AMENDMENT TO SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.20
AMENDMENT
TO SECURITIES PURCHASE AGREEMENT
This
Amendment (the "Amendment"), dated as of June 30, 2008, is by and among Shelter
Island Opportunity Fund, LLC (the "Holder"), EMTA Holdings, Inc., a Nevada
corporation (the “Company”), and EMTA Production Holdings, Inc. a Nevada
corporation ("EMTA Production").
RECITALS
A.
The Holder, EMTA Production and the Company entered into a certain Securities
Purchase Agreement, dated as of June 30, 2007 (together with any previous
amendments, the "Agreement").
B.
The Holder, EMTA Production and the Company desire to amend the
Agreement.
AGREEMENT
1.
Definitions. Capitalized
terms used but not defined in this Amendment shall have the meaning given to
them in the Agreement.
2.
Amendments. The
Agreement is hereby amended as follows:
2.1
From and after the date hereof, the term “Term Note” (or any variation thereof
referring to the Term Note), shall mean the Term Note, dated as of the date of
this Amendment, from EMTA Production to the Holder in the principal amount of
$1,336,692, the form of which is attached to this Amendment as Exhibit A. It is
understood and agreed that the principal amount of the Term Note includes
$1,310,482 in respect of the current outstanding principal amount thereof and
$26,210 in respect of the amendment fee referred to in Section
8.
2.2
The following is added as Section 5.28 of the Agreement:
5.28.
Operating
Income. The Company shall have operating income (determined in accordance
with GAAP) in amounts not less than the amounts indicated below for the
respective periods indicated:
|
Period
|
Operating
Income
|
|
Three-months
ended March 31, 2009
|
$1,000,000
|
|
Six-months
ended June 30, 2009
|
$2,000,000
|
|
Nine-months
ended September 30, 2009
|
$3,000,000
|
|
12-months
ended March 31, 2009
|
$4,000,000
|
|
For
each calendar quarter thereafter, measured on a 12-month trailing
basis
|
$4,000,000
|
3.
Representations and
Warranties. The Company and EMTA Production represent and
warrant to the Holder that: (a) there is no event which is, or with
notice or lapse of time or both would be, an Event of Default under the Term
Note, (b) the representations and warranties in the Agreement are true as of the
date of this Amendment as if made on the date of this Amendment, (c) this
Amendment does not conflict with any law, agreement, or obligation by which the
Company or EMTA Production is bound, and (d) this Amendment is within the
Company's and EMTA Production’s powers, has been duly authorized, and does not
conflict with any of the Company's or EMTA Production’s governing
documents.
4.
Reaffirmation of
Obligations and Grant of Security Interest. The Company and
EMTA Production hereby expressly acknowledge and reaffirm their obligations
under the Agreement, as amended hereby, and acknowledge and agree that all
collateral, security interests, liens and pledges heretofore or hereafter
granted to the Holder, and all documents executed in connection therewith or
referred to or incorporated therein, extend to and cover all of the Company’s
and EMTA Production’s obligations to the Holder, now existing or hereafter
arising, including without limitation, those arising in connection with the Term
Note and the Agreement, as amended by this Amendment, upon the terms set forth
in such agreements, all of which security interests, liens and pledges are
hereby ratified, reaffirmed, confirmed and approved.
5.
Effect of
Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and
effect. All references to the Term Note or to the Agreement in all
documents executed in connection with the Agreement or referred to or
incorporated therein, shall be deemed to mean the Term Note (as defined above)
and the Agreement, as amended by this Amendment.
6.
Counterparts. This
Amendment may be executed in counterparts, each of which when so executed shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.
7.
Governing
Law. This Amendment is governed by the laws of the State of
New York.
8.
Shares;
Amendment Fee and Expenses. Upon execution and delivery of
this Amendment, the Company shall deliver to the Holder, as additional
consideration for Holder entering into this Amendment, 500,000 shares of its
common stock, registered in such name as the Holder shall specify (the
“Shares”). The Company hereby represents and warrants that the Shares will be
saleable by the Holder under Rule 144(k) on the date that is six months from the
date of delivery of such shares to the Holder and that such shares have been
duly authorized and are validly issued, fully-paid and are
non-assessable. The Company and /or EMTA Production shall pay (i) to
Holder an amendment fee of $26,210 in connection with this Amendment, which fee
shall be added to the principal balance of the Note and (ii) all of Holder’s
legal fees and expenses, up to a maximum amount of $5,000, in connection with
the preparation, negotiation, execution and delivery of this
Amendment.
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9. FINAL
AGREEMENT. BY
SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS
DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM
SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT
MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN
OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
This Amendment is executed as of the
date stated at the beginning of this Amendment.
|
Shelter
Island Opportunity Fund, LLC
By:
Shelter Island GP, LLC
|
|||
|
By
|
/s/ Xxxxxxx Xxxxxx | ||
|
|
|||
| Typed Name: Xxxxxxx Xxxxxx | |||
| Title: Managing Director | |||
| EMTA Holdings, Inc. | |||
|
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||
|
|
|||
| Typed Name: Xxxxxx X. Xxxxxxxx | |||
| Title: CEO | |||
| EMTA Production Holdings, Inc. | |||
|
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||
|
|
|||
| Typed Name: Xxxxxx X. Xxxxxxxx | |||
| Title: CEO | |||
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CONSENT AND
REAFFIRMATION
OF GUARANTOR AND
PLEDGOR
The
undersigned, as a guarantor of EMTA Production’s obligations to the Holder under
the Agreement and a pledgor of assets to the Holder to secure such obligations,
hereby (i) acknowledges and consents to the foregoing Amendment, (ii) reaffirms
its obligations under the Subsidiary Guaranty, dated June 30, 2007, in favor of
the Holder, (iii) reaffirms the security interest granted by the undersigned to
the Holder under the Stock Pledge, dated June 30, 2007, as collateral security
for the obligations of EMTA Production under the Agreement, as amended by the
foregoing Amendment, and the Term Note and (iv) confirms that each of such
Subsidiary Guaranty and Stock Pledge remains in full force and effect, without
defense, offset, or counterclaim. (Capitalized terms used herein
shall have the meanings specified in the foregoing Amendment.)
Although
the undersigned has been informed of the terms of the Amendment, the undersigned
understands and agrees that the Holder has no duty to so notify it or any other
guarantor or to seek this or any future acknowledgment, consent or
reaffirmation, and nothing contained herein shall create or imply any such duty
as to any transactions, past or future.
Dated as of June 30, 2008
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