EXHIBIT #10.12.6
EXECUTION COPY
AMENDMENT NO. 6 TO CREDIT AGREEMENT
This AMENDMENT NO. 6 TO CREDIT AGREEMENT (this "Amendment") is entered into as
of this 5th day of November, 2003, 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");
WHEREAS, the Borrower has formed a new Subsidiary, BCI Eclipse Company, LLC, a
Minnesota limited liability company ("BCI Eclipse");
WHEREAS, BCI Eclipse will purchase substantially all of the assets of BCI
Eclipse, LLC, a New York limited liability company pursuant to that certain
Asset Purchase Agreement, dated as of November 5, 2003, by and among Borrower,
BCI Eclipse as buyer, BCI Eclipse, LLC, as seller and the Members (as defined
therein) named therein (together with any exhibits, schedules and any other
annexes or supplements thereto and as in effect as of the date hereof and as
amended or otherwise modified in a manner not prohibited by the Credit
Agreement, the "BCI Eclipse Purchase Agreement") (which transaction will be
referred to herein as the "BCI Purchase"); 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:
10 AMENDMENTS TO CREDIT AGREEMENT.
10.1 Clause (iii) of Section 1.3(b) of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"(iii) If Borrower issues Stock, no later than the Business Day
following the date of receipt of the proceeds thereof, Borrower shall
prepay the Loans in an amount equal to all such proceeds, net of (A)
underwriting discounts and commissions and other reasonable costs paid
to non-Affiliates in connection therewith and (B) the amount of such
proceeds which are used to prepay Hilco Indebtedness in accordance with
Section 6.3(b). Any such prepayment shall be applied in accordance with
Section 1.3(c)."
10.2 Section 1.6 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"Section 1.6 Eligible Accounts. All of the Accounts owned by one or
more of the Eligible Credit Parties and reflected in the most recent
Borrowing Base Certificate delivered by Borrower to Agent shall be
"Eligible Accounts" for purposes of this Agreement, except any Account
to which any of the exclusionary criteria set forth below applies.
Agent shall have the right to establish or modify or eliminate Reserves
against Eligible Accounts from time to time in its reasonable credit
judgment. In addition, Agent reserves the right, at any time and from
time to time after the Closing Date, to adjust any of the criteria set
forth below, to establish new criteria and to adjust advance rates with
respect to Eligible Accounts, in its reasonable credit judgment for
reasons relating to any Credit Party, any Credit Party's business or
industry and/or the Agent's ability to collect or realize the full
value of any Collateral, subject to the approval of Supermajority
Revolving Lenders in the case of adjustments or new criteria or changes
in advance rates or the elimination of Reserves which have the effect
of making more credit available. Eligible Accounts shall not include
any Account of any Eligible Credit Party:
(a) that does not arise from the sale of goods or the
performance of services by such Eligible Credit Party in the
ordinary course of its business;
(b) (i) upon which the right of such Eligible Credit Party to
receive payment is not absolute or is contingent upon the
fulfillment of any condition whatsoever or (ii) as to which
such Eligible Credit Party is not able to bring suit or
otherwise enforce its remedies against the Account Debtor
through judicial process, or (iii) if the Account represents a
progress billing consisting of an invoice for goods sold or
used or services rendered pursuant to a contract under which
the Account Debtor's obligation to pay that invoice is subject
to such Eligible Credit Party's completion of further
performance under such contract or is subject to the equitable
lien of a surety bond issuer;
(c) to the extent that any defense, counterclaim, setoff or
dispute is asserted as to such Account;
(d) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for
merchandise sold to or services rendered and accepted by the
applicable Account Debtor;
(e) with respect to which an invoice has not been sent to the
applicable Account Debtor;
(f) that (i) is not owned by such Eligible Credit Party or
(ii) is subject to any right, claim, security interest or
other interest of any other Person, other than Liens in favor
of Agent, on behalf of itself and Lenders;
(g) that arises from a sale to any director, officer, other
employee or Affiliate of any Credit Party, or to any entity
that has any common officer or director with any Credit Party;
(h) that is the obligation of an Account Debtor that is the
United States government or a political subdivision thereof,
