AMENDMENT NUMBER TWO TO
LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER TWO TO LOAN AND SECURITY
AGREEMENT (this "Amendment") is entered into as of November 25,
1997, by and between Foothill Capital Corporation, a California
corporation ("Foothill"), on the one hand, and Intergraph
Corporation, a Delaware corporation ("Borrower"), with reference
to the following facts:
A. Foothill and Borrower heretofore have entered into that
certain Loan and Security Agreement, dated as of December 20,
1996 (as heretofore amended, supplemented, or otherwise modified,
the "Agreement");
B. Borrower has requested Foothill to amend the Agreement
to, among other things, extend the Maturity Date, increase the
amount of the Term Loan and modify the Reserve in connection
therewith, and increase the Maximum Amount, 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. 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 premises 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:
"Additional Term Loan" has the meaning set forth in Section 2.3.
"Initial Term Loan" has the meaning set forth in Section 2.3.
"Second Amendment" means that certain Amendment
Number Two to Loan and Security Agreement, dated as of
November 25, 1997, between Foothill and Borrower.
"Second Amendment Closing Date" means the first
date on which all of the conditions to the effectiveness of
the Second Amendment have been satisfied (or waived or
postponed by Foothill in its sole discretion) pursuant to
the terms thereof.
b. The following definitions contained in Section 1.1 of
the Agreement are amended and restated in their entirety to read
as follows:
"Maximum Amount" means $125,000,000.
"Reserve" means, as of any date of
determination, an amount equal to: (a) from and after the
Second Amendment Closing Date until December 31, 1997, zero
(-0-); and (b) thereafter, an amount equal the product of
(i) $297,619 times (ii) the number of months (or any
portions thereof) separating such date from December 31,
1997. Without limiting the generality of the foregoing and
solely by way of example, the amount of the Reserve would
equal: (x) zero (-0-) as of December 1, 1997; (y) $297,619
as of January 1, 1998; and (z) $595,238 as of February 1,
1998.
c. Section 2.2(a)(ii) of the Agreement hereby is amended
and restated in its entirety to read as follows:
(ii) the Letter of Credit
Usage would exceed the lower of (y) the Maximum
Revolving Amount less the amount of outstanding
Advances, or (z) $75,000,000, or
d. Section 2.3 of the Agreement hereby is amended and
restated in its entirety to read as follows:
2.3 Term Loan. Subject to the terms and
conditions of this Agreement, Foothill: (a) agreed to make a
term loan to Borrower on the Closing Date (in the original
principal amount of $20,000,000 (the "Initial Term Loan");
and (b) has agreed to make an additional term loan to
Borrower on the Second Amendment Closing Date in the
original principal amount of $5,000,000 (the "Additional
Term Loan"; the Initial Term Loan and the Additional Term
Loan are referred to, collectively, as the "Term Loan").
The outstanding principal balance and all accrued and unpaid
interest under the Term Loan shall not be due and payable
until the earlier to occur of (a) the Maturity Date, and (b)
the date of termination of this Agreement, whether by its
terms, by acceleration, or otherwise. The unpaid principal
balance of the Term Loan may not be prepaid in whole or in
part. All amounts outstanding under the Term Loan shall
constitute Obligations.
e. Section 3.4 of the Agreement hereby is amended and
restated in its entirety to read as follows:
3.4 Term. This Agreement shall become effective
upon the execution and delivery hereof by Borrower and
Foothill and shall continue in full force and effect for a
term ending on January 7, 2001 (the "Maturity Date"). The
foregoing notwithstanding, Foothill shall have the right to
terminate its obligations under this Agreement immediately
and without notice upon the occurrence and during the
continuation of an Event of Default.
f. Section 3.6 of the Agreement hereby is amended and
restated in its entirety to read as follows:
3.6 Early Termination by Borrower. Borrower has
the option, at any time prior to the Maturity Date and upon
60 days prior written notice to Foothill, to terminate this
Agreement by paying to Foothill, in cash, the Obligations
(including an amount equal to 102% of the undrawn amount of
the Letters of Credit), in full, together with a premium
(the "Early Termination Premium") equal to (a) during the
first 30 months after the Closing Date, the product of (i)
0.10% times (ii) the Maximum Amount times (iii) the number
of months (including partial months) remaining until the
Maturity Date, (b) during the next 6 months, $1,000,000, and
(c) thereafter, $500,000.
