AMENDMENT NUMBER ONE TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER ONE TO AMENDED AND RESTATED LOAN
AND SECURITY AGREEMENT (this "Amendment") is entered into as of
August 1, 2001, by and between Foothill Capital Corporation, a
California corporation ("Foothill") and Intergraph Corporation, a
Delaware 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 November 30, 1999 (as heretofore amended,
restated, supplemented, or otherwise modified, the "Loan
Agreement");
B. Borrower has requested Foothill to amend the Loan Agreement
as set forth in this Amendment;
C. Foothill is willing to so amend the Loan 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 Loan
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 Loan Agreement.
a. Section 1.1 of the Loan Agreement is hereby
amended by deleting the definition of "Supplemental Reserve"
in its entirety.
b. Section 1.1 of the Loan Agreement is hereby
amended by amending and restating the following defined terms in
their entirety:
"Business Day" means any day that is not a Saturday,
Sunday, or other day on which national banks are authorized or
required to close, except that, if a determination of a Business
Day shall relate to a LIBOR Rate Loan, the term "Business Day"
also shall exclude any day on which banks are closed for dealings
in Dollar deposits in the London interbank market.
"Maximum Amount" means $50,000,000.
"Reserve" means, as of any date of determination, an
amount equal to the product of (i) $214,286 times (ii) the number
of months (or any portion thereof) separating such date from
August 1, 2001; provided, however that such amount shall be
reduced by the amount of any payment or prepayment of the unpaid
principal balance of the Term Loan made in cash by Borrower to
Foothill on or after August 1, 2001; provided, further that in no
event shall the amount of the Reserve be less than zero (-0-).
Without limiting the generality of the foregoing and solely by
way of example, if no payments or prepayments of the unpaid
principal balance of the Term Loan are made on or after August 1,
2001, the amount of the Reserve would equal: (x) zero (-0-) as of
August 1, 2001; (y) $214,286 as of September 1, 2001; and (z)
$428,572 as of October 1, 2001.
c. Section 1.1 of the Loan Agreement is hereby
amended by adding the following defined terms in proper alphabeti-
cal order:
"Base LIBOR Rate" means the rate per annum, determined
by Foothill in accordance with its customary procedures, and
utilizing such electronic or other quotation sources as it
considers appropriate (rounded upwards, if necessary, to the next
1/16%), on the basis of the rates at which Dollar deposits are
offered to major banks in the London interbank market on or about
11:00 a.m. (California time) 2 Business Days prior to the
commencement of the applicable Interest Period, for a term and in
amounts comparable to the Interest Period and amount of the LIBOR
Rate Loan requested by Borrower in accordance with this
Agreement, which determination shall be conclusive in the absence
of manifest error.
"Base Rate" means, the rate of interest announced
within Xxxxx Fargo at its principal office in San Francisco as
its "prime rate", with the understanding that the "prime rate" is
one of Xxxxx Fargo's base rates (not necessarily the lowest of
such rates) and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto
and is evidenced by the recording thereof after its announcement
in such internal publication or publications as Xxxxx Fargo may
designate.
"Base Rate Loan" means each portion of an Advance or
the Term Loan that bears interest at a rate determined by
reference to the Base Rate.
"Base Rate Margin" means 0.125 percentage points;
provided, however, that effective on the date that Foothill
receives Borrower's audited financial statements for Borrower's
fiscal year ending on December 31, 2001, if Borrower's net income
for such fiscal year determined in accordance with GAAP, as
evidenced by such audited financial statements, shall have been
greater than $15,000,000, the Base Rate Margin shall be 0
percentage points; provided, further that if Borrower's net
income for Borrower's fiscal year ending on December 31, 2001 is
not greater than $15,000,000, Foothill will consider a potential
reduction in the Base Rate Margin, in Foothill's sole and
absolute discretion, based on Borrower's financial performance
during Borrower's fiscal year ending on December 31, 2002.
"Base Rate Term Loan Margin" means 0.125 percentage
points; provided, however, that effective on the date that
Foothill receives Borrower's audited financial statements for
Borrower's fiscal year ending on December 31, 2001, if Borrower's
net income for such fiscal year determined in accordance with
GAAP, as evidenced by such audited financial statements, shall
have been greater than $15,000,000, the Base Rate Term Loan
Margin shall be 0 percentage points; provided, further that if
Borrower's net income for Borrower's fiscal year ending on
December 31, 2001 is not greater than $15,000,000, Foothill will
consider a potential reduction in the Base Rate Term Loan Margin,
in Foothill's sole and absolute discretion, based on Borrower's
financial performance during Borrower's fiscal year ending on
December 31, 2002.
