Exhibit 10.32
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This First Amendment to the Loan and Security Agreement (this "Amendment")
is dated as of the 1st day of September, 2006, by and among XXXXXXX RADIO CORP.
("ERC US"), a Delaware corporation, XXXXXXX RADIO MACAO COMMERCIAL OFFSHORE
LIMITED ("ER Macao"), a Macao corporation, MAJEXCO IMPORTS, INC. ("MI"), a
California corporation, XXXXXXX RADIO (HONG KONG) LIMITED ("ER Hong Kong"), a
Hong Kong corporation, and XXXXXXX RADIO INTERNATIONAL LTD. ("ER BVI"), a
British Virgin Island company, jointly and severally as co-borrowers and
co-obligors, except as set forth in Section 11.8 of the Loan Agreement, as
defined below (collectively, the "Borrowers" and each is referred to
individually herein as a "Borrower"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association (together with its successors and assigns, "Bank").
BACKGROUND
A. Borrowers and Bank are parties to a certain Loan and Security
Agreement dated as of December 23, 2005 (as the same may be amended or otherwise
modified from time to time, the "Loan Agreement"), and the other Loan Documents
(as defined in the Loan Agreement). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Loan
Agreement.
B. The parties have agreed, subject to the terms and conditions of
this Amendment, to amend the Loan Agreement.
NOW, THEREFORE, with the foregoing Background hereinafter deemed
incorporated by this reference, the parties hereto, intending to be legally
bound, promise and agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT
1.1 Definitions. The following definitions are added to Section 1.1
of the Loan Agreement in the appropriate alphabetical order:
"First Amendment" means the First Amendment to the Loan and Security
Agreement dated September 1, 2006, among Borrowers and Bank.
"First Amendment Effective Date" means the date the Effectiveness
Conditions (as defined in Section 6 of the First Amendment) are
satisfied.
1.2 Borrowing Base. Clause (iii) of the definition of Borrowing Base
in the Loan Agreement is amended and restated in its entirety and shall read as
follows:
(iii) the lesser of (a) the Inventory Sublimit and (b) the sum
of (i) the lesser of (A) 85% of the NOLV of Eligible Inventory and (B) 55% of
the total amount of Eligible Inventory, plus (ii) the lesser of (A) 85% of the
NOLV of Eligible In-Transit Inventory, and (B) 55% of the total amount of
Eligible In-Transit Inventory and (C) solely for the period from the First
Amendment Effective Date through October 31, 2006, $22,000,000 and at all times
thereafter, $18,000,000, plus (iii) the lesser of (A) 85% of the NOLV of
Eligible Licensed Inventory, and (B) 55% of the total amount of Eligible
Licensed Inventory and (C) $10,000,000, plus
1.3 Inventory Sublimit. The definition of Inventory Sublimit in the
Loan Agreement is amended and restated in its entirety and shall read as
follows:
"Inventory Sublimit" means (a) for the period commencing January 1
through and including March 31 of each calendar year, an amount equal to
$27,000,000 and (b) for the period commencing April 1 through and including
December 31 of each calendar year, an amount equal to $31,500,000; provided
however, solely for the period from the First Amendment Effective Date through
October 31, 2006, the Inventory Sublimit shall be an amount equal to
$37,500,000.
1.4 Revolver Commitment. The definition of Revolver Commitment in
the Loan Agreement is amended and restated in its entirety and shall read as
follows:
"Revolver Commitment" means the commitment of Bank, subject to the
terms and conditions herein, to make Revolver Loans and issue Letters of Credit
in accordance with the provisions of Section 2 hereof in an aggregate amount not
to exceed $45,000,000 at any one time; provided however, solely for the period
from the First Amendment Effective Date through October 31, 2006, the Revolver
Commitment shall be an amount equal to $53,000,000.
