{"id":41163,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/modification-agreement-wells-fargo-bank-na-and-schuff-steel-co.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"modification-agreement-wells-fargo-bank-na-and-schuff-steel-co","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/modification-agreement-wells-fargo-bank-na-and-schuff-steel-co.html","title":{"rendered":"Modification Agreement &#8211; Wells Fargo Bank NA and Schuff Steel Co."},"content":{"rendered":"<pre>                             MODIFICATION AGREEMENT\n\n\n         BY THIS MODIFICATION AGREEMENT (the 'Agreement'), made and entered into\nas of the 10th day of March, 1999, WELLS FARGO BANK, NATIONAL ASSOCIATION, a\nnational banking association, whose address is 100 West Washington, Phoenix,\nArizona 85003 (hereinafter called 'Lender'), and SCHUFF STEEL COMPANY, a\nDelaware corporation, whose address is 420 South 19th Avenue, Phoenix, Arizona\n85009 (hereinafter called 'Borrower'), in consideration of the mutual covenants\nherein contained and other good and valuable consideration, the receipt and\nsufficiency of which is hereby acknowledged, hereby confirm and agree as\nfollows:\n\nSECTION 1. RECITALS.\n\n     1.1 Borrower and Lender, as Lender, Arranger, Administrative Agent, Issuing\nBank and Swing Line Lender, entered into a Credit Agreement dated June 30, 1998\n(the 'Credit Agreement'), which provided for, among other things, (a) a\nrevolving line of credit (the 'RLC') in the amount of $25,000,000.00, evidenced\nby a Revolving Promissory Note dated June 30, 1998, executed by the Borrower\n(the 'RLC Note'), and (b) a revolving line of credit (the 'Swing Line' and with\nthe RLC, the 'Loans') in the amount of $5,000,000.00, evidenced by a Revolving\nPromissory Line dated June 30, 1998, executed by the Company (the 'Swing Line\nNote' and with the RLC Note the 'Notes'), all upon the terms and conditions\ncontained therein. All undefined capitalized terms used herein shall have the\nmeaning given them in the Credit Agreement. The Credit Agreement, the Notes and\nall other agreements, documents and instruments relating to the Loans are\nreferred to as the Loan Documents.\n\n     1.2 As of the date hereof, prior to the effect of the modifications\ncontained herein, the outstanding principal balance of the RLC is $0 and of the\nSwing Line is $0.\n\n     1.3 Borrower and Lender desire to modify the Loan Documents as set forth\nherein.\n\nSECTION 2. LOAN AGREEMENT.\n\n     2.1 Section 6.11 of the Credit Agreement is hereby amended to read as\nfollows:\n\n          6.11 Financial Covenants. Permit the following (collectively, the\n     'Financial Covenants'):\n\n               (a) Its Leverage Ratio at the end of any Fiscal Quarter to exceed\n          3.75 to 1.0.\n\n               (b) Its Interest Coverage Ratio at the end of any Fiscal Quarter\n          for the prior twelve-month period to be less \n\n          than 2.25 to 1.0.\n\n               (c) Its Fixed Charge Coverage Ratio at the end of any Fiscal\n          Quarter for the prior twelve-month period to be less than 1.25 to 1.0.\n\n               (d) Its EBITDA at the end of any Fiscal Quarter to be less than\n          $25,000,000.00 for the prior twelve-month period. For this purpose,\n          EBITDA will be calculated on a pro-forma basis to include all entities\n          acquired.\n\n     2.2 Article 5 of the Credit Agreement is hereby amended by the addition of\nthe following Section:\n\n          Section 5.12 Year 2000 Covenant. Borrower shall ensure that the\n     following are Year 2000 Compliant in a timely manner, but in no event later\n     than December 31, 1999: (a) Borrower itself; and (b) any other major\n     commercial properties and entities in which Borrower holds a controlling\n     interest. Borrower shall further make reasonable inquiries of and request\n     reasonable validation that each of the following are similarly Year 2000\n     Compliant: (x) all major tenants or other entities from which Borrower\n     receives payments; and (y) all major contractors, suppliers, service\n     providers and vendors of Borrower. As used in this paragraph, 'major' shall\n     mean properties or entities the failure of which to be Year 2000 Compliant\n     would have a material adverse economic impact upon Borrower. The term 'Year\n     2000 Compliant' shall mean, in regard to any property or entity, that all\n     software, hardware, equipment, goods or systems utilized by or material to\n     the physical operations, business operations, or financial reporting of\n     such property or entity (collectively, the 'systems') will properly perform\n     date sensitive functions before, during and after the year 2000. In\n     furtherance of this covenant, Borrower shall, in addition to any other\n     necessary actions, perform a comprehensive review and assessment of all\n     systems of Borrower, and shall adopt a detailed plan, with itemized budget,\n     for the testing, remediation, and monitoring of such systems. Borrower\n     shall, within thirty business days of Lender's written request, provide to\n     Lender such certifications or other evidence of Borrower's compliance with\n     the terms of this paragraph as Lender may from time to time reasonably\n     require.