"Funding Losses" has the meaning set forth in Section
2.12(b)(ii).
"Interest Period" means, with respect to each LIBOR
Rate Loan, a period commencing on the date of the making of such
LIBOR Rate Loan and ending 1, 2, or 3 months thereafter;
provided, however, that (a) if any Interest Period would end on a
day that is not a Business Day, such Interest Period shall be
extended (subject to clauses (c)-(e) below) to the next
succeeding Business Day, (b) interest shall accrue at the
applicable rate based upon the LIBOR Rate from and including the
first day of each Interest Period to, but excluding, the day on
which any Interest Period expires, (c) any Interest Period that
would end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (d) with
respect to an Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period), the Interest Period shall end on the last
Business Day of the calendar month that is 1, 2, or 3 months
after the date on which the Interest Period began, as applicable,
and (e) Borrower may not elect an Interest Period which will end
after the Maturity Date.
"LIBOR Deadline" has the meaning set forth in Section
2.12(b)(i).
"LIBOR Notice" means a written notice in the form of
Exhibit L-1.
"LIBOR Rate" means, for each Interest Period for each
LIBOR Rate Loan, the rate per annum determined by Foothill
(rounded upwards, if necessary, to the next 1/16%) by dividing
(a) the Base LIBOR Rate for such Interest Period, by (b) 100%
minus the Reserve Percentage. The LIBOR Rate shall be adjusted
on and as of the effective day of any change in the Reserve
Percentage.
"LIBOR Rate Loan" means each portion of an Advance or
the Term Loan that bears interest at a rate determined by
reference to the LIBOR Rate.
"LIBOR Rate Margin" means 2.50 percentage points.
"LIBOR Rate Term Loan Margin" means 2.50 percentage
points.
"Reserve Percentage" means, on any day, the maximum
percentage prescribed by the Board of Governors of the Federal
Reserve System (or any successor Governmental Authority) for
determining the reserve requirements (including any basic,
supplemental, marginal, or emergency reserves) that are in effect
on such date with respect to eurocurrency funding (currently
referred to as "eurocurrency liabilities") of Foothill, but so
long as Foothill is not required or directed under applicable
regulations to maintain such reserves, the Reserve Percentage
shall be zero.
"Revolver Letter of Credit Reserve" means, as of any
date of determination, the Letter of Credit Usage minus the Term
Loan Letter of Credit Reserve.
"Term Loan Letter of Credit Reserve" means $8,000,000,
as such amount may be increased from time to time pursuant to
Section 2.3(b).
"Xxxxx Fargo" means Xxxxx Fargo Bank, National
Association, a national banking association.
d. Section 2.1(a) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
2.1 Revolving Advances.
(a) Subject to the terms and conditions of this
Agreement, Foothill agrees to make advances ("Advances") to
Borrower in an amount outstanding not to exceed at any one time
the lesser of (i) the Maximum Revolving Amount less the Revolver
Letter of Credit Reserve, or (ii) the Borrowing Base less the
Revolver Letter of Credit Reserve. For purposes of this
Agreement, "Borrowing Base", as of any date of determination,
shall mean the result of:
(x) the lesser of (i) the result of (A) 85%
of Eligible Domestic Accounts, plus (B) the lowest of
(1) 85% of Eligible Unbilled Accounts, (2) 40% of the
amount of credit availability created by the foregoing
clause (A), and (3) $20,000,000, plus (C) the lesser of
(1) 85% of Eligible Foreign Accounts, and (2)
$3,000,000, minus (D) the amount, if any, of the
Dilution Reserve, and (ii) an amount equal to the
Collections with respect to the Accounts of Borrower
for the immediately preceding 60 day period, minus
(y) the Reserve.
e. Section 2.2(a) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
2.2 Letters of Credit.
(a) Subject to the terms and conditions of this
Agreement, Foothill agrees to issue letters of credit for
the account of Borrower (each, an "L/C") or to issue
guarantees of payment (each such guaranty, an "L/C
Guaranty") with respect to letters of credit issued by an
issuing bank for the account of Borrower. Foothill shall
have no obligation to issue a Letter of Credit if any of the
following would result:
(i) the Revolver Letter of Credit Reserve
would exceed the Borrowing Base less the sum of the
amount of outstanding Advances, or
(ii) the Revolver Letter of Credit Reserve
would exceed the Maximum Revolving Amount less the
amount of outstanding Advances, or
(iii) the Letter of Credit Usage would exceed
$25,000,000, or
(iv) the outstanding Obligations (other than
under the Term Loan) would exceed the Maximum Revolving
Amount.
