FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
FIRST
AMENDMENT TO NOTE PURCHASE AGREEMENT
FIRST
AMENDMENT TO NOTE PURCHASE AGREEMENT,
dated
as of February 26, 2007 (this "Amendment"),
by
and among Navtech Systems Support Inc., an Ontario corporation (the
"Company"),
ABRY
Mezzanine Partners, L.P., a Delaware limited partnership (“AMP”),
and
ABRY Investment Partnership, L.P., a Delaware limited partnership (“AIP”
and,
together with AMP, the “Purchasers”).
The
Company and the Purchasers are parties to a Note Purchase Agreement dated as
of
November 22, 2005 (the “Note
Purchase Agreement”),
pursuant to which, among other things, the Company issued certain Notes to
the
Purchasers. Each capitalized term that is used and not otherwise defined in
this
Amendment has the meaning that the Note Purchase Agreement assigns to that
term.
Each Purchaser is the holder of the Notes initially issued to it pursuant to
the
Note Purchase Agreement.
The
Company and the Purchasers have agreed to make amendments to certain of the
terms of the Note Purchase Agreements and the Notes.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Purchasers hereby agree as
follows:
1. Restatement
of Notes.
The
terms of the Tranche A Note issued to AMP, the Tranche A Note issued to
AIP, the Tranche B Note issued to AMP and the Tranche B Note issued to AIP
are
amended and restated in their entirety as set forth in the attached Exhibits
A,
B, C and D, respectively. Upon surrender to the Company of the Notes in the
forms as in effect prior to such amendment and restatement, the Company will
issue to AMP and AIP Notes in the forms of such Exhibits.
2. Amendment
of Maximum Leverage Ratio Provision.
Section
4F(ii) of the Note Purchase Agreement is hereby amended and restated in its
entirety as follows:
(ii) Maximum
Leverage Ratio.
The
Company shall not permit the Leverage Ratio for the last day of any Fiscal
Quarter to exceed the maximum Leverage Ratio specified below for such Fiscal
Quarter:
|
Fiscal
Quarter ending:
|
Leverage
Ratio
|
|
January
31, 2006
|
7.0
to 1.0
|
|
April
30, 2006
|
6.35
to 1.0
|
|
July
31, 2006
|
5.65
to 1.0
|
|
October
31, 2006
|
4.9
to 1.0
|
|
January
31, 2007
|
6.0
to 1.0
|
|
April
30, 2007
|
6.5
to 1.0
|
|
July
31, 2007
|
6.0
to 1.0
|
|
October
31, 2007
|
5.5
to 1.0
|
|
January
31, 2008
|
5.5
to 1.0
|
|
April
30, 2008
|
5.0
to 1.0
|
|
July
31, 2008
|
5.0
to 1.0
|
|
October
31, 2008
|
4.25
to 1.0
|
|
January
31, 2009
|
3.9
to 1.0
|
|
April
30, 2009
|
3.7
to 1.0
|
|
July
31, 2009
|
3.5
to 1.0
|
|
October
31, 2009 and thereafter
|
3.25
to 1.0
|
provided
that, for purposes of this Section 4F(ii) only, and then only for purposes
of
computing the Leverage Ratio for a Fiscal Quarter ending on or after the second
anniversary of the Closing Date and prior to the third anniversary of the
Closing Date, there shall be excluded from the Indebtedness of the Company
Group
on a consolidated basis an amount equal to the lesser of (A) the amount of
cash
of the Company Group (if such amount is positive) as of the last day of such
Fiscal Quarter and (B) the excess (if any) of the total amount of the current
assets of the Company Group over the total amount of the current liabilities
(excluding deferred revenue and the SAS contingency payment liability
to
the
extent included in current liabilities)
of the
Company Group on the last day of such Fiscal Quarter, in all cases determined
on
a consolidated basis in accordance with GAAP.
3. Amendment
of Redemption Provisions.
(a) Optional
Redemption Date.
The
definition of the term Optional Redemption Date set forth in Section 1 of the
Note Purchase Agreement is hereby amended and restated in its entirety as
follows:
“Optional
Redemption Date”
means
November 22, 2008.
(b) Optional
Redemption Terms.
Section
7B of the Note Purchase Agreement is hereby amended and restated in its entirety
as follows:
7B. Optional
Redemption.
