Exhibit 10.3
FIRST AMENDMENT TO AND CONSENT UNDER
SECOND AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
This FIRST AMENDMENT TO AND CONSENT UNDER SECOND AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (this "First Amendment") is made
as of October 14, 2008, by and among: (i) Prudential Investment Management, Inc.
("PIM"), The Prudential Insurance Company of America ("Prudential") and
Prudential Retirement Insurance and Annuity Company ("PRIAC"), as Prudential
Noteholders and Secured Creditors, (ii) Bank of America, N.A., a national
banking association ("BofA"), as a Credit Agreement Lender, Issuing Bank and
Secured Creditor, (iii) Union Bank of California, N.A. ("Union Bank") and U.S.
Bank National Association ("U.S. Bank"), as Credit Agreement Lenders and Secured
Creditors, and (iv) BofA, in its capacity as Collateral Agent; and is further
acknowledged and consented to by Northwest Pipe Company, an Oregon corporation
(the "Company") and any other Persons that have become guarantors or other
co-obligors of any of the Secured Obligations (together with the Company,
collectively, the "Credit Parties"). Capitalized terms used and not otherwise
defined herein shall have the meanings provided in the Intercreditor Agreement
referred to below.
RECITALS
WHEREAS, the Prudential Noteholders and the Credit Agreement Lenders entered
into that Second Amended and Restated Intercreditor Agreement dated as of
May 31, 2007 (as amended hereby and as may be further amended, restated,
supplemented and modified from time to time, the "Intercreditor Agreement"),
which was countersigned and agreed to by the Company;
WHEREAS, concurrently herewith certain Credit Agreement Lenders and the Company
are entering into that Second Amendment to Amended and Restated Credit Agreement
(the "Second Amendment to Credit Agreement"), which makes certain modifications
to the Credit Agreement, including an increase in the aggregate commitments of
such Credit Agreement Lenders thereunder;
WHEREAS, concurrently herewith U.S. Bank is executing and delivering a joinder
agreement to the Credit Agreement, making it an additional lender under the
Credit Agreement with a commitment of $25,000,000 thereunder (the "U.S. Bank
Credit Agreement Joinder");
WHEREAS, concurrently herewith U.S. Bank is executing and delivering a Joinder
Agreement (Secured Creditor), making it an additional Credit Agreement Lender
and an additional Secured Creditor under the Intercreditor Agreement (the "U.S.
Bank Intercreditor Agreement Joinder");
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WHEREAS, concurrently herewith the Prudential Noteholders and the Company are
entering into that certain First Amendment and Limited Waiver to Amended and
Restated Note Purchase and Private Shelf Agreement, which makes certain
modifications to the Prudential Note Agreement (the "First Amendment to
Prudential Note Agreement"); and
WHEREAS, the parties hereto desire to make certain amendments to the
Intercreditor Agreement, and to have the Prudential Noteholders consent to the
increase of the aggregate commitments under the Credit Agreement effected by the
Second Amendment to Credit Agreement, all upon the terms and conditions more
fully set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein and in the Intercreditor Agreement, and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree