AMENDMENT NUMBER THREE TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER THREE TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Amendment") is entered into as of February 19, 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, and that certain
Amendment Number Two to Amended and Restated Loan and Security
Agreement, dated as of September 30, 1998 (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 to,
among other things, amend the net worth covenant, all 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 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:
"Third Amendment" means that certain Amendment Number
Three to Amended and Restated Loan and Security Agreement, dated as of
February 19, 1999, between Foothill and Borrower.
"Third Amendment Effective Date" means the date, if
ever, that all of the conditions set forth in Section 5 of the Third
Amendment shall be satisfied (or waived by Foothill in its sole
discretion).
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b. Section 6.13(a) of the Agreement hereby
is amended and restated in its entirety as follows:
(a) Net Worth. A consolidated net worth, determined
in accordance with GAAP, of Borrower and its Subsidiaries for each of
the following periods, measured as of the last day of such period, of
not less than the amount shown below for the period corresponding
thereto:
=======================================================================
Period: Net Worth:
------- ----------
the 3 month period ending on or about ($31,500,000)
December 31, 1998
-----------------------------------------------------------------------
the 3 month period ending on or about March ($35,000,000)
31, 1999
-----------------------------------------------------------------------
the 3 month period ending on or about June ($34,000,000)
30, 1999
-----------------------------------------------------------------------
the 3 month period ending on or about ($33,000,000)
September 30, 1999
-----------------------------------------------------------------------
the 3 month period ending on or about ($33,000,000)
December 31, 1999
the 3 month period ending on or about March ($32,000,000)
31, 2000
-----------------------------------------------------------------------
the 3 month period ending on or about June ($31,000,000)
30, 2000
-----------------------------------------------------------------------
the 3 month period ending on or about ($30,000,000)
September 30, 2000, and ending on or about
-----------------------------------------------------------------------
each December 31st, March 31st, June 30th,
and September 30th thereafter
==========================================================================
2. [Intentionally Omitted]
3. 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
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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.
4. 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 payment of
an amendment fee in the amount of $5,000, which shall be fully earned,
non-refundable, and due and payable concurrently with the execution and
delivery of this Amendment (regardless of whether all conditions herein are
satisfied or paid);
b. Foothill shall have received the
reaffirmation and consent of Guarantor attached hereto as Exhibit A, duly
executed and delivered by an authorized official of each entity thereof;
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 on the date hereof, nor shall result from the
consummation of the transactions contemplated herein;
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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.
5. [Intentionally Omitted]
6. 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.
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
efer 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.
[remainder of page intentionally left blank]
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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
Three to Amended and Restated Loan and Security Agreement, dated as of February
19, 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 COMPANY, LTD., a company
organized under the laws of England
By ___________________________
Title:________________________
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