EXHIBIT 10.44
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of this 9th day of March, 2004, by NAVARRE CORPORATION, a Minnesota
corporation ("Borrower"), GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as agent (the "Agent") for itself and the Lenders under and as
defined in the Credit Agreement (as hereinafter defined), and the Lenders.
Unless otherwise specified herein, capitalized terms used in this Amendment
shall have the meanings ascribed to them by the Credit Agreement (as hereinafter
defined).
RECITALS
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement, dated as of October 3, 2001 (as amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower, Agent and the Lenders desire to amend certain
provisions of the Credit Agreement as herein set forth.
NOW THEREFORE, in consideration of the foregoing recital, mutual
agreements contained herein and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Borrower, the Agent, and
Lenders hereby agree as follows:
SECTION 1. AMENDMENTS.
(a) Section 1.3(b)(iii) of the Credit Agreement is hereby amended by
adding the following new sentence at the end thereof:
"Notwithstanding anything herein to the contrary, as long as
no Default or Event of Default has occurred and is continuing, proceeds
from the Private Issuance in an aggregate amount not to exceed
$4,550,000 and any future proceeds received upon the exercise of one or
more PIPE Warrants (i) shall not be required to be used to prepay Loans
and (ii) may be used by Borrower to make (a) Permitted Acquisitions and
Permitted Intellectual Property Acquisitions otherwise permitted
pursuant to Section 6.1 hereof and (b) investments, loans and advances
to the extent otherwise permitted under Section 6.2 hereof."
(b) Section 6.2 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"6.2. Investments; Loans and Advances. No Credit Party shall
make or permit to exist any investment in, or make, accrue or permit
to exist loans or advances of money to, any Person, through the direct
or indirect lending of money, holding of securities or otherwise,
except that: (a) Borrower, Encore Acquisition and BCI Eclipse may hold
investments comprised of notes payable, or stock or other securities
issued by Account Debtors to Borrower, Encore Acquisition or BCI
Eclipse, as applicable pursuant to negotiated agreements with respect
to settlement of such Account Debtor's Accounts in the ordinary course
of business, so long as the aggregate amount of such Accounts so
settled by Borrower, Encore Acquisition and BCI Eclipse does not exceed
$500,000 (in the aggregate for Borrower, Encore Acquisition and BCI
Eclipse combined); (b) each Credit Party may maintain its existing
investments in its Subsidiaries as of June 24, 2003; (c) Borrower may
maintain Eligible Certificate of Deposits; (d) so long as no Default or
Event of Default has occurred and is continuing and there is no
outstanding Revolving Loan balance, Borrower may make investments,
subject to Control Letters in favor of Agent for the benefit of Lenders
or otherwise subject to a perfected security interest in favor of Agent
for the benefit of Lenders, in (i) marketable direct obligations issued
or unconditionally guaranteed by the United States of America or any
agency thereof maturing within one year from the date of acquisition
thereof, (ii) commercial paper maturing no more than one year from the
date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's Ratings Group or Xxxxx'x
Investors Service, Inc., (iii) certificates of deposit maturing no more
than one year from the date of creation thereof issued by (A) the
Business Bank, a Minnesota corporation, or (B) commercial banks
incorporated under the laws of the United States of America, each
having combined capital, surplus and undivided profits of not less than
$300,000,000 and having a senior unsecured rating of "A" or better by a
nationally recognized rating agency (an "A Rated Bank"), (iv) time
deposits maturing no more than 30 days from the date of creation
thereof with A Rated Banks and (v) mutual funds that invest solely in
one or more of the investments described in clauses (i) through (iv)
above; (e) Borrower, Encore Acquisition and BCI Eclipse may provide
advances to Vendors described in Part A of Disclosure Schedule 6.2; (f)
Borrower, Encore Acquisition and BCI Eclipse may provide advances to
Vendors so long as (i) at the time of each such advance the Borrowing