or any state, county or municipality or department, agency or
instrumentality thereof unless Agent, in its sole discretion,
has agreed to the contrary in writing and such Eligible Credit
Party, if necessary or desirable, has complied with respect to
such obligation with the Federal Assignment of Claims Act of
1940, or any applicable state, county or municipal law
restricting the assignment thereof with respect to such
obligation;
2
(i) that is the obligation of an Account Debtor located in a
foreign country other than Canada (excluding the province of
Newfoundland, the Northwest Territories and the Territory of
Nunavit) unless payment thereof is assured by a letter of
credit assigned and delivered to Agent, satisfactory to Agent
as to form, amount and issuer;
(j) to the extent such Eligible Credit Party or any of its
Subsidiaries is liable for goods sold or services rendered by
the applicable Account Debtor to such Eligible Credit Party or
any of its Subsidiaries but only to the extent of the
potential offset;
(k) that arises with respect to goods that are delivered on a
xxxx-and-hold, cash-on-delivery basis or placed on
consignment, guaranteed sale or other terms by reason of which
the payment by the Account Debtor is or may be conditional;
(l) that is in default; provided, that, without limiting the
generality of the foregoing, an Account shall be deemed in
default upon the occurrence of any of the following:
(i) the Account is not paid within the earlier of: 60
days following its due date or 90 days following its
original invoice date;
(ii) the Account Debtor obligated upon such Account
suspends business, makes a general assignment for the
benefit of creditors or fails to pay its debts
generally as they come due; or
(iii) a petition is filed by or against any Account
Debtor obligated upon such Account under any
bankruptcy law or any other federal, state or foreign
(including any provincial) receivership, insolvency
relief or other law or laws for the relief of
debtors;
(m) that is the obligation of an Account Debtor if 50% or more
of the Dollar amount of all Accounts owing by that Account
Debtor are ineligible under the other criteria set forth in
this Section 1.6;
(n) as to which Agent's Lien thereon, on behalf of itself and
Lenders, is not a first priority perfected Lien;
(o) as to which any of the representations or warranties in
the Loan Documents are untrue;
(p) to the extent such Account is evidenced by a judgment,
Instrument or Chattel Paper;
(q) to the extent such Account exceeds any credit limit
established by Agent, in its reasonable credit judgment;
(r) to the extent that such Account, together with all other
Accounts owing by such Account Debtor and its Affiliates as of
any date of determination exceed 20% of all otherwise Eligible
Accounts (provided, however that on and after the first
anniversary of the Closing Date, Accounts owing by an Approved
Obligor and its Affiliates which constitute less than 25% of
all otherwise Eligible Accounts shall not be deemed ineligible
pursuant to this clause (r));
(s) that is payable in any currency other than Dollars or
Canadian Dollars; or
(t) that is otherwise unacceptable to Agent in its reasonable
credit judgment for reasons relating to any Credit Party, any
Credit Party's business or industry and/or the Agent's ability
to collect or realize the full value of any Collateral."
3
10.3 Section 1.7 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"Section 1.7 Eligible Inventory. All of the inventory owned by
one or more of the Eligible Credit Parties and reflected in the most
recent Borrowing Base Certificate delivered by Borrower to Agent shall
be "Eligible Inventory" for purposes of this Agreement, except any
Inventory to which any of the exclusionary criteria set forth below
applies. Agent shall have the right to establish, modify, or eliminate
Reserves against Eligible Inventory from time to time in its reasonable
credit judgment. In addition, Agent reserves the right, at any time and
from time to time after the Closing Date, to adjust any of the criteria
set forth below, to establish new criteria and to adjust advance rates
with respect to Eligible Inventory in its reasonable credit judgment,
subject to the approval of Supermajority Revolving Lenders in the case
of adjustments or new criteria or changes in advance rates or the
elimination of Reserves which have the effect of making more credit
available. Eligible Inventory shall not include any Inventory of any
Eligible Credit Party that:
(a) is not owned by such Eligible Credit Party free and clear of all
Liens and rights of any other Person (including the rights of a
purchaser that has made progress payments and the rights of a surety
