EXHIBIT 10.79
AMENDMENT NO. 2 AND WAIVER TO CREDIT AGREEMENT
This Amendment No. 2 and Waiver (this "Amendment and Waiver") is entered
into as of December 18, 2001 by and among XXXXXXX NAVIGATION LIMITED, a
California corporation (the "Company"), the institutions from time to time
parties hereto as Lenders, ABN AMRO BANK, N.V. in its capacity as administrative
agent (the "Administrative Agent") for itself and the other Lenders, FLEET
NATIONAL BANK, as Syndication Agent (the "Syndication Agent"), and THE BANK OF
NOVA SCOTIA, as Documentation Agent (the "Documentation Agent" and, together
with the Administrative Agent and the Syndication Agent, the "Agents").
RECITALS
A. The Company, the Agents and the Lenders are party to that certain Credit
Agreement dated as of July 14, 2000 (the "Credit Agreement"). Unless otherwise
specified herein, capitalized terms used in this Amendment and Waiver shall have
the meanings ascribed to them by the Credit Agreement.
B. The Company wishes to issue common stock for cash consideration of at
least $25 million on or before January 31, 2002 (the "Equity Issuance").
C. On and subject to the terms and conditions hereof, the Company has
requested that the Lenders, and the Required Lenders are willing to, (i) waive
compliance with the minimum Fixed Charge Coverage Ratio financial covenant for
the period ended December 31, 2001, (ii) amend certain provisions of the Credit
Agreement, and (iii) agree as to the application of the Net Proceeds of the
Equity Issuance, all as set forth herein.
Now, therefore, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date" (as defined
below), the Credit Agreement shall be amended by adding a new Section 8.1(n) to
the Credit Agreement which reads as follows:
"(n) Failure to Issue Equity Interests. The Company shall not have received
on or prior to January 31, 2002 at least $25 million in Net Proceeds from the
issuance of common stock during the period from December 18, 2001 to such date."
2. Waiver. Subject to the conditions and effectiveness of this Amendment
and Waiver and otherwise notwithstanding the provisions of any Loan Document,
and the Required Lenders hereby waive (a) any Default arising under Section
8.1(b)(i) of the Credit Agreement resulting solely from the Company's failure to
comply with the financial covenant set forth in Section 7.4(a) of the Credit
Agreement for the fiscal quarter ended December 31, 2001 and (b) solely with
respect to the prepayments referenced in Sections 3(a) and 5(d) of this
Amendment and Waiver, the notice requirements set forth in Section 2.5(a) of the
Credit Agreement.
3. Agreements by the Company and the Required Lenders.
(a) Application of Certain Mandatory Prepayments. In addition to the
prepayment referenced in Section 5(d) of this Amendment and Waiver, the Company
agrees that the Term Loans shall immediately upon consummation of the Equity
Issuance be prepaid in an amount equal to (i) 50% of the Net Proceeds of the
Equity Issuance less (ii) the amount of the prepayment received pursuant to
Section 5(d) of this Amendment and Waiver, such prepayment to be applied in the
manner set forth in Section 2.5(b)(ix) of the Credit Agreement. The Required
Lenders hereby waive any requirement in the Credit Agreement that the remaining
Net
105
Proceeds of the Equity Issuance be applied to repay the Term Loan; provided that
no Default or Unmatured Default exists at the time of such Equity Issuance.
(b) Terms and Conditions of Equity Issuance. The Company agrees that the
Equity Issuance will be on terms and conditions reasonably satisfactory to the
Administrative Agent.
(c) Fixed Charge Coverage Ratio. The Company and the Required Lenders agree
that solely for purposes of calculating compliance with the minimum Fixed Charge
Coverage Ratio covenant set forth in Section 7.4(a) of the Credit Agreement for
the fiscal quarter ending March 31, 2002, "Fixed Charge Coverage Ratio" shall
mean the ratio of (a) the sum of (i) EBITDA plus (ii) up to $4.7 million of Net
Proceeds received by the Company in connection with a joint venture with
Caterpillar Inc., an issuance of Equity Interests other than the Equity Issuance
or, with the Administrative Agent's prior approval of, any other transaction, to
(b) Fixed Charges.
4. Representations and Warranties of the Company. The Company represents
and warrants that:
(a) it has the requisite power and authority and legal right to execute and
deliver this Amendment and Waiver and to perform its obligations hereunder. The
execution and delivery by the Company of this Amendment and Waiver and the
performance of its obligations hereunder have been duly authorized by proper
proceedings, and this Amendment and Waiver constitutes a legal, valid and
binding obligation of the Company enforceable against it in accordance with its
terms, except as enforceability may be limited by any bankruptcy, insolvency or
similar law affecting the enforcement of creditors' rights generally;
(b) Each of the representations and warranties contained in the Credit
Agreement and the other Loan Documents is true and correct in all material
respects on and as of the date hereof as if made on the date hereof; and
(c) After giving effect to this Amendment and Waiver, no Default or
Unmatured Default has occurred and is continuing.