Availability immediately after giving effect to such advance is at
least $20,000,000, (ii) the aggregate outstanding amount of advances to
Vendors permitted solely pursuant to Section 6.2(e) and this Section
6.2(f) does not exceed $15,000,000 at any time and (iii) with respect
to each advance to a Vendor to be made by Encore Acquisition or BCI
Eclipse, immediately after giving effect thereto the Borrower would be
permitted to make at least $500,000 of additional advances to Encore
Acquisition or BCI Eclipse, as applicable pursuant to Section 6.2(j)
hereof (provided, however, that the amount set forth in this Section
6.2(f) shall be reduced from time to time by the amount of advances to
Vendors otherwise permitted by Section 6.2(e) and/or Section 6.2(f)
which have been written off as uncollectible in accordance with
Borrower's policies and as determined in accordance with GAAP to the
extent that the amount of such write off has not caused a reduction in
the EBITDA of Borrower in the fiscal period such write off is taken;
(g) Borrower may provide advances to Vendors described in Part B of
Disclosure Schedule 6.2; (h) Borrower may provide advances by a Credit
Party to its employees expressly permitted by Section 6.4(b) hereof;
(i) on or about July 31, 2002, Borrower may make an investment through
a loan in Encore Acquisition in an aggregate principal amount not to
exceed $6,000,000; (j) Borrower may make loans to Encore Acquisition in
an aggregate outstanding principal amount not to exceed, at any time,
$10,000,000; (k) investments made by Borrower in Encore Acquisition
pursuant to Section 5 of the Amendment No. 1 to Encore Purchase
Agreement in an aggregate principal amount not to exceed $1,150,000;
(l) on November 5, 2003 the Borrower may make a loan to BCI Eclipse in
an aggregate principal amount not to exceed $7,250,000; (m) the
Borrower may make loans to BCI Eclipse in an aggregate outstanding
principal amount not to exceed, at any time,
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$5,000,000; (n) the Borrower may (i) make a loan (the "Mix & Burn
Loan") to Mix & Burn, Inc., a Minnesota corporation ("Mix & Burn") in
an aggregate principal amount not to exceed $500,000 pursuant to that
certain Discretionary Revolving Loan Agreement dated as of January 26,
2004 between the Borrower and Mix & Burn and that certain Promissory
Note dated as of January 26, 2004 by Mix & Burn in favor of Borrower
(the "Mix & Burn Promissory Note"), as long as (a) the Mix & Burn Loan
is fully secured by fully perfected first priority Liens in and to all
or substantially all of the assets of Mix & Burn pursuant to that
certain Security Agreement dated as of January 26, 2004 between the
Borrower and Mix & Burn (the "Mix & Burn Security Agreement"), and (b)
Borrower has granted to Agent, for itself and the benefit of Lenders,
fully perfected first priority Liens, pursuant to documentation in form
and substance satisfactory to Agent, in and to the Mix & Burn
Promissory Note, the Liens granted to Borrower under the Mix & Burn
Security Agreement, all of the Stock owned by Borrower from time to
time in Mix & Burn whether (1) as a result of the conversion of the Mix
& Burn Promissory Note into equity, (2) consisting of warrants issued
by Mix & Burn in favor of the Borrower in connection with the Mix &
Burn Loan or (3) otherwise, (ii) own Stock in Mix & Burn issued to
Borrower for no additional consideration in connection with the Mix &
Burn Loan, and (iii) convert the obligations relating to the Mix & Burn
Loan into Stock of Mix & Burn and own such Stock; and (o) other
investments not exceeding $100,000 in the aggregate at any time
outstanding."
(c) The following definition in Annex A to the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of
Indebtedness) by such Person during any measuring period for any fixed
assets or improvements or for replacements, substitutions or additions
thereto, that have a useful life of more than one year and that are
required to be capitalized under GAAP.
"Private Issuance" means the issuance and sale of certain
Stock (including, without limitation, the PIPE Warrants) of Borrower
pursuant to and as more fully described in that certain Securities
Purchase Agreement, dated as of December 15, 2003, by and among
Borrower and the Purchasers (as defined therein, the "PIPE
Purchasers").
"PIPE Warrants" means those certain Warrants, dated as of
December 15, 2003, issued by the Borrower to the PIPE Purchasers.
