SECOND AMENDMENT TO LOAN AND
SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY
AGREEMENT (this “ Amendment ”), dated as of
June 23, 2009, is entered into between WACHOVIA CAPITAL
FINANCE CORPORATION (WESTERN), a California corporation, as Agent
and Lender (in such capacities, “ Lender ”),
IMAGE ENTERTAINMENT, INC., a Delaware corporation (“
Borrower ”), EGAMI MEDIA, INC., a Delaware corporation
(“ Egami ”), IMAGE ENTERTAINMENT (UK), INC., a
Delaware corporation (“ Image (UK) ” and
together with Egami, collectively, “ Guarantors
”).
A. Borrower, Guarantors, Home Vision
Entertainment, Inc., a Delaware corporation (which has since been
merged with and into Borrower), and Lender have previously entered
into that certain Loan and Security Agreement dated May 4,
2007 as amended by that certain First Amendment to Loan and
Security Agreement dated as of April 28 2008 (as amended, the
“ Loan Agreement ”), pursuant to which Lender
has made certain loans and financial accommodations available to
Borrower. Terms used herein