EXHIBIT 10.43
EXECUTION COPY
SEVENTH AMENDMENT TO CREDIT AGREEMENT
This SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 26th day of January, 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");
WHEREAS, the Borrower has informed Agent and the Lenders that Borrower
desires to make a loan to Mix & Burn, Inc., a Minnesota corporation in an
aggregate principal amount not to exceed $500,000 (the "Mix & Burn Loan"); and
WHEREAS, the Borrower desires that Agent and the Lenders amend certain
provision of the Credit Agreement to permit the Mix & Burn Loan and certain
other transactions in connection therewith 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. AMENDMENT. 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
Moody's 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) hereto (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,
$6,000,000; (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; (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 &
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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, frilly 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."
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;
(b) the Agent shall have received a certified copy of each of (i) that
certain Discretionary Revolving Loan Agreement dated as of January 26, 2004
between the Borrower and Mix & Burn; (ii) that certain Promissory Note dated as
of January 26, 2004 by Mix & Burn in favor of Borrower; (iii) that certain
Security Agreement dated as of January 26, 2004 between the Borrower and Mix &
Burn; (iv) that certain Warrant dated as of January 26, 2004 issued by Mix &
Burn in favor of Borrower (the "Mix & Burn Warrant") and (v) all related
agreements, documents, UCC Financing Statements and other instruments executed
and/or delivered in connection therewith (collectively, the "Mix & Burn
Agreements") and the Mix & Burn Agreements shall be in form and substance
satisfactory to Agent;
(c) The Agent shall have received a Pledge Amendment, in form and
substance satisfactory to Agent, executed by Borrower in favor of Agent,
pledging the Mix & Burn Promissory Note and the Mix & Burn Warrant, together
with (i) an original copy of the Mix & Burn Promissory Note endorsed to Agent,
and (ii) an original copy of the Mix & Burn Warrant and related undated, blank
executed warrant power; and
(d) 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
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Amendment (determined as if all references to "Closing Date" were references to
January 26, 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.
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.
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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/ James G. Gilbert
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Name: James G. Gilbert
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Title: CFO
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:
--------------------------------
Name:
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Title:
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S-1
[Signature Page to Seventh Amendment To Credit Agreement]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
BORROWER:
NAVARRE CORPORATION
By:
--------------------------------
Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Leanne C. Manning
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Name: Leanne C. Manning
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Title: Duly Authorized Signatory
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[Signature Page to Seventh Amendment To Credit Agreement]
CONSENT
The undersigned hereby (i) acknowledges receipt of and consents to the
Seventh Amendment To Credit Agreement dated as of January 26, 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/ MICHAEL A. BELL
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Name: MICHAEL A. BELL
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Title: CEO
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Encore, Inc.
A Navarre Corporation Company
BCI ECLIPSE COMPANY, LLC
By:
--------------------------------
Name:
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Title:
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[Signature Page to Seventh Amendment To Credit Agreement]
CONSENT
The undersigned hereby (i) acknowledges receipt of and consents to the
Seventh Amendment To Credit Agreement dated as of January 26, 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:
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Title:
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BCI ECLIPSE COMPANY, LLC
By: /s/ James G. Gilbert
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Name: James G. Gilbert
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Title: CFO
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S-2
[Signature Page to Seventh Amendment To Credit Agreement]