EXHIBIT 10.12.3 AMENDMENT NO. 3
EXECUTION COPY
AMENDMENT NO. 3 TO CREDIT AGREEMENT
This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment") is entered
into as of this 30th day of March, 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"); and
WHEREAS, the Borrower, Agent and the Lenders desire to amend certain
provision 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:
AMENDMENT TO CREDIT AGREEMENT. Clause (a) set forth on Annex G to the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"(a) Maximum Capital Expenditures. Borrower and its
Subsidiaries on a consolidated basis shall not make Capital
Expenditures during any Fiscal Year in excess of (i) for each Fiscal
Year other than the Fiscal Year ending on or about March 31, 2003,
$1,000,000 in the aggregate and (ii) for the Fiscal Year ending on or
about March 31, 2003, $1,100,000 in the aggregate."
EFFECTIVENESS. This Amendment shall become effective upon its execution
and delivery by Borrower, Agent and each Lender.
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:
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, except to the extent that any such
representations and warranties expressly relate to an earlier date;
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;
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, (ii) 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
No Default or Event of Default has occurred and is continuing.
REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
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
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.
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.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
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.
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)
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 3 to Credit Agreement as of the date first written above.
BORROWER:
NAVARRE CORPORATION
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION, AS AGENT AND LENDER
By:
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Name:
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Title:
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CONSENT
The undersigned hereby (i) acknowledges receipt of and consents to the
Amendment No. 3 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:
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Name:
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Title:
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