\n\n     2.3 Schedule 3.1 of the Credit Agreement is hereby amended to read as\nattached hereto.\n\n     2.4 Exhibit B of the Credit Agreement is hereby amended to read as attached\nhereto.\n\n                                      -2-\n\nSECTION 3. OTHER MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.\n\n     3.1 All references to the Credit Agreement in the Loan Documents are hereby\namended to refer to the Credit Agreement as hereby amended.\n\n     3.2 Borrower acknowledges that the indebtedness evidenced by the Notes is\njust and owing, that the balance thereof is correctly shown in the records of\nLender as of the date hereof, and Borrower agrees to pay the indebtedness\nevidenced by the Notes according to the terms thereof, as herein modified.\n\n     3.3 Borrower hereby reaffirms to Lender each of the representations,\nwarranties, covenants and agreements of Borrower set forth in the Notes and the\nCredit Agreement, with the same force and effect as if each were separately\nstated herein and made as of the date hereof.\n\n     3.4 Borrower hereby ratifies, reaffirms, acknowledges, and agrees that the\nNotes and the Credit Agreement, represent valid, enforceable and collectible\nobligations of Borrower, and that there are no existing claims, defenses,\npersonal or otherwise, or rights of setoff whatsoever with respect to any of\nthese documents or instruments. In addition, Borrower hereby expressly waives,\nreleases and absolutely and forever discharges Lender and its present and former\nshareholders, directors, officers, employees and agents, and their separate and\nrespective heirs, personal representatives, successors and assigns, from any and\nall liabilities, claims, demands, damages, action and causes of action, whether\nknown or unknown and whether contingent or matured, that Borrower may now have,\nor has had prior to the date hereof, or that may hereafter arise with respect to\nacts, omissions or events occurring prior to the date hereof and, without\nlimiting the generality of the foregoing, from any and all liabilities, claims,\ndemands, damages, actions and causes of action, known or unknown, contingent or\nmatured, arising out of, or in any way connected with, the Loans. Borrower\nfurther acknowledges and represents that no event has occurred and no condition\nexists that, after notice or lapse of time, or both, would constitute a default\nunder this Agreement, the Notes or the Credit Agreement.\n\n     3.5 All terms, conditions and provisions of the Notes and the Credit\nAgreement are continued in full force and effect and shall remain unaffected and\nunchanged except as specifically amended hereby. The Notes and the Credit\nAgreement, as amended hereby, are hereby ratified and reaffirmed by Borrower,\nand Borrower specifically acknowledges the validity and enforceability thereof.\n\nSECTION 4. GENERAL.\n\n     4.1 This Agreement in no way acts as a release or relinquishment of those\nrights securing payment of the Loans. Such rights are hereby ratified,\nconfirmed, renewed and extended by Borrower in all respects.\n\n                                      -3-\n\n     4.2 The modifications contained herein shall not be binding upon Lender\nuntil Lender shall have received all of the following:\n\n          (a) An original of this Agreement fully executed by the Borrower.\n\n          (b) An original Guaranty, an original Security Agreement and original\n     UCC-1 Financing Statements executed by each Subsidiary of Borrower.\n\n          (c) Such resolutions or authorizations and such other documents as\n     Lender may require relating to the existence and good standing of the\n     Borrower and each Subsidiary and the authority of any person executing this\n     Agreement or other documents on behalf of the Borrower and each Subsidiary.\n\n     4.3 Borrower shall execute and deliver such additional documents and do\nsuch other acts as Lender may reasonably require to fully implement the intent\nof this Agreement.\n\n     4.4 Borrower shall pay all costs and expenses, including, but not limited\nto, reasonable attorneys' fees incurred by Lender in connection herewith,\nwhether or not all of the conditions described in Paragraph 4.2 above are\nsatisfied. Lender, at its option, but without any obligation to do so, may\nadvance funds to pay any such costs and expenses that are the obligation of the\nBorrower, and all such funds advanced shall bear interest at the highest rate\nprovided in the RLC Note and shall be due and payable upon demand.\n\n     4.5 Notwithstanding anything to the contrary contained herein or in any\nother instrument executed by Borrower or Lender, or in any other action or\nconduct undertaken by Borrower or Lender on or before the date hereof, the\nagreements, covenants and provisions contained herein shall constitute the only\nevidence of Lender's consent to modify the terms and provisions of the Credit\nAgreement. Accordingly, no express or implied consent to any further\nmodifications involving any of the matters set forth in this Agreement or\notherwise shall be inferred or implied by Lender's execution of this Agreement.