(i) On
or
after the Closing Date, the Company may redeem the Tranche A Notes at any time
in whole, or from time to time in part, in aggregate principal amounts of not
less than $500,000 and in increments of $100,000, at a redemption price equal
to
the Accrued Amount as of the date of such redemption of the Tranche A Notes
to
be redeemed.
2
(ii) No
Tranche B Note may be redeemed at the election of the Company prior to the
Optional Redemption Date. At any time following the Optional Redemption Date,
the Company may redeem, in whole and not in part, all Tranche B Notes then
outstanding (together with all Tranche A Notes then outstanding, pursuant to
Section
7B(i)),
at a
price for each Tranche B Note equal to the Accrued Amount for such Tranche
B
Note multiplied by the applicable percentage below for the date of
redemption:
|
Date
of Redemption
|
Percentage
of Accrued Amount
|
|
After
the third, and up to and including the fourth, anniversary of the
Closing
Date
|
103%
|
|
After
the fourth, and up to and including the fifth, anniversary of the
Closing
Date
|
101%
|
|
Thereafter
|
100%
|
(c) Special
Redemption.
Clause
(a) of the second sentence of Section 7C(i) of the Note Purchase Agreement
is hereby amended and restated in its entirety as follows:
(a)
110%
of the Accrued Amount thereof as of the date of such redemption of the Notes
to
be redeemed, if the Change of Control occurs on or prior to the Optional
Redemption Date
4. Miscellaneous.
The
Company and the Purchasers agree that this Amendment and the restated notes
to
be issued as provided in Section 1 of this Amendment constitute Transaction
Agreements, including for purposes of Section 10 of the Note Purchase Agreement.
As a material inducement to the Purchasers to enter into this Amendment, the
Company hereby represents and warrants to the Purchasers as follows: (a) after
giving effect to the amendments made pursuant to this Amendment, no Event of
Default or Potential Event of Default exists; and (b) each of the
representations and warranties of the Company set forth in Section 6D of the
Note Purchase Agreement is true and correct as of the date of this Amendment
(giving effect to the preceding sentence). ALL
ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS AMENDMENT AND THE ANNEXES, EXHIBITS AND SCHEDULES HERETO
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE
LAWS OF ANY JURISDICTION OTHER THAN THE COMMONWEALTH OF MASSACHUSETTS. IN
FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE COMMONWEALTH OF
MASSACHUSETTS SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AMENDMENT (AND ALL ANNEXES, SCHEDULES AND EXHIBITS HERETO), EVEN THOUGH UNDER
THAT JURISDICTION'S
CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER
JURISDICTION WOULD ORDINARILY APPLY. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY PARTY HERETO WITH RESPECT TO THIS AMENDMENT SHALL BE BROUGHT IN ANY STATE
OR
FEDERAL COURT OF COMPETENT JURISDICTION IN BOSTON,
3
MASSACHUSETTS. BY EXECUTING AND DELIVERING THIS
AMENDMENT, THE COMPANY AND EACH HOLDER OF NOTES, WARRANTS AND UNDERLYING
COMMON
STOCK, ACCEPTS THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AMENDMENT. THE COMPANY AND EACH HOLDER OF NOTES, WARRANTS AND
UNDERLYING COMMON STOCK HEREBY WAIVE ANY CLAIM THAT MASSACHUSETTS IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF
VENUE.
4
The
Company and the Purchasers have executed and delivered this Amendment as of
the
date first set forth above.
COMPANY:
NAVTECH
SYSTEMS SUPPORT INC.
By:
____________________________________
Name:
Title:
PURCHASERS:
ABRY
MEZZANINE PARTNERS, L.P.
By: ABRY
MEZZANINE INVESTORS, L.P.,
Its
General Partner
By: ABRY
MEZZANINE HOLDINGS LLC,
Its
General Partner
By:
__________________________________
Name:
Title:
ABRY
INVESTMENT PARTNERSHIP, L.P.
By: ABRY
Investment GP, LLC
Its
General Partner
By:
__________________________________
Name:
Title:
5
Exhibit
A
Form
of Amended and Restated Tranche A Note for AMP
6
Exhibit
B
Form
of Amended and Restated Tranche A Note for AIP
7
Exhibit
C
Form
of Amended and Restated Tranche B Note for AMP
8
Exhibit
D
Form
of Amended and Restated Tranche B Note for AIP
9
