AMENDMENT NO. 2 AND WAIVER TO CREDIT AGREEMENT OF XINHUA SPORTS & ENTERTAINMENT LIMITED
Exhibit 4.65
EXECUTION
COPY
Amendment No. 2 and Waiver (this “Amendment”), dated as of July 12, 2010, to the
Credit Agreement, dated as of October 21, 2008 (as modified to the date hereof, the “Credit
Agreement”), among XINHUA SPORTS & ENTERTAINMENT LIMITED (formerly known as XINHUA FINANCE
MEDIA LIMITED), a Cayman Islands limited company (the “Borrower”), the Subsidiaries of the
Borrower signatory thereto (collectively, the “Guarantors”), the financial institutions and
other investors from time to time party thereto as Lenders and PATRIARCH PARTNERS AGENCY SERVICES,
LLC, a Delaware limited liability company, as administrative agent for such Lenders (in such
capacity, the “Administrative Agent”). Capitalized terms used herein but not defined
herein are used as defined in the Credit Agreement.
W i t n e s s e t h:
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are party to
the Credit Agreement;
WHEREAS, the Lenders party to this Amendment, the Borrower, the Guarantors and the
Administrative Agent have agreed, subject to certain limitations and conditions set forth below, to
make certain amendments to the Credit Agreement, as more specifically set forth below;
WHEREAS, the Borrower has notified the Administrative Agent that the Events of Default
specified on Schedule A (Events of Default) hereto have occurred and are continuing
(such Events of Default, together with any Event of Default that may exist by reason of any failure
to deliver notice thereof pursuant to the Credit Agreement and by past misrepresentations under the
Credit Agreement that no Default or Events of Default existed and were continuing, each a
“Specified Event of Default” and, collectively, the “Specified Events of Default”);
WHEREAS, the Borrower and the Guarantors have requested that the Administrative Agent and the
Required Lenders (a) waive the Specified Events of Default and (b) further amend the Credit
Agreement as set forth herein; and
WHEREAS, the Lenders party hereto (constituting the Required Lenders) and the Administrative
Agent agree, subject to the limitations and conditions set forth herein, to (a) waive the
Specified Events of Default and (b) further amend the Credit Agreement as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Waiver
(a) Effective as of the date first written above and subject to the satisfaction (or due
waiver) of the conditions set forth in Section 3 (Conditions Precedent to the Effectiveness of this
Amendment) hereof, the Lenders party to this Amendment, constituting the Required Lenders, and the
Administrative Agent waive the following:
(i) the Specified Events of Default; provided, however, that, (A) in respect
of Specified Events of Default relating to representations and warranties, such Specified Events of
Default shall be waived only to the extent they relate to representations and warranties made prior
to the
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
date hereof and (B) the Specified Event of Default described in Item 2 of Schedule A
(Events of Default) shall be waived only to the extent that the Borrower shall file the
Shelf Registration Statement with the SEC as soon as practicable after the date hereof but in any
event within 45 days after the date hereof and shall use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective within 120 days after the date hereof; and
provided, further, that the waiver set forth in this clause (i) shall not
excuse any failure to comply after the earlier of the date hereof and the Amendment Effective Date
with the Credit Agreement as amended hereby; and
(ii) compliance with Section 2.12(a) with respect to the issuance by the Borrower of
the Series C Preferred Shares to the Lenders.
Section 2. Amendments to the Credit Agreement. The Credit Agreement is, effective as
of the date first written above and subject to the satisfaction (or due waiver) of the conditions
set forth in Section 3 (Conditions Precedent to the Effectiveness of this Amendment)
hereof, hereby amended as follows (with bold, underline, indenting and other formatting modified to
conform to the formatting of the Credit Agreement):
(a) Amendments to Article I (Defined Terms)
(i) The following definitions are hereby inserted in Section 1.1 (Defined
Terms) of the Credit Agreement in the appropriate place to preserve the alphabetical order of
the definitions in such section (and, if applicable, the following definitions shall replace in
their entirety existing definitions for the corresponding terms in such section):
“Additional Term Loan Commitment” means, (i) with respect to each Lender that
is a lender on the Second Amendment Date, the amount set forth opposite such Lender’s name
on Schedule I as such Lender’s “Additional Term Loan Commitment” and (ii) in the case of any
lender that becomes a Lender after the Second Amendment Date, the amount specified as such
Lender’s “Additional Term Loan Commitment” in the Assignment and Acceptance pursuant to
which such Lender assumed such Additional Term Loan Commitment, in each case as the same may
be reduced or increased from time to time pursuant to the terms hereof.
“Additional Term Loan Funding Date” means June 17, 2010.
“Additional Term Loans” means the Term Loans deemed made by a Lender to the
Borrower pursuant to Section 2.1(d).
“Convertible Term Loans” means the Term Loans made during the Commitment
Period.
“EO Sale” has the meaning set forth in the Consent to Credit Agreement dated as
of May 12, 2010, by and among the Borrowers, the Guarantors, the Lenders and the Agent.
“Extraordinary Receipts” means, with respect to any person, (a) any cash
received by, paid to or for the account of such Person not in the ordinary course of
business, including tax refunds, pension plan reversions, proceeds of insurance (including
any key man life insurance but excluding proceeds of key man life insurance to the extent
such proceeds constitute compensation from lost earnings), (b) indemnity payments received
by such Person and (c) any working capital, earnings, balance sheet, other purchase price or
similar adjustment under any acquisition agreement received by such Person.
2
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
“Second Amendment Date” means July 12, 2010.
“Series C Preferred Shares” means the Series C Convertible Preferred Shares of
the Borrower, each with a par value of $0.001 per share and a stated value of $100.00 per
share.
(ii) Each of the following definitions in Section 1.1 (Defined Terms) of the
Credit Agreement are hereby amended and restated in their entirety to read as follows:
“Applicable Margin” means 6% for Convertible Term Loans and 8% for Additional
Term Loans.
“Commitments” means the Term Loan Commitments and the Additional Term Loan
Commitments.
“Default Rate” means LIBOR plus 8.0% per annum for Convertible Term Loans and
LIBOR plus 10% per annum for Additional Term Loans.
“Loans” means the Term Loans, including the Additional Term Loans and the
Convertible Term Loans.
“Net Cash Proceeds” means with respect to (A) the issuance or incurrence of any
Indebtedness by any Person or any of its Subsidiaries, (B) the sale or issuance by any
Person or any of its Subsidiaries of any shares of its Capital Stock, (C) any Asset Sale,
(D) any casualty insurance policy in respect of a covered loss thereunder or (E) the taking
of any assets of any Person or any of its Subsidiaries by any other Person pursuant to the
power of eminent domain, condemnation, or otherwise or pursuant to a sale of any such assets
to a purchaser with such power under threat of such taking, the aggregate amount of cash
received (directly or indirectly) from time to time (whether as initial consideration or
through the payment or disposition of deferred consideration) by or on behalf of such Person
or such Subsidiary in connection therewith, net of underwriting discounts and after
deducting therefrom only (i) reasonable expenses related thereto incurred by such Person or
such Subsidiary in connection therewith, and (ii) transfer taxes paid by such Person or such
Subsidiary in connection therewith; in each case of clauses (i) and (ii) to the extent, but
only to the extent, that the amounts so deducted are (x) actually paid to a Person that,
except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person
or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset
that is the subject thereof.
(iii) The definition of “Affiliate” contained in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended by deleting the clause “the Agent, any Lender
or any Affiliate of any Lender” from the last sentence thereof and replacing it with “the Agent,
any Lender or any Related Fund or Affiliate of the Agent or any Lender”.
(iv) The definition of “Internal Control Agreement” contained in Section 1.1
(Defined Terms) of the Credit Agreement is hereby amended by (A) deleting the clause “with
respect to any Media Asset” from clause (i) thereof, and (B) deleting the term “Media Asset” from
clause (ii) thereof and replacing it with “asset”.
(v) The definition of “Restricted Junior Payment” in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended by deleting the two proviso clauses at the end
thereof and replacing them with the following language:
3
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
; provided, however, Restricted Junior Payments shall not include any
payments made to the Agent, any Lender or any Affiliate or Related Fund of the Agent or any
Lender under the Series C Preferred Shares and shall not include any cash payment in lieu of
any shares of any class of Capital Stock of the Borrower payable in respect of Earn-Out
Consideration; provided, further, with respect to subclauses (i), (ii) and
(iii) above, Restricted Junior Payments shall not include any dividends or other
distributions by a Subsidiary which are made pro rata to all of its shareholders or members.