5. Effective Date. This Amendment and Waiver shall become effective on the
date (the "Effective Date") on which each of the following items shall have been
received by the Administrative Agent or satisfied, as the case may be, all in
form and substance satisfactory to the Administrative Agent:
(a) duly executed Amendment and Waiver, executed by the Company, the
Administrative Agent and the Required Lenders (without respect to whether it has
been executed by all the Lenders);
(b) a reaffirmation of guaranty in form and substance satisfactory to the
Administrative Agent, duly executed by each Guarantor;
(c) payment of an amendment fee to the Administrative Agent, for the
ratable benefit of each Lender signatory to this Amendment and Waiver, in an
amount equal to 0.250% of the Aggregate Commitment as of the Effective Date;
(d) permanent prepayment of the Term Loan in an amount equal to $10
million, which the parties agree shall be applied to the outstanding balance of
the Term Loan against all remaining scheduled principal installments in inverse
order of maturity; and
(e) such other documents as the Administrative Agent or its counsel may
have reasonably requested.
In the event the Effective Date has not occurred on or before December 31,
2001, this Amendment and Waiver shall not become operative and shall be of no
force or effect.
106
6. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit Agreement and the
other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment and Waiver
shall not operate as a waiver of any other right, power or remedy of the
Administrative Agent or any Lender under the Credit Agreement or any other Loan
Document, or constitute a waiver of any provision of the Credit Agreement or any
Loan Document, except as specifically set forth herein. Upon the effectiveness
of this Amendment and Waiver, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of similar import shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in the
other Loan Documents to the Credit Agreement shall mean and be a reference to
the Credit Agreement as amended hereby.
7. Costs and Expenses. The Company hereby affirms its obligation under
Section 11.6 of the Credit Agreement to reimburse the Administrative Agent for
all reasonable costs and out-of-pocket expenses (including reasonable attorneys'
and paralegals' fees and time charges of attorneys and paralegals for the
Administrative Agent) paid or incurred by the Administrative Agent in connection
with the preparation, negotiation, execution, delivery, syndication, review,
proposed or completed amendment, waiver or modification, and administration of
the Loan Documents.
8. GOVERNING LAW. ANY DISPUTE BETWEEN THE COMPANY AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS AMENDMENT AND WAIVER OR ANY OF THE OTHER LOAN DOCUMENTS,
AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE CONFLICTS OF
LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
9. Headings. Section headings in this Amendment and Waiver are included
herein for convenience of reference only and shall not constitute a part of this
Amendment and Waiver for any other purposes.
10. Counterparts. This Amendment and Waiver may be executed in any number
of counterparts, each of which when so executed shall be deemed an original but
all of such counterparts shall constitute one and the same instrument.
[signature pages follow]
107
IN WITNESS WHEREOF, the Company, the Required Lenders and the
Administrative Agent have executed this Amendment and Waiver as of the date
first above written.
XXXXXXX NAVIGATION LIMITED, as the Company
By:/s/ Xxxx Xxxxx Xxxxxxxx
----------------------------------------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title: CFO
ABN AMRO BANK N.V., as Administrative Agent, Issuing Bank,
Swing Line Bank, Alternate Currency Bank, and Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Group Vice President
By: /s/ Xxxxxxx O'X. Xxxxx
----------------------------------------------------------
Name: Xxxxxxx O'X. Xxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, as Syndication Agent and Lender
By: /s/ Xxx X. Xxxxxx-Xxxxxxx
----------------------------------------------------------
Name: Xxx X. Xxxxxx-Xxxxxxx
Title: Director
THE BANK OF NOVA SCOTIA, as
Documentation Agent and Lender
By: /s/ Xxx Xxxxxx
----------------------------------------------------------
Name: Xxx Xxxxxx
Title: Director
ERSTE BANK, NEW YORK BRANCH, as Lender
By:----------------------------------------------------------
Name:
Title:
XXXXX FARGO BANK, as Lender
108
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX BANK PLC, NEW YORK BRANCH, as Lender
By: /s/ Xxx Xxxxxxxxx
----------------------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
----------------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
BANK OF THE WEST, as Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BARCLAYS BANK PLC, as Lender
By:/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
NATIONAL CITY BANK OF KENTUCKY, as Lender
By:----------------------------------------------------------
Name:
Title:
IBM CREDIT CORPORATION, as Lender
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit
110
