EXHIBIT 10.78
AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
This Amendment No. 1 and Waiver (this "Amendment and Waiver") is entered
into as of July 13, 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").
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 Capital Stock for up to $40 million on or
before December 31, 2001 (the "Equity Issuance").
C. On and subject to the terms and conditions hereof, the Company has
requested that the Agents and the Lenders, and the Agents and the Lenders are
willing to, (i) waive compliance with certain financial covenants for the period
ended June 29, 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. Amendments to Credit Agreement. Upon the "Effective Date" (as defined
below), the Credit Agreement shall be amended as follows:
(a) The definition of "Fixed Charges" in Section 1.1 of the Credit
Agreement shall be amended by adding the following phrase before the period at
the end thereof:
"minus (e) for purposes of calculating "Fixed Charges" for the fiscal
quarter ending September 30, 2001, any amounts paid by Seller or its affiliates
to reduce the purchase price of the stock and assets pursuant to the Stock and
Asset Purchase Agreement during such quarter."
(b) Section 2.15(d)(ii) of the Credit Agreement shall be amended by
deleting the table contained therein and replacing such table with the following
table:
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APPLICABLE
FLOATING RATE APPLICABLE COMMITMENT
LEVERAGE RATIO MARGIN APPLICABLE EUROCURRENCY MARGIN FEE PERCENTAGE
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
Less than 1.50 0.25% 1.25% 0.375%
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
1.50 or greater, but less than 2.00 0.75% 1.75% 0.375%
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
2.00 or greater, but less than 2.50 1.25% 2.25% 0.500%
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
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===================================== =================== ================================= ==========================
APPLICABLE
FLOATING RATE APPLICABLE COMMITMENT
LEVERAGE RATIO MARGIN APPLICABLE EUROCURRENCY MARGIN FEE PERCENTAGE
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
2.50 or greater, but less than 2.75 1.75% 2.75% 0.500%
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
2.75 or greater, but less than 3.00 2.00% 3.00% 0.500%
------------------------------------- ------------------- --------------------------------- --------------------------
------------------------------------- ------------------- --------------------------------- --------------------------
3.00 or greater 2.25% 3.25% 0.500%
===================================== =================== ================================= ==========================
(c) Section 5.3(a) of the Credit Agreement shall be amended by inserting at
the end of such Section the text "and no Default or Unmatured Default would
result after giving effect to the making of any Loan or issuance of any Letter
of Credit."
(d) Section 7.4(a) of the Credit Agreement shall be deleted in its entirety
and replaced with the following new Section 7.4(a):
(a) Minimum Fixed Charge Coverage Ratio. The Company shall maintain as
of the end of each fiscal quarter set forth below (i) for each fiscal
quarter ending on or after September 30, 2002, a Fixed Charge Coverage
Ratio for the four fiscal quarter period then ending, and (ii) for each
fiscal quarter ending on or before June 30, 2002, a Fixed Charge Coverage
Ratio for such fiscal quarter, of not less than the ratio set forth below
opposite such period:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2001 1.00:1.00
December 31, 2001 through March 31, 2003 1.20:1.00
June 30, 2003 1.50:1.00
September 30, 2003 1.75:1.00
December 31, 2003 2.00:1.00
March 31, 2004 and June 30, 2004 2.25:1.00
September 30, 2004 and thereafter 2.50:1.00
(e) Section 7.4(b) of the Credit Agreement shall be deleted in its entirety
and replaced with the following new Section 7.4(b):
(b) Maximum Leverage Ratio. The Company shall at all times during the
periods specified below maintain a Leverage Ratio for the four fiscal
quarter period then ending of not greater than the ratio set forth below
opposite such period:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2001 3.90:1.00
December 31, 2001 3.25:1.00
March 31, 2002 2.50:1.00
June 30, 2002 2.00:1.00
September 30, 2002 1.75:1.00
December 31, 2002 and thereafter 1.50:1.00
2. Waiver. Subject to the conditions and effectiveness of this Agreement
and otherwise notwithstanding the provisions of any Loan Document, the Agent and
the 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 covenants set forth in Sections 7.4(a) and (b) of the Credit Agreement
for the period of four fiscal quarters ended June 29, 2001 and (b) solely with
respect to the prepayment referenced in Section 6(d) of this Agreement, the
notice requirements set forth in Section 2.5(a) of the Credit Agreement.
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3. Agreement With Respect to Application of Certain Mandatory Prepayments.
In addition to the prepayment referenced in Section 6(d) of this Agreement, the
Company, the Agents and the Lenders hereby agree that 50% of the first $20
million of Net Proceeds of the Equity Issuance immediately shall be applied to
prepay the Term Loans in the manner set forth in Section 2.5(b)(ix) of the
Credit Agreement. The Agents and the Lenders hereby waive any requirement in the
Credit Agreement that the remaining Net 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.
4. Agreement With Respect to Equity Issuance. The Company agrees that the
Equity Issuance will be on terms and conditions reasonably satisfactory to the
Agents.
5. 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.
6. 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 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 Agents
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 0.200% of the Aggregate Commitment as of June 30, 2001;
(d) permanent prepayment of the Term Loan in an amount equal to $10
million, which 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.
7. 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 any Agent
or Lender under the Credit Agreement or
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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.
8. 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.
9. 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.
10. 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.
11. 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]
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IN WITNESS WHEREOF, the Company, the Lenders and the Agents have executed
this Amendment and Waiver 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/ Xxxx X. Xxxxxx
-------------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxx
-------------------------------------------------------
Name: Xxxx Xxxx
Title: Assistant 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/ Xxxxx Xxxxxx
-------------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
ERSTE BANK, NEW YORK BRANCH, as Lender
By: /s/ Xxxxxx X.Xxxxxx
-------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx X. Burrton
-------------------------------------------------------
Name: Xxxx X. Burrton
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Title: Managing Director
XXXXX FARGO BANK, as Lender
By: ---------------------------------------------------
Name:
Title:
XXXXXX BANK PLC, NEW YORK BRANCH, as Lender
By: /s/ Xxx Xxxxxxxx
-------------------------------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
-------------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
BANK OF THE WEST, as Lender
By:----------------------------------------------------
Name:
Title:
BARCLAYS BANK PLC, as Lender
By: /s/ Sydney X. Xxxxxx
-------------------------------------------------------
Name: Sydney X. Xxxxxx
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
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