Borrower and Foothill acknowledge and agree that
certain of the letters of credit that are to be the subject of
L/C Guarantees may be outstanding on the Closing Date. Each
Letter of Credit shall have an expiry date no later than 60 days
prior to the date on which this Agreement is scheduled to
terminate under Section 3.4 and all such Letters of Credit shall
be in form and substance acceptable to Foothill in its sole
discretion. If Foothill is obligated to advance funds under a
Letter of Credit, Borrower immediately shall reimburse such
amount to Foothill and, in the absence of such reimbursement, the
amount so advanced immediately and automatically shall be deemed
to be an Advance hereunder and, thereafter, shall bear interest
at the rate then applicable to Advances under Section 2.6.
f. Section 2.3 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
2.3 Term Loan.
(a) Subject to the terms and conditions of this
Agreement, Foothill: (i) made a term loan to Borrower on the
Original Closing Date (in the original principal amount of
$20,000,000 (the "Initial Term Loan"); and (ii) made an
additional term loan to Borrower on the Old 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").
All amounts outstanding under the Term Loan shall constitute
Obligations. The Term Loan shall be repaid in monthly
installments of $214,286, which shall be payable in arrears, on
the first day of each month during the term hereof. The
outstanding unpaid principal balance and all accrued and unpaid
interest under the Term Loan shall be due and payable on the date
of termination of this Agreement, whether by its terms, by
prepayment, or by acceleration. Borrower may prepay the unpaid
principal balance of the Term Loan in whole or in part without
penalty.
(b) If at any time, (i) the sum of (A) the then
outstanding principal balance of the Term Loan, and (B) the Term
Loan Letter of Credit Reserve, is less than $18,000,000, and
(ii) an Event of Default has not occurred and is not occurring,
Borrower may make a written request to Foothill that the Term
Loan Letter of Credit Reserve be increased to an amount which
does not exceed the lesser of (x) $15,000,000 and (y) the
difference between (I) $18,000,000 and (II) the then outstanding
principal balance of the Term Loan. Upon the receipt by Foothill
of such written notice, the Term Loan Letter of Credit Reserve
may be increased by Foothill to the amount set forth in such
notice or such lesser amount as Foothill shall determine in its
discretion; provided, however that in no event shall the Term
Loan Letter of Credit Reserve be increased to an amount (1) which
exceeds $15,000,000, or (2) which would cause the sum of (X) the
then outstanding principal balance of the Term Loan, and (Y) the
resulting Term Loan Letter of Credit Reserve, to be greater than
$18,000,000.
g. Section 2.4 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
2.4 [Intentionally Deleted]
h. Sections 2.6(a), (b), (c) and (d) of the Loan
Agreement are hereby amended and restated in their entirety as follows:
2.6 Interest and Letter of Credit Fees: Rates,
Payments, and Calculations.
(a) Interest Rate. Except as provided in clause
(b) below, all Obligations (except for undrawn Letters of
Credit) shall bear interest as follows (i) if the relevant
Obligation is an Advance that is a LIBOR Rate Loan, at a per
annum rate equal to the LIBOR Rate plus the LIBOR Rate
Margin, (ii) if the relevant Obligation is a portion of the
Term Loan that is a LIBOR Rate Loan, at a per annum rate
equal to the LIBOR Rate plus the LIBOR Rate Term Loan
Margin, (iii) if the relevant Obligation is a portion of the
Term Loan that is a Base Rate Loan, at a per annum rate
equal to the Base Rate plus the Base Rate Term Loan Margin,
and (iv) otherwise, at a per annum rate equal to the Base
Rate plus the Base Rate Margin.
(b) Letter of Credit Fee. Borrower shall pay
Foothill a fee (in addition to the charges, commissions,
fees, and costs set forth in Section 2.2(d)) equal to 0.75%
per annum times the aggregate undrawn amount of all
outstanding Letters of Credit.