(d) Subsections (a), (b), (c), (d) and (e) on Annex G to the Credit
Agreement are hereby amended and restated to read in their entirety as follows:
"(a) Maximum Capital Expenditures. Borrower and its
Subsidiaries on a consolidated basis shall not make Capital
Expenditures during the following periods that exceed in the aggregate
the amounts set forth opposite each of such periods:
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Maximum Capital
Period Expenditures per Period
------ -----------------------
Fiscal Year ending on or about March 31, 2004 $4,500,000
Fiscal Year ending on or about March 31, 2005 $2,500,000
Fiscal Year ending on or about March 31, 2006 and
each Fiscal Year ending thereafter $2,600,000
;provided, however, that the amount of Capital Expenditures
permitted for the Fiscal Year ending on or about March 31, 2005 shall
be increased by an amount equal to the positive amount (if any) of (a)
$4,500,000 minus (b) the actual amount of any Capital Expenditures
expended during the Fiscal Year ending on or about March 31, 2004 (the
"Carry Over Amount"), and for purposes of measuring compliance
herewith, the Carry Over Amount shall be deemed to be the last amount
spent on Capital Expenditures in the Fiscal Year ending on or about
March 31, 2005; provided, further, that the amount of permitted Capital
Expenditures during any measuring period set forth above shall be
increased by the amount of the cash proceeds received during such
measuring period from a sale-leaseback of the Minnesota Facility (as
long as such sale-leaseback is consented to by Agent) to the extent
that the construction of the assets subject to such sale-leaseback were
funded with the proceeds of loans under the Construction Loan Agreement
or proceeds of the Revolving Loans on or after April 1, 2003.
(b) [Intentionally Deleted]
(c) [Intentionally Deleted]
(e) Minimum Fixed Charge Coverage Ratio. Borrowers and their
Subsidiaries shall have on a consolidated basis, as of the last day of the
Fiscal Month ending on December 31, 2003 and as of the last day of each Fiscal
Month thereafter, for the 12 month period then ended, a ratio of (A) EBITDA plus
a one-time non-cash loss in an amount not to exceed $5,500,000 related to the
write-off of capitalized software development expenses incurred by Encore
Acquisition during the period commencing on June 1, 2001 and ending on March 1,
2004, to the extent included in the calculation of consolidated net income of
Encore Acquisition for such period in accordance with GAAP, but without
duplication plus interest income received during such period to (B) the sum of,
without duplication, (i) the aggregate of all Interest Expense paid or accrued
during such period, plus (ii) scheduled payments of principal with respect to
Indebtedness during such period, plus (iii) Capital Expenditures during such
period (other than Capital Expenditures financed other than with the proceeds of
Loans), plus (iv) income taxes paid in cash during such period, plus (v) the
aggregate amount of all consideration paid for Permitted Intellectual Property
Acquisitions during such period, plus (vi) all Restricted Payments made by a
Credit Party during such period (other than Restricted Payments (a) made to
another Credit Party or (b) which have caused EBITDA to be reduced for such
period), of not less than 1:35:1.00; provided, however, that solely for the
purposes of the calculation of the Fixed Charge Coverage Ratio set forth herein,
the amount of Capital Expenditures during any measuring period set forth above
shall be decreased by the amount of the cash proceeds received during such
measuring period from a sale-leaseback of the Minnesota Facility (as long as
such sale-leaseback is consented to by Agent) to the extent that the
construction of the assets subject to such sale-leaseback were funded with
proceeds of the Revolving Loans.
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(e) Indebtedness to EBITDA. Borrowers and their Subsidiaries shall have
on a consolidated basis, as of the last day of each Fiscal Quarter a ratio of
(i) the sum of (x) the daily average amount of Revolving Loans for the 30-day
period preceding the last day of such Fiscal Quarter and (y) the amount of other
Indebtedness as of the last day of such Fiscal Quarter to (ii) EBITDA plus
interest income for the four Fiscal Quarters then ending of not greater than
3.0:1."
SECTION 2. EFFECTIVENESS. The effectiveness of this Amendment is subject to the
satisfaction of each the following conditions precedent:
(a) this Amendment shall have been duly executed and delivered by
Borrower, Agent and each Lender and the Consent attached hereto shall have been
duly executed and delivered by the Credit Parties signatories thereto; and
(b) The representations and warranties contained herein shall be true
and correct in all respects.