1.5 Letters of Credit. Clause (i) of Section 2.10.1 of the Loan
Agreement is amended and restated in its entirety and shall read as follows:
(i) the aggregate face amount of Letters of Credit issued by
Bank which are outstanding at any one time shall not exceed $25,000,000;
provided further that solely for the period from the First Amendment Effective
Date through September 30, 2006, the amount shall not exceed $35,000,000;
2. CONFIRMATION OF INDEBTEDNESS
Each Borrower hereby confirms and agrees that, as of August 29,
2006, the total principal amount of outstanding Revolver Loans under the Loan
Agreement is $4,871,803.68, and the face amount of all outstanding Letters of
Credits is $20,616,082.81 and that each Borrower is unconditionally liable to
Bank for such amounts, together all accrued and unpaid interest and expenses
through the First Amendment Effective Date, without any set-off, deduction,
counterclaim or defense.
3. FURTHER ASSURANCES
Each Borrower hereby agrees to take all such actions and to
execute and/or deliver to Bank all such agreements, instruments, certificates,
assignments, financing statements and other documents, as Bank may reasonably
require from time to time, to effectuate and implement the purposes of this
Amendment.
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4. CONFIRMATION OF COLLATERAL
Each Borrower covenants, confirms and agrees that as security
for the repayment of the Obligations, Bank has, and shall continue to have, and
is hereby granted a continuing lien on and security interest in the Collateral,
all whether now owned or hereafter acquired, created or arising, including all
proceeds thereof. Each Borrower acknowledges and agrees that nothing herein
contained in any way impairs Bank's existing rights and priority in the
Collateral.
5. REPRESENTATIONS AND WARRANTIES
Each Borrower warrants and represents to Bank that:
5.1 By execution of this Amendment, each Borrower reconfirms all
warranties and representations made to Bank under the Loan Documents and
restates such warranties and representations as of the date hereof all of which
shall be deemed continuing until all of the Obligations are paid and satisfied
in full.
5.2 The execution and delivery by each Borrower of this Amendment
and the performance of the transactions herein contemplated (i) are and will be
within its power, (ii) have been authorized by all necessary action, and (iii)
are not and will not be in contravention of any order of court or other agency
of government, of law, of any organization document of such Borrower or of any
indenture, agreement or undertaking to which such Borrower is a party or by
which the property of such Borrower is bound, or be in conflict with, result in
a breach of or constitute (with due notice and/or lapse of time) a default under
any such indenture, agreement or undertaking, or result in the imposition of any
lien, charge or encumbrance of any nature on any of the properties of such
Borrower.
5.3 This Amendment and any assignment or other instrument, document
or agreement executed and delivered in connection herewith, will constitute the
legal, valid and binding obligations of each Borrower, enforceable in accordance
with their respective terms, subject only to bankruptcy and similar laws
affecting creditors' rights generally.
5.4 There are no outstanding Defaults or Events of Default under
any of the Loan Documents.
5.5 There has been no change which could have a Material Adverse
Effect on any Borrower since the date of the most recent financial statements of
such Borrower delivered to Bank from time to time.
6. EFFECTIVENESS CONDITIONS
This Amendment shall not be effective until the following conditions
("Effectiveness Conditions") have been met to the sole satisfaction of Bank
(all documents to be in form and substance satisfactory to Bank):
6.1 Borrowers shall have executed and delivered to Bank this
Amendment.
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6.2 Borrowers shall have paid to Bank, in immediately available
funds, a non-refundable amendment fee in an amount equal to $20,000, which fee
is fully earned by Bank as of the First Amendment Effective Date.
6.3 Borrowers shall have executed and delivered to Bank an amended
and restated revolving credit note.
6.4 Borrowers shall have delivered to Lender authorizing resolutions
authorizing each Borrower's execution, delivery and performance of this
Amendment.
7. PAYMENT OF EXPENSES
Borrowers shall pay or reimburse Bank for all reasonable attorneys'
fees and expenses and all reasonable out of pocket costs in connection with the
analysis, preparation, negotiation and execution of this Amendment and all
agreements, instruments and documents provided for herein or related hereto.
8. REAFFIRMATION
This Amendment shall be incorporated into and made part of the Loan
Agreement. Except as expressly modified by the terms hereof, all of the terms
and conditions of the Loan Agreement, and all of the other Loan Documents, are
hereby reaffirmed and shall continue in full force and effect as therein
written.
