AMENDMENT NUMBER FIVE TO
LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER FIVE TO LOAN AND SECURITY
AGREEMENT (this "Amendment") is entered into as of October 26, 1999,
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, reduce the minimum Net Worth covenant for Borrower's
fiscal quarter ending September 30, 1999 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. Section 7.20(b) of the Agreement
hereby is amended such that for the fiscal quarter ending September 30,
1999, the minimum Net Worth covenant amount shall be reduced from
$300,000,000 to $260,000,000.
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 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 October 29, 1999, shall constitute conditions
precedent to the effectiveness of this Amendment:
a. 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;
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
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 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. 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.
6. 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.
[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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________
Title: Vice President
____________________
INTERGRAPH CORPORATION, a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Title: VP & Treasurer
___________________
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 Loan and Security Agreement, dated as of October 26, 1999
(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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
Title: EVP & CFO
___________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
INTERGRAPH DELAWARE, INC., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
Title: EVP & CFO
___________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