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AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY
AGREEMENT
Dated as of May 20, 2005
Among
PRUDENTIAL INVESTMENT MANAGEMENT, INC.
AND THE PRUDENTIAL NOTEHOLDERS,
BANK OF AMERICA, N.A.
AS THE SOLE CREDIT AGREEMENT LENDER,
THE
1997 NOTEHOLDERS,
THE 1998 NOTEHOLDERS,
NORTHWEST PIPE COMPANY
AND THE OTHER CREDIT PARTIES,
and
BANK OF AMERICA, N.A.
as Collateral Agent
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<PAGE>
AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
THIS
AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY
AGREEMENT
("Agreement"), dated as of May 20, 2005,
which amends and restates in its
entirety that certain Intercreditor and
Collateral Agency Agreement, dated as of
February 25, 2004 (the "Original
Intercreditor Agreement"), by and among
Northwest Pipe Company, an Oregon
corporation (the "Company"), certain parties
hereto and certain other Persons, is
entered into by and among (i) (a)
Prudential Investment Management, Inc.
("PIM"), (b) The Prudential Insurance
Company of America ("Prudential"), as the
holder of the Prudential Series A
Notes, a holder of Prudential Series B
Notes, a holder of Prudential Series C
Notes and the holder of the Prudential
Series D Notes, (c) Prudential Retirement
Insurance and Annuity Company ("PRIAC") as
a holder of Prudential Series B Notes
and a holder of Prudential Series C Notes
and (d) any other Prudential
Affiliates that hereafter become initial
purchasers of Prudential Shelf Notes
and execute a Joinder Agreement (Secured
Creditor) (together with the
successors, transferees and assigns of any
of the foregoing holders of
Prudential Series A Notes, Prudential
Series B Notes, Prudential Series C Notes,
Prudential Series D Notes or Prudential
Shelf Notes that execute a Joinder
Agreement (Secured Creditor), the
"Prudential Noteholders"), (ii) Bank of
America, N. A., a national banking
association ("BofA"), in its individual
capacity as the lender and the issuing bank
under the Credit Agreement (together
with the successors, transferees and
assigns of BofA that execute a Joinder
Agreement (Secured Creditor), the "Credit
Agreement Lenders"), (iii) each of the
holders of 1997 Notes identified as "1997
Noteholders" on the signature pages
hereto (together with the successors,
transferees and assigns of any of them
that execute a Joinder Agreement (Secured
Creditor), the "1997 Noteholders"),
(iv) each of the holders of 1998 Notes
identified as "1998 Noteholders" on the
signature pages hereto (together with the
successors, transferees and assigns of
any of them that execute a Joinder
Agreement (Secured Creditor), the "1998
Noteholders"), (v) BofA, in its capacity as
collateral agent for the Secured
Creditors (in such capacity, together with
all successors and assigns in such
capacity, the "Collateral Agent") and (vi)
for purposes of Sections 4.1(a), 4.4,
5.2, 5.8, 5.9, Article VI, Section 7.8 and
Article VIII only, the Company, and
any other Persons that hereafter become
guarantors or other co-obligors of any
of the Secured Obligations and execute a
Joinder Agreement (Additional Credit
Party) (together with the Company, the
"Credit Parties").
RECITALS
A. The
Company, on the one hand, and PIM and Prudential, on the other
hand, have entered into that certain Note
Purchase and Private Shelf Agreement,
dated as of February 25, 2004, as modified
by that certain Letter Agreement
dated as of the date hereof (as amended,
supplemented or otherwise modified from
time to time, the "Prudential Note
Agreement"), pursuant to which (i) the
Company issued to Prudential on February
25, 2004 the Company's 8.75% senior
secured promissory term notes due February
25, 2014 in the aggregate original
principal amount of $15,000,000 (the
"Prudential Series A Notes"), (ii) the
Company issued to Prudential and PRIAC on
June 21, 2004 the Company's 8.47%
senior secured promissory term notes due
June 21, 2014 in the aggregate original
principal amount of $10,500,000 (the
"Prudential Series B Notes"), (iii) the
1.
<PAGE>
Company issued to Prudential and PRIAC on
October 26, 2004 the Company's 7.36%
senior secured promissory term notes due
October 26, 2014 in the aggregate
original principal amount of $10,000,000
(the "Prudential Series C Notes"), (iv)
the Company issued to Prudential on January
24, 2005 the Company's 7.32% senior
secured promissory term notes due January
24, 2015 in the aggregate original
principal amount of $4,500,000 (the
"Prudential Series D Notes"), and (v) PIM
and Prudential Affiliates are willing to
consider, in their sole discretion and
within limits which may be authorized for
purchase by them from time to time,
the purchase of the Company's senior
secured promissory term notes in the
aggregate principal amount of up to
$20,000,000 (the "Prudential Shelf Notes"
and, together with the Prudential Series A
Notes, the Prudential Series B Notes,
the Prudential Series C Notes and the
Prudential Series D Notes the "Prudential
Notes").