that has issued a bond to assure the performance of such Eligible
Credit Party with respect to that Inventory), except the Liens in favor
of Agent, on behalf of itself and Lenders;
(b) (i) is not located on premises owned, leased or rented by such
Eligible Credit Party and set forth in Disclosure Schedule (3.2) or
(ii) is stored at a leased location, unless Agent has given its prior
consent thereto and unless (x) a reasonably satisfactory landlord
waiver has been delivered to Agent, or (y) Reserves satisfactory to
Agent have been established with respect thereto, (iii) is stored with
a bailee or warehouseman unless a reasonably satisfactory, acknowledged
bailee letter has been received by Agent and Reserves reasonably
satisfactory to Agent have been established with respect thereto, or
(iv) is located at an owned location subject to a mortgage in favor of
a lender other than Agent, unless a reasonably satisfactory mortgagee
waiver has been delivered to Agent, or (v) is located at any site if
the aggregate book value of Inventory at any such location is less than
$100,000;
(c) is placed on consignment or is in transit, except for Inventory in
transit between domestic locations of Credit Parties as to which
Agent's Liens have been perfected at origin and destination;
(d) is covered by a negotiable document of title, unless such document
has been delivered to Agent with all necessary endorsements, free and
clear of all Liens except those in favor of Agent and Lenders;
(e) is excess, obsolete, unsalable, shopworn, seconds, damaged or unfit
for sale;
(f) consists of display items or packing or shipping materials,
manufacturing supplies, work-in-process Inventory or replacement parts;
(g) consists of goods which have been returned by the buyer;
(h) is not of a type held for sale in the ordinary course of such
Eligible Credit Party's business;
(i) is not subject to a first priority lien in favor of Agent on behalf
of itself and Lenders subject to Permitted Encumbrances;
4
(j) breaches any of the representations or warranties pertaining to
Inventory set forth in the Loan Documents;
(k) consists of any costs associated with "freight-in" charges;
(l) consists of Hazardous Materials or goods that can be transported or
sold only with licenses that are not readily available;
(m) is not covered by casualty insurance reasonably acceptable to
Agent;
(n) unless such Inventory is computer software, has been produced or
published by anyone other than one of the Major Labels;
(o) consists of the "reserve for inventory valuation" on the general
ledger of such Eligible Credit Party; or
(p) is otherwise unacceptable to Agent in its reasonable credit
judgment for reasons relating to any Credit Party, any Credit Party's
business or industry and/or the Agent's ability to collect or realize
the full value of any Collateral."
10.4 The first sentence of Section 6.1 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Without the prior written consent of the Agent (which consent
may be provided or withheld in the Agent's sole discretion), no Credit
Party shall directly or indirectly, by operation of law or otherwise,
(a) form or acquire any Subsidiary, (b) merge with, consolidate with,
acquire all or substantially all of the assets or Stock of, or
otherwise combine with or acquire, any Person, or (c) other than
purchases of Inventory and licenses of Intellectual Property, in each
case in the ordinary course of business consistent with practices as in
effect on the date hereof, purchase assets from any Person if (i) such
purchase is not a Capital Expenditure or (ii) the amount paid for such
purchase does not reduce the EBITDA, during the period such purchase is
made and by the amount paid for such purchase, of the Credit Party
which makes such purchase; provided, however that (A) the Borrower may
form Encore Acquisition and (B) Encore Acquisition may acquire the
assets of Encore Software pursuant to and in accordance with the Encore
Purchase Agreement; provided, further that (A) the Borrower may form
BCI Eclipse and (B) BCI Eclipse may acquire the assets of BCI Eclipse,
LLC, a New York limited liability company pursuant to and in accordance
with the BCI Eclipse Purchase Documents."
10.5 Each time that the dollar amount "$10,000,000" is set forth in
Section 6.1(x) and Section 6.1(xi) of the Credit Agreement, such dollar amount
is hereby amended to read "$20,000,000."
10.6 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
5
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,
6
$6,000,000; (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, $5,000,000; and (n) other
investments not exceeding $100,000 in the aggregate at any time
outstanding."
10.7 Section 6.3 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"6.3. Indebtedness.
(a) No Credit Party shall create, incur, assume or
permit to exist any Indebtedness, except (without duplication)
(i) Indebtedness secured by purchase money security interests
and Capital Leases permitted in Section 6.7(c), (ii) the Loans
and the other Obligations, (iii) unfunded pension fund and
other employee benefit plan obligations and liabilities to the
extent they are permitted to remain unfunded under applicable
law, (iv) existing Indebtedness described in Disclosure
Schedule (6.3) and refinancings thereof or amendments or
modifications thereof that do not have the effect of
increasing the principal amount thereof or changing the
amortization thereof (other than to extend the same) and that
are otherwise on terms and conditions no less favorable to any
Credit Party, Agent or any Lender, as determined by Agent,
than the terms of the Indebtedness being refinanced, amended
or modified, (v) Indebtedness permitted pursuant to Section
6.2(j) hereof, (vi) Indebtedness of Encore Acquisition to the
Borrower in an aggregate amount not to exceed $7,200,000, so
long as such Indebtedness is evidenced by an intercompany
note, in form and substance satisfactory to Agent, and such
intercompany note has been delivered and endorsed to Agent,
and Indebtedness of Borrower to Encore Software, Inc., a
California corporation pursuant to Section 5 of the Amendment
No. 1 to Encore Purchase Agreement in an aggregate principal
amount not to exceed $1,150,000; provided that, no Credit
Party (other than Encore Acquisition) shall guarantee, grant
liens on its assets (including, without limitation, the equity
interests in Encore Acquisition) to secure, or otherwise be
directly or indirectly liable for any such Indebtedness or
related obligations, (vii) Indebtedness incurred by Borrower
under the Construction Loan Agreement in an aggregate
principal amount not to exceed $4,550,000, (viii) Indebtedness
incurred by Borrower under the Hilco Loan Agreement in an
aggregate principal amount not to exceed $6,000,000 at any
time outstanding, and (ix) Indebtedness of BCI Eclipse to the
Borrower, so long as (a) the related loans to BCI Eclipse from
the Borrower are permitted pursuant to Section 6.2(l) or
Section 6.2(m), and (b) such Indebtedness is evidenced by an
intercompany note, in form and substance satisfactory to
Agent, and such intercompany note has been delivered and
endorsed to Agent.
(b) No Credit Party shall, directly or indirectly,
voluntarily purchase, redeem, defease or prepay any principal
of, premium, if any, interest or other amount payable in
respect of any Indebtedness, other than (i) the Obligations;
(ii) the Hilco Indebtedness, as long as (A) such prepayment is
made solely from the net cash proceeds of an issuance, on
terms and conditions reasonably satisfactory to Agent, of
Stock of Borrower and (B) such prepayment is made
substantially simultaneously with the Borrower's issuance of
such Stock, (iii) Indebtedness
7
secured by a Permitted Encumbrance if the asset securing such
Indebtedness has been sold or otherwise disposed of in
accordance with Sections 6.8(b) or (c); (iv) Indebtedness
permitted by Section 6.3(a)(iv) upon any refinancing thereof
in accordance with Section 6.3(a)(iv); and (v) other
Indebtedness not in excess of $250,000; and (vi) as otherwise
permitted in Section 6.14. In addition, the Borrower shall not
make any payment of the Hilco Indebtedness pursuant to Section
1.3(b)(ii) of the Hilco Loan Agreement (a "Hilco ECF Payment")
unless (i) at the time of such Hilco ECF Payment, no Default
or Event of Default exists, (ii) the Borrower has notified the
Agent of the amount of such Hilco ECF Payment otherwise
required by the Hilco Loan Agreement, (iii) the Borrower has
provided the Agent with the financial statements necessary to
calculate if such payment is required (accompanied by the
applicable calculation thereof) and (iv) the Agent has not,
within two weeks after the later of the Agent's receipt of
such notice and the Agent's receipt of such financial
statements (and related calculation), notified the Borrower
and Hilco in writing that it disagreed with the determination
of such Hilco ECF Payment (and Agent shall set forth in
reasonable detail the basis for such disagreement) or that one
of the foregoing conditions has not been satisfied.
10.8 Section 6.7 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"6.7 Liens. No Credit Party shall create, incur, assume or
permit to exist any Lien on or with respect to its Accounts or
any of its other properties or assets (whether now owned or
hereafter acquired) except for (a) Permitted Encumbrances; (b)
Liens in existence on the date hereof and summarized on
Disclosure Schedule (6.7) securing Indebtedness described on
Disclosure Schedule (6.3) and permitted refinancings,
extensions and renewals thereof, including extensions or
renewals of any such Liens; provided that the principal amount
so secured is not increased and the Lien does not attach to
any other property; (c) Liens created after the date hereof by
conditional sale or other title retention agreements
(including Capital Leases) or in connection with purchase
money Indebtedness with respect to Equipment and Fixtures
acquired by any Credit Party in the ordinary course of
business, involving the incurrence of an aggregate amount of
purchase money Indebtedness and Capital Lease Obligations of
not more than $250,000 outstanding at any one time for all
such Liens (provided that such Liens attach only to the assets
subject to such purchase money debt and such Indebtedness is
incurred within 20 days following such purchase and does not
exceed 100% of the purchase price of the subject assets), (d)
Liens in favor of The Business Bank on the Minnesota Real
Estate and related assets pursuant to the Construction
Mortgage solely to secure Indebtedness permitted pursuant to
Section 6.3(a)(vii) hereof and (e) and Liens in favor of Hilco
Capital LP on the assets of the Credit Parties solely to
secure Indebtedness permitted pursuant to Section 6.3(a)(viii)
hereof, so long as such Liens are subject to the terms and
conditions of the Hilco Lien Intercreditor Agreement. In
addition, no Credit Party shall become a party to any
agreement, note, indenture or instrument, or take any other
action, that would prohibit the creation of a Lien on any of
its
8
properties or other assets in favor of Agent, on behalf of
itself and Lenders, as additional collateral for the
Obligations, except operating leases, Capital Leases or
Licenses which prohibit Liens upon the assets that are subject
thereto."
10.9 Section 6.14 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
"6.14. Restricted Payments. No Credit Party shall make any
Restricted Payment, except (a) dividends and distributions by
Subsidiaries of Borrower paid to Borrower, (b) employee loans
permitted under Section 6.4(b),(c) on any day, the Borrower
may repurchase up to 15,000 of the Borrower's own shares of
common stock for a price not in excess of $1.20 per share, as
long as the aggregate consideration paid for all such
repurchases during any consecutive twelve month period does
not exceed $250,000, and (d) payment of Earnout Amounts (under
and as defined in the BCI Eclipse Purchase Agreement as in
effect on November 5, 2003) as long as (i) at the time of such
payment and after giving effect thereto, no Default or Event
of Default has occurred and is continuing, (ii) after giving
effect to such payment, the Borrowing Availability shall be at
least $20,000,000, (iii) the Borrower has demonstrated to the
Agent's reasonable satisfaction that the average daily
Borrowing Availability for the 30-day period preceding such
payment was at least $20,000,000 and (iv) prior to such
payment the Borrower has delivered evidence satisfactory to
the Agent demonstrating that, had such payment been made on
the last day of the then most recently completed Fiscal
Quarter, Borrower would have been in compliance with the
financial covenants set forth on Annex G to the Credit
Agreement as of the end of such Fiscal Quarter."
10.10 Section 6.19 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
"Section 6.19 Amendments. The Borrower shall not enter into
any amendment, supplement, restatement, other modification or waiver
with respect to any of the Construction Loan Documents, the Minnesota
Sale-Leaseback Documents, the BCI Eclipse Purchase Documents, or the
Hilco Loan Documents without the prior written consent of Agent."
10.11 Section 6 of the Credit Agreement is hereby amended by adding the
following Subsection 6.20 at the end thereof:
"Section 6.20 Trade Debt. The Credit Parties shall not cause
or permit BCI Eclipse or Encore Acquisition to incur third party
obligations to trade creditors (excluding intercompany indebtedness
among the Credit Parties) in an amount not to exceed (i) $5,000,000 in
the aggregate for BCI Eclipse or (ii) $12,000,000 in the aggregate for
Encore Acquisition."
10.12 Annex A to the Credit Agreement is hereby amended by adding the
following new definitions thereto in the applicable alphabetical locations:
9
""Amendment No. 6" means that certain Amendment No. 6 to Credit
Agreement dated as of November 5, 2003 by and among Borrower, the Agent
and the Lenders.
"BCI Eclipse" has the meaning set forth in the Recitals to Amendment
No. 6.
"BCI Eclipse Purchase Agreement" has the meaning set forth in the
Recitals to Amendment No. 6.
"BCI Eclipse Purchase Documents" means the BCI Eclipse Purchase
Agreement, the BCI Eclipse Subordination Agreement and all other
agreements, instruments, documents and certificates executed and
delivered in connection therewith, as in effect as of the date of
Amendment No. 6 and as amended or otherwise modified in a manner not
prohibited hereby.
"BCI Eclipse Subordination Agreement" means that certain Subordination
and Intercreditor Agreement dated as of November 5, 2003 by and among
Agent, BCI Eclipse and BCI Eclipse, LLC (as amended, restated or
otherwise modified from time to time in a manner not prohibited
hereby).
"Eligible Credit Parties" means each of the Borrower, Encore
Acquisition and BCI Eclipse.
"Hilco Indebtedness" means at any time all outstanding "Obligations"
owing by Borrower to Hilco Capital LP and as defined under the Hilco
Loan Agreement.
"Hilco Lien Intercreditor Agreement" means that certain Lien
Intercreditor Agreement dated as of November 5, 2003 between Hilco
Capital LP and Agent (as amended, restated or otherwise modified from
time to time in a manner not prohibited hereby).
"Hilco Loan Agreement" means that certain Loan Agreement dated as of
November 5, 2003 between Hilco Capital LP and Borrower (as amended,
restated or otherwise modified from time to time in a manner not
prohibited hereby).
"Hilco Loan Documents" means the Hilco Loan Agreement, the Hilco Lien
Intercreditor Agreement and all other agreements, instruments,
documents and certificates executed and delivered in connection with
the Hilco Loan Agreement or the transactions contemplated thereby, as
amended or otherwise modified in a manner not prohibited hereby. Any
reference in this Agreement or any other Loan Document to a Hilco Loan
Document shall include all appendices, exhibits or schedules thereto
and shall refer to such Hilco Loan Document as the same may be in
effect at any and all times such reference becomes operative.
"Subordinated Debt" means debt which is subordinated to any or all of
the Obligations.
10.13 The following definitions in Annex A to the Credit Agreement are
hereby amended and restated to read in their entirety as follows:
10
"Borrowing Base" means, as of any date of determination by Agent, from
time to time, an amount equal to the sum at such time of:
(a) the lesser of (i) 58% of the book value of the Eligible
Accounts of the Eligible Credit Parties or (ii) (a) during the month of
January of each Fiscal Year, $25,000,000, (b) during the months of
February, March, April, May, June, July and August of each Fiscal Year,
$20,000,000 and (c) at all other times, $30,000,000;
(b) the lesser of (i) 58% of the Eligible Inventory of the
Eligible Credit Parties valued at the lower of cost (FIFO) or market or
(ii) 85% of the Orderly Liquidation Value of the Eligible Inventory of
the Eligible Credit Parties; and
(c) 100% of the aggregate face value of each Eligible
Certificate of Deposit issued to Borrower;
in each case less any Reserves established by Agent from time
to time; provided however that at no time shall the amount of the
Borrowing Base attributable to the Eligible Accounts and Eligible
Inventory, collectively, of (i) Encore Acquisition exceed the then
aggregate outstanding principal balance of all loans made by Borrower
to Encore Acquisition and (ii) BCI Eclipse exceed the then aggregate
outstanding principal balance of all loans made by Borrower to BCI
Eclipse. The value of any Eligible Accounts denominated in Canadian
Dollars shall be included in the Borrowing Base using such Accounts'
Dollar Amount.
"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; provided, however, that solely
for the purposes of the calculation of the Financial Covenants set
forth in Annex G, "Capital Expenditures" shall not include expenditures
in an aggregate amount not to exceed $4,550,000 which are funded with
the proceeds of loans under the Construction Loan Agreement.
"Restricted Payment" means, with respect to any Credit Party (a) the
declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other
property or assets in respect of Stock; (b) any payment on account of
the purchase, redemption, defeasance, sinking fund or other retirement
of such Credit Party's Stock or any other payment or distribution made
in respect thereof, either directly or indirectly; (c) any payment or
prepayment of principal of, premium, if any, or interest, fees or other
charges on or with respect to, and any redemption, purchase,
retirement, defeasance, sinking fund or similar payment and any claim
for rescission with respect to, any Subordinated Debt (other than the
Hilco Indebtedness); (d) any payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire Stock of such Credit Party
now or hereafter outstanding; (e) any payment of a claim for the
rescission of the purchase or sale of, or for material damages arising
from the purchase or sale of, any shares of such Credit Party's Stock
or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission;
(f) any payment, loan, contribution, or other transfer of funds or
other property to any Stockholder of such
11
Credit Party other than payment of compensation in the ordinary course
of business to Stockholders who are employees of such Credit Party; (g)
any payment of management fees (or other fees of a similar nature) by
such Credit Party to any Stockholder of such Credit Party or its
Affiliates, and (h) any payment of any Earnout Amount (as defined in
the BCI Eclipse Purchase Agreement) or similar payment pursuant to the
BCI Eclipse Purchase Agreement."
10.14 Subsections (a), (b), (c) and (d) 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:
Period Maximum Capital Expenditures per Period
------ ---------------------------------------
Fiscal Year ending on or about March 31, 2004 $2,900,000
Fiscal Year ending on or about March 31, 2005 $2,600,000 plus
that portion of the $2,900,000 amount for
the Fiscal Year ending on or about March 31,
2004 which was not utilized during such
Fiscal Year
Fiscal Year ending on or about March 31, 2006 $2,000,000
and each Fiscal Year ending thereafter
(b) Minimum EBITDA. Borrower and its Subsidiaries on a consolidated
basis shall have, at the end of each Fiscal Quarter (or calendar month)
set forth below, EBITDA plus interest income for the 12-month period
then ended of not less than the amount set forth opposite such Fiscal
Quarter (or calendar month) below:
Fiscal Quarter (calendar month) Amount
------------------------------------------- ----------
Fiscal Quarter ending on June 30, 2003 $2,000,000
Fiscal Quarter ending on September 30, 2003 $2,000,000
Calendar month ending on November 30, 2003 $6,500,000
Calendar month ending on December 31, 2003 $6,500,000
Calendar month ending on January 31, 2004 $7,000,000
Calendar month ending on February 29, 2004 $7,000,000
Fiscal Quarter ending on March 31, 2004 $7,750,000
Fiscal Quarter ending on June 30, 2004 $7,750,000
12
Fiscal Quarter (calendar month) Amount
------------------------------------------- ----------
Fiscal Quarter ending on September 30, 2004 $7,775,000
Fiscal Quarter ending on December 31, 2004 $8,500,000
Fiscal Quarter ending on March 31, 2005 $8,500,000
Fiscal Quarter ending on June 30, 2005 $8,500,000
Fiscal Quarter ending on September 30, 2005 $9,250,000
Fiscal Quarter ending on December 31, 2005 $9,250,000
Fiscal Quarter ending on March 31, 2006 $9,250,000
Fiscal Quarter ending on June 30, 2006 $9,250,000
Fiscal Quarter ending on September 30, 2006 $9,500,000
Fiscal Quarter ending on December 31, 2006 $9,500,000
Fiscal Quarter ending on March 31, 2007 $9,500,000
and each Fiscal Quarter thereafter.
(c) Minimum Working Capital Ratio. Borrower and its Subsidiaries on a
consolidated basis shall have, at the end of each Fiscal Quarter set
forth below, a ratio of Accounts Payable to Inventory Value as of the
last day of such Fiscal Quarter of not less than the ratio set forth
opposite such Fiscal Quarter set forth below:
Period Minimum Working Capital Ratio
------------------------------------------- -----------------------------
Fiscal Quarter ending on June 30, 2003 2.30 to 1.00
Fiscal Quarter ending on September 30, 2003 2.55 to 1.00
Fiscal Quarter ending on December 31, 2003 3.85 to 1.00
Fiscal Quarter ending on March 31, 2004 3.10 to 1.00
Fiscal Quarter ending on June 30, 2004 2.25 to 1.00
Fiscal Quarter ending on September 30, 2004 2.60 to 1.00
Fiscal Quarter ending on December 31, 2004 3.75 to 1.00
Fiscal Quarter ending on March 31, 2005 3.00 to 1.00
Fiscal Quarter ending on June 30, 2005 2.20 to 1.00
Fiscal Quarter ending on September 30, 2005 2.50 to 1.00
Fiscal Quarter ending on December 31, 2005 3.70 to 1.00
Fiscal Quarter ending on March 31, 2006 2.90 to 1.00
Fiscal Quarter ending on June 30, 2006 2.50 to 1.00
Fiscal Quarter ending on September 30, 2006 2.75 to 1.00
Fiscal Quarter ending on December 31, 2006 4.05 to 1.00
Fiscal Quarter ending on March 31, 2007 3.35 to 1.00
13
and each Fiscal Quarter thereafter.
(d) Minimum Fixed Charge Coverage Ratio. Borrowers and their
Subsidiaries shall have on a consolidated basis, for each Fiscal Month
or Fiscal Quarter set forth below, for the 12 month period then ended,
a ratio of (A) EBITDA 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 (other than required payments made pursuant to Section
1.3(b)(ii) of the Hilco Loan Agreement), 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 the ratio set forth below:
Period Minimum Fixed Charge Coverage Ratio
---------------------------------------- -----------------------------------
Fiscal Month ending on November 30, 2003 1.50:1.00
Fiscal Month ending on December 31, 2003 1.50:1.00
Fiscal Month ending on January 31, 2004 1.50:1.00
Fiscal Month ending on February 29, 2004 1.50:1.00
Fiscal Month ending on March 31, 2004 1.50:1.00
Fiscal Quarter ending on June 30, 2004 1.50:1.00
Fiscal Quarter ending on September 30, 2004 1.50:1.00
Fiscal Quarter ending on December 31, 2004 1.50:1.00
Fiscal Quarter ending on March 31, 2005 1.50:1.00
Fiscal Quarter ending on June 30, 2005 1.50:1.00
Fiscal Quarter ending on September 30, 2005 1.50:1.00
Fiscal Quarter ending on December 31, 2005 1.50:1.00
Fiscal Quarter ending on March 31, 2006 1.50:1.00
Fiscal Quarter ending on June 30, 2006 1.60:1.00
Fiscal Quarter ending on September 30, 2006 and each 1.60:1.00
Fiscal Quarter thereafter
10.15 Annex G to the Credit Agreement is hereby amended by adding the
following new subsection (e) following subsection (d) thereof:
(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 average amount of Indebtedness as of the last day of
each of the then most recent twelve months
14
to (ii) EBITDA plus interest income for the four Fiscal Quarters then
ending of not greater than 3.0:1.
10.16 Each of the Disclosure Schedules to the Credit Agreement is
hereby amended and restated in its entirety to read as the Disclosure Schedules
attached hereto.
11 EFFECTIVENESS. The effectiveness of this Amendment is subject to the
satisfaction of each the following conditions precedent:
11.1 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;
11.2 the Agent shall have received executed copies of all Loan
Documents required by the Agent in connection with this Amendment, including,
without limitation, (i) a guaranty by BCI Eclipse in favor of Agent, (ii) a
security agreement between BCI Eclipse and Agent, (iii) a pledge agreement
executed by the Borrower in favor of Agent pledging all of the Stock of BCI
Eclipse to Agent (along with the share certificates representing such Stock and
stock powers for each such share certificate), (iv) an assignment of
representations, warranties, covenants and indemnities among Agent, Borrower and
BCI Eclipse, (v) the BCI Eclipse Subordination Agreement, (vi) the Hilco Lien
Intercreditor Agreement and (vii) [Blocked Account Agreements and Pledged
Account Agreements with respect to the bank accounts of BCI Eclipse];
11.3 Agent shall have received (x) copies of the UCC, tax and judgment
lien searches conducted in respect of BCI Eclipse and BCI Eclipse, LLC, in form
and substance satisfactory to Agent and (y) a secretary 's certificate with
respect to each of Borrower, Encore Acquisition and BCI Eclipse, in form and
substance satisfactory to Agent, attaching their respective (i) articles of
incorporation or certificate of formation, (ii) by-laws, operating agreement or
any other similar document or agreement, (iii) good standing certificate, (iv)
incumbency certificate and (v) board resolutions or member's resolutions.
11.4 the Agent shall have received a duly executed original of the
opinion of Winthrop & Weinstine, P.A., in form and substance satisfactory to
Agent and its counsel, with respect to the due authorization, execution,
delivery and performance by each Credit Party signatory hereto of this Amendment
or the other Loan Documents executed in connection herewith, the enforceability
of the Credit Agreement as amended hereby and the Loan Documents executed in
connection herewith, and the creation and perfection of certain security
interests granted under the Loan Documents executed in connection herewith;
11.5 the Agent shall have received evidence, in form and substance
satisfactory to Agent, that the BCI Purchase has been consummated in accordance
with the terms of the BCI Eclipse Purchase Documents;
11.6 the Agent shall have received a certified copy of each of the BCI
Eclipse Purchase Documents, each of which shall be in form and substance
satisfactory to Agent;
11.7 the Borrower shall have paid to the Agent an amendment fee of
$125,000 (which fee shall be fully earned and payable on the date hereof);
15
11.8 the Agent shall have received a certified copy of each of the
Hilco Loan Documents, and the Hilco Loan Documents shall be in form and
substance satisfactory to Agent; and
11.9 The representations and warranties contained herein shall be true
and correct in all respects.
12 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:
12.1 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 November 5, 2003), except to the extent that
any such representations and warranties expressly relate to an earlier date;
12.2 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 as amended by this
Amendment, 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;
12.3 Neither the execution, delivery and performance of this Amendment
by Borrower, the performance by Borrower of the Credit Agreement as amended by
this Amendment 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
12.4 No Default or Event of Default has occurred and is continuing.
13 REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
13.1 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
13.2 The Amendments set forth herein are 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
16
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.
14 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.
15 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
16 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.
17 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)
17
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 6 to Credit Agreement as of the date first written above.
BORROWER:
NAVARRE CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
AS AGENT AND LENDER
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[Signature Page to Amendment No. 6 to Credit Agreement]
18
CONSENT
The undersigned hereby (i) acknowledges receipt of and consents to Amendment No.
6 to Credit Agreement (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:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
19