(c) Default Rate. Upon the occurrence and during
the continuation of an Event of Default, (i) all Obligations
(except for undrawn Letters of Credit) shall bear interest
at a per annum rate equal to 3.125 percentage points above
the per annum rate otherwise applicable thereto, and (ii)
the Letter of Credit fee provided in Section 2.6(b) shall be
increased to 3.75% per annum times the amount of the undrawn
Letters of Credit that were outstanding during the
immediately preceding month.
(d) Minimum Interest. In no event shall the rate
of interest chargeable hereunder for any day be less than
6.5% per annum. To the extent that interest accrued
hereunder at the rate set forth herein would be less than
the foregoing minimum daily rate, the interest rate
chargeable hereunder for such day automatically shall be
deemed increased to the minimum rate.
i. The following sentence is hereby added to Section
2.8 at the end thereof:
Notwithstanding the above, no such 'clearance' or
'float' charge shall be imposed upon any Collections constituting
the direct proceeds of any of the following:
(i) any litigation between Borrower and Intel Corporation; (ii)
the sale of Borrower's "South Campus" real property or any
portion thereof and any raw land which is owned by the Borrower;
or (iii) any Accounts, General Intangibles, or Negotiable
Collateral with respect to which an Affiliate of the Borrower is
the Account Debtor.
j. Sections 2.11(c) and (f) of the Loan Agreement
are hereby amended and restated in their entirety as follows:
(c) Unused Line Fee. On the first day of each month
after the Closing Date during the term of this Agreement, an
unused line fee in an amount equal to 0.20% per annum times the
Average Unused Portion of the then extant Maximum Revolving
Amount, which fee shall be fully earned when due;
(f) Monthly Agency Fee. On the first day of each month
after the Closing Date during the term of this Agreement, a
monthly agency fee in an amount equal to $5,000, which fee shall
be fully earned when due.
k. Section 2.12 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
2.12 LIBOR Option.
(a) Interest and Interest Payment Dates. In lieu
of having interest charged at the rate based upon the Base
Rate, Borrower shall have the option (the "LIBOR Option") to
have interest on all or a portion of the Advances or the
Term Loan be charged at a rate of interest based upon the
LIBOR Rate. Interest on LIBOR Rate Loans shall be payable
on the earliest of (i) the last day of the Interest Period
applicable thereto, (ii) the occurrence of an Event of
Default in consequence of which Foothill has elected to
accelerate the maturity of the Obligations, or (iii)
termination of this Agreement pursuant to the terms hereof.
On the last day of each applicable Interest Period, unless
Borrower properly has exercised the LIBOR Option with
respect thereto, the interest rate applicable to such LIBOR
Rate Loan automatically shall convert to the rate of
interest then applicable to Base Rate Loans of the same type
hereunder. At any time that an Event of Default has
occurred and is continuing, Borrower no longer shall have
the option to request that Advances or the Term Loan bear
interest at the LIBOR Rate and Foothill shall have the right
to convert the interest rate on all outstanding LIBOR Rate
Loans to the rate then applicable to Base Rate Loans
hereunder.
(b) LIBOR Election.
(i) Borrower may, at any time and from time
to time, so long as no Event of Default has occurred
and is continuing, elect to exercise the LIBOR Option
by notifying Foothill prior to 11:00 a.m. (California
time) at least 3 Business Days prior to the
commencement of the proposed Interest Period (the
"LIBOR Deadline"). Notice of Borrower's election of
the LIBOR Option for a permitted portion of the
Advances or the Term Loan and an Interest Period
pursuant to this Section shall be made by delivery to
Foothill of a LIBOR Notice received by Foothill before
the LIBOR Deadline, or by telephonic notice received by
Foothill before the LIBOR Deadline (to be confirmed by
delivery to Foothill of a LIBOR Notice received by
Foothill prior to 5:00 p.m. (California time) on the
same day.