B. The
Company and BofA are entering into that certain Credit
Agreement,
dated as of the date hereof (and as the
same may be further amended,
supplemented or otherwise modified from
time to time, the "Credit Agreement"),
pursuant to which BofA is extending to the
Company a line of credit in the
aggregate commitment amount of $65,000,000
for the making of Revolving Advances,
with a $15,000,000 sublimit thereunder for
the issuance of Letters of Credit.
C. The
Company and the Purchasers named therein have entered into that
certain Note Purchase Agreement, dated as
of November 1, 1997, as amended (and
as the same may be further amended,
supplemented or otherwise modified from time
to time, the "1997 Note Agreement"),
pursuant to which the Company has issued
its 6.87% Senior Notes due November 15,
2007 in the aggregate original principal
amount of $35,000,000 (the "1997
Notes").
D. The
Company and the Purchasers named therein have entered into that
certain Note Purchase Agreement, dated as
of April 1, 1998, as amended (and as
the same may be further amended,
supplemented or otherwise modified from time to
time, the "1998 Note Agreement"), pursuant
to which the Company has issued its
6.91% Series B Senior Notes due April 1,
2008 in the aggregate original
principal amount of $30,000,000 (the "1998
Notes").
E. The
Company and BofA are entering into that certain Second Amended
and
Restated Security Agreement, dated as of
May 26, 2005 date hereof (and as the
same may be further amended, supplemented
or otherwise modified from time to
time, the "Security Agreement"), which
provides, among other things, that the
security interest in the collateral
described therein is created in favor of
BofA, in its capacity as the Collateral
Agent for the benefit of the Secured
Creditors, to secure the Secured
Obligations.
F. The
parties hereto desire to set forth their agreement regarding,
among
other things, (i) the appointment, duties
and responsibilities of the Collateral
Agent with respect to the Collateral, (ii)
the application to the Secured
Obligations of cash received by the
Collateral Agent from dispositions of
Collateral or cash turned over to the
Collateral Agent by the Secured Creditors
under certain circumstances for sharing by
the Secured Creditors and (iii) the
agreement of the Secured Creditors as to
the decisions relating to the exercise
of remedies under this Agreement.
2.
<PAGE>
In
consideration of the above Recitals and the mutual covenants
contained
herein, the Secured Creditors, the
Collateral Agent, and, solely for purposes of
Sections 4.1(a), 4.4, 5.2, 5.8, 5.9,
Article VI, Section 7.8 and Article VIII,
the Company and each other Credit Party,
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section
1.1 Definitions of Certain Terms. As used herein, the following
terms have the respective meanings set
forth below:
"1997 Note
Agreement" has the meaning specified in Recital C hereto.
"1997 Note
Documents" means the 1997 Note Agreement, the 1997 Notes, the
1997 Notes Subsidiary Guaranty, the
Collateral Documents and any other
agreement, certificate, instrument or other
document related to any of the
foregoing, in each case as amended,
restated, extended, supplemented or
otherwise modified from time to time.
"1997 Note
Obligations" means, at any time, the sum (without duplication)
of the following:
(i) the aggregate principal amount of the 1997 Notes outstanding
at
such time and the aggregate amount of
accrued and unpaid interest thereon at
such time;
(ii) the aggregate Make-Whole Amount, if any, payable in respect
of
such principal amount (calculated, after
the occurrence and during the
continuance of an Enforcement Event, under
the assumption that the amounts set
forth in clause (i) above are due and
payable at such time) and the aggregate
amount of accrued and unpaid interest
thereon at such time; and
(iii) the aggregate amount of all other monetary obligations of
the
Company and the other Credit Parties that
are accrued and owing at such time to
the 1997 Noteholders or any of them under
the 1997 Note Agreement and the other
1997 Note Documents.
"1997
Noteholders" has the meaning specified in the Preamble hereto.
"1997
Notes" has the meaning specified in Recital C hereto.
"1997
Notes Subsidiary Guaranty" means any guaranty of all or any
portion
of the obligations evidenced by the 1997
Notes or any other obligations under
the 1997 Note Documents hereafter entered
into.
"1998 Note
Agreement" has the meaning specified in Recital D hereto.
"1998 Note
Documents" means the 1998 Note Agreement, the 1998 Notes, the
1998 Notes Subsidiary Guaranty, the
Collateral Documents and any other
agreement, certificate, instrument or other
document related to any of the
foregoing, in each case as amended,
restated, extended, supplemented or
otherwise modified from time to time.
3.
<PAGE>
"1998 Note
Obligations" means, at any time, the sum (without duplication)
of the following:
(i) the aggregate principal amount of the 1998 Notes outstanding
at
such time and the aggregate amount of
accrued and unpaid interest thereon at
such time;
(ii) the aggregate Make-Whole Amount, if any, payable in respect
of
such principal amount (calculated, after
the occurrence and during the
continuance of an Enforcement Event, under
the assumption that the amounts set
forth in clause (i) above are due and
payable at such time) and the aggregate
amount of accrued and unpaid interest
thereon at such time; and
(iii) the aggregate amount of all other monetary obligations of
the
Company and the other Credit Parties that
are accrued and owing at such time to
the 1998 Noteholders or any of them under
the 1998 Note Agreement and the other
1998 Note Documents.
"1998
Noteholders" has the meaning specified in the Preamble hereto.
