AMENDMENT NUMBER FIVE TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER FIVE TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Amendment") is entered into as of July 1, 1999, by and
between Foothill Capital Corporation, a California corporation ("Foothill"), on
the one hand, and National-Standard Company, an Indiana corporation
("Borrower"), with reference to the following facts:
A. Foothill and Borrower heretofore have entered into that
certain Amended and Restated Loan and Security Agreement,
dated as of September 17, 1997, as amended by that certain
Amendment Number One to Amended and Restated Loan and Security
Agreement, dated as of June 30, 1998, that certain Amendment
Number Two to Amended and Restated Loan and Security
Agreement, dated as of September 30, 1998, that certain
Amendment Number Three to Amended and Restated Loan and
Security Agreement, dated as of February 19, 1999, and that
certain Amendment Number Four to Amended and Restated Loan and
Security Agreement, dated as of [March 8, 1999], (as so
modified and as otherwise heretofore modified or supplemented
from time to time, the "Agreement");
B. Borrower has requested Foothill to amend the Agreement, as set
forth in this Amendment;
C. Foothill is willing to so amend the Agreement in accordance
with the terms and conditions hereof; and
D. Unless the context requires otherwise, all capitalized terms
used herein and not defined herein shall have the meanings
ascribed to them in the Agreement, as amended hereby.
NOW, THEREFORE, in consideration of the above recitals and the
mutual promises contained herein, Foothill and Borrower hereby agree as follows:
1. Amendments to the Agreement.
(a) Section 1.1 of the Agreement hereby is amended by adding the following
new defined terms in alphabetical order:
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"Fifth Amendment" means that certain Amendment Number
Five to Amended and Restated Loan and Security Agreement,
dated as of July 1, 1999, between Foothill and Borrower.
"Fifth Amendment Effective Date" means the date, if
ever, that all of the conditions set forth in Section 4 of the
Fifth Amendment shall be satisfied (or waived by Foothill in
its sole discretion).
"Permitted Overadvance Obligations" means, as of any
date of determination thereof, Obligations attributable to the
Permitted Overadvance Maximum Amount, the amount of such
Obligations being equal to the lesser of (a) the Permitted
Overadvance Amount, or (b) the result of (i) the total
Obligations, minus (ii) the lesser of (A) the Borrowing Base,
or (B) an amount equal to Borrower's and Guarantor's aggregate
cash collection with respect to Account for the immediately
preceding ninety (90) day period, in each case, as of such
date of determination.
"Permitted Overadvance Maximum Amount" means (a)
during the period commencing on July 1, 1999, and ending on
September 15, 1999, $1,500,000, and (b) at all other times,
$0.
(b) The first sentence of Section 2.1(a) of the Agreement hereby is amended
and restated in its entirety as follows:
Subject to the terms and conditions of this Agreement,
Foothill agrees to make revolving advances to Borrower in an
amount not to exceed the sum of (i) the Permitted Overadvance
Maximum Amount, plus, (ii) the lesser of (A) the Borrowing
Base, or (B) an amount equal to Borrower's and Guarantor's
aggregate cash collections with respect to Accounts for the
immediately preceding ninety (90) day period.
(c) The first sentence of Section 2.2(a) of the Agreement hereby is amended
and restated in its entirety as follows:
Subject to the terms and conditions of this Agreement,
Foothill agrees to issue commercial or standby letters of
credit for the account of Borrower (each, an "L/C") or to
issue standby letters of credit or guarantees of payment (each
such letter of credit or guaranty, an "L/C Guaranty") with
respect to commercial or standby letters of credit issued by
another Person for the account of Borrower in an aggregate
face amount not to exceed the lesser of: (i) the Borrowing
Base plus the Permitted Overadvance Amount less the amount of
advances outstanding pursuant to Section 2.1, and (ii) Four
Million Dollars ($4,000,000).
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(d) Section 2.5(a) of the Loan Agreement hereby is amended and restated in
its entirety to read as follows:
(a) Interest Rate.
(i) Adjusted Base Rate. All Obligations, except for
Permitted Overadvance Obligations and undrawn L/Cs and L/C
Guarantees, shall bear interest, on the average Daily Balance
thereof, at the then extant Adjusted Base Rate.
(ii) Adjusted Net LIBOR Rate. With respect to all
Obligations other than Permitted Overadvance Obligations and
undrawn L/Cs and L/C Guarantees and in lieu of having interest
charged at the Adjusted Base Rate, Borrower shall have the
"LIBOR Option", as defined in, and subject to the terms and
conditions of, the LIBOR Supplement, which by this reference
hereby is incorporated herein in full and made a part hereof.
(iii) Permitted Overadvance Obligations. The
Permitted Overadvance Obligations shall bear interest, on the
average Daily Balance thereof, at a per annum rate equal of
four percentage points above the then extant Base Rate.
(e) Section 2.5(b) of the Loan Agreement hereby is amended and restated in
its entirety to read as follows:
(b) Default Rate. (i) All Obligations, except for
Permitted Overadvance Obligations and undrawn L/Cs and L/C
Guarantees, shall bear interest, from and after the occurrence
and during the continuance of an Event of Default, at a rate
equal to three (3.00) percentage points above (x) the then
extant Adjusted Base Rate, or (y) in the case of any "Adjusted
Net LIBOR Rate Loan" (as defined in the LIBOR Supplement), the
then extant "Adjusted Net LIBOR Rate" (as defined in the LIBOR
Supplement), or (z) [intentionally omitted]. (ii) From and
after the occurrence and during the continuance of an Event of
Default, the fee provided in Section 2.2(d) shall be increased
to a fee equal to four percent (4.00%) per annum times the
average Daily Balance of the undrawn L/Cs and L/C Guarantees
that were outstanding during the immediately preceding month.