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 on or before the Second Amendment Closing
Date, unless otherwise specified below, shall constitute
conditions precedent to the effectiveness of this Amendment:
a. Payment to Foothill by Borrower in immediately
available funds of an amendment fee in the amount of $225,000,
which fee shall be fully earned, non-refundable, due, and
payable, upon the execution and delivery of this Amendment by
Foothill and Borrower, and which fee Borrower hereby authorizes
Foothill to charge to Borrower's loan account. Solely for
reference purposes among Foothill and its participants in the
Obligations, such amendment fee shall be segregated into 3
components, consisting of "Component A" in the amount of
$100,000, "Component B" in the amount of $62,500, and "Component
C" in the amount of $62,500;
b. Foothill shall have received the reaffirmation and
consent of each of the Obligors (other than Borrower) attached
hereto as Exhibit A, duly executed and delivered by the
respective authorized officials thereof;
c. Foothill shall have received each of the following
documents, duly executed, and each such document shall be in full
force and effect:
(1) duly executed amendments of the
Mortgages and endorsements to the Mortgage Policies
as Foothill may require, in each case in form and
substance satisfactory to Foothill;
(2) all required consents of Foothill's
participants in the Obligations to Foothill's
execution, delivery, and performance of this
Amendment and the commitments of such participants
(on terms and conditions satisfactory to Foothill)
to participate in the Obligations after giving effect
to this Amendment;
d. 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 performance of this Amendment
and the Agreement as amended by this Amendment, and authorizing
specific officers of Borrower to execute and deliver the same;
e. Foothill shall have received an opinion of Borrower's
counsel in form and substance satisfactory to Foothill in its
sole discretion;
f. [intentionally omitted]
g. 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);
h. 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 on the date hereof, nor
shall result from the consummation of the transactions
contemplated herein;
i. 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;
j. The Collateral shall not have declined materially in
value from the values set forth in the most recent appraisals or
field examinations previously done by Foothill; and
k. 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. Condition Subsequent to Second Amendment and Related
Reserve. Each of the following shall constitute a condition
subsequent to the Second Amendment:
a. Foothill shall have received searches reflecting the
filing of such supplemental financing statements as Foothill may
require (including with respect to the filing offices for:
Arizona; Hawaii; and Allegheny County, Pennsylvania); and
b. Foothill shall have received updates of the most recent
appraisals of the Real Property Collateral and of the Equipment
that were conducted on or prior to the Closing Date, in each case
satisfactory to Foothill.
Until such time as each of the conditions in this Section 4 have
been satisfied, and notwithstanding anything in the Loan
Agreement or the other Loan Documents to the contrary, Foothill
may create and maintain against the Borrowing Base an additional
reserve in the amount of $5,000,000.
5. 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.
6. Further Assurances. Borrower shall execute and deliver
all agreements, documents, and instruments, in form and substance
satisfactory to Foothill, and take all actions as Foothill may
reasonably request from time to time, to perfect and maintain the
perfection and priority of Foothill's security interests in the
Collateral and the Real Property, and to fully consummate the
transactions contemplated under this Amendment and the Agreement,
as amended by this Amendment.
7. 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 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.
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 /s/ Xxxxx Xxxx
--------------------------
Title: Vice President
----------------------
INTERGRAPH CORPORATION, a Delaware corporation
By /s/ Xxxxx X. Xxxxxx
----------------------------
Title: Executive Vice President
-------------------------
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 Two to Loan and Security
Agreement, dated as of November 25, 1997 (the "Amendment"). Each
of the undersigned hereby (a) represents and warrants to Foothill
that the execution, delivery, and performance of this
Reaffirmation and Consent 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; (b) consents to the amendment of the Agreement by the
Amendment; (c) acknowledges and reaffirms its obligations owing
to Foothill under the Pledge Agreement and any other Loan
Documents to which it is party; and (d) agrees that each of the
Pledge Agreement and any other Loan Documents to which it is a
party is and shall remain in full force and effect. Although
each of the undersigned has been informed of the matters set
forth herein and has acknowledged and agreed to same, it
understands 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.
M&S COMPUTING INVESTMENTS, INC., a
Delaware corporation
By /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Treasurer
--------------------------
INTERGRAPH DELAWARE, INC., a Delaware
corporation
By /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Treasurer
--------------------------