"1998
Notes" has the meaning specified in Recital D hereto.
"1998
Notes Subsidiary Guaranty" means any guaranty of all or any
portion
of the obligations evidenced by the 1998
Notes or any other obligations under
the 1998 Note Documents hereafter entered
into.
"Act" has
the meaning specified in Section 2.1.
"Affiliate" means, with respect to any Person, another Person
that
directly, or indirectly through one or more
intermediaries, Controls or is
Controlled by or is under common Control
with the Person specified. "Control"
means the possession, directly or
indirectly, of the power to direct or cause
the direction of the management or policies
of a Person, whether through the
ability to exercise voting power, by
contract or otherwise. "Controlling" and
"Controlled" have meanings correlative
thereto.
"Agent-Related Persons" has the meaning specified in Section
5.9.
"Agreement" has the meaning specified in the Preamble hereto.
"Allocable
L/C Share" has the meaning specified in Section 4.1(e).
"Bankruptcy Proceeding" means, with respect to any Person, a
general
assignment of the assets of such Person for
the benefit of its creditors, or the
initiation by or against such Person of any
proceeding seeking relief as debtor,
or seeking to adjudicate such Person as
bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or
composition of such Person or its
debts, under any law relating to
bankruptcy, insolvency, reorganization or
relief of debtors, or seeking appointment
of a receiver, trustee, custodian or
other similar official for such Person or
for any substantial part of its
property.
"BofA" has
the meaning specified in the Preamble hereto.
4.
<PAGE>
"Business Day" means any day
other than a Saturday, Sunday or other day on
which commercial banks are authorized or
required to be closed in New York, New
York, Portland, Oregon or San Francisco,
California.
"Certificate Regarding Obligations" means a notice substantially in
the
form of Exhibit I, together with any
supplement thereto.
"Closing
Date" means the date on which this Agreement becomes effective
in
accordance with Section 8.9.
"Collateral" means all the properties and assets of whatever
nature,
tangible or intangible, now owned or
existing or hereafter acquired or arising,
of the Company or any other Credit Party on
or in which the Collateral Agent has
been granted, conveyed or assigned a
security interest, mortgage or other lien
pursuant to any of the Collateral Documents
or this Agreement, including the
Collateral Accounts, all funds from time to
time maintained in the Collateral
Accounts, all investments thereof, all
interest, dividends and other amounts
earned thereon, and all proceeds of any of
the foregoing collateral.
"Collateral Accounts" means the Intercreditor Disbursement Account
and the
L/C Holding Account, if any.
"Collateral Agent" has the meaning specified in the Preamble
hereto.
"Collateral Documents" means the Security Agreement and all other
security
agreements, pledge agreements, deeds of
trust, mortgages, control agreements and
other similar agreements executed and
delivered from time to time to secure any
portion of the Secured Obligations, and all
financing statements, recordations,
instruments, certificates or other
documents related to any of the foregoing, as
any of the foregoing may be amended,
supplemented or otherwise modified from
time to time.
"Company"
has the meaning specified in the Preamble hereto.
"Credit
Agreement" has the meaning specified in Recital B hereto.
"Credit
Agreement Guaranties" means any guaranty of all or any portion
of
the obligations under the Loan Documents
hereafter entered into.
"Credit Agreement Lenders" has the
meaning specified in the Preamble
hereto.
"Credit
Agreement Obligations" means, at any time, the sum (without
duplication) of the following:
(i) the aggregate principal amount of the Revolving Advances
outstanding at such time and the aggregate
amount of accrued and unpaid interest
thereon at such time;
(ii) the L/C Exposure and the aggregate amount of all Letter of
Credit Disbursements not yet reimbursed to
Issuing Bank and accrued and unpaid
interest thereon at such time;
5.
<PAGE>
(iii) the aggregate amount of accrued and unpaid fees payable to
the
Credit Agreement Lenders, or any of them,
under or in connection with the Credit
Agreement; and
(iv) the aggregate amount of all losses, costs or expenses
described
in Section 3.05 of the Credit Agreement as
of the date hereof incurred and all
other monetary obligations of the Company
and the other Credit Parties that are
accrued and owing at such time to the
Credit Agreement Lenders or any of them
under the Credit Agreement and the other
Loan Documents.
"Credit
Parties" has the meaning specified in the Preamble hereto.
"Creditor
Documents" means, without duplication, the Loan Documents, the
Prudential Note Documents, the 1997 Note
Documents and the 1998 Note Documents.
"Deemed
Collateral Proceeds" means any payment received by any Secured
Creditor in respect of the Secured
Obligations owed to such Secured Creditor or
any reduction in the amount of Secured
Obligations owed to such Secured
Creditor, whether by voluntary payment, by
realization upon security, through
the exercise of any right of set-off,
banker's lien or similar right, by
counterclaim or cross action or by the
enforcement of any other right under the
Creditor Documents (including, without
limitation, amounts recovered by any
Secured Creditor from (i) any guarantor as
a result of the enforcement by such
Secured Creditor of its rights and remedies
under any guaranty or (ii) any
Affiliate of any Credit Party to which such
Credit Party owes any indebtedness
that has been subordinated to the
obligations of such Credit Party to such
Secured Creditor as a result of the
turnover provisions of a subordination
agreement), or under any other guaranties
or security agreements or otherwise,
or as a distribution, adequate protection
payment or similar amount received in
respect of the Collateral or otherwise in
any insolvency case or proceeding
involving the Company or any other Credit
Party; provided that Deemed Collateral
Proceeds shall exclude (i) payments
received pursuant to this Agreement, and
(ii) reductions in L/C Exposure resulting
from the expiration of any Letter of
Credit or reduction in the amount available
to be drawn under any Letter of
Credit.
