and warrants to ▇▇▇▇▇ that:
(a) The Company (and each of them) has the requisite corporate power and
authority to execute, deliver and carry out this Agreement, all other agreements
and instruments contemplated or required by the provisions thereof and to be
executed, delivered or carried out by the Company (or any of them)
(collectively, the "Ancillary Agreements") and the transactions contemplated
hereby and thereby.
(b) The execution and delivery of this Agreement and the Ancillary Agreements,
and the consummation by the Company of the transactions contemplated hereby or
thereby has been duly authorized by all necessary corporate action and other
consents, approvals and the like required on the part of the Company.
(c) Neither the execution and delivery by the Company (or any of them) of this
Agreement or any of the Ancillary Agreements, nor the consummation of the
transactions contemplated hereby or thereby, nor compliance by the Company with
the terms, conditions and provisions hereof or thereof, shall (i) conflict with
or result in a breach of the terms, conditions or provisions of, (ii) constitute
a default under, (iii) result in the creation of any lien, security interest,
charge or encumbrance upon its capital stock or assets pursuant to, (iv) give
any third party the right to accelerate any obligation under, (v) result in a
violation of or (vi) require any authorization, consent, approval, exemption or
other action by or notice to any court or administrative or governmental body
pursuant to, the articles of incorporation or bylaws of the Company (or any of
them) or any law, statute, rule or regulation to which the Company (or any of
them) is subject, or any agreement, instrument, order, judgment or decree to
which the Company (or any of them) is subject.
(d) This Agreement and each of the Ancillary Agreements to which the Company (or
any of them) is a party have been duly and validly executed and delivered by
Eagle, Pacific, Arrow and/or EPII (as the case may be) and constitute legal,
valid and binding obligations, and all such obligations of the Company (or any
of them) are enforceable in accordance with their respective terms.
(e) All representations and warranties of Borrower and Guarantors in the
Debenture Acquisition Agreement, as amended to date, remain true and correct as
of the date hereof as though originally made on and as of the date hereof,
except to the extent any such representation or warranty expressly relates to an
earlier date (in which case such representation or warranty shall have been true
and correct on such earlier date).
(f) Neither this Agreement nor any of the Ancillary Agreements contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements
contained herein and therein not misleading. There is no fact known to the
Company (or any of them) (other than general conditions which are a matter of
public knowledge) which materially adversely affects the business, operations,
properties, financial condition, operating results or business prospects of the
Company (or any of them). All documents filed by EPII pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), contain all statements that are required by the Exchange Act
and do not contain any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein not
misleading.
6. Waiver of Breach. ▇▇▇▇▇ hereby waives any and all breaches of the terms of
the Debenture Acquisition Agreement and the Debenture resulting from (a) the
execution and delivery by the Company of this Agreement and the other agreements
and instruments to be executed and delivered hereunder and (b) the execution and
delivery of the MassMutual Purchase Agreement by EPII and the consummation of
the transaction contemplated thereunder (including, the filing of the
certification of designation contemplated thereby).
7. Miscellaneous.
(a) Further Assurances. The Company shall, from time to time at the request of
▇▇▇▇▇, do all further acts and things as may in the opinion of ▇▇▇▇▇ be
necessary or advisable to effectuate the transaction and other matters
contemplated hereby, including, without limitation, the modification of or
amendment to any other agreements, certificates or instruments to which the
Company is a party.
(b) Joint and Several. The Company's obligations hereunder shall be joint and
several.
(c) Successors. This Agreement and the agreements and obligations contained
herein shall, as applicable, be binding upon and inure to the benefit of the
Company and ▇▇▇▇▇ and their respective successors and permitted assigns.
(d) Costs and Expenses. The Company agrees to pay all costs and expenses,
including, without limitation, attorney's fees and expenses, expended or
incurred by ▇▇▇▇▇ in connection with (i) the preparation and structuring of this
Agreement and the Ancillary Agreements, (ii) the enforcement of this Agreement
or any of the Ancillary Agreements, (iii) the collection of any amounts due
hereunder and (iv) any actions for declaratory relief in any way related to this
Agreement or the agreements, certificates and instruments described herein or
contemplated hereby (including, without limitation, the Ancillary Agreements),
or the protection or preservation of any rights of ▇▇▇▇▇ hereunder.
(e) Notices. All notices and other communications given to or made upon any
party hereto in connection with this Agreement shall, except as otherwise
expressly herein provided, be in writing (including telexed or telecopied
communication) and mailed, telexed, telecopied or delivered by hand or by
reputable overnight courier service to the respective parties, as follows:
If to ▇▇▇▇▇, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mezzanine Capital Fund, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
Altheimer & ▇▇▇▇
▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
c/o Eagle Pacific Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
1100 International Centre
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: K. ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or in accordance with any subsequent written direction from the recipient party
to the sending party. All such notices and other communications shall, except as
otherwise expressly herein provided, be effective upon delivery if delivered by
hand; when deposited with a reputable courier service, delivery charges prepaid;
when deposited in the mail, postage prepaid; or in the case of telex or
telecopy, when received.
(f) Survival. All representations, warranties, covenants and agreements
contained herein or made in writing in connection herewith shall survive
indefinitely the execution and delivery of this Agreement.
(g) Assignability. This Agreement shall not be assignable by either party
without the prior written consent of the other party.
(h) Entire Agreement. This Agreement and the instruments to be delivered by the
parties pursuant to the provisions hereof constitute the entire agreement
between the parties hereto with respect to the subject matter hereof. Any
amendments or alternative or supplementary provisions to this Agreement must be
made in writing and duly executed by an authorized representative of each of the
parties hereto.
(i) Counterparts. This Agreement may be executed in any number of counterparts
and by any party hereto on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall
together constitute one and the same instrument.
(j) Captions. Section captions used in this Agreement are for convenience only,
and shall not affect the construction of this Agreement.
(k) No Further Amendments. Except as specifically amended hereby, the terms and
provisions of the Debenture Acquisition Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers as of the day and year first
above written.
EAGLE PLASTICS, INC.
By:
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Title:
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EAGLE PACIFIC INDUSTRIES, INC.
By:
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Title:
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PACIFIC PLASTICS, INC.
By:
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Title:
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ARROW PACIFIC PLASTICS, INC.
By:
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Title:
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▇▇▇▇▇▇▇ ▇▇▇▇▇ MEZZANINE CAPITAL FUND, L.P.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mezzanine Capital Partners, L.P., its general partner
By:
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A General Partner