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and each
Lender to enter into this Amendment, the Borrower hereby represents and warrants
to the Agent and each Lender, which representations and warranties shall survive
the execution and delivery of this Amendment, that:
(a) all of the representations and warranties contained in the Credit
Agreement and in each Loan Document are true and correct as of the date hereof
after giving effect to this Amendment (determined as if all references to
"Closing Date" were references to March 9, 2004), except to the extent that any
such representations and warranties expressly relate to an earlier date;
(b) the execution, delivery and performance by the Borrower of this
Amendment has been duly authorized by all necessary corporate action required on
its part and this Amendment, and the Credit Agreement is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as its enforceability may be affected by the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights or remedies
of creditors generally;
(c) Neither the execution, delivery and performance of this Amendment
by Borrower, the performance by Borrower of the Credit Agreement nor the
consummation of the transactions contemplated hereby does or shall contravene,
result in a breach of, or violate (i) any provision of any Credit Party's
certificate or articles of incorporation or bylaws or other similar documents,
or agreements, (iii) any law or regulation, or any order or decree of any court
or government instrumentality, or (iii) any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which any Credit Party or any of its
Subsidiaries is a party or by which any Credit Party or any of its Subsidiaries
or any of their property is bound, except in any such case to the extent such
conflict or breach has been waived herein or by a written waiver document, a
copy of which has been delivered to Agent on or before the date hereof; and
(d) No Default or Event of Default has occurred and is continuing.
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SECTION 4. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically set forth above, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed; and
(b) The amendment set forth herein is effective solely for the purposes
set forth herein and shall be limited precisely as written, and shall not be
deemed to (i) be a consent to any amendment, waiver or modification of any other
term or condition of the Credit Agreement or any other Loan Document, (ii)
operate as a waiver or otherwise prejudice any right, power or remedy that the
Agent or the Lenders may now have or may have in the future under or in
connection with the Credit Agreement or any other Loan Document or (iii)
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, each reference in the Credit Agreement to "this Agreement",
"herein", "hereof" and words of like import and each reference in the Credit
Agreement and the Loan Documents to the Credit Agreement shall mean the Credit
Agreement as amended hereby. This Amendment shall be construed in connection
with and as part of the Credit Agreement.
SECTION 5. COSTS AND EXPENSES. As provided in Section 11.3 of the Credit
Agreement, the Borrower agrees to reimburse Agent for all fees, costs, and
expenses, including the reasonable fees, costs, and expenses of counsel or other
advisors for advice, assistance, or other representation in connection with this
Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
SECTION 7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute part of this Amendment
for any other purposes.
SECTION 8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
BORROWER:
NAVARRE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: CFO
-----------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Duly Authorized Signatory
-----------------------------------
S-1
[Signature Page to Eighth Amendment To Credit Agreement]
CONSENT
The undersigned hereby (i) acknowledges receipt of and consents to the
Eighth Amendment To Credit Agreement dated as of March___, 2004 (the
"Amendment"), (ii) ratifies and confirms each Loan Document, including, without
limitation, the guaranty and the security agreement to which it is a party, and
(iii) acknowledges and agrees that after giving effect to the Amendment, each of
the Loan Documents to which it is a party is and shall remain in full force and
effect in accordance with the terms thereof.
ENCORE SOFTWARE, INC.
By: /s/ XXXXXXX XXXXXX
-----------------------------------
Name: XXXXXXX XXXXXX
---------------------------------
Title: CFO
--------------------------------
BCI ECLIPSE COMPANY, LLC
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
S-2
[Signature Page to Eighth Amendment To Credit Agreement]
CONSENT
The undersigned hereby (i) acknowledges receipt of and consents to the
Eighth Amendment To Credit Agreement dated as of March ___, 2004 (the
"Amendment"), (ii) ratifies and confirms each Loan Document, including, without
limitation, the guaranty and the security agreement to which it is a party, and
(iii) acknowledges and agrees that after giving effect to the Amendment, each of
the Loan Documents to which it is a party is and shall remain in full force and
effect in accordance with the terms thereof.
ENCORE SOFTWARE, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BCI ECLIPSE COMPANY, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------
Title: CFO
--------------------------------
S-2
[Signature Page to Eighth Amendment To Credit Agreement]
