NAVARRE CORPORATION
EXHIBIT 10.8.4
As of March 1, 1999
NAVARRE CORPORATION
7400 49th Avenue North
New Hope, Minnesota 55428
RE: AMENDMENT NO. 4 TO FINANCING AGREEMENTS
Gentlemen:
Reference is made to the Loan and Security Agreement, dated June 12,
1997, between Congress Financial Corporation (Central) ("Lender") and Navarre
Corporation ("Borrower"), as amended by Amendment No. 1 to Financing Agreements,
dated as of September 19, 1997, and Amendment No. 2 to Financing Agreements,
dated as of October 29, 1997, Amendment No. 3 dated as of May 1, 1998 (the "Loan
Agreement"), and the Pledge and Security Agreement dated June 12, 1997 between
Borrower and Lender (the "Pledge Agreement"), together with all other
agreements, documents, supplements and instruments now or at any time hereafter
executed and/or delivered by Borrower or any other person, with, to or in favor
of Lender in connection therewith (all of the foregoing, together with this
Amendment and the other agreements and instruments delivered hereunder, as the
same now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, collectively, the "Financing Agreements"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to them in the Loan Agreement.
Borrower has requested that Lender (a) consent to certain transactions
involving a proposed initial public offering of the common stock of Net Radio
Corporation ("Net Radio") the Borrower's majority-owned subsidiary as set forth
in Net Radio's Registration Statement under the Securities Act of 1933, as
amended, (the "Initial Public Offering"); (b) waive any Events of Default that
could arise, or have arisen by reason of Net Radio's issuance of shares of its
common stock and options to purchase its common stock as described in the
capitalization chart of Exhibit A annexed hereto; (c) release and declare null
and void Borrower's covenant of Section 3(h)(i) of the Pledge Agreement with
respect to Net Radio; (d) release Lender's security interest in the Pledge
Property (as defined in the Pledge Agreement) and any proceeds to Borrower to
the extent necessary for Borrower to participate as a selling shareholder in the
Initial Public Offering; (e) release Lender's security interest, to the extent
any exists, or has ever existed, in any issued and outstanding shares of capital
stock not owned directly or beneficially by Borrower; and (f) waive any Events
of Default to the extent triggered by the transactions contemplated by the
Initial Public Offering including but not limited to, Sections 9.7 relating to
Sale of Assets, Consolidation, Merger, Dissolution, Section 9.10 relating to
Loans, Investments, Guarantees, etc., and Section 9.12 relating to Transactions
with Affiliates. Lender hereby consents and agrees to the foregoing subject to
the terms and provision hereof.
In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment No. 4 to Financing Agreements (this "Amendment"),
and other good and valuable consideration, the adequacy and sufficiency of which
are hereby acknowledged, Borrower and Lender agree as follows:
1. Consent. Notwithstanding anything contained in the Loan Agreement or
Pledge Agreement to the contrary, and subject to the terms and conditions
contained herein, Lender hereby consents to the Initial Public Offering.
2. Waiver. Notwithstanding anything contained in the Loan Agreement or
Pledge Agreement to the contrary, Lender hereby waives the Events of Default to
the extent triggered by the transactions contemplated by the Initial Public
Offering including but not limited to, Sections 9.7 relating to Sale of Assets,
Consolidation, Merger, Dissolution, Section 9.10 relating to Loans, Investments,
Guarantees, etc., and Section 9.12 relating to Transactions with Affiliates and
waives any Events of Default that could arise, or have
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arisen by reason of Net Radio's issuance of shares of its common stock and
options to purchase its common stock as described in the capitalization chart on
Exhibit A; provided that, nothing contained herein shall be construed to limit,
impair, or otherwise affect Lender's right to declare an Event of Default with
respect to any future non-compliance with the above referenced provisions or
covenants or any other covenant contained in the Loan Agreement or Pledge
Agreement or other terms and provisions of the Loan Agreement, Pledge Agreement
or any other Financing Agreements.
3. Partial Release of Pledge Property. In connection with the Initial
Public Offering, Lender hereby releases and declares null and void Borrower's
covenant of Section 3(h)(I) of the Pledge Agreement with respect to Net Radio;
(b) releases Lender's security interest in the Pledged Property and any proceeds
to Borrower to the extent necessary for Borrower to participate as a selling
shareholder in the Initial Public Offering, but in no event shall such release
be for greater than fifteen (15%) percent of the Pledged Property; and (c)
releases Lender's security interest, to the extent any exists, or has ever
existed, in any issued and outstanding shares of capital stock not owned
directly or beneficially by Borrower. Nothing contained herein shall release or
be deemed to release Lender's security interest in the Pledged Property not so
expressly deemed to release Lender's security interest in the Pledged Property
not so expressly released hereunder, and only to the extent so released, and in
no event shall the terms hereof release Lender's security interest in the
remaining eighty-five (85%) percent (or such greater percentage as may be
applicable) of the Pledged Property, which shall continue to be subject to the
terms of the Pledge Agreement and the other Financing Agreements.
4. Conditions Precedent. The effectiveness of the consent, waiver and
amendments set forth herein shall be subject to the receipt by Lender of each of
the following, in form and substance satisfactory to Lender:
(a) an original of this Amendment, duly authorized, executed and
delivered by Borrower;
(b) all requisite corporate action and proceedings in connection
with this Amendment and the documents and instruments to be delivered hereunder
shall be in form and substance satisfactory to Lender, and Lender shall have
received all information and copies of all documents, including, without
limitation, records of requisite corporate action and proceedings which Lender
may have requested in connection therewith, such documents where requested by
Lender or its counsel to be certified by appropriate corporate officers or
governmental authorities; and
(c) after giving effect to consents and waivers under, and
amendments to the Loan Agreement provided in, this Amendment, no Event of
Default shall exist or have occurred and no event or condition shall have
occurred or exist which with notice or passage of time or both would constitute
an Event of Default.
5. Effect of this Amendment. This Amendment and any instruments and
agreements delivered pursuant hereto constitute the entire agreement of the
parties with respect to the subject matter hereof and thereof, and supersede all
prior oral or written communications memoranda, proposals, negotiations,
discussions, term sheets and commitments with respect to the subject matter
hereof and thereof. Except for the specific amendments, consents and waivers
expressly set forth herein, no other changes or modifications to or consents or
waivers under the Financing Agreements are intended or implied, and in all other
respects the Financing Agreements are hereby specifically ratified, restated and
confirmed by all parties hereto as of the effective date hereof. To the extent
of conflict between the terms of this Amendment and the other Financing
Agreements, the terms of this Amendment shall control. The Loan Agreement and
this Amendment shall be read and construed as one agreement.
6. Further Assurances. Borrower shall execute and deliver such
additional documents and take such additional action as may be reasonably
requested by Lender to effectuate the provisions and purposes of this Amendment.
7. Governing Law. The rights and obligations hereunder of each of the
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parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of Illinois (without giving effect to
principles of conflicts of law).
8. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
9. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
Please sign in the space provided below and return a counterpart of
this Amendment, whereupon this Amendment, as so agreed to and accepted, shall
become a binding agreement between Borrower and Lender.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By:
Title:
AGREED AND ACCEPTED:
NAVARRE CORPORATION
By:
Title:
