Exhibit 10.70
XXXXXXX NAVIGATION LIMITED
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this "Amendment") is entered into as of October 20,
1999 by and among XXXXXXX NAVIGATION LIMITED, a California corporation having
its chief executive office at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
(the "Borrower") and FLEET NATIONAL BANK, a national banking association
organized under the laws of the United States and having an office at Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as the Agent and as a Lender,
BANKBOSTON, N.A., a national banking association, organized under the laws of
the United States and having an office at Xxx Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as the Syndication Agent and as a Lender, SANWA BANK
CALIFORNIA, a banking corporation organized under the laws of the State of
California and having an office at 000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000, as a Lender, and ABN AMRO BANK N.V., a Netherlands banking
corporation having an office at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, as a Lender, under the Loan Agreement (as defined
below), to which reference is made for the definitions of all capitalized terms,
used, but not otherwise defined, herein.
R E C I T A L S
WHEREAS, the parties have entered into a Loan Agreement dated as of August
27, 1997 among the Borrower, the Agent, the Syndication Agent, and the lenders
from time to time party thereto (the "Lenders"), as amended by a Letter of
Amendment dated December 17, 1997, and a Second Letter of Amendment dated August
11, 1998 and a Third Amendment dated as of February 16, 1999 (the "Agreement"),
pursuant to which the Lenders issued a Revolving Credit Loan Commitment to the
Borrower in the maximum principal amount of $50,000,000;
WHEREAS, pursuant to a certain Waiver Letter dated October 27, 1998 and a
certain Supplement to Loan Agreement and Additional Waiver Letter dated
December 9, 1998, the Borrower was granted a limited waiver with respect to the
Borrower's compliance with certain covenants contained in the Agreement for the
Borrower's fiscal quarters ended October 2, 1998 and January 1, 1999,
conditional upon the satisfaction of certain specified waiver conditions
contained therein on or prior to February 16, 1999, which was satisfied by the
above-referenced Third Amendment;
WHEREAS, the Borrower has requested the Agent and the Lenders to further
amend the Agreement as hereinafter set forth and the Agent and the Lenders are
willing to do so;
NOW THEREFORE, in consideration of the mutual benefits to be derived from
the parties' continuing relationship under the Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower, the Agent, the Syndication Agent, and the Lenders
hereby agree that the Agreement is hereby amended, effective as of the date
first set forth above (the "Effective Date"), as follows:
1. Section 1.1 of the Agreement is hereby further amended by the addition
of the following new defined term to be added alphabetically thereto:
"Allowed Repurchase" means the repurchase by the Borrower from certain of
Borrower's stockholders of up to an aggregate of $30,000,000 of Borrower's
capital stock with the proceeds of the Borrower's sale of certain assets.
2. Section 5.1.10 of the Agreement is hereby amended in its entirety to
read as follows:
Section 5.1.10. Maximum Ratio of Total Funded Debt to Total Capitalization.
Commencing September 30, 1999, maintain a ratio of (i) Total Funded Debt to (ii)
Total Capitalization of less than .7:1.00.
3. Section 5.1.11 of the Agreement is hereby amended in its entirety to
read as follows:
Section 5.1.11. Minimum Consolidated Tangible Net Worth. (i) Maintain a
Consolidated Tangible Net Worth in an amount not less than the Borrower's
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Consolidated Tangible Net Worth as of the end of the Borrower's September 30,
1999 fiscal quarter minus the sum of $5,000,000 and the lesser of (a) the amount
of the Allowed Repurchase and (b) $30,000,000, and (ii) comply with Section 8K
of the Note Purchase Agreement dated as of June 13, 1994 among the Borrower,
Xxxx Xxxxxxx Mutual Life and Xxxx Xxxxxxx Life Insurance, as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
4. Section 5.1.12 of the Agreement is hereby amended in its entirety to
read as follows:
Section 5.1.12. Minimum Cash Balances. Maintain at all times on and after
the Effective Date unrestricted cash balances and Cash Equivalent Investments in
an amount equal to or greater than $50,000,000 of which unrestricted cash
balances and Cash Equivalent Investments (to the extent and of types issued by a
Lender) in an amount equal to or greater than the aggregate outstanding amount
of the Obligations (including without limitation the Revolving Credit Loan, the
aggregate outstanding amount of any Letters of Credit and any Unpaid Drawings)
must be kept in one or more accounts maintained by the Borrower with one or more
of the Lenders.
5. Section 5.2.8 of the Agreement is hereby amended in its entirety to read
as follows:
Section 5.2.8. Overall Aggregate Cap. Notwithstanding the terms and
conditions of Sections 5.2.4, 5.2.6, 5.2.7.3, 5.2.7.4 and 5.2.10, the
Consolidated Tangible Net Worth measurements of permitted transactions contained
therein are subject to an aggregate Consolidated Tangible Net Worth limitation
of thirty percent (30%) of Consolidated Tangible Net Worth for all such
transactions permitted by any of said Sections excluding, to the extent
otherwise includable therein, the Allowed Repurchase.
6. Exhibit 3.1.1.10 to the Agreement (Form of Compliance Certificate) is
hereby deleted and a new Exhibit 3.1.1.10 in the form attached hereto as "
Exhibit 3.1.1.10 " is substituted in its stead.
7. This Amendment shall take effect as of the Effective Date upon receipt
by the Agent of this Amendment duly executed by the parties hereto.
8. The Borrower hereby represents and warrants to the Agent and the Lenders
that no Default or Event of Default exists
under the Agreement.
9. This Amendment is executed as an instrument under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts without regard to its conflicts of law rules. All parts of the
Agreement not affected by this Amendment are hereby ratified and affirmed in all
respects, provided that if any provision of the Agreement shall conflict or be
inconsistent with this Amendment, the terms of this Amendment shall supersede
and prevail. Upon and after the date of this Amendment all references to the
Agreement in that document, or in any related document, shall mean the Agreement
as amended by this Amendment. Except as expressly provided in this Amendment,
the execution and delivery of this Amendment does not and will not amend, modify
or supplement any provision of, or constitute a consent to or a waiver of any
noncompliance with the provisions of the Agreement, and, except as specifically
provided in this Amendment, the Agreement shall remain in full force and effect.
This Amendment may be executed in one or more counterparts with the same effect
as if the signatures hereto and thereto were upon the same instrument.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the Borrower, the Agent, the Syndication Agent,
and the Lenders in accordance with Section 9.5 of the Agreement, has caused this
Amendment to be executed and delivered by their respective duly authorized
officers as an instrument under seal as of the Effective Date.
BORROWER:
XXXXXXX NAVIGATION LIMITED
By: /s/ Xxxx X. Huey________________________
Xxxx X. Xxxx
Treasurer
AGENT:
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Glauninger________________
Xxxxxx X. Xxxxxxxxxx
Senior Vice President
SYNDICATION AGENT:
BANKBOSTON, N.A.
By:/s/ Xxxxxxx X. Kwee______________________
Xxxxxxx X. Xxxx
Vice President
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LENDERS:
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Senior Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Kwee_____________________
Xxxxxxx X. Xxxx
Vice President
SANWA BANK CALIFORNIA
By: /s/ Jillian Mathur______________________
Xxxxxxx Xxxxxx
Vice President
ABN AMRO BANK N.V.
By:_________________________________________
_____________________________________
Print Name
Title:______________________________________
By:_________________________________________
_____________________________________
Print Name
Title:______________________________________
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EXHIBIT 3.1.1.10 - FORM OF COMPLIANCE CERTIFICATE
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention:________Mathew X. Xxxxxxxxxx, Senior Vice President
High Technology Group, MA OF DO7A
Re: Compliance Certificate Required by Sections 3.1.1.10 or 5.3.4 of the Loan
Agreement dated as of August 27, 1997 by and among you as Agent,
BankBoston, N.A., as the Syndication Agent, the undersigned and the
Lenders from time to time party thereto, as amended from time to time
(the "Loan Agreement")
Gentlemen:
This certificate is submitted by the undersigned (the "Borrower") pursuant
to Sections 3.1.1.10 or 5.3.4 of the Loan Agreement. Capitalized terms used
herein have the same meaning as in the Loan Agreement.
The Borrower hereby certifies to the Agent and the Lenders that the
following information is true, accurate and complete as of the Borrower's fiscal
quarter ending ____________, ________ (the "Quarter").
Section 5.1.10. Maximum Ratio of Total Funded Debt to Total
Capitalization (Calculated as at end of the Quarter)
(a) Obligations (all Indebtedness under
Financing Documents)................................$___________________
(b) Subordinated Debt...................................$___________________
(c) Capitalized Lease Obligations.......................$___________________
(d) Total Funded Debt [Sum of Lines (a) - (c)]..........$___________________
(e) Consolidated Net Worth..............................$___________________
(f) Total Capitalization [Sum of Line (d) + Line (e)]...$___________________
(g) Actual Ratio: [Line (d) divided by Line (f)]........ :1.0
(h) Maximum Ratio Permitted by Agreement................ :1.0
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Section 5.1.11. Minimum Consolidated Tangible Net Worth
(Calculated as at end of the Quarter)
(a) Total assets of Borrower and Subsidiaries...............$______________
(b) Consolidated Total Liabilities..........................($_____________)
(c) Consolidated Net Worth
[Line (a) minus Line (b)]...............................$______________
(d) Excluded items (if any)* ...............................($_____________)
(e) Consolidated Tangible Net Worth.........................$______________
(f) Minimum Permitted by Agreement:
(i) Consolidated Tangible Net Worth
as at September 30, 1999 quarter end minus sum of $5,000,000
and lesser of Allowed Repurchase and
$30,000,000, i.e., $________............................$______________
(ii) Minimum "Consolidated Net Worth"
Required Under Section 8K of Note Purchase Agreement
dated 6/13/94 ("NPA")...................................$______________
Section 5.1.12. Minimum Cash Balances..
(Calculated on any date after September 30, 1999)
(a) Obligations (under Financing Documents)..................$______________
(i) Revolving Loans $_____________________
(ii) Letters of Credit $_____________________
(b) Total Cash Balances and Cash Equivalent Investments.........$______________
(c) Minimum Required by Agreement.................................$50,000,000.
(d) Total Cash Balances and qualified Cash Equivalent Investments
in accounts with Lenders.......................................$____________
(e) Minimum Required is amount of (a)
--------
* Excluded items are (a)book value of intangible assets, including goodwill,
unamortized debt discount and expense, patents, trade and service marks
and names, copyrights, franchises, etc. of $_______________________;
and (b) other (describe) of $__________________________.
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Section 5.1.13. Minimum Quick Ratio.
(Calculated as at end of the Quarter)
(a) Cash.....................................................$______________
(b) Cash Equivalent Investments..............................$______________
(c) Net outstanding amount of
accounts receivable......................................$______________
(d) Sum of Lines (a), (b) and (c)............................$______________
(e) Current Liabilities......................................$______________
(f) Less Current Liabilities consisting of Revolving Credit Loans..($_______)
(g) Line (e) minus Line (f)........................................$________
(h) Quick Ratio [Line (d) divided by Line(g)....................... :1.0
(g) Minimum Quick Ratio Permitted by Agreement..................... :1.0
Section 5.2.9. Minimum Operating and Net Income.
Calculated as at end of the Quarter:
(a) Net income (loss) (GAAP) as at end of the Quarter............$__________
(b) Less extraordinary or other non-recurring gains
as at end of the Quarter.....................................($_________)
(c) Less gains from sale or other non-ordinary course
disposition of assets as at end of the Quarter...............($_________)
(d) Net Income as at end of the Quarter
[Line (a) minus sum of Lines (b) and (c)]....................$__________
Calculated as at End of Immediately Preceding Quarter:
(e) Net income (loss) (GAAP) as at end of the fiscal quarter
immediately preceding the Quarter............................$__________
(f) Less extraordinary or other non-recurring gains as at end of
the fiscal quarter immediately preceding the Quarter.........($_________)
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(g) Less gains from sale or other non-ordinary course
disposition of assets as at end of the fiscal quarter
immediately preceding the Quarter.............................($________)
(h) Net Income as at end of the fiscal quarter immediately
preceding the Quarter
[Line (e) minus sum of Lines (f) and (g)].....................$_________
Calculated as at End of Second Immediately Preceding Quarter:
(i) Net income (loss) (GAAP) as at end of the fiscal quarter
immediately preceding the Quarter.............................$_________
(j) Less extraordinary or other non-recurring gains as at end of
the fiscal quarter immediately preceding the Quarter..........($________)
(k) Less gains from sale or other non-ordinary course
disposition of assets as at end of the fiscal quarter
immediately preceding the Quarter.............................($________)
(l) Net Income as at end of the fiscal quarter immediately
preceding the Quarter
[Line (i) minus sum of Lines (l) and (k)].....................$_________
Calculated as at End of Third Immediately Preceding Quarter:
(m) Net income (loss) (GAAP) as at end of the fiscal quarter
immediately preceding the Quarter.............................$_________
(n) Less extraordinary or other non-recurring gains as at end of
the fiscal quarter immediately preceding the Quarter..........($________)
(o) Less gains from sale or other non-ordinary course
disposition of assets as at end of the fiscal quarter
immediately preceding the Quarter.............................($________)
(p) Net Income as at end of the fiscal quarter
immediately preceding the Quarter
[Line (m) minus sum of Lines (n) and (o)].....................$_________
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(q) Net Income
The Quarter [line (d)], plus Excluded items (if any)** of $___....$_____
Immediately Preceding Quarter [line (e)]
plus excluded items (if any)** of $__________.................$_______
Second Immediately Preceding Quarter [line (i)]
plus Excluded items (if any)** of $__________.................$_______
Third Immediately Preceding Quarter [line (m)]
plus excluded items (if any)** of $__________.................$_______
(r) Operating Income
The Quarter plus Excluded items (if any) **
of $_________________________.................................$_______
Immediately Preceding Quarter plus excluded items (if any)**
of $_________________________.................................$_______
Second Immediately Preceding Quarter plus
Excluded items (if any) ) ** of $___________________..........$_______
Third Immediately Preceding Quarter
plus excluded items (if any)** of $_________________..........$_______
(s) Minimum Operating Income and Net Income
Required under the Agreement:
(i) during the period beginning with the Borrower's fiscal quarter ending
March, 1999 and ending on the fiscal quarter ending December, 1999,
have a negative Operating Income or a negative Net Income for any two
fiscal quarters, and
(ii) as of the end of each fiscal quarter of the Borrower commencing with
the Borrower's fiscal quarter ending in March, 2000, have a negative
Operating Income, or a negative Net Income for the rolling four
quarter fiscal period consisting of such fiscal quarter and the three
immediately preceding fiscal quarters.
-------------
** Excluded items are any amount taken as a one-time charge against
earnings attributable to (a) settlement of class action litigation;
(b) closing of commercial marine division; and (c) reduction in
employees resulting from switch to contract manufacturing, (a) - (c) not
to exceed $2,000,000 in the aggregate.
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The Borrower further certifies to the Lenders that as of the date hereof no
Event of Default or Default has occurred without having been waived in writing.
XXXXXXX NAVIGATION LIMITED
By:
Name: [ ]
Title: [ ]
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