(vi) The definition of “Significant Person” in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended by deleting the last sentence thereof and
replacing it with the following:
Notwithstanding the foregoing, “Significant Person” does not include the
Parent, the Agent, any Lender or any Affiliate or Related Fund of the Agent or any Lender.
(b) Amendments to Article II (Loans)
(i) Clause (b) of Section 2.1 (Term Loans) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(b) Any amount borrowed under this Section 2.1 and subsequently repaid or prepaid may
not be reborrowed. Subject to Sections 2.11 and 2.12, (i) all amounts owed under this
Section 2.1 with respect to Convertible Term Loans shall be paid in full or a Conversion
Notice shall have been delivered pursuant to Article X no later than the Maturity
Date, and (ii) all amounts owed under this Section 2.1 with respect to Additional Term Loans
shall be paid in full no later than the Maturity Date.
(ii) Section 2.1 (Term Loans) of the Credit Agreement is hereby amended by
inserting a new clause (d) at the end thereof to read in its entirety as follows:
(d) On the Second Amendment Date, subject to the terms and conditions hereof and
relying on the representations and warranties herein set forth, subject to Section 2.4, each
Lender shall make, severally, and not jointly, an Additional Term Loan to the Borrower in
one or more advances in an amount up to but not exceeding such Lender’s Additional Term Loan
Commitment. Such Additional Term Loans shall be deemed to have been made on the Additional
Term Loan Funding Date for all purposes, including, without limitation, the calculation of
interest under Section 2.7.
(iii) Section 2.3 (Borrowing Mechanics) of the Credit Agreement is hereby
amended by inserting a new clause (d) at the end thereof to read in its entirety as
follows:
(d) The provisions of this Section 2.3 shall not apply to Additional Term
Loans.
(iv) Section 2.5 (Use of Proceeds) of the Credit Agreement is hereby amended
by deleting clause (ii) thereof in its entirety and replacing it with the following new
clause (ii) to read in its entirety as follows:
(ii) for general corporate purposes
4
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(v) Clause (b) of Section 2.7 (Interest on Loans) is hereby amended by
inserting the text “(it being understood that the Additional Term Loan Funding Date is the date of
the making of an Additional Term Loan)” immediately after the text “the making of such Loan” in the
second sentence thereof.
(vi) Section 2.10 (Repayment) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Section 2.10 Repayment. On the Maturity Date, (a) all Obligations
other than the Convertible Term Loans shall become due and payable and (b) the Borrower
shall pay to each Lender an amount in cash equal to the Loan Payment Amount (determined as
of the Maturity Date) for such Lender with respect to the Convertible Term Loans;
provided, that such Lender may reject any such payment of the Loan Payment Amount
with respect to Convertible Term Loans only and instead elect to convert such Convertible
Term Loans into Borrower Common Shares pursuant to Article X hereof. The Borrower shall
provide five (5) Business Days prior written notice (or such lesser time as may be agreed by
the Agent) to the Agent of its intent to pay such Loan Payment Amount on the Maturity Date,
and with respect to the Convertible Term Loans only, the Agent shall have three (3) Business
Days from the date it receives such notice from the Borrower to elect to convert such Loan
Payment Amount into Borrower Common Shares pursuant to Article X hereof. For purposes of
clarification, if any Lender elects to convert the Loan Payment Amount with respect to
Convertible Term Loans to Borrower Common Shares pursuant to Article X hereof, the Borrower
shall not have the option of paying the Loan Payment Amount with respect to Convertible Term
Loans in cash to such Lender. If the Borrower fails to pay such Loan Payment Amount in cash
and/or deliver the Borrower Common Shares, as the case may be, to each Lender on the
Maturity Date, an Event of Default shall occur. In addition to all other remedies, at the
option of the Agent, interest shall accrue on the Loan Payment Amount and the Loans,
respectively, at the Default Rate from and after the date any Event of Default shall occur,
and all amounts due shall thereafter be payable on demand.
(vii) Section 2.11 (Optional Repayment) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Section 2.11 Optional Prepayments. The Borrower is not permitted to
voluntarily prepay the Loans (i) at any time during the first year following the Closing
Date or (ii) after the first year following the Closing Date, if the Current Market Price,
determined six (6) days in advance of the proposed prepayment, of the Borrower Common Shares
is less than 110% of the then applicable Conversion Price. Subject to the foregoing
sentence, the Borrower may voluntarily prepay the Loans, in whole but not in part, at any
time, with five (5) Business Days advance written notice (or such lesser time as may be
agreed by the Agent) of the date of prepayment (the “Optional Prepayment Date”)
being provided to the Agent, by paying to each Lender an amount in cash equal to the Loan
Payment Amount (determined as of the Optional Prepayment Date) for such Lender;
provided, that such Lender may reject any such payment of the Loan Payment Amount
with respect to its Convertible Term Loans and instead elect to convert such Convertible
Term Loans into Borrower Common Shares pursuant to Article X hereof at the then applicable
Conversion Price. Borrower shall provide five (5) Business Days prior written notice to the
Agent of its intent pursuant to this Section 2.11 to pay the Loan Payment Amount and with
respect to the prepayment of Convertible Term Loans only, the Agent shall have three (3)
Business Days from and after the date it receives such notice from the Borrower to elect to
convert the Loan Payment Amount with respect to Convertible Term Loans into Borrower Common
Shares pursuant to Article X hereof. For purposes of clarification, if any Lender elects to
convert the Loan Payment Amount with respect to its Convertible Term Loans to
5
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
Borrower Common Shares pursuant to Article X hereof, the Borrower shall not have the
option of paying the Loan Payment Amount for such Convertible Term Loans in cash to such
Lender. If the Borrower fails to pay the Loan Payment Amount and/or deliver the Borrower
Common Shares, as the case may be, to each Lender on the Optional Prepayment Date, then (in
addition to all other remedies), at the option of the Agent, interest shall accrue on the
Loan Payment Amount and the Loans, respectively, at the Default Rate from the Optional
Prepayment Date, and all amounts due shall thereafter be payable on demand. Any prepayments
of Additional Term Loans pursuant to this Section 2.11 shall only be made in cash.
(viii) Section 2.12 (Mandatory Prepayments) of the Credit Agreement is hereby
amended and restated in its entire to read as follows:
Section 2.12 Mandatory Prepayments.
(a) Debt or Equity Offerings. No later than the first Business Day following
the issuance or incurrence by the Borrower or any of its Subsidiaries of any Indebtedness
(other than Permitted Indebtedness), or the sale or issuance by the Borrower or any of its
Subsidiaries of any shares of its Capital Stock, the Borrower shall make an offer to prepay
the outstanding principal amount of the Loans in an amount in cash equal to 100% of the Net
Cash Proceeds received by such Person in connection therewith. Each Lender has the option
to (i) accept such prepayment of its Convertible Term Loans in cash, (ii) reject such
prepayment of its Convertible Term Loans or (iii) elect to convert its Convertible Term
Loans into Borrower Common Shares pursuant to Article X hereof. The Borrower shall provide
five (5) Business Days prior written notice (or such lesser time as may be agreed by the
Agent) to the Agent of its offer to make a prepayment pursuant to this Section 2.12(a), and
with respect to the prepayment of its Convertible Term Loans only, the Agent shall have
three (3) Business Days from and after the date it receives such notice from the Borrower to
accept such prepayment, reject such prepayment or elect to convert into Borrower Common
Shares pursuant to Article X hereof. For purposes of clarification, if any Lender elects to
reject the prepayment of its Convertible Term Loans or convert its Convertible Term Loans to
Borrower Common Shares pursuant to Article X hereof, the Borrower shall not make the
prepayment in cash required hereunder for the Convertible Term Loans to such Lender. If the
Borrower fails to make the required prepayment in cash and/or deliver the Borrower Common
Shares, as the case may be, to any Lender when due, an Event of Default shall occur. In
addition to all other remedies, at the option of the Agent, interest shall accrue on the
prepayment amount for such Lender and the Loans for such Lender, respectively, at the
Default Rate from the date any Event of Default shall occur, and all amounts due shall
thereafter be payable on demand. If any Lender rejects the prepayment of its Convertible
Term Loans and/or does not elect to convert its Convertible Term Loans into Borrower Common
Shares, then the Borrower shall use such proceeds only for investment in Media Assets.
Notwithstanding anything to the contrary set forth in this Section 2.12, during the first
year following the Closing Date, no Lender will have the option to elect to convert its
Convertible Term Loans into Borrower Common Shares pursuant to Article X hereof upon the
foregoing described prepayment events. The provisions of this Section 2.12(a) shall not be
deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited
by the terms and conditions of this Agreement. Any prepayment of Additional Term Loans made
pursuant to this Section 2.12(a) shall only be made in cash.
(b) Change of Control. No later than the first Business Day following a Change
of Control, the Borrower shall make an offer to prepay in full the outstanding principal
amount of the Loans, together with interest thereon or all other amounts owing hereunder.
Each Lender has the option to (i) accept such prepayment of its Convertible Term Loans in
cash,
6
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(ii) reject such prepayment of its Convertible Term Loans or (iii) elect to convert its
Convertible Term Loans into Borrower Common Shares pursuant to Article X hereof. The
Borrower shall provide five (5) Business Days prior written notice to the Agent (or such
lesser time as may be agreed by the Agent) of its offer to make a prepayment pursuant to
this Section 2.12, and with respect to Convertible Term Loans, the Agent shall have three
(3) Business Days from and after the date it receives such notice from the Borrower to
accept such prepayment, reject such prepayment or elect to convert into Borrower Common
Shares pursuant to Article X hereof. For purposes of clarification, if any Lender elects to
reject the prepayment of its Convertible Term Loans or convert its Convertible Term Loans to
Borrower Common Shares pursuant to Article X hereof, the Borrower shall not make the
prepayment in cash required hereunder with respect to such Convertible Term Loans to such
Lender. If the Borrower fails to make the required prepayment in cash or deliver the
Borrower Common Shares, as the case may be, to any Lender when due, an Event of Default
shall occur. In addition to all other remedies, interest shall accrue on the prepayment
amount for such Lender and the Loans for such Lender, respectively, at the Default Rate from
the date any Event of Default shall occur, and all amounts due shall thereafter be payable
on demand. Notwithstanding anything to the contrary set forth in this Section 2.12, during
the first year following the Closing Date, no Lender will have the option to elect to
convert its Convertible Term Loans into Borrower Common Shares pursuant to Article X hereof
upon a Change of Control. Any prepayment of Additional Term Loans pursuant to this Section
2.12(b) shall only be made in cash.
(c) Asset Sales; Insurance/Condemnation; Extraordinary Receipts. No later than
the first Business Day following any Asset Sale by the Borrower or any of its Subsidiaries
any covered loss under any casualty insurance policy held by the Borrower or any of its
Subsidiaries, the taking of any assets of the Borrower or any of its Subsidiaries pursuant
to the power of eminent domain, condemnation or otherwise, the sale of any assets of the
Borrower or any of its Subsidiaries under the threat of such taking or the receipt by the
Borrower or any of its Subsidiaries of any Extraordinary Receipts, the Borrower shall make
an offer to prepay the outstanding principal amount of the Loans in an amount in cash equal
to 100% of the Net Cash Proceeds or the Extraordinary Receipts, as applicable, received by
such Person in connection therewith. Each Lender has the option to (i) accept such
prepayment of its Convertible Term Loans in cash, (ii) reject such prepayment of its
Convertible Term Loans or (iii) elect to convert its Convertible Term Loans into Borrower
Common Shares pursuant to Article X hereof. The Borrower shall provide five (5) Business
Days prior written notice to the Agent (or such lesser time as may be agreed by the Agent)
of its offer to make a prepayment pursuant to this Section 2.12, and with respect to
Convertible Term Loans, the Agent shall have three (3) Business Days from the date it
receives such notice from the Borrower to accept such prepayment, reject such prepayment or
elect to convert into Borrower Common Shares pursuant to Article X hereof. For purposes of
clarification, if any Lender elects to reject the prepayment of its Convertible Term Loans
or convert its Convertible Term Loans to Borrower Common Shares pursuant to Article X
hereof, the Borrower shall not make the prepayment in cash required hereunder for such
Convertible Term Loans to such Lender. If the Borrower fails to make the required
prepayment in cash and/or deliver the Borrower Common Shares, as the case may be, to any
Lender when due, an Event of Default shall occur. In addition to all other remedies, at the
option of the Agent, interest shall accrue on the prepayment amount for such Lender and the
Loans for such Lender, respectively, at the Default Rate from the date any Event of Default
shall occur, and all amounts due shall thereafter be payable on demand. If any Lender
rejects the prepayment of its Convertible Term Loans and/or does not elect to convert its
Convertible Term Loans into Borrower Common Shares, then the Borrower shall use such
proceeds only for investment in Media Assets. Notwithstanding anything to the contrary set
forth in this Section 2.12, during the
7
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
first year following the Closing Date, no Lender will have the option to elect to
convert its Convertible Term Loans into Borrower Common Shares pursuant to Article X hereof
upon the foregoing described prepayment events. The provisions of this Section 2.12(c)
shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise
prohibited by the terms and conditions of this Agreement. Any prepayment of Additional Term
Loans made pursuant to this Section 2.12(c) shall only be made in cash.
(d) Payment Certificate. Concurrently with any payment or prepayment of the
Loans pursuant to Sections 2.10, 2.11, 2.12 or 8.2(a), the Borrower shall deliver to the
Agent a certificate of an Authorized Officer certifying whether the Loans being prepaid are
Convertible Term Loans or Additional Term Loans and demonstrating the calculation, with
respect to each Lender, of the Loan Payment Amount, the amount of the applicable net
proceeds, or the number of Borrower Common Shares to be delivered, as the case may be. In
the event that the Borrower shall subsequently determine that the actual amount received
exceeded the amount set forth in such certificate, the Borrower shall promptly make an
additional prepayment of the Loans (with the corresponding right of the Lenders to elect to
convert its Convertible Term Loans into Borrower Common Shares) in accordance with Section
2.12 and in an amount equal to such excess, and the Borrower shall concurrently therewith
deliver to the Agent a certificate of an Authorized Officer demonstrating the derivation of
such excess.
(ix) Section 2.16 (Termination of Commitments) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
Section 2.16 Termination of Commitments. The Term Loan Commitment with
respect to Convertible Term Loans only terminated on March 31, 2009. Upon the making of any
Term Loan, each Lender’s Commitment shall be permanently reduced by an amount equal to the
principal amount of such Term Loan.
(c) Amendments to Article III (Conditions Precedent; Conditions Subsequent)
(i) Section 3.2 (Conditions to Each Borrowing) of the Credit Agreement is
hereby amended by inserting the text “Convertible Term” immediately prior to the text “Loan” in the
second line thereof.
(d) Amendments to Article IV (Representations and Warranties).
(i) Section 4.1 (Representations and Warranties of the Credit Parties) of the
Credit Agreement is hereby amended by inserting the text “, on the Second Amendment Date”
immediately after the text “Closing Date” in the fourth line thereof.
(ii) Each of Sections 4.1(l), (m), (x) and (mm) of the Credit
Agreement is hereby amended by deleting the text “each Media Company”, “the Media Companies”, “any
Media Company”, “the other Media Companies” and “other Media Company”, as applicable, each time
such text appears therein and replacing it with “the Borrower and each of its Subsidiaries”, “the
Borrower and its Subsidiaries”, “the Borrower or any of its Subsidiaries”, “its Subsidiaries”, and
“Subsidiary”, respectively.
(iii) Each of Sections 4.1(l), (m)(i) and (iii), (p)(ii),
(w), (x), (aa), (dd), (hh), (ii), and (mm)
of the Credit Agreement is hereby amended by deleting the text “the Closing Date” and “the date
hereof”, as applicable, each time such text appears therein and replacing it with “the Second
Amendment Date”.
8
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(iv) Clause (ii) of Section 4.1(l) (Subsidiaries) of the Credit
Agreement is hereby further amended by deleting the text “Section 4.1(m) of the Disclosure
Schedule” therefrom and replacing it with “Section 4.1(l) of the Disclosure Schedule”.
(v) Section 4.1(hh) (Financial Projections) of the Credit Agreement is hereby
further amended by (A) deleting the text “Section 4.1(m) of the Disclosure Schedule” therefrom and
replacing it with “Section 4.1(l) of the Disclosure Schedule” and (B) deleting the text “Media
Assets” in clause (ii) thereof and replacing it with “assets”.
(vi) Section 4.1(kk) (Media Assets) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(kk) Assets. With respect to the assets acquired on or prior to the Second
Amendment Date, the Borrower, or a wholly owned direct or indirect Foreign Subsidiary of the
Borrower, either (i) has good and marketable title to such assets or (ii) owns all
outstanding shares of Capital Stock of the WFOE which is party to an Internal Control
Agreement with respect to such assets. With respect to assets acquired after the date
hereof, as of the date of acquisition, the Borrower, or a wholly owned direct or indirect
Foreign Subsidiary of the Borrower, either (i) will have good and marketable title to such
assets or (ii) will own all outstanding shares of Capital Stock of the WFOE which is a party
to an Internal Control Agreement with respect to such assets.
(e) Amendment to Article V (Affirmative Covenants)
(i) Section 5.1(a) (Basic Reporting Requirements) of the Credit Agreement is
hereby amended by deleting the text “upon, but only upon, the request of a Lender or the Agent”
from the second line thereof and replacing it with “unless the Agent notifies the Borrower
otherwise”.
(ii) Section 5.1(m) (Guarantors) of the Credit Agreement is hereby amended by
(A) deleting the text “which directly or indirectly holds any Media Assets or any outstanding
shares of Capital Stock of a WFOE which is a party to an Internal Control Agreement with respect to
such Media Assets” therefrom, (B) deleting the text “Foreign Subsidiary” each time it appears
therein and replacing it with “Subsidiary”, and by inserting the text “and pledge all of its
property and assets in favor of the Agent for the benefit of the Agent and the Lenders” immediately
after the text “Guarantor hereunder”.
(iii) Section 5.1(o) (Additional Media Assets) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(o) Additional Assets. Other than purchases of inventory in the ordinary
course of business, no assets or property shall be acquired after the date hereof without
the prior written consent of the Lenders.
(iv) Section 5.1 (Affirmative Covenants) of the Credit Agreement is hereby
amended by inserting new clause (t) immediately after clause (s) thereof to read in its entirety as
follows:
(t) Asset, Financing or Equity Proposal. Promptly upon the Borrower or any of
its Subsidiaries becoming aware of any proposal, negotiation or bid for any asset transfer,
equity or debt issuance or other financing involving the Borrower or any of its
Subsidiaries, the Borrower shall notify the Agent and the Lenders in writing thereof and
deliver to the Agent and the Lenders copies of all statements, reports, correspondence,
notices and other information relating thereto unless the Agent notifies the Borrower
otherwise.
9
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(v) Each of Sections 5.1(b), (c), (d), (g), (h),
(i), (j), (k) and (l) of the Credit Agreement is hereby
amended by deleting the text “the other Credit Parties” and “other Credit Party”, as applicable
therefrom and replacing it with “its Subsidiaries” and “of its Subsidiaries”, respectively.
(vi) Article V (Affirmative Covenants) to the Credit Agreement is hereby
amended by inserting new Section 5.2 (Board Observer and Access) immediately after
new clause (t) of Section 5.1 to read in its entirety as follows:
5.2 Board Observer and Access.
(a) So long as any Obligation shall remain outstanding, the Agent shall have the right
to have one representative (who need not be the same individual from meeting to meeting) (a
“Non-Voting Observer”) observe in full each meeting of the Board and each of the
committees thereof (a “Meeting”), whether in person or, at the option of the
Non-Voting Observer, via telephone attendance; provided that the Non-Voting Observer may not
attend (i) any Meeting of the Audit Committee or Compensation Committee where such committee
has determined in good faith and after consultation with legal counsel that the subject
matter of such Meeting is such that it is required or advisable that only independent
directors attend and non-independent directors not attend, (ii) any Meeting or portion
thereof where such attendance by the Non-Voting Observer could, in the opinion of legal
counsel, compromise Borrower’s attorney-client privilege under applicable law or (iii) any
Meeting or portion thereof where a similarly situated director of the Borrower should, in
the opinion of legal counsel, recuse himself from attendance of such Meeting or portion
thereof under applicable law, regulation or the rules of any stock exchange or inter-dealer
quotation system because such attendance would present a material conflict of interest;
provided, however, that any such exclusion of the Non-Voting Observer
pursuant to clause (ii) or (iii) shall extend only with respect to the subject matter and
portion of any such Meeting relating to such privilege or conflict.
(b) So long as any Obligation shall remain outstanding, the Borrower shall give the
Agent written notice of each Meeting, including the Meeting’s time and place, in the same
manner as the directors of the Board, and (subject to the exceptions in clause (i) and (ii)
of Section 5.2(a)) shall provide the Agent with any document, correspondence or
other information provided to any member of the Board individually or to the Board
collectively, whether provided by the Borrower or a third party, including, without
limitation, agenda and minutes of the Meetings, in each case, no later than it gives such
notice and provides such document, correspondence or other information to such member or the
Board, as the case may be.
(c) The Borrower shall reimburse the Non-Voting Observer for its reasonable
out-of-pocket expenses incurred in connection with attendance at each Meeting, including but
not limited to food, lodging and transportation.
(d) The Non-Voting Observer shall be entitled to participate in discussions and consult
with, and make proposals and furnish advice to, the Board or committee without voting. The
Non-Voting Observer shall have a duty of confidentiality to the Borrower comparable to the
duty of confidentiality of a director of the Board.
(e) The Borrower shall use commercially reasonable efforts to obtain within 30 days of
the Second Amendment Date and (if so obtained) shall thereafter maintain directors’ and
officers’ liability insurance covering the Non-Voting Observer in an amount of at least
$10,000,000.
10
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(f) The Borrower shall indemnify and hold harmless, to the fullest extent permitted
under applicable law, the Non-Voting Observer to the same extent as members of the Board and
on terms no less favorable than under the Borrower’s by-laws or other governing document as
in effect on the date hereof.
(g) So long as any Obligation shall remain outstanding, upon reasonable notice and upon
reasonable request by any of the Lenders or the Agent, each of the Borrower and the
Guarantors shall (i) give such Lender or Agent and their authorized representatives
reasonable access during normal business hours to their accountants, and, to the extent
available to the Borrower or the Guarantors after the Borrower or the Guarantors use
reasonable efforts to obtain them, the accountants’ work papers, (ii) permit each of the
Lenders or the Agent to make such copies and inspections thereof as any such Person may
reasonably request and discuss the affairs, finances and accounts with the managers,
executives and officers thereof.
(f) Amendments to Article VI (Negative Covenants and Financial Covenants)
(i) Clause (vi) of Section 6.1(b) of the Credit Agreement is hereby
amended by deleting the language “Section 6.1(a)(vii)” therefrom and replacing it with “Section
6.1(a)(v).
(ii) Section 6.1(g) (Mergers; Asset Sales) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(g) Mergers; Asset Sales. Neither the Borrower nor any of its Subsidiaries
shall (i) become a party to a merger or consolidation, (ii) sell, lease or otherwise dispose
of assets, other than (A) sales of inventory in the ordinary course of business and (B)
disposals of obsolete, worn-out or surplus property, (iii) make any changes in the corporate
structure or identity of the Borrower or any of its Subsidiaries or (iv) enter into any
agreement to do any of the foregoing; provided, that, any Credit Party (other than
the Borrower) may merge with and into the Borrower or any Credit Party upon not less than
twenty (20) days’ prior written notice to the Agent of such merger. For the avoidance of
doubt, sales and other dispositions of assets which either are not prohibited by this
Section 6.1(g) or are expressly consented to by the Agent shall be deemed permitted sales of
assets for all purposes of this Agreement, including, without limitation, Section 11.1(e).
(iii) Section 6.1(k) (Subsidiaries) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(k) Subsidiaries. From and after the Second Amendment Date, neither the
Borrower nor any of its Subsidiaries shall form, cause or permit to be formed or cause or
permit to exist, any other Subsidiary, without the prior written consent of the Lenders.
(iv) Section 6.1(p) (Restrictions on Subsidiary Distributions) of the Credit
Agreement is hereby amended by deleting the text “the Media Companies”, “any Media Company”, “Media
Company’s” and “Media Company” therefrom and replacing it with “its Subsidiaries”, “any of its
Subsidiaries”, “Subsidiary’s” and “Subsidiary”, respectively.
(g) Amendments to Section 6.2 (Financial Covenants)
(i) Clause
(a) of Section 6.2 (Financial Covenants) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
11
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(a) Minimum Consolidated EBITDA, Maximum Leverage Ratio and Maximum Capital
Expenditures. The Borrower shall not permit (A) Consolidated EBITDA of the Borrower and
its Subsidiaries for any of the latest thirteen four-week periods ending on the end of the
Fiscal Quarters set forth below to be less than the amount or ratio set forth opposite such
period, and (B) the Leverage Ratio for any of the latest thirteen four-week periods ending
on the end of the Fiscal Quarters set forth below to be more than the ratio set forth
opposite such period, in each case for clauses (A) and (B) above, evidence of which shall be
delivered to the Agent with the applicable Financials and certifications required under
Section 5.1(a):
| Minimum | ||||||||
| Consolidated | Maximum | |||||||
| Fiscal Quarter Ending | EBITDA | Leverage Ratio | ||||||
4th Fiscal Quarter ending in Fiscal Year
2010 |
$ | 789,302 | 57.23:1 | |||||
1st Fiscal Quarter ending in Fiscal Year
2011 |
$ | 2,316,403 | 19.50:1 | |||||
2nd Fiscal Quarter ending in Fiscal Year
2011 |
$ | 2,825,436 | 15.99:1 | |||||
3rd Fiscal Quarter ending in Fiscal Year
2011 |
$ | 3,079,953 | 14.67:1 | |||||
4th Fiscal Quarter ending in Fiscal Year
2011 |
$ | 3,843,503 | 11.75:1 | |||||
1st Fiscal Quarter ending in Fiscal Year
2012 |
$ | 3,669,732 | 12.31:1 | |||||
2nd Fiscal Quarter ending in Fiscal Year
2012 |
$ | 3,495,961 | 12.92:1 | |||||
3rd Fiscal Quarter ending in Fiscal Year
2012 |
$ | 3,322,190 | 13.60:1 | |||||
For purposes of calculating the financial covenants set forth above for the fourth fiscal
quarter ending in 2010 and for each of the first two fiscal quarters ending in 2011,
Consolidated EBITDA shall be calculated by calculating Consolidated EBITDA for the period
from the first day of the fourth fiscal quarter ending in 2010 through the end of the period
of determination and dividing it by the number of fiscal quarters in such period of
determination on and after the first day of the fourth fiscal quarter ending in 2010 and
multiplying the result by 4.
(ii) The Borrower and its Subsidiaries will not make or become legally obligated to make any
Capital Expenditures during any Fiscal Year exceeding, in the aggregate for the Borrower and its
Subsidiaries, the amount set forth below opposite such Fiscal Year:
| Maximum Capital | ||||
| Fiscal Year | Expenditures | |||
2010 |
$ | 1,275,000 | ||
2011 |
$ | 515,000 | ||
2012 |
$ | 615,000 | ||
(iii) Clause (b) of Section 6.2 (Financial Covenants) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
12
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(b) No Payments. No Payments. None of the Borrower or any of its
Subsidiaries shall make any payment or series of related payments outside the ordinary
course of business without the prior written consent of the Agent, provided that in any
event any payment or series of related payments by the Borrower or any Subsidiary in excess
of $500,000 in any Fiscal Year shall be considered outside the ordinary course of business
unless (1) such payment or series of related payments is made pursuant to a legal and valid
agreement entered into in the ordinary course of business and binding on the Borrower or
such Subsidiary and, to the knowledge of the Borrower or such Subsidiary, on the recipient
of such payment and (x) such agreement is not with an Affiliate or Significant Person of the
Borrower or any of its Subsidiaries, (y) such agreement is in existence and legal, valid and
binding as of the Second Amendment Date (or is an extension, renewal or modification thereof
on substantially the same terms) and (z) there exists no breach, default or event of
default, or other right to terminate thereunder on the part of the Borrower or such
Subsidiary, or, to the knowledge of the Borrower or such Subsidiary, the recipient of such
payment, both as of the Second Amendment Date and as of the date of such payment and both
before and after giving effect to such payment, or (2) such payment or series of related
payments is made pursuant to a legal and valid agreement entered into in the ordinary course
of business and binding on the Borrower or such Subsidiary and, to the knowledge of the
Borrower or such Subsidiary, on the recipient of such payment and (x) such agreement is not
in existence as of the Second Amendment Date, (y) the counterparty to such agreement is not
an Affiliate or Significant Person of the Borrower or any of its Subsidiaries, and (z) a
copy of such agreement and all ancillary documents have been provided to the Agent not less
than five (5) Business Days prior to the execution thereof by the Borrower or such
Subsidiary and the Agent has determined in its sole discretion that such agreement (1) was
made in good faith, in the ordinary course of business and to further the business purpose
of the Borrower and its Subsidiaries and (2) was not entered into for the purpose of, and
does not have the effect of, making preferential payments to other creditors of the Borrower
and its Subsidiaries; provided, that, if the Agent fails to notify the Borrower or
such Subsidiary of its determination on or prior to the expiration of such five (5) Business
Day period, the Agent shall be deemed to have consented to the execution thereof by
the Borrower or such Subsidiary.
(iv) The amendments in this clause (g) are intended to cure any Default or Event of
Default that may have occurred prior to the date hereof for failure to comply with Section
6.2 (Financial Covenants) of the Credit Agreement as in effect prior to this Amendment
unless the Credit Parties would also have failed to comply with such Section 6.2 after
giving effect to this Amendment.
(h) Amendment to Article VIII (Events of Default)
(i) Section 8.1(n) (Internal Control Agreements) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(n) Internal Control Agreements. At any time after the execution and delivery
thereof any Internal Control Agreement ceases to be in full force and effect (other than by
its terms) or shall be declared null and void or any breach or default shall occur
thereunder or under any commitment letter, power of attorney, document or agreement
delivered to the Agent in connection therewith;
(ii) Section 8.2(a) (Certain Remedies) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Certain Remedies. In the case of (i) any Event of Default specified in any
Section other than Section 8.1(f) or 8.1(g), the Agent may, and at the request of the
Required
13
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
Lenders shall, by notice to the Borrower declare the unpaid principal amount of the
Loans and interest accrued thereon and all other Obligations to be immediately due and
payable, which upon delivery of such notice shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower, and (ii) any of the Events of Default specified in either Section 8.1(f) or
8.1(g), automatically, without any notice to the Borrower or any other act by the Agent or
any Lender, the Commitments shall thereupon terminate, and the unpaid principal amount of
the Loans and interest accrued thereon and all other Obligations shall immediately become
due and payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower, provided, that, with respect to the
Convertible Term Loans only, such Lender may, regardless of any such amounts becoming due,
elect at any time after acceleration to convert such Convertible Term Loans into Borrower
Common Shares pursuant to Article X hereof. For purposes of clarification, if any Lender
elects to convert its Convertible Term Loans to Borrower Common Shares pursuant to Article X
hereof, the Borrower shall not have to pay the Loan Payment Amount for Convertible Term
Loans if such Borrower Common Shares are delivered to such Lender in accordance with Article
X hereof.
(iii) Clause (ii) of Section 8.2(b) (Remedies in All Events of
Default) of the Credit Agreement is hereby amended by adding the text “or any of its
Subsidiaries” immediately after the text “Borrower”.
(i) Amendments to Article X (Conversion)
(i) Section 10.1 (Conversion Privilege) of the Credit Agreement is hereby
amended by inserting a new clause (f) at the end thereof to read in its entirety as
follows:
(f) Additional Term Loans. Notwithstanding anything contained herein to the
contrary, this Article X shall not apply to Additional Term Loans.
(j) Amendments to Schedules to the Credit Agreement
(i) The contents of Schedule I (Commitments) to the Credit Agreement are
hereby replaced in their entirety with the contents of Schedule I (Commitments)
hereto.
Section 3. Conditions Precedent to the Effectiveness of this Amendment. This
Amendment shall become effective as of the date first written above when, and only when, each of
the following conditions precedent shall have been satisfied or duly waived by the Administrative
Agent (the date each such conditions precedent is satisfied or duly waived, the “Amendment
Effective Date”):
(a) Certain Documents. The Administrative Agent shall have received each of the
following, each, other than this Amendment, dated the Amendment Effective Date (unless otherwise
agreed by the Administrative Agent) and each in form and substance satisfactory to it:
(i) this Amendment, duly executed by the Borrower, each Guarantor, the Administrative Agent
and the Lenders;
(ii) favorable opinions of New York, British Virgin Islands, Cayman Islands and Hong Kong
counsel to the Credit Parties, addressed to the Administrative Agent and the Lenders as to the
enforceability of this Amendment and the enforceability of the Credit Documents after giving effect
to this Amendment, and addressing such other matters as the Administrative Agent may reasonably
request;
14
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(iii) all of the documents, instruments and agreements requested by it to grant to the Agent,
to the extent permitted by applicable law, a first-priority security interest in all of the capital
stock of each Subsidiary of the Borrower, whether a Foreign Subsidiary or a Domestic Subsidiary,
and all assets of the Borrower and all of its Subsidiaries, whether organized under the laws of the
PRC or offshore, including interests in Internal Control Agreements, and in joint ventures of the
Borrower or any of its Subsidiaries;
(iv) to the extent permitted by applicable law and requested by the Agent, Guaranties, duly
executed by each Subsidiary of the Borrower, both Foreign Subsidiaries and Domestic Subsidiaries;
(v) The preferred stock, together all documents, instruments, consents and agreements
requested by it and in form and substance satisfactory to it, to evidence such preferred stock and
its issuance, as described in the Proposal Letter dated July 1, 2010 between the Agent and the
Borrower;
(vi) Original copies of all Internal Control Agreements of the Borrower and its Subsidiaries
and any other Material Contracts requested by it;
(vii) an updated Disclosure Schedule to reflect the Credit Agreement, as amended hereby; and
(viii) such additional documentation as the Administrative Agent may reasonably require;
(b) Representations and Warranties. Each of the representations and warranties
contained in this Amendment were true when made;
(c) No Default or Event of Default. After giving effect to this Amendment, no Default
or Event of Default shall have occurred and be continuing, either on the date hereof or on the
Amendment Effective Date;
(d) Corporate and Other Proceedings. All corporate and other proceedings, and all
documents, instruments, consents and other legal matters ancillary to the transactions contemplated
by this Amendment shall be completed in a form and manner satisfactory in all respects to the
Administrative Agent;
(e) Fees and Expenses Paid. The Borrower shall have paid all Obligations due, after
giving effect to this Amendment, on or before the later of the date hereof and the Amendment
Effective Date, including, without limitation, all fees set forth in Section 6 (Fees
and Expenses) hereof, all other costs, expenses and fees due under any Credit Document and
invoiced prior to the Amendment Effective Date and all costs, expenses and fees due in connection
with the issuance of the Series C Preferred Shares;
(f) Operation of Business. The Credit Parties shall continue to operate their
business in the ordinary course without any extraordinary payments and there shall not have
occurred any material adverse change since June 1, 2010 in the business, assets, properties,
liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of
(a) the Borrower and (b) the Borrower, the Guarantors and their respective Subsidiaries taken as a
whole or in the facts and information regarding such entities as represented to date;
15
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
(g) Repayment of Convertible Term Loans with Proceeds of EO Sale. The Borrower shall
have repaid the Convertible Term Loans with the proceeds received by it from the EO Sale in an
amount equal to $7,600,000.
(h) No Laws. No law or regulation shall be applicable in the judgment of the
Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
Section 4. Further Agreements. Unless otherwise agreed by the Administrative Agent,
the Borrower and each of its Subsidiaries shall perform all duties and obligations specified on
Schedule C attached hereto within the time limitations stated thereon, time being strictly
of the essence. The failure of the Borrower or any of its Subsidiaries to fully perform on a
timely basis all of the duties and obligations specified on Schedule C attached hereto
shall constitute an Event of Default under the Credit Agreement.
Section 5. Representations and Warranties. On and as of the date hereof and as of the
Amendment Effective Date, after giving effect to this Amendment, each Credit Party hereby
represents and warrants to the Administrative Agent and each Lender as follows:
(a) Binding Obligation. This Amendment has been duly authorized, executed and
delivered by such Credit Party and constitutes a legal, valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its terms and the Credit Agreement
as modified by this Amendment, except as enforceability thereof may be limited by applicable
bankruptcy or other debtor relief laws and by general principles of equity (regardless of whether
enforcement is sought in proceeding in equity or at law);
(b) Subsidiaries and Affiliates. (i) If such Credit Party is the Borrower, the
corporate chart attached hereto as Schedule C and the representations and warranties set
forth Section 4.1(l) (Subsidiaries) of the Credit Agreement are true as of the date
hereof (replacing “Closing Date” therein with the date of this Amendment and taking into account
any updated information delivered by the Borrowers to the Administrative Agent on or prior to the
date hereof), all Subsidiaries of the Borrower existing on the Amendment Effective Date have
executed a Guaranty and the Credit Documents required to be executed with respect to such
Subsidiaries pursuant to the Credit Agreement, including, without limitation, Section
5.1(m) (Guarantors) thereof and (ii) in any case, all certificates, statements, updated
schedules, collateral and other updates and other documents required to be delivered by such Credit
Party to the Administrative Agent or any Lender pursuant to any Credit Document as modified hereby
have been delivered thereunder and all filings required to be made by or on behalf of such Credit
Party pursuant to any such Credit Document have been made;
(c) Representations and Warranties in Credit Documents. Each of the representations
and warranties of such Credit Party contained in any Credit Document (as modified hereby) or in any
certificate, document or financial or other written statement furnished at any time under or in
connection therewith is true in all material respects on and as of the date hereof and the
Amendment Effective Date, in each case as if made on and as of such date and except to the extent
that such representations and warranties expressly relate to a specific date, in which case such
representations and warranties shall be true in all material respects as of such specific date;
provided, however, that, as used therein, (i) “Credit Agreement” shall refer to the
Credit Agreement as amended hereby and after giving effect to the waivers set forth herein and
(ii) “Credit Documents” shall include this Amendment;
(d) No Litigation or Defense. No litigation has been commenced or threatened against
such Credit Party or any of its Subsidiaries seeking to restrain or enjoin (whether temporarily,
16
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
preliminarily or permanently) the performance of any action by any Credit Party or any
Subsidiary of any Credit Party required or contemplated by the terms of this Amendment or any other
Credit Document as modified hereby, and there exists no cause of action, offset, claim,
counterclaim or defense, whether or not asserted, against the Administrative Agent or any Lender or
any of their Related Parties (as defined below) with respect to the Obligations under any Credit
Document; and
(e) Outstanding Principal Amount. Schedule B hereto correctly lists the
aggregate principal amount of all Loans outstanding on the date hereof (prior to giving effect to
this Amendment), each of which is owed by the Borrower.
Section 6. Fees and Expenses.
(a) On the date hereof, the Borrower shall pay to the Agent a one-time non-refundable
amendment fee (the “Amendment Fee”) equal to (i) the sum of all Additional Term Loan
Commitments as of the Second Amendment Date, times (ii) a rate equal to 2.0%. The Amendment Fee
shall be deemed fully earned and due and payable in immediately available Dollars on the date
hereof, and shall be in addition to any other fee from time to time payable under the Credit
Documents.
(b) Each Credit Party agrees to pay on demand (i) in accordance with the terms of
Section 11.3 (Expenses) of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation, reproduction, execution, delivery and
enforcement of this Amendment and all other Credit Documents entered into in connection herewith
(including, without limitation, the fees and expenses of attorneys, advisors and other
professionals hired by the Administrative Agent with respect to the Credit Parties or the Credit
Documents) and (ii) all fees, costs and expenses due in connection with the issuance of the Series
C Preferred Shares (including without limitation, the fees and expenses of attorneys, advisors and
other professionals with respect thereto).
Section 7. Release. In further consideration for the execution by the Administrative
Agent and the Lenders party hereto of this Amendment and without limiting any rights or remedies
the Administrative Agent or any Lender may have, each Credit Party hereby releases each of the
Administrative Agent, each Lender and each of their Related Parties (each a “Releasee” and,
collectively, the “Releasees”) from any and all Claims that any Credit Party has or may
have against any Releasee, whether or not relating to any Credit Document, Obligation, Collateral,
or legal relationship that exists or may exist between any Releasee and any Credit Party. As used
in this Section 7, (i) “Claims” means all liabilities, rights, demands, covenants,
duties, obligations (including, without limitation, indebtedness, receivables and other contractual
obligations), claims, actions and causes of actions, suits, disputes, judgments, damages, losses,
debts, responsibilities, fines, penalties, sanctions, commissions and interest, disbursements,
taxes, charges, costs, fees and expenses (including, without limitation, fees, charges and
disbursements of financial, legal and other advisors, consultants and professionals and, if
applicable, any value-added and other taxes and charges thereon), in each case of any kind or
nature, whether joint or several, whether now existing or hereafter arising and however acquired
and whether or not known, asserted, direct, contingent, liquidated, due, consequential, actual,
punitive or treble, (ii) “Related Party” shall mean, with respect to any Person, any
Affiliate of such Person or of another Related Party of such Person (excluding, in each case, the
Credit Parties and their Controlled Affiliates) and such Person’s and such Affiliate’s
predecessors, successors, assigns, managers, members, partners, directors, officers, employees
(regardless of whether seconded to a third party and including, without limitation, individuals
with independent contractor or similar status), individual stockholders, agents, attorneys-in-fact,
trustees, fiduciaries, representatives and advisors, (iii) “Affiliated Investor” means any
Person that is a collateralized debt obligation, collateralized loan obligation or any other
investment pooling vehicle or other entity that (A) is created primarily to invest in equity or
debt securities, loans and other investments, (B) does not operate any trade or business and (C) is
administered, advised or managed by, or directly or
17
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
indirectly under common administration, advice or management with, the Administrative Agent or
any Lender or any Affiliate of any Lender or the Administrative Agent and (iv) “Controlled
Affiliate” means, with respect to any entity, any Person directly or indirectly “controlled”
(as defined in the definition of “Affiliate” set forth in the Credit Agreement on the date hereof)
by one or more of such entity and its other Controlled Affiliates.
Section 8. Consent of Guarantors and Reaffirmation of Obligations. Each Guarantor
hereby consents to this Amendment and agrees that it continues to guaranty, pursuant to the Credit
Documents, as primary obligor and not as surety, the full and punctual payment when due of the
Obligations as modified hereby and that the terms hereof shall not affect in any way its
obligations and liabilities, as expressly modified hereby, under the Credit Documents. Each Credit
Party hereby reaffirms (a) all such obligations and liabilities, and agrees that such obligations
and liabilities shall remain in full force and effect, (b) the Liens granted under the Credit
Documents, and agrees that such Liens shall continue to secure the Obligations as expressly
modified hereby, and (c) the validity and enforceability of the Credit Documents.
Section 9. Effect on the Credit Documents. This Amendment is a Credit Document and is
limited as written and failure to comply with any of the agreements set forth herein shall be an
immediate Event of Default. As of the date each modification set forth herein shall become
effective, each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein,” or words of like import, and each reference in the other Credit
Documents to the Credit Agreement (including, without limitation, by means of words like
“thereunder”, “thereof” and words of like import), shall refer to the Credit
Agreement as modified thereby, and this Amendment and the Credit Agreement shall be read together
and construed as a single agreement. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, (a) waive or modify any right, power or remedy
under, or any other provision of, any Credit Document or (b) commit or otherwise obligate the
Administrative Agent or any Lender to enter into or consider entering into any other waiver or
modification of any Credit Document.
Section 10. Reservation of Rights. No failure on the part of any Lender or the
Administrative Agent to exercise, and no delay in exercising, any right under the Credit Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. Nothing herein,
or in the course of dealing or in the discussions between any Credit Party and any of the
Administrative Agent, the Lenders and their related parties, shall waive any Default or Events of
Default or waive or modify any other provision of any Credit Document.
Section 11. Waiver of Jury Trial; Miscellaneous. Headings are for convenience only
and do not form part of this Amendment, except when used to reference an article or section, in
which case such title reference shall govern absent manifest error in case of conflict. All
communications and notices hereunder shall be given as provided in the Credit Documents. This
Amendment (a) shall be governed by and construed in accordance with the law of the State of New
York, (b) is for the exclusive benefit of the parties hereto and, together with the other Credit
Documents, constitutes the entire agreement of such parties, superseding all prior agreements among
them, with respect to the subject matter hereof, (c) may be modified, waived or assigned only in
writing and only to the extent such modification, waiver or assignment would be permitted under the
Credit Documents (and any attempt to assign this Amendment without such writing shall be null and
void), (d) may be executed in counterparts, which may be effectively transmitted by fax or e-mail
(in each case return receipt requested and obtained) and which, together, shall constitute one and
the same instrument, (e) is a negotiated document, entered into freely among the parties upon
advice of their own counsel, and it should not be construed against any of its drafters and
(f) shall survive the satisfaction or discharge of the Obligations. The fact that any term or
18
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
provision of this Amendment is held invalid, illegal or unenforceable as to any person in any
situation in any jurisdiction shall not affect the validity, enforceability or legality of the
remaining terms or provisions hereof or the validity, enforceability or legality of such offending
term or provision in any other situation or jurisdiction or as applied to any person. Each party
hereto hereby irrevocably and unconditionally waives any right to trial by jury with respect to
this Amendment.
[SIGNATURE PAGES FOLLOW]
19
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers and general partners thereunto duly authorized, as of the date first
written above.
BORROWER:
Executed as a Deed by
|
) | |||
XINHUA SPORTS &
|
) | |||
ENTERTAINMENT LIMITED (formerly
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
known as Xinhua Finance Media Limited)
|
) | |||
in the presence of and SIGNED by:
|
) | |||
GRANTORS:
Executed as a Deed by
|
) | |||
UPPER STEP HOLDINGS LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
Executed as a Deed by
|
) | |||
CHINA LEAD PROFITS LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
Executed as a Deed by
|
) | |||
EVERFAME DEVELOPMENT
|
) | |||
LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
Executed as a Deed by
|
) | |||
STAREASE LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
Executed as a Deed by
|
) | |||
ACCORD GROUP INVESTMENTS
|
) | |||
LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
Executed as a Deed by
|
) | |||
GREAT TRIUMPH INVESTMENTS
|
) | |||
LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
Executed as a Deed by
|
) | |||
EAST ALLIANCE LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
Executed as a Deed by
|
) | |||
CENTURY EFFORT LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
2
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
Executed as a Deed by
|
) | |||
SMALL WORLD HOLDING
|
) | |||
COMPANY LIMITED |
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
Executed as a Deed by
|
) | |||
NUCOM ONLINE CORPORATION
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
Executed as a Deed by
|
) | |||
XSEL ADVERTISING LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
Executed as a Deed by
|
) | |||
UPPER WILL ENTERPRISES
|
) | |||
LIMITED |
) | |||
in the presence of and SIGNED by: |
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
Executed as a Deed by
|
) | |||
XINHUA SPORTS VENTURES
|
) | |||
LIMITED
|
) | |||
in the presence of and SIGNED by:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
3
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
The Common Seal of
|
) | |||
CHINA MEDIA NETWORK LIMITED
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
was affixed in the presence of:
|
) | |||
| ) | ||||
| ) | ||||
The Common Seal of
|
) | |||
XINHUA SPORTS &
|
) | |||
ENTERTAINMENT (HK) LIMITED
|
) | |||
was affixed in the presence of:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
The Common Seal of
|
) | |||
ADVANCE MIND HOLDINGS
|
) | |||
LIMITED
|
) | |||
was affixed in the presence of:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
The Common Seal of
|
) | |||
XSEL (HONG KONG) LIMITED
|
) | |||
was affixed in the presence of:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
| ) | ||||
The Common Seal of
|
) | |||
HONG KONG STOCK EXPRESS
|
) | |||
PUBLICATION LIMITED
|
) | |||
was affixed in the presence of:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
4
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
The Common Seal of
|
) | |||
SINGSHINE (HOLDINGS)
|
) | |||
HONGKONG LIMITED
|
) | |||
was affixed in the presence of:
|
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ) | ||||
5
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
| AGENT: | PATRIARCH PARTNERS AGENCY SERVICES, LLC, as Agent |
|||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Manager | |||
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
| LENDERS: | ZOHAR CDO 2003-1, LIMITED | |||||||||
| By: | Patriarch Partners VIII, LLC, | |||||||||
| its Collateral Manager | ||||||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Title: | Manager | |||||||||
| ▇▇▇▇▇ ▇▇ 2005-1, LIMITED | ||||||||||
| By: | Patriarch Partners XVI, LLC, | |||||||||
| its Collateral Manager | ||||||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Title: | Manager | |||||||||
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
SCHEDULE A
EVENTS OF DEFAULT
1. The Borrower is not in compliance with Section 6.2(a) of the Credit Agreement for the
fourth Fiscal Quarter ending in 2009 and the First and Second Fiscal Quarters in 2010.
2. The Borrower is not in compliance with Section 4.01 of the Investor and Registration Rights
Agreement, which required the Borrower to (a) file with the SEC within 180 days prior to the
Effectiveness Deadline the Shelf Registration Statement and (b) cause the Shelf Registration
Statement to be declared effective by the Effectiveness Deadline.
SCHEDULE A
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
SCHEDULE B
EXISTING LOANS
| Lender | Outstanding Principal Amount of all Loans | |||
ZOHAR CDO 2003-1, LIMITED |
$ | 26,310,332.87 | ||
▇▇▇▇▇ ▇▇ 2005-1, LIMITED |
$ | 22,745,707.13 | ||
Total |
$ | 49,056,040.00 | ||
SCHEDULE B
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
SCHEDULE C
CORPORATE CHART
SCHEDULE C
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
SCHEDULE D
FURTHER AGREEMENTS
1. Not later than 5 p.m. (Hong Kong time) on Wednesday, July 14, 2010 (or such longer period
as the Agent may agree), the Borrower shall deliver to the Agent evidence of the appointment of CT
Corporation as agent for service of process on behalf of the Credit Parties and the Subordination
Creditors listed on the signature pages of the Intercompany Subordination Agreement in connection
with such agreement.
2. For each Credit Party organized under the laws of the British Virgin Islands, the Borrower
shall deliver to the Agent, not later than 5 p.m. (New York City time) on (a) Tuesday, July 13,
2010 (or such longer period as the Agent may agree), a copy of the share register for such Credit
Party evidencing the notation of the lien of the Agent against such Credit Party’s shares,
certified by the British Virgin Islands registered agent of such Credit Party and (b) Monday, July
19, 2010 (or such longer period as the Agent may agree), (i) a copy of the share register for such
Credit Party evidencing the notation of the lien of the Agent against such Credit Party’s shares,
certified by the Registrar of Corporate Affairs for the British Virgin Islands and (ii)
Certificates of Registration of Charge from the Registrar of Corporate Affairs for the British
Virgin Islands, certifying that all charges against the assets of such Credit Party have been
registered in the Register of Registered Charges.
3. Not later than 5 p.m. (New York City time) on Tuesday, July 13, 2010 (or such longer period
as the Agent may agree), for each Credit Party organized under the laws of the Cayman Islands, (a)
a copy of the Register of Mortgages and Charges for such Credit Party evidencing the notation of
the lien of the Agent, and (b) with respect to each of NuCom Online Corporation and Xinhua Sports
Ventures Limited, a copy of the Register of Members of such Credit Party evidencing the notation of
the lien of the Agent against such Credit Party’s shares, each certified by the Cayman Islands
registered agent of such Credit Party.
4. Not later than 5 p.m. (New York City time) on Wednesday, July 14, 2010 (or such longer
period as the Agent may agree), the Borrower shall deliver to the Agent copies of fully executed
share transfer documents transferring all of the shares of equity in (a) Zhongxi Taihe Culture
Consultation (Shanghai) Co., Ltd.; (b) Xinhua Sports & Entertainment (Shanghai) Co., Ltd.; and
(c) Xinhua Sports & Entertainment (Beijing) Co., Ltd. from the Borrower to Upper Step Holdings
Limited, an entity incorporated in the British Virgin Islands.
5. To the extent not delivered on or before the Amendment Effective Date, the Borrower shall
deliver to the Agent as promptly as practicable after the Amendment Effective Date, but not later
than 5 p.m. (New York City time) on Wednesday, July 14, 2010 (or such longer period as the Agent
may agree), original copies of all of the Internal Control Agreements for the Borrower’s Domestic
Subsidiaries, including without limitation, all of the following documents related thereto: (a)
authorisation letters; (b) equity transfer agreements; (c) resignation letters; (d) director
appointment letters; and (e) legal representative appointment letters.
6. No later than three (3) Business Days (or such longer period as the Agent may agree) after
the Agent shall have provided to the Borrower the name of the individual designated by the Agent
and if required by such bank, the appearance in person by such individual at such bank, the
Borrower shall have added such individual as a required signatory to its banks accounts located in
the PRC, provided that such designated individual shall furnish to the applicable bank all
information required by such bank for such designated individual to become a required signatory to
such bank accounts.
SCHEDULE D
7. The Borrower shall deliver to the Agent as promptly as practicable after the Amendment
Effective Date, but not later than 5 p.m. (New York City time) on Monday, July 19, 2010 (or such
longer period as the Agent may agree), (a) an originally and fully executed copy of the
Intercompany Subordination Agreement, in the form approved by the Agent, by the Subordination
Creditors listed on the signature pages thereof, with the official chop affixed thereto, (b) a copy
of the business license for each Subordinated Creditor, or other documentation reasonably
acceptable to the Agent, evidencing the authority of the individual executing the Intercompany
Subordination Agreement to sign as the legal representative or the authorized signatory of such
Subordinated Creditor, (c)(i) an originally and fully executed copy of a Commitment Letter from
each WFOE and each of its variable interest entities, including without limitation those majority
held entities organized in the PRC shown on the Corporate Chart of the Borrower attached hereto as
Exhibit C (individually an “Operating Company” and collectively the “Operating
Companies”) and each WFOE not subject to Internal Control Agreements, (ii) a Power of Attorney
from each WFOE and (iii) signed undated letters of resignation from each chairman, director,
supervisor and legal representative of each WFOE, each Operating Company and each of the
subsidiaries of each Operating Company, all in forms approved by the Agent, and (d) an opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special United States counsel to the Borrowers, in form and substance
satisfactory to the Agent, regarding enforceability and no conflicts with respect to the
Intercompany Subordination Agreement.
8. The Borrower shall deliver to the Agent as promptly as practicable after the Amendment
Effective Date, but not later than 5 p.m. (New York City time) on Monday, July 19, 2010 (or such
longer period as the Agent may agree) (a) originally and fully executed copies of the Letters of
Resignation and Written Resolutions required in connection with the Share Charges executed by NuCom
Online Corporation; (b) the original share certificate of NuCom Online Corporation, a Cayman
Islands entity (“NuCom”), evidencing the 100% equity interest in NuCom held by the
Borrower, together with an originally executed blank transfer power with respect thereto; (c) the
original share certificate of NuCom Online Hongkong Limited, a Hong Kong entity (“NuCom
Hongkong”), evidencing the 100% equity interest in NuCom Hongkong held by NuCom Online
Corporation, together with an originally executed blank transfer power with respect thereto; (d)
duly adopted written resolutions or the minutes of a meeting of the directors of NuCom Hongkong
relating to the authorization, execution, delivery and performance of the Credit Documents to be
executed by NuCom Hongkong and the consummation of the transactions contemplated thereby, certified
by a Director of NuCom Hongkong, as being true, correct, complete and in full force and effect; (e)
originally executed copies of all of the documents, instruments and agreements requested by the
Agent to grant to the Agent, to the extent permitted by applicable law, a first-priority security
interest in all of the capital stock of NuCom Hongkong and all assets of NuCom Hongkong, including
without limitation, a Debenture, Security Assignment Over Bank Accounts, Notice of Assignment of
Bank Account, Joinder to Credit Agreement, Intercompany Subordination Agreement, Joinder to
Security Agreement, Commitment Letter and related documents; (f) a Joinder to Guaranty, duly
executed by NuCom Hongkong; (g) favorable opinions of New York and Hong Kong counsel to NuCom
Hongkong, addressed to the Administrative Agent and the Lenders as to the enforceability of the
Credit Documents to be executed by NuCom Hongkong, and addressing such other matters as the
Administrative Agent may reasonably request; and (h) a certificate of a director of NuCom Hongkong,
substantially in the form of Exhibit E to the Credit Agreement, with respect to the certificate of
formation, articles of association, the resolutions referred to in clause (d) above, and the
incumbency of the authorized signatory of NuCom Hongkong.
9. As soon as practicable after the Amendment Effective Date, but in any event not later than
5 p.m. (New York City time) on Monday, July 26, 2010 (or such longer period as the Agent may
agree), the original share certificate of Xinhua Finance Media (Convey) Limited, a British Virgin
Islands entity (“Xinhua Finance Media (Convoy)”), evidencing the 15% equity interest in
Xinhua Finance Media (Convey) held by the Borrower.
10. As soon as practicable after the Amendment Effective Date, but in any event no later than
60 days after the date hereof (or such longer period as the Agent may agree), the transfer of all
of the shares of equity in (a) Zhongxi Taihe Culture Consultation (Shanghai) Co., Ltd.; (b) Xinhua
Sports & Entertainment (Shanghai) Co., Ltd.; and (c) Xinhua Sports & Entertainment (Beijing) Co.,
Ltd. from the Borrower to Upper Step Holdings Limited, an entity incorporated in the British Virgin
Islands, shall be effective for all purposes, and all consents, including those of any Governmental
Body in the PRC, the British Virgin Islands, and the Cayman Islands, shall have been obtained and
all necessary filings shall have been made in respect thereof.
AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
TO CREDIT AGREEMENT OF
XINHUA SPORTS & ENTERTAINMENT LIMITED
SCHEDULE I
COMMITMENTS
| Lender | Convertible Term Loan Commitments | |||
ZOHAR CDO 2003-1, LIMITED |
$ | 22,234,208.30 | ||
▇▇▇▇▇ ▇▇ 2005-1, LIMITED |
$ | 19,221,831.70 | ||
Total Convertible Term Loan Commitments |
$ | 41,456,040.00 | ||
| Lender | Additional Term Loan Commitments | |||
ZOHAR CDO 2003-1, LIMITED |
$ | 4,076,124.57 | ||
▇▇▇▇▇ ▇▇ 2005-1, LIMITED |
$ | 3,523,875.43 | ||
Total Additional Term Loan Commitments |
$ | 7,600,000.00 | ||
TOTAL COMMITMENTS |
$ | 49,056,040.00 | ||
SCHEDULE I