\nFurther, Lender's execution of this Agreement shall not constitute a waiver\n(either express or implied) of the requirement that any further modification of\nthe Loans or of the Notes or the Credit Agreement, shall require the express\nwritten approval of Lender; no such approval (either express or implied) has\nbeen given as of the date hereof.\n\n     4.6 Time is hereby declared to be of the essence hereof of the Loans, of\nthe Notes and of the Credit Agreement, and Lender requires, and Borrower agrees\nto, strict performance of each and every covenant, condition, provision and\nagreement hereof, of the Notes and the Credit Agreement.\n\n                                      -4-\n\n     4.7 This Agreement shall be binding upon, and shall inure to the benefit\nof, the parties hereto and their heirs, personal representatives, successors and\nassigns.\n\n     4.8 This Agreement is made for the sole protection and benefit of the\nparties hereto, and no other person or entity shall have any right of action\nhereon.\n\n     4.9 This Agreement shall be governed by and construed according to the laws\nof the State of Arizona.\n\n     IN WITNESS WHEREOF, these presents are executed as of the date indicated\nabove.\n\n                                    SCHUFF STEEL COMPANY, a Delaware corporation\n\n\n\n                                    By:   \/s\/ Kenneth F. Zylstra\n                                    Name: Kenneth F. Zylstra\n                                    Its:  Vice President and Chief \n                                          Financial Officer\n\n                                    COMPANY\n\n\n                                    WELLS FARGO BANK, NATIONAL\n                                    ASSOCIATION, a national banking association\n\n\n\n                                    By:   \/s\/ Tim Dillingham\n                                    Name: Tim Dillingham\n                                    Its:  Vice President\n\n                                    LENDER\n\n                                      -5-\n\n                                  SCHEDULE 3.1\n\n                                  PRICING GRID\n\n\n<font size=\"2\">\n                   Eurodollar Rate\nLeverage Ratio         Spread          Base Rate Spread     Facility Fee Rate\n--------------     ---------------     ----------------     -----------------\n                                                     \n3.50. or higher         3.00%               1.000%               .500%\n3.25. or higher         2.75%                .750%               .500%\n3.00. or higher         2.50%                .500%               .375%\n2.50. or higher         2.25%                .250%               .375%\nbelow 2.50.             2.00%                   0%               .250%\n<\/font>\n\n                                   EXHIBIT 'B'\n\n                             COMPLIANCE CERTIFICATE\n                         FOR FISCAL QUARTER\/YEAR ENDING\n                             ________________, 19__\n\n\nWells Fargo Bank, National Association\n100 West Washington\nPhoenix, Arizona  85003\n\nAttn: Timothy J. Dillingham                           Date: ____________________\n      #4101-251\n\nDear Ladies and Gentlemen:\n\n     This Compliance Certificate refers to the Credit Agreement dated as of June\n30, 1998 (as it may hereafter be amended, modified, extended or restated from\ntime to time, the 'Credit Agreement'), among SCHUFF STEEL COMPANY, a Delaware\ncorporation ('Borrower'), the Lenders named therein, and WELLS FARGO BANK,\nNATIONAL ASSOCIATION, as Administrative Agent for the Lenders and as Arranger,\nIssuing Bank and Swing Line Lender. Capitalized terms used and not otherwise\ndefined herein shall have the meanings assigned to such terms in the Credit\nAgreement.\n\n     Pursuant to Section 7.1 of the Credit Agreement, the undersigned certifies\nthat:\n\n     1. Enclosed are the required financial statements for the [fiscal quarter]\n[fiscal year] ending _________________ ('Reporting Period') for Borrower as\nrequired under Section 7.1 of the Credit Agreement.\n\n     2. To the best of the undersigned's knowledge, no 'Event of Default' or\n'Default' has occurred [or if so, specifying the nature and extent thereof and\nany corrective actions taken or to be taken].\n\n     3. As of the last day of the Reporting Period, the computations below were\ntrue and correct:\n\nI.   SECTION 6.11(a) LEVERAGE RATIO\n\n     Numerator:                              Net Funded Debt _________________A\n\n          Divided by\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8773,9312],"corporate_contracts_industries":[9415,9481],"corporate_contracts_types":[9560,9567],"class_list":["post-41163","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-schuff-international-inc","corporate_contracts_companies-wells-fargo---co","corporate_contracts_industries-financial__banks","corporate_contracts_industries-construction__specialty","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41163","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41163"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41163"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41163"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41163"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}