EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.27.7
EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Eighth Amendment to Loan and Security Agreement (this “Amendment”) is dated as
of the 15th day of December, 2009, 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 has been and 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. Borrowers and Bank are parties to a certain Seventh Amendment to Loan
and Security Agreement dated as of July 13, 2009 (the “Seventh Amendment”).
C. Borrowers have requested and Bank has agreed to amend certain terms of
the Loan Agreement, subject to the terms, conditions and provisions of this Amendment.
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
Upon the effectiveness of this Amendment, the Loan Agreement is amended as follows:
1.1 Fixed Charge Coverage Ratio. The OLEVIA Purchase (as defined in the
Seventh Amendment) and the Real Estate Purchase (as defined in the Seventh Amendment) shall
be
excluded from the determination of the Fixed Charge Coverage Ratio for the applicable
calculation
periods.
1.2 Capital Expenditures. Notwithstanding Section 7.2 of the Loan Agreement,
Borrowers shall not expend on gross fixed assets (including gross leases to be capitalized
under
GAAP and leasehold improvements) an amount exceeding $5,000,000 in the aggregate during the
fiscal year ending March 31, 2010.
2. CONFIRMATION OF INDEBTEDNESS
Each Borrower hereby confirms and agrees that, as of the close of business on the date
hereof, the total principal amount of outstanding Revolver Loans under the Loan Agreement is
$0, and the face amount of all outstanding Letters of Credit is $1,568,391.87 and that
each Borrower is unconditionally liable to Bank for such amounts, together with all accrued and
unpaid interest and expenses through the date hereof, 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.
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 (including the Xxxxx Xxxxxx Securities), 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, Borrowers confirm that all representations
and warranties made by Borrowers to Bank shall be true and correct in all material
respects, with the
same effect as though the representations and warranties had been made on and as of the
date
hereof, except to the extent such representation and warranty are made as of a specific
prior date.
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
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Bank from time to time.
6. EFFECTIVENESS CONDITIONS
This Amendment shall not be effective until the following conditions have been met to the
sole satisfaction of Bank (which satisfaction shall be evidenced by Bank’s counter-execution
and delivery to ERC US of a fully executed counterpart of this Amendment):
(i) Borrowers shall have executed and delivered to Bank this Amendment.
(ii) Borrowers shall have paid to Bank, in immediately available funds, a non-refundable
waiver and amendment fee in an amount equal to $2,500, which fee is fully earned by Bank upon
the execution of this Amendment.
7. 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.
8. 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.
9. MISCELLANEOUS
9.1 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.
9.2 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.
9.3 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
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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.
9.4 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.
9.5 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.
9.6 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.
9.7 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.
9.8 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 AMENDMENT.
9.9 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/ Greenfield Xxxxx | |||
| Name: | Greenfield Xxxxx | |||
| Title: | Group CFO | |||
| XXXXXXX RADIO MACAO COMMERCIAL OFFSHORE LIMITED |
||||
| By: | /s/ Xxx Ho Kit, Xxxx | |||
| Name: | XXX HO KIT, XXXX | |||
| Title: | CFO ASIAN OPERATIONS | |||
| MAJEXCO IMPORTS, INC. |
||||
| By: | /s/ Greenfield Xxxxx | |||
| Name: | Greenfield Xxxxx | |||
| Title: | President | |||
|
SIGNED, SEALED and DELIVERED as a Deed for and in the name of XXXXXXX RADIO (HONG KONG) LIMITED by its attorney |
) ) ) ) |
||
| /s/ Xxx Ho Kit, Xxxx | ||||
| Name: | XXX HO KIT, XXXX | ) | ||
| in the presence of | ) | |||
| Witness: |
|||||
| Name: | AU XXX XX, ANGEL | ||||
| Signature: | /s/ Au Xxx Xx, Xxxxx | ||||
| XXXXXXX RADIO INTERNATIONAL LTD. |
||||
| By: | /s/ Xxx Ho Kit, Xxxx | |||
| Name: | XXX HO KIT, XXXX | |||
| Title: | CFO-ASIAN OPERATIONS | |||
[SIGNATURE PAGE TO EIGHTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT]
TO LOAN AND SECURITY AGREEMENT]
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| BANK: | WACHOVIA BANK, NATIONAL ASSOCIATION |
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO EIGHTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT]
TO LOAN AND SECURITY AGREEMENT]
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