9. RELEASE
As further consideration for the agreement of Bank to enter into
this Amendment, each Borrower hereby waives, releases, and discharges Bank, all
affiliates of Bank and all of the directors, officers, employees, attorneys and
agents of Bank and all affiliates of such Persons, from any and all known
claims, demands, actions or causes of action existing as of the date hereof,
arising out of or in any way relating to this Amendment, the Loan Agreement, the
Loan Documents and/or any documents, agreements, instruments, dealings or other
matters connected with this Amendment, the Loan Agreement, the Loan Documents or
the administration thereof.
10. MISCELLANEOUS
10.1 Integrated Agreement. The Loan Documents and this Amendment
shall be construed as integrated and complementary of each other, and as
augmenting and not restricting Bank's rights, remedies and security. If, after
applying the foregoing, an inconsistency still exists, the provisions of this
Amendment shall control.
10.2 Severability. Any provision hereof, or of the Loan Agreement or
any other Loan Document that is prohibited or unenforceable in any jurisdiction
shall be, as to such jurisdiction, ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
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10.3 Non-Waiver. No omission or delay by Bank in exercising any
right or power under this Amendment, or the Loan Documents or any related
agreement will impair such right or power or be construed to be a waiver of any
Default or Event of Default or an acquiescence therein, and any single or
partial exercise of any such right or power will not preclude other or further
exercise thereof or the exercise of any other right, and no waiver will be valid
unless in writing and signed by Bank and then only to the extent specified.
Bank's rights and remedies are cumulative and concurrent and may be pursued
singly, successively or together.
10.4 Headings. The headings of any paragraph of this Amendment are
for convenience only and shall not be used to interpret any provision of this
Amendment.
10.5 Survival. All warranties, representations and covenants made by
Borrowers herein, or in any agreement referred to herein or on any certificate,
document or other instrument delivered by it or on its behalf under this
Amendment, shall be considered to have been relied upon by Bank. All statements
in any such certificate or other instrument shall constitute warranties and
representations by Borrower hereunder. All warranties, representations, and
covenants made by Borrowers hereunder or under any other agreement or instrument
shall be deemed continuing until the Obligations are indefeasibly paid and
satisfied in full.
10.6 Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of Borrowers and Bank, and their respective
successors and assigns; provided, that Borrowers may not assign any of its
rights hereunder without the prior written consent of Bank, and any such
assignment made without such consent will be void.
10.7 Governing Law. This Amendment, the Loan Agreement and the Loan
Documents shall be deemed contracts made under the laws of the State of the
Jurisdiction and shall be governed by and construed in accordance with the laws
of said state (excluding its conflict of laws provisions if such provisions
would require application of the laws of another jurisdiction) except insofar as
the laws of another jurisdiction may, by reason of mandatory provisions of law,
govern the perfection, priority and enforcement of security interests in the
Collateral.
10.8 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AMENDMENT, THE LOAN AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS AMENDMENT OR THE LOAN
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION
IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO AND ACCEPT THIS AGREEMENT.
10.9 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original and all of
which when taken together shall constitute but one and the same instrument. Any
signature delivered by a party by facsimile transmission or .pdf shall be deemed
to be an original signature hereto.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
BORROWERS: XXXXXXX RADIO CORP.
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: Senior Executive VP-International Operations & COO
XXXXXXX RADIO MACAO COMMERCIAL
OFFSHORE LIMITED
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: Director
MAJEXCO IMPORTS, INC.
By: /s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: Senior VP-International
SIGNED, SEALED and DELIVERED )
as a Deed for and in the name of )
X.X. XXXXXXX RADIO (HONG KONG) LIMITED )
by its attorney )
Name: /s/ Xxxx X. Xxxx )
----------------
in the presence of )
Witness:
Name: Xxxx X. Xxxxxxx
Signature: /s/ Xxxx X. Xxxxxxx
-------------------
XXXXXXX RADIO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Director
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BANK: WACHOVIA BANK
NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President
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