"Deposit
Notice" has the meaning specified in Section 4.l(c).
"Disbursement Amount" has the meaning specified in Section
4.l(d).
"Disbursement Date" has the meaning specified in Section
4.1(c).
"Enforcement Event" means any of the following: (i) any exercise
of
self-help or commencement of legal action
to realize upon any Collateral; (ii)
any exercise of any right of set-off,
bankers' liens or similar rights against
any obligation of the Company or any other
Credit Party (excluding applications
of funds pursuant to non-default contract
rights); (iii) the taking of any
Collateral in satisfaction of any Secured
Obligation or similar action; (iv) the
acceleration of any monetary obligations
under any of the Creditor Documents or
the commencement of legal action with
respect to any monetary obligations then
owing under any of the Creditor Documents;
(v) a demand for payment or
performance is made under any guaranty that
is a Creditor Document; (vi) the
occurrence of any Bankruptcy Proceeding; or
(vii) any refusal by any Credit
Agreement Lender to fund a Revolving
Advance (or its share of a Revolving
Advance) in an aggregate amount of $100,000
or more requested by the Company
(irrespective of whether the conditions
precedent thereto specified in the
Credit Agreement have been satisfied),
which refusal continues for more than 10
days.
6.
<PAGE>
"Environmental Laws" means any and all federal, state, local, and
foreign
statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees,
permits, concessions, grants, franchises,
licenses, agreements or governmental
restrictions relating to pollution and the
protection of the environment or the
release of any materials into the
environment, including those related to
hazardous substances or wastes, air
emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or
otherwise
(including any liability for damages, costs
of environmental remediation, fines,
penalties or indemnities), of the Company,
any other Credit Party or any of
their respective direct or indirect
subsidiaries directly or indirectly
resulting from or based upon (a) violation
of any Environmental Law, (b) the
generation, use, handling, transportation,
storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or
threatened release of any Hazardous
Materials into the environment or (e) any
contract, agreement or other consensual
arrangement pursuant to which liability
is assumed or imposed with respect to any
of the foregoing.
"Exclusive
Indemnification Payments" means indemnification obligations
described in the penultimate sentence of
Section 5.10 that have been reimbursed
to the Collateral Agent.
"Hazardous
Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic
substances, wastes or other pollutants,
including petroleum or petroleum
distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes
and all other substances or wastes of any
nature regulated pursuant to any
Environmental Law.
"including" means, unless the context clearly requires
otherwise,
"including, without limitation."
"Indemnified Liabilities" has the meaning specified in Section
5.9.
"Intercreditor Disbursement Account" has the meaning specified in
Section
4.1(a).
"IntraLinks" means a communications network provided by IntraLinks,
Inc.
"Issuing
Bank" means BofA or any of its affiliates that is party to the
Credit Agreement that has executed and
delivered a Joinder Agreement (Secured
Creditor), and any successor or assignee as
the institution issuing Letters of
Credit under the Credit Agreement.
"Joinder
Agreement (Secured Creditor)" means an agreement substantially
in
the form of Exhibit II.
"Joinder
Agreement (Additional Credit Party)" means an agreement
substantially in the form of Exhibit
III.
7.
<PAGE>
"Joining
Secured Creditor(s)" has the meaning specified in Section
3.2(a).
"L/C
Exposure" means, as of any date of determination, the aggregate
maximum available amount which may be drawn
under all Letters of Credit
outstanding as of such date of
determination.
"L/C
Holding Account" has the meaning specified in Section 4.l(a).
"Letter of
Credit" means any standby or commercial letter of credit issued
by the Issuing Bank pursuant to the Credit
Agreement.
"Letter of
Credit Disbursement" means a payment or disbursement made by
the Issuing Bank pursuant to a Letter of
Credit.
"Loan
Documents" means the Credit Agreement, the Revolving Line of
Credit
Note evidencing the obligations thereunder
(as more specifically defined
therein), the Credit Agreement Guaranties,
the Collateral Documents and any
other agreement, certificate, instrument or
other document related to any of the
foregoing, in each case as amended,
restated, extended, supplemented or
otherwise modified from time to time.
"Majority
1997 Noteholders" means, at any time of determination, 1997
Noteholders that collectively hold more
than 50% of the Principal Obligations of
the 1997 Note Obligations.
"Majority
1998 Noteholders" means, at any time of determination, 1998
Noteholders that collectively hold more
than 50% of the Principal Obligations of
the 1998 Note Obligations.
"Majority
Credit Agreement Lenders" means, at any time of determination,
BofA, or if there two or more Credit
Agreement Lenders, then two or more Credit
Agreement Lenders having more than 50% of
aggregate commitments under the Credit
Agreement.
"Majority
Prudential Noteholders" means, at any time of determination,
Prudential Noteholders that collectively
hold more than 50% of the Principal
Obligations of the Prudential Note
Obligations.
"Majority
Secured Creditors" means, at any time of determination, Credit
Agreement Lenders, Prudential Noteholders,
1997 Noteholders and 1998 Noteholders
with respect to which the Principal
Obligations of the Credit Agreement
Obligations, the Prudential Note
Obligations, the 1997 Note Obligations and the
1998 Note Obligations attributable to such
Persons at such time collectively
constitute a majority of the Principal
Obligations of the Secured Obligations.
"Make-Whole Amount" with respect to any of the 1997 Notes, has the
meaning
specified in the 1997 Note Agreement; and
with respect to any of the 1998 Notes,
has the meaning specified in the 1998 Note
Agreement.
"Minority
Creditor Group" means a group comprised of any of the Credit
Agreement Lenders, the Prudential
Noteholders, the 1997 Noteholders or the 1998
Noteholders with respect to which the
Principal Obligations of the Credit
Agreement Obligations, the Prudential Note
Obligations, the 1997 Note
Obligations and the 1998 Note Obligations
attributable to such Persons at such
time collectively constitute at least 30%
of the Principal Obligations of the
Secured Obligations at such time.
8.
<PAGE>
"Minority
Creditor Group Exercise Period" has the meaning specified in
Section 3.2(a).
"Notice of
Enforcement Event" has the meaning specified in Section 2.4.
"Notice of
Intent to Exercise Remedies" has the meaning specified in
Section 3.2(a).
"Payment
Default" means the default in the payment, after giving effect
to
applicable grace periods, of any principal,
interest or reimbursement of a
Letter of Credit Disbursement, including,
without limitation, any failure to pay
any accelerated amounts owing under any
Creditor Document if the applicable
payment is in excess of $250,000.
"Permitted
Investments" means:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally
guaranteed by, the United States of
America (or by any agency thereof to the
extent such obligations are backed by
the full faith and credit of the United
States of America), in each case
maturing within six months from the date of
acquisition thereof;
(ii) marketable general obligations issued by any state of the
United States of America or any political
subdivision of any such state or any
public instrumentality thereof maturing
within six months from the date of
acquisition thereof and, at the time of
acquisition, having one of the two
highest ratings generally obtainable from
either Standard & Poor's Ratings
Service, a division of The McGraw-Hill
Companies, Inc. ("S&P") or Moody's
Investors Service, Inc.;
(iii) investments in commercial paper maturing no more than six
months from the date of acquisition thereof
and having, at such date of
acquisition, a credit rating of A-1 or
higher from S&P or P-1 or higher from
Moody's Investors Service, Inc.; and
(iv) investments in domestic and eurodollar certificates of
deposit,
banker's acceptances and time deposits
maturing within six months from the date
of acquisition thereof issued or guaranteed
by or placed with, and money market
deposit accounts issued or offered by, (w)
any domestic office of any commercial
bank organized under the laws of the United
States of America or any state
thereof which has a combined capital and
surplus and undivided profits of not
less than $500,000,000, (x) the Collateral
Agent, (y) any branch of any
commercial bank organized under the laws of
the United Kingdom, Canada or Europe
having combined capital, surplus and
undivided profits (less any undivided
losses) of not less than $500,000,000 or
(z) any domestic commercial bank whose
deposits are guaranteed by the Federal
Deposit Insurance Corporation and with
whom deposits maintained by the Collateral
Agent do not exceed the amount so
guaranteed.
"Person"
means any natural person, corporation, limited liability
company,
trust, joint venture, association, company,
partnership, governmental authority
or other entity.
9.
<PAGE>
"PIM" has
the meaning specified in the Preamble hereto.
"PRIAC"
has the meaning specified in the Preamble hereto.
"Principal
Obligations" means, with respect to any of the Secured
Obligations, the aggregate principal amount
and, if applicable, the aggregate
L/C Exposure and the aggregate Letter of
Credit Disbursements.
"Pro Rata
Share" means, with respect to each Secured Creditor as of any
date of determination, the percentage of
all Principal Obligations (including
L/C Exposure) owed to such Secured
Creditor, if any, as of such date of
determination.
"Prudential" has the meaning specified in the Preamble hereto.
"Prudential Affiliates" means (i) any corporation or other
entity
controlling, controlled by, or under common
control with, PIM and (ii) any
managed account or investment fund which is
managed by PIM or a Prudential
Affiliate described in clause (i) of this
definition. For purposes of this
definition, the terms "control,"
"controlling" and "controlled" shall mean the
ownership, directly or through
subsidiaries, of a majority of a corporation's or
other Person's voting stock or equivalent
voting securities or interests.
"Prudential Note Agreement" has the meaning specified in Recital A
hereto.
"Prudential Note Documents" means the Prudential Note Agreement,
the
Prudential Notes, the Prudential Notes
Subsidiary Guaranty, the Collateral
Documents and any other agreement,
certificate, instrument or other document
related to any of the foregoing, in each
case as amended, restated, extended,
supplemented or otherwise modified from
time to time.
"Prudential Note Obligations" means, at any time, the sum
(without
duplication) of the following:
(i) the aggregate principal amount of the Prudential Notes
outstanding at such time and the aggregate
amount of accrued and unpaid interest
thereon at such time;
(ii) the aggregate Yield-Maintenance Amount, if any, payable in
respect of such principal amount
(calculated, after the occurrence and during
the continuance of an Enforcement Event,
under the assumption that the amounts
set forth in clause (i) above are due and
payable at such time) and the
aggregate amount of accrued and unpaid
interest thereon at such time;
(iii) the aggregate amount of accrued and unpaid fees payable to
the
Prudential Noteholders, or any of them,
under or in connection with the
Prudential Note Agreement; and
(iv) the aggregate amount of all other monetary obligations of
the
Company and the other Credit Parties that
are accrued and owing at such time to
the Prudential Noteholders or any of them
under the Prudential Note Agreement
and the other Prudential Note
Documents.
10.
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"Prudential Noteholders" has the meaning specified in the Preamble
hereto.
"Prudential Notes" has the meaning specified in Recital A
hereto.
"Prudential Notes Subsidiary Guaranty" means any guaranty of all or
any
portion of the obligations evidenced by the
Prudential Notes or any other
obligations under the Prudential Note
Documents hereafter entered into.
"Prudential Series A Notes" has the meaning specified in Recital A
hereto.
"Prudential Series B Notes" has the meaning specified in Recital A
hereto.
"Prudential Series C Notes" has the meaning specified in Recital A
hereto.
"Prudential Series D Notes" has the meaning specified in Recital A
hereto.
"Prudential Shelf Notes" has the meaning specified in Recital A
hereto.
"Revolving
Advance" means a revolving loan advance made under the Credit
Agreement.
"Revolving
Line of Credit Note" means any note issued to a Credit
Agreement Lender pursuant to the Credit
Agreement.
"Secured
Creditors" means the Credit Agreement Lenders, the Prudential
Noteholders, the 1997 Noteholders, the 1998
Noteholders and their respective
successors, transferees and permitted
assigns that execute a Joinder Agreement
(Secured Creditor), in each case until the
Secured Obligations of such Person
shall have been repaid in full and any and
all commitments shall have been
terminated.
"Secured
Obligations" means, at any time of determination, the aggregate
Credit Agreement Obligations, the aggregate
Prudential Note Obligations, the
aggregate 1997 Note Obligations and the
aggregate 1998 Note Obligations, as the
same may be replaced or refinanced as
permitted under Section 8.2, in each case
measured at the time of determination.
"Security
Agreement" has the meaning specified in Recital E hereto.
"Yield-Maintenance Amount" with respect to any of the Prudential
Notes,
has the meaning specified in the Prudential
Note Agreement.
Section
1.2 Terms Generally. The definitions in Section 1.1 shall apply
equally to both the singular and plural
forms of the terms defined. Whenever the
context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include," "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation." All references
herein to Articles and Sections shall be
deemed references to Articles and
Sections of this Agreement unless the
context shall otherwise require.
11.
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ARTICLE II
ACTS AND DUTIES OF SECURED CREDITORS
Section
2.1 Acts of Secured Creditors. Any request, demand,
authorization,
direction, notice, consent, waiver or other
action permitted or required by this
Agreement to be given or taken by the
Secured Creditors or any group
constituting less than all Secured
Creditors (including the Majority Secured
Creditors) may be and, at the request of
the Collateral Agent, shall be embodied
in and evidenced by one or more instruments
signed by or on behalf of such
Persons and, except as otherwise expressly
provided in any such instrument, any
such action shall become effective when
such instrument or instruments shall
have been delivered to the Collateral
Agent. The instrument or instruments
evidencing any action (and the action
embodied therein and evidenced thereby)
are sometimes referred to herein as an
"Act" of the Persons signing such
instrument or instruments. The Collateral
Agent shall be entitled to rely
absolutely upon an Act of any Secured
Creditor if such Act purports to be taken
by or on behalf of such Secured Creditor,
and nothing in this Section 2.1 or
elsewhere in this Agreement shall be
construed to require any Secured Creditor
to demonstrate that it has been authorized
to take any action which it purports
to be taking, the Collateral Agent being
entitled to rely conclusively, and
being fully protected in so relying, on any
Act of such Secured Creditor.
Section
2.2 Determination of Amounts of Obligations. Whenever the
Collateral Agent is required to determine
the existence or amount of any of the
Secured Obligations or any portion thereof,
or the existence of any Enforcement
Event for any purposes of this Agreement,
it shall be entitled to make such
determination on the basis of the
Certificates Regarding Obligations, Notices of
Enforcement Event, notices rescinding
Notices of Enforcement Event, and other
notices and certificates delivered to it by
the Secured Creditors. The
Collateral Agent may rely conclusively, and
shall be fully protected in so
relying, on any determination made by it in
accordance with the provisions of
the preceding sentence (or as otherwise
directed by a court of competent
jurisdiction) and shall have no liability
to the Company, the other Credit
Parties, any Secured Creditor or any other
Person as a result of any action
taken by the Collateral Agent based upon
such determination prior to receipt of
notice of any error in such
determination.
Section
2.3 Restrictions on Actions. Each Secured Creditor agrees that,
after the occurrence and during the
continuance of an Enforcement Event and
until payment in full of the Secured
Obligations, (i) the provisions of this
Agreement shall govern exclusively the
method by which the Collateral Agent or
any Secured Creditor may exercise rights
and remedies under the Collateral
Documents or otherwise with respect to the
Collateral and (ii) except as
expressly permitted hereunder, each Secured
Creditor shall:
(a) refrain from taking or filing any action, judicial or
otherwise,
to enforce rights or pursue any remedies
under any of the Collateral Documents,
except for delivering notices
hereunder;
(b) refrain from exercising any rights or remedies (including
the
remedy of self-help) under any of the
Collateral Documents which may be
exercisable as a result of an Enforcement
Event; and
12.
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(c) refrain from exercising any right of setoff, bankers' lien
or
similar right with respect to amounts on
deposit with such Secured Creditor
(excluding application of funds pursuant to
non-default contract rights);
provided, however, that the foregoing shall
not prevent a Secured Creditor from
raising any defenses in any action in which
it has been made a party defendant
or has been joined as a third party, except
that the Collateral Agent may direct
and control any defense directly relating
to the Collateral or the any of the
Collateral Documents, subject to and in
accordance with the provisions of this
Agreement.
Section
2.4 Notice of Enforcement Event; Other Notices. Each Secured
Creditor shall, upon learning of the
existence of any Enforcement Event under a
Creditor Document to which it is a party,
promptly deliver written notice
thereof describing in reasonable detail the
nature of the event giving rise to
such Enforcement Event and setting forth
the date of occurrence of such event (a
"Notice of Enforcement Event") to the
Collateral Agent. Each Notice of
Enforcement Event shall be deemed to have
been given when such notice has
actually been received by the Collateral
Agent and to have been rescinded when
the Collateral Agent has received a
certificate from Secured Creditors entitled
to waive such default under the terms of
the applicable Creditor Document and
this Agreement stating that the events of
default giving rise to such
Enforcement Event have been cured or waived
in accordance with the terms of the
applicable Creditor Document. A Notice of
Enforcement Event shall be deemed to
be outstanding at all times after such
notice has been given until such time, if
any, as such notice has been rescinded.
ARTICLE III
DUTIES OF COLLATERAL AGENT
Section
3.1 Notices to Secured Creditors. The Collateral Agent
promptly,
and in any event within three (3) Business
Days of its receipt thereof, shall
deliver written notification to each
Secured Creditor of the Collateral Agent's
receipt of any Notice of Enforcement Event
from any Secured Creditor in
accordance with Section 2.4 (and the
Collateral Agent shall provide each Secured
Creditor a copy thereof), a certificate
rescinding such Notice of Enforcement
Event in accordance with Section 2.4, or
any request by any party hereto or by
the Company or any other Credit Party for
any consent, waiver or amendment with
respect hereto or any other Creditor
Document.
Section
3.2 Directions from Majority Secured Creditors.
(a) Subject to the provisions of Article V, the Collateral
Agent
agrees to administer the Collateral
Documents and the Collateral, to make such
demands, give such notices, take such
actions under or with respect to the
Collateral Documents and exercise other
rights, powers and remedies as shall be
available to it under the Collateral
Documents (including, at any time when a
Notice of Enforcement Event shall have been
given and shall be outstanding, the
disposition of Collateral or any portion
thereof) which are requested in writing
by the Majority Secured Creditors (or, if
permitted by this Section 3.2(a), the
Minority Creditor Group) and which are not
inconsistent with or contrary to the
provisions of this Agreement or the
Collateral Documents or law. If at any time
13.
<PAGE>
of determination (1) a Payment Default in
respect of the Secured Obligations of
each of the Secured Creditors comprising a
Minority Creditor Group has occurred
and continued for at least 90 days and (2)
during such period the Majority
Secured Creditors shall not have directed
the Collateral Agent to commence the
exercise of remedies available to it in
respect of the Collateral, then the
Minority Creditor Group shall thereafter,
for so long as such Payment Default
shall continue to exist, have the right to
direct the Collateral Agent to do the
things expressly stated in the first
sentence of this Section 3.2(a) (the period
during which such right is exercisable
being referred to herein as the "Minority
Creditor Group Exercise Period"); provided,
however, that such right shall not
be exercisable unless and until the sixth
Business Day after the Minority
Creditor Group shall have delivered a
notice (a "Notice of Intent to Exercise
Remedies") to each of the other Secured
Creditors certifying that the conditions
described in the preceding clauses (1) and
(2) of this sentence have been
satisfied, stating that the Minority
Creditor Group has elected to exercise such
right commencing six (6) Business Days
after delivery of such notice and
describing in reasonable detail the actions
intended to be pursued; provided,
further, that if, during the five Business
Day period after delivery of such
notice, any of such other Secured Creditors
("Joining Secured Creditor(s)")
deliver a written notice to the senders of
such Notice of Intent to Exercise
Remedies that they will join in the
commencement of the exercise of remedies
then available to the Collateral Agent in
respect of the Collateral and if the
Principal Obligations of the Secured
Obligations attributable to the Minority
Creditor Group together with the Principal
Obligations of the Secured
Obligations of the Joining Secured
Creditor(s) constitutes the Majority Secured
Creditors, then all actions expressly
stated in the first sentence of this
Section 3.2(a) shall thereafter require the
direction of the Majority Secured
Creditors.
(b) Absent written instructions from the Majority Secured
Creditors
(or, if permitted by Section 3.2(a), the
Minority Creditor Group) at a time when
a Notice of Enforcement Event shall be
outstanding, the Collateral Agent may
take, but shall have no obligation to take,
any and all such actions under the
Collateral Documents or otherwise as it
shall deem to be in the best interests
of the Secured Creditors in order to
maintain the Collateral and protect and
preserve the Collateral and the rights of
the Secured Creditors; provided,
however, that in the absence of written
instructions (which may relate to the
exercise of specific remedies or to the
exercise of remedies in general) from
the Majority Secured Creditors (or, if
permitted by Section 3.2(a), the Minority
Creditor Group), the Collateral Agent shall
not liquidate or compromise any
claims under any of the Collateral
Documents, make any disposition of the
Collateral or exercise any other remedies
available to it under any of the
Collateral Documents (other than insuring
the Collateral) with respect to the
Collateral or any part thereof.
(c) The Collateral Agent shall not be obligated to take any
action
under this Agreement or the Collateral
Documents except for the performance of
such duties as are specifically set forth
herein or therein.
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ARTICLE IV
PROCEEDS RECEIVED UNDER COLLATERAL DOCUMENTS;
OTHER AMOUNTS RECEIVED
Section
4.1 Establishment of Collateral Accounts; Application of
Proceeds
of Collateral.
(a) Establishment of Collateral Accounts. The Collateral Agent
shall
establish and maintain at its banking
office in Portland, Oregon, (or upon
written notice to the Secured Creditors,
such other banking office in the State
of Oregon as it may select, so long as its
lien is continuously maintained as
contemplated herein) the following
segregated account(s):
(i) an account entitled the "Northwest Pipe Company
Intercreditor Disbursement Account" (the
"Intercreditor Disbursement Account");
and
(ii) an account entitled the "Northwest Pipe Company L/C
Holding Account" (the "L/C Holding
Account").
Each such account will be held by the
Collateral Agent as provided in this
Agreement and shall at all times be in the
exclusive possession of, and under
the exclusive control of, the Collateral
Agent, as agent for the Secured
Creditors. Neither the Company, any other
Credit Party nor any subsidiary of the
Company or such other Credit Party shall
have rights to any such account or to
any amounts on deposit therein, except the
right to receive amounts, if any, in
accordance with clause FOURTH of Section
4.1(d). Each of the Company and the
other Credit Parties hereby grants and
assigns to the Collateral Agent, for the
benefit of the Secured Creditors, as
collateral security for the Secured
Obligations, all of the Company's or such
other Credit Party's right, title and
interest in and to the Collateral Accounts,
all funds from time to time
maintained therein, all investments
thereof, all interest, dividends and other
amounts earned thereon and all proceeds
thereof.
(b) Deposits into Collateral Accounts. Except as otherwise
explicitly required in the Collateral
Documents or by law, the Collateral Agent
shall, as promptly as practicable, after
receipt of a Notice of Enforcement
Event, deposit into the Intercreditor
Disbursement Account all amounts received
by it in its capacity as Collateral Agent
(and not in any other capacity) in
respect of the Secured Obligations
(including during any dissolution, winding
up, liquidation, reorganization or
insolvency proceeding of the Company or any
other Credit Party), including all monies
received on account of any sale of or
other realization upon any of the
Collateral pursuant to the Collateral
Documents, any amounts turned over to the
Collateral Agent pursuant to Section
4.4, and any distributions, adequate
protection payments or similar amounts
received in respect of the Collateral or
otherwise in any insolvency case or
proceeding involving the Company or any
other Credit Party.
(c) Notices to Secured
Creditors. On the last Business Day of each
month in which any amounts shall be
deposited into the Intercreditor
Disbursement Account, the Collateral Agent
shall provide written notice of all
such deposits during such month to each
Secured Creditor (a "Deposit Notice"),
specifying (i) the dates of such deposits,
(ii) the amounts of such deposits and
(iii) the date
15.
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on which the Collateral Agent will make a
disbursement in respect of such
deposits (which date shall be a Business
Day not less than ten (10) nor more
than thirty (30) days after the date of the
Deposit Notice (the "Disbursement
Date")).
(d) Disbursements to Secured Creditors and L/C Holding Account.
On
the applicable Disbursement Date, the
Collateral Agent shall disburse the amount
on deposit in the Intercreditor
Disbursement Account (the "Disbursement Amount")
in accordance with the order of priority
set forth in clauses FIRST through
FIFTH b