(ii) Each LIBOR Notice shall be irrevocable
and binding on Borrower. In connection with each LIBOR
Rate Loan, Borrower shall indemnify, defend, and hold
Foothill harmless against any loss, cost, or expense
incurred by Foothill as a result of (a) the payment of
any principal of any LIBOR Rate Loan other than on the
last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the
conversion of any LIBOR Rate Loan other than on the
last day of the Interest Period applicable thereto, or
(c) the failure to borrow, convert, continue or prepay
any LIBOR Rate Loan on the date specified in any LIBOR
Notice delivered pursuant hereto (such losses, costs,
and expenses, collectively, "Funding Losses"). Funding
Losses shall be deemed to equal the amount determined
by Foothill to be the excess, if any, of (i) the amount
of interest that would have accrued on the principal
amount of such LIBOR Rate Loan had such event not
occurred, at the LIBOR Rate that would have been
applicable thereto, for the period from the date of
such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to
borrow, convert, or continue, for the period that would
have been the Interest Period therefor), minus (ii) the
amount of interest that would accrue on such principal
amount for such period at the interest rate which
Foothill would be offered were it to be offered, at the
commencement of such period, Dollar deposits of a
comparable amount and period in the London interbank
market. A certificate of Foothill delivered to
Borrower setting forth any amount or amounts that
Foothill is entitled to receive pursuant to this
Section shall be conclusive absent manifest error.
(iii) Borrower shall have not more than 5
LIBOR Rate Loans in effect at any given time. Borrower
only may exercise the LIBOR Option for LIBOR Rate Loans
of at least $1,000,000 and integral multiples of
$500,000 in excess thereof.
(c) Prepayments. Borrower may prepay LIBOR Rate
Loans at any time; provided, however, that in the event that
LIBOR Rate Loans are prepaid on any date that is not the
last day of the Interest Period applicable thereto,
including as a result of any automatic prepayment through
the required application by Foothill of proceeds of
Collections in accordance with Section 2.4(b) or for any
other reason, including early termination of the term of
this Agreement or acceleration of the Obligations pursuant
to the terms hereof, Borrower shall indemnify, defend, and
hold Foothill and its Participants harmless against any and
all Funding Losses in accordance with clause (b)(ii) above.
(d) Special Provisions Applicable to LIBOR Rate.
(i) The LIBOR Rate may be adjusted by
Foothill on a prospective basis to take into account
any additional or increased costs to Foothill of
maintaining or obtaining any eurodollar deposits or
increased costs due to changes in applicable law
occurring subsequent to the commencement of the then
applicable Interest Period, including changes in tax
laws (except changes of general applicability in
corporate income tax laws) and changes in the reserve
requirements imposed by the Board of Governors of the
Federal Reserve System (or any successor), excluding
the Reserve Percentage, which additional or increased
costs would increase the cost of funding loans bearing
interest at the LIBOR Rate. In any such event,
Foothill shall give Borrower notice of such a
determination and adjustment and, upon its receipt of
the notice from Foothill, Borrower may, by notice to
Foothill (y) require Foothill to furnish to Borrower a
statement setting forth the basis for adjusting such
LIBOR Rate and the method for determining the amount of
such adjustment, or (z) repay the LIBOR Rate Loans with
respect to which such adjustment is made (together with
any amounts due under clause (b)(ii) above).
(ii) In the event that any change in market
conditions or any law, regulation, treaty, or
directive, or any change therein or in the
interpretation or application thereof, shall at any
time after the date hereof, in the reasonable opinion
of Foothill, make it unlawful or impractical for
Foothill to fund or maintain LIBOR Advances or to
continue such funding or maintaining, or to determine
or charge interest rates at the LIBOR Rate, Foothill
shall give notice of such changed circumstances to
Borrower and (y) in the case of any LIBOR Rate Loans
that are outstanding, the date specified in Foothill's
notice shall be deemed to be the last day of the
Interest Period of such LIBOR Rate Loans, and interest
upon the LIBOR Rate Loans thereafter shall accrue
interest at the rate then applicable to Base Rate
Loans, and (z) Borrower shall not be entitled to elect
the LIBOR Option until Foothill determines that it
would no longer be unlawful or impractical to do so.
(e) No Requirement of Matched Funding. Anything
to the contrary contained herein notwithstanding, neither
Foothill, nor any of its Participants, is required actually
to acquire eurodollar deposits to fund or otherwise match
fund any Obligation as to which interest accrues at the
LIBOR Rate. The provisions of this Section shall apply as
if Foothill or its Participants had match funded any
Obligation as to which interest is accruing at the LIBOR
Rate by acquiring eurodollar deposits for each Interest
Period in the amount of the LIBOR Rate Loans.
l. Section 3.4 of the Loan Agreement is hereby
amended and restated in its entirety 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, 2004 (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.
m. Section 3.6 of the Loan Agreement is hereby
amended and restated in its entirety 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 full, in cash, the Obligations (including
either (i) providing cash collateral to be held by Foothill in an
amount equal to 102% of the undrawn amount of the Letters of
Credit plus the Foreign Currency Reserve (which cash collateral
shall be held by Foothill so long as any one of the Letters of
Credit are outstanding, and shall be returned to Borrower in
direct proportion to the amount equal to 102% of the undrawn
amounts of such Letters of Credit as each of such Letters of
Credit are no longer outstanding, solely to the extent that (A)
all of Foothill's obligations under this Agreement and the other
Loan Documents have been terminated, and (B) such cash collateral
remains after the indefeasible payment in full, in cash of all
Obligations, including, without limitation, all Obligations with
respect to Letters of Credit), (ii) causing the original Letters
of Credit to be returned to Foothill, or (iii) providing to
Foothill an irrevocable letter of credit, in form and substance
acceptable to Foothill in its discretion, from another financial
institution satisfactory to Foothill in its discretion, in an
amount equal to 102% of the undrawn amount of the Letters of
Credit plus the Foreign Currency Reserve, which amount shall be
reduced to the extent that the Letters of Credit are no longer
outstanding), together with a premium (the "Early Termination
Premium") equal to $1,000,000; provided, however, that no such
Early Termination Premium shall be due if Borrower terminates
this Agreement pursuant to this Section 3.6 on or after January
8, 2003. The Early Termination Premium provided for in this
section shall be deemed included in the Obligations.
n. Section 6.10(a) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
(a) At its expense, keep the Personal Property
Collateral insured against loss or damage by fire, theft,
explosion, sprinklers, and all other hazards and risks, and in
such amounts, as are ordinarily insured against by other owners
in similar businesses. Borrower also shall maintain public
liability, product liability, and property damage insurance
relating to Borrower's ownership and use of the Personal Property
Collateral, as well as insurance against larceny, embezzlement,
and criminal misappropriation.
o. Section 7.20(b) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
(b) Net Worth. Net Worth, as of the end of each fiscal
quarter of the Borrower of at least $250,000,000.
2. Representations and Warranties; Covenants.
Borrower hereby represents and warrants to Foothill that: (a)
the execution, delivery, and performance of this Amendment and
of the Loan 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 Loan 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, shall constitute
conditions precedent to the effectiveness of this Amendment:
a. Foothill shall have received the reaffir-
mation 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;
b. Foothill shall have received all required
consents of Foothill's participants in the Obligations to
Foothill's execution, delivery, and performance of this
Amendment and each such consent shall be in form and substance
satisfactory to Foothill, duly executed, and in full force and
effect;
c. The representations and warranties in
this Amendment, the Loan 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);
d. 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;
e. 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;
f. 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
g. 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 Loan Agreement. The Loan 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 Loan Agreement, as
in effect prior to the date hereof.
5. 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 Loan
Agreement, as amended by this Amendment.
6. Miscellaneous.
a. Upon the effectiveness of this Amendment,
each reference in the Loan Agreement to "this Agreement",
"hereunder", "herein", "hereof" or words of like import referring
to the Loan Agreement shall mean and refer to the Loan 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 Loan Agreement shall mean and refer to the Loan 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.
[Remainder of page left intentionally blank.]
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/ Xxxxxx Xxxxxxx
------------------------
Title: Vice President
----------------
INTERGRAPH CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Title: Vice President
----------------
and Treasurer
----------------
EXHIBIT A
----------
REAFFIRMATION AND CONSENT
-------------------------
Reference is made to that certain Amendment Number One
to Amended and Restated Loan and Security Agreement, dated as of
August 1, 2001 (the "Amendment") by and between Foothill Capital
Corporation, a California corporation ("Foothill") and Intergraph
Corporation, a Delaware corporation ("Borrower"). All
capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in that certain Amended
and Restated Loan and Security Agreement, dated as of November
30, 1999 (the "Loan Agreement"), by and between Foothill and
Borrower.
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 Loan 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: Director
--------------------
INTERGRAPH PUBLIC SAFETY, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Director
-------------------
