Contract
Exhibit 99.7
EXECUTION COPY
THIS AGREEMENT is made as of this 9th day of December, 2009 among JJ Media Investment
Holding Limited, a British Virgin Islands company (“JJ Media”), Citibank, N.A. (“Citibank”) and
Nomura Securities International, Inc. (“Nomura”).
WHEREAS, Citibank, as Lender, Administrative Agent and Collateral Agent, and JJ Media, as
Borrower, have entered into an agreement entitled “Margin Loan Agreement” dated as of November 13,
2009 (the “MLA”), pursuant to which Citibank agreed to make Loans (as defined in the MLA) from time
to time to JJ Media on the terms set forth therein;
WHEREAS, JJ Media has executed and delivered to Citibank a Note (as defined in the MLA) dated
November 19, 2009 evidencing the initial Loan made by Citibank (the “Initial Loan”) under the MLA;
WHEREAS, (a) JJ Media, as Pledgor, and Citibank, as Collateral Agent for the Secured Parties,
have entered into an agreement entitled “Security Agreement” dated as of November 19, 2009 (the
“Security Agreement”) pursuant to which JJ Media pledged and granted to Citibank a security
interest in the Collateral (as defined in the Security Agreement) to secure the prompt payment in
full of JJ Media’s Secured Obligations (as defined in the Security Agreement) on the terms set
forth therein and (b) pursuant to the Security Agreement, JJ Media, as Pledgor, Citibank, as
Collateral Agent, and Citigroup Global Markets Inc., as Intermediary, have entered into an
agreement entitled “Control Agreement” dated as of November 19, 2009;
WHEREAS, Citibank wishes to exercise its rights pursuant to Section 10.06(b) of the MLA to
document an assignment of 30% of the Obligations and Commitment, in each case, as of the date such
assignment is effective as a separate, parallel loan between the Borrower and Nomura;
WHEREAS, Nomura is an Eligible Assignee and JJ Media is willing, on the terms set forth
herein, to acknowledge and enter into the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby mutually covenant and agree as follows:
| *** | Certain confidential information contained in this document, marked by brackets, has been omitted and filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. |
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the MLA or the Security Agreement, as applicable.
SECTION 2. Reduction of Initial Loan; Nomura MLA. On the terms and subject to the conditions
set forth below, the parties agree that:
(a) (i) The Initial Loan shall be reduced by the repayment of $[***] of principal (the
“Repayment Amount”), which represents 30% of the Initial Loan, (ii) the aggregate principal amount
of the Initial Loan outstanding immediately prior to such reduction and evidenced by the Note shall
be reduced by the principal amount being so prepaid, (iii) Citibank’s Commitment shall be reduced
by $[***], and (iv) the Administrative Agent shall record the foregoing repayment and related
reduction in Citibank’s Commitment on the Register maintained pursuant to Section 2.06(b) of the
MLA and Citibank will reflect such repayment on the schedule to its Note as contemplated by Section
2.07(c) of the MLA.
(b) Promptly following receipt of the Repayment Amount, Citibank shall transfer or cause to be
transferred to Nomura [***] of the Unrestricted ADS and [***] of the Restricted ADS constituting
Collateral under the Security Agreement (collectively, the “Transferred ADS”), in each case, in
such manner as Nomura shall reasonably request. Upon the transfer by Citibank of the Transferred
ADS, the Collateral Agent’s security interest in such Transferred ADS shall be automatically
released.
(c) JJ Media and Nomura shall execute and deliver to each other a loan agreement substantially
in the form of Exhibit A attached hereto (the “Nomura MLA”) and shall execute and/or deliver each
document or certificate and take each action that is required to be executed, delivered or taken by
it to satisfy the conditions precedent specified in the Nomura MLA to the making of the Nomura Loan
(as defined below).
(d) Nomura’s initial loan to the Company under the Nomura MLA (the “Nomura Loan”), which shall
be in an amount equal to the Repayment Amount, shall be effected by wire transfer of such amount to
an account specified by Citibank and shall be deemed to be the partial repayment by the Company of
the Initial Loan referred to in clause (a) above.
(e) (i) For purposes of Section 8.01(q) of the MLA, Citibank, as Administrative Agent with
respect to the Initial Loan, hereby consents to the transactions contemplated by the Nomura MLA.
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(ii) For purposes of Section 8.01(q) of the Nomura MLA, Nomura, as Administrative Agent with
respect to the Nomura Loan, hereby consents to the transactions contemplated by the MLA.
(f) (i) The MLA is amended by replacing the term “Pledgor’s ADS” wherever used with the term
“Pledged ADS”.
(ii) The Security Agreement is amended as follows:
(w) by inserting the following definition between the definitions of “Issuer” and
“Pledged Agreements”:
“Pledged ADS” means [***] of the Pledgor’s ADS.
(x) by replacing each use of the term “Pledgor’s ADS” with the defined term “Pledged
ADS” except in the Recitals; and
(y) by adding “as it relates to the Pledged ADS” after the word “Agreement” in
Section 2(c) and 2(d).
(z) by replacing “$[***]” with “$[***]” in Section 3(h).
Promptly after the date hereof, (i) Citibank shall amend the financing statement naming JJ
Media as debtor and Citibank as secured party filed on November 19, 2009 in the Office of the
Recorder of Deeds of the District of Columbia, and (ii) JJ Media shall procure the amendment of (x)
the entries made on November 19, 2009 on the register of charges of JJ Media maintained pursuant to
Section 162 of the BVI Business Companies Act, 2004, and (y) the charge for the benefit of Citibank
registered on November 19, 2009 by the Registrar of Corporate Affairs pursuant to Section 163(1) of
the BVI Business Companies Act, 2004, in each case, to reflect the foregoing amendments, and such
amendments shall be satisfactory to Nomura.
SECTION 3. Representations and Warranties. Each of Citibank, Nomura and JJ Media represents
to each other party hereto that:
(A) this Agreement and the transactions contemplated hereby are within its powers and have
been duly authorized, and this Agreement has been executed and delivered by or on its behalf and is
the valid and binding agreement of such party, enforceable against such party in accordance with
their terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditor’s
rights generally and equitable principles of general applicability;
(B) the execution and delivery of this Agreement by such party, and the performance by such
party of its obligations under this Agreement and the
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transactions contemplated hereby (i) will not violate or conflict with any provision of
applicable law or regulation, the applicable constitutive document of such party, any agreement or
other instrument binding upon such party or any of its assets or any judgment, order or decree of
any governmental body, agency, official or court having jurisdiction over such party, whether
foreign or domestic, and (ii) do not require any consent, approval, authorization or order of, or
filing or qualification with, any governmental body, agency, official, self-regulatory organization
or court or other tribunal, whether foreign or domestic.
SECTION 4. Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES
THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH PARTY HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AGAINST ANY OTHER PARTY HERETO OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (b) OF
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THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 6(a) BELOW. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
SECTION 5. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).
SECTION 6. Miscellaneous. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile transmission to the following address:
In the case of JJ Media:
c/o Focus Media Holding Limited
28-30 /F, Zhao Feng World Trade Building
000 Xxxxxxx Xxxx
Xxxxxxxx 000000
People’s Republic of China
Attention: Xxxxx Xxxxx
Telephone: 8621-2216-4088
Fax: 8621-2216-4174;
In the case of Citibank:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000;
c/o Focus Media Holding Limited
28-30 /F, Zhao Feng World Trade Building
000 Xxxxxxx Xxxx
Xxxxxxxx 000000
People’s Republic of China
Attention: Xxxxx Xxxxx
Telephone: 8621-2216-4088
Fax: 8621-2216-4174;
In the case of Citibank:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000;
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In the case of Nomura:
Nomura Securities International, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000;
Nomura Securities International, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000;
or such other address as may be specified in writing by a party hereto to each other party
hereto.
(B) This Agreement may be executed, acknowledged and delivered in any number of counterparts
and all such counterparts taken together shall be deemed to constitute one and the same agreement.
(C) This Agreement constitutes the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersedes all oral communications and prior writings
with respect thereto.
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EXECUTION COPY
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date and year first above
written.
| CITIBANK, N.A. |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: Xxxxx Xxxxxxxxx | ||||
| Title: Authorized Representative | ||||
| NOMURA SECURITIES INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxxx Xxxxx | ||||
| Title: Managing Director | ||||
Acknowledged as of the date and year
first above written:
first above written:
| JJ MEDIA INVESTMENT HOLDING LIMITED |
||||
| By: | /s/ Xxxxx Xxxxxxx Xxxxx | |||
| Name: Xxxxx Xxxxxxx Xxxxx | ||||
| Title: Director | ||||