(iii) All Permitted Overadvance Obligations shall bear
interest, from and after the occurrence and during the
continuance of an Event of Default, at a rate equal to seven
(7.00) percentage points above the then extant Base Rate.
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2. Representations and Warranties. Borrower hereby represents and warrants to
Foothill that (a) the execution, delivery, and performance of this Amendment and
of the Agreement, as amended by this Amendment, are within its corporate powers,
have been duly authorized by all necessary corporate action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be bound or affected,
and (b) this Amendment and the Agreement, as amended by this Amendment,
constitute Borrower's legal, valid, and binding obligation, enforceable against
Borrower in accordance with its terms.
3. Conditions Precedent to Amendment. The satisfaction of each of the following,
unless waived or deferred by Foothill in its sole discretion, shall constitute
conditions precedent to the effectiveness of this Amendment: (a) Foothill shall
have received each of the following documents, duly executed, and each such
document shall be in full force and effect:
(1) the reaffirmation and consent of Guarantor attached hereto as Exhibit A;
(b) Foothill shall have received an amendment fee of $17,500.00.
(c) Foothill shall have received a certificate from the Secretary of Borrower
attesting to the incumbency and signatures of authorized officers of Borrower
and to the resolutions of Borrower's Board of Directors authorizing its
execution and delivery of this Amendment and the other Loan Documents to which
it is a party and contemplated in this Amendment and the performance of this
Amendment, the Agreement as amended by this Amendment, and such other Loan
Documents, and authorizing specific officers of Borrower to execute and deliver
the same;
(d) Foothill shall have received all required consents of Foothill's
participants in the Obligations to Foothill's execution, delivery, and
performance of this Amendment, in each case duly executed, in full force and
effect, and in form and substance satisfactory to Foothill; (e) The
representations and warranties in this Amendment, the Agreement as amended by
this Amendment, and the other Loan Documents shall be true and correct in all
respects on and as of the date hereof, as though made on such date (except to
the extent that such representations and warranties relate solely to an earlier
date);
(f) No Event of Default or event which with the giving of notice or passage of
time would constitute an Event of Default shall have occurred and be continuing
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on the date hereof, nor shall result from the consummation of the transactions
contemplated herein;
(g) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
governmental authority against Borrower, Foothill, or any of their Affiliates;
and
(h) All other documents and legal matters in connection with the
transactions contemplated by this Amendment shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to Foothill
and its counsel.
4. Effect on Agreement.
The Agreement, as amended hereby, shall be and remain in full force and effect
in accordance with its respective terms and hereby is ratified and confirmed in
all respects. The execution, delivery, and performance of this Amendment shall
not operate as a waiver of or, except as expressly set forth herein, as an
amendment, of any right, power, or remedy of Foothill under the Agreement, as in
effect prior to the date hereof.
5. Miscellaneous.
(a) Upon the effectiveness of this Amendment, each reference in the Agreement to
"this Agreement", "hereunder", "herein", "hereof" or words of like import
referring to the Agreement shall mean and refer to the Agreement as amended by
this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Agreement shall mean and refer to the Agreement
as amended by this Amendment.
(c) This Amendment shall be governed by and construed in accordance with the
laws of the State of California.
(d) This Amendment may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Amendment by signing any such counterpart.
Delivery of an executed counterpart of this Amendment by telefacsimile shall be
equally as effective as delivery of an original executed counterpart of this
Amendment. Any party delivering an executed counterpart of this Amendment by
telefacsimile also shall deliver an original executed counterpart of this
Amendment but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By____________________________
Title:________________________
NATIONAL-STANDARD COMPANY, an Indiana corporation
By____________________________
Title:________________________
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EXHIBIT A
---------
Reaffirmation and Consent
All capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to them in that certain Amendment Number
Five to Amended and Restated Loan and Security Agreement, dated as of July 1,
1999 (the "Amendment"). The undersigned hereby jointly and severally (a)
represent and warrant to Foothill that the execution, delivery, and performance
of this Reaffirmation and Consent are within each of their corporate or
organizational powers, have been duly authorized by all necessary corporate or
other organizational action, and are not in contravention of any law, rule, or
regulation, or any order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governmental authority, or of the terms of its charter or
bylaws, or of any contract or undertaking to which either of them is a party or
by which any of their properties may be bound or affected; (b) consents to the
amendment of the Agreement by the Amendment; (c) acknowledges and reaffirms its
obligations owing to Foothill under its respective guaranty and each of the
other Loan Documents to which it is party; and (d) agrees that each of the
guaranties and the other Loan Documents to which they are parties is and shall
remain in full force and effect. Although the undersigned have been informed of
the matters set forth herein and have acknowledged and agreed to same, they
understand that Foothill has no obligation to inform it of such matters in the
future or to seek its acknowledgement or agreement to future amendments, and
nothing herein shall create such a duty.
NATIONAL-STANDARD COMPANY OF CANADA,
LIMITED, a Canadian corporation
By ___________________________
Title:________________________
NATIONAL-STANDARD (PETERLEE) LIMITED,
a company organized under the
laws of England
By ___________________________
Title:________________________
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