|
| “‘Bridge Loan Commitment’
shall mean $10,000,000 until December 1, 1999, after which there shall be
no Bridge Loan Commitment.”
5.
Amendment to Section 1.1 “Loans.” The definition of “Loans”
is amended to read:
|
| “‘Loans’ means the
Revolving Loans, the Term Loans and the Bridge Loans.”
6.
Amendment to Section 1.1 “Total Commitment.” The definition of
“Total Commitment” in Section 1.1 of the Loan Agreement is amended
by adding to the end of such definition the following sentence:
|
| “‘Total Commitment’
shall not include the Bridge Loan Commitment.”
7.
Amendment to Section 4.1. Section 4.1 of the Loan Agreement is amended to
provide:
|
| “Section
4.1 Corporate Existence and Power.
Northwest Pipe Company is a corporation duly incorporated and validly existing
under the laws of the State of Oregon. Borrower is duly qualified to do
business in each other jurisdiction where the nature of its activities or
the ownership of its properties requires such qualification, except to the
extent that failure to be so qualified does not have a material adverse
effect on its business, operations or financial condition. Borrower has
full corporate power and authority to carry on its business as presently
conducted, to own and operate its properties and assets, and to execute,
deliver and perform the Loan Documents. Except as described in this section,
Borrower has no Subsidiary except that Northwest Pipe Company has as subsidiaries
Southwestern Pipe, Inc., a Texas corporation, and P & H Tube Corporation,
a Texas corporation
8.
Amendment to Article 10. ARTICLE 10 of the Loan Agreement is amended to
change its title to:
“ARTICLE 10
SECURED LETTER OF CREDIT FACILITY AND BRIDGE
LOANS”
and to add the following
Sections:
“Section 10.4
Bridge Loans. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Bridge Loans to Borrower in amounts equal
to such Lender’s Revolving Loan Pro Rata Share of the Bridge Loans duly
requested hereunder (the ‘Bridge Loans’) provided that, after
giving effect to any requested Bridge Loan, absent such Lender’s consent,
the aggregate of all Bridge Loans outstanding from such Lender will not exceed
at any one time its Revolving Loan Pro Rata Share of the Bridge Loan Commitment.
In the event of any repayment of any portion of any Bridge Loan, Borrower shall
not be entitled to reborrow the amount repaid.
“Section 10.5
Manner of Borrowing Bridge Loans. Borrower shall deliver to Agent one
or more Notice(s) of Borrowing specifying the date of the requested borrowing
of Bridge Loans, but no such notice shall be given later than November 15, 1999.
Except as set forth in this Section 10.5, each Notice of Borrowing shall be
governed by the provisions of Section 2.2.”
“Section 10.6
Repayment of Principal . Borrower shall repay the principal amount of
the Bridge Loans on December 1, 1999.”
“Section 10.7
Applicability of Provisions. Except for Sections 2.1, 2.4, 2.5, 2.9 and
5.1, the provisions of the Loan Agreement shall apply to the Bridge Loans, but
Section 2.2 shall apply only as set forth above, and all Sections of the Loan
Agreement shall be deemed amended to substitute ‘Borrower’ for
‘Borrowers’
and to make such other grammatical changes to verbs and pronouns as may be necessary
to reflect the fact that there is now only one Borrower.”
“Section 10.8
Fees. Upon execution of this amendment, Borrower agrees to pay Agent
for the benefit of Lenders a fee of ten thousand dollars ($10,000) to be divided
in proportion to their Revolving Loan Pro Rata Shares. ”
“Section 10.9
Conditions to Bridge Loans. In addition to the provisions of Article
3, it shall be a condition of the obligation of each Lender to make the initial
advance on the Bridge Loans that (a) Borrower shall simultaneously close the
acquisition by Northwest Pipe Company of one hundred percent (100%) of the capital
stock of North American Pipe, Inc. for a price not to exceed the price agreed
to in the March 11, 1999 Letter of Intent entered into between Northwest Pipe
Company and Xxxx Xxxxxx, sole shareholder of North American Pipe, Inc.; and
(b) Borrower shall provide Agent new evidence of authority and a new legal opinion
applicable to the Bridge Loans as described in Sections 3.1(b) and (c).”
“Section 10.10
Representations and Warranties. In addition to the representations and
warranties set forth in Article 4, Borrower makes the same representations and
warranties with respect to the consolidated balance sheet of Borrower and its
subsidiaries as at March 31, 1999 and the related statements of income and retained
earnings as at such date, as were represented and warranted in Section 4.6 with
respect to the balance sheet and related statements of income and retained earnings
as at March 31, 1998. In addition, Borrower represents and warrants that Northwest
Pipe Company is prepared to acquire one hundred percent (100%) of the capital
stock of North American Pipe, Inc. upon borrowing the initial advance of the
Bridge Loans and that the shareholders of North American Pipe, Inc. are prepared
to sell such capital stock to Northwest Pipe Company for a price not to exceed
that referred to in Section 10.9.”
“Section 10.11
Use of Bridge Loan Proceeds. The proceeds from the Bridge Loans will
be used to purchase one hundred percent (100%) of the capital stock of North
American Pipe, Inc. and to retire existing debt of North American Pipe, Inc.
and to pay closing costs and to provide a fund for the purchase of equipment
to be used in connection with North American Pipe, Inc.”
9.
No
Further Amendment, Fees. Except as expressly modified by this Amendment,
the Loan Agreement and the other Loan Documents shall remain unmodified and
in full force and effect and the parties hereby ratify their respective obligations
thereunder. Without limiting the foregoing, the Borrower expressly reaffirms
and ratifies its obligation to pay or reimburse the Agent and the Lender on
request for all reasonable expenses, including legal fees, actually incurred
by the Agent or such Lender in connection with the preparation of this Amendment,
any other amendment documents, and the closing of the transactions contemplated
hereby and thereby.
10.
Miscellaneous.
(a) Entire Agreement. This Amendment
comprises the entire agreement of the parties with respect to the subject matter
hereof and supersedes all prior oral or written agreements, representations
or commitments.
(b) Counterparts. This Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original, and all of which taken together shall constitute one and the same
Amendment.
(c) Governing Law. This Amendment and
the other agreements provided for herein and the rights and obligations of the
parties hereto and thereto shall be construed and interpreted in accordance
with the laws of the State of Oregon.
|
| (d) Certain
Agreements Not Enforceable. UNDER OREGON
LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE LENDERS AFTER
OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE
NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION, AND
BE SIGNED BY THE LENDERS TO BE ENFORCEABLE.
EXECUTED AND DELIVERED
by the duly authorized officers of the parties as of the date first above written.
| BORROWER:
| NORTHWEST PIPE COMPANY
|
|
|
| By:/s/ XXXX X. XXXXXXXX
|
| Its: VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
|
|
|
|
| Address: 00000 X. Xxxxxxx
|
|
| Xxxxxxxx, XX 00000
|
|
| Fax No. (000) 000-0000
|
|
|
| BANK OF AMERICA NATIONAL
TRUST AND
|
| SAVINGS ASSOCIATION
|
|
|
| By:/s/ R.E. XXXXX
|
| Its: VICE PRESIDENT
|
|
|
|
|
| Address: Commercial
Banking
|
|
| 000 X.X. Xxxxxxxx Xxxxxx, Xxxxx
0000
|
|
| Xxxxxxxx, XX 00000
|
|
| Fax No. (000) 000-0000
|
|
| Attn: Xxxxx X. Xxxxx
|
|
|
|
|
|
| U.S. BANK NATIONAL ASSOCIATION
|
|
|
| By: /s/ XXXX X. XXXXXXXX
|
| Its: VICE PRESIDENT
|
|
|
|
| Address: Oregon Corporate
Banking, T-4
|
|
| 000 X.X. Xxxxx Xxxxxx, Xxxxx 000
|
|
| Xxxxxxxx, XX 00000
|
|
| Fax No. (000) 000-0000
|
|
| Attn: Xxxx X. Xxxxxxxx
| AGENT:
| BANK OF AMERICA NATIONAL
TRUST AND
|
| SAVINGS ASSOCIATION
|
|
|
| By:/s/ XXXX X. XXXXX
|
| Its: VICE PRESIDENT
|
|
|
|
| Address: Agency Services
|
|
| 000 Xxxxx Xxxxxx, Xxxxx
00
|
|
| Xxxxxxx, XX 00000
|
|
| Fax No. (000) 000-0000
|
|
| Attn: Xxxx X. Xxxxx
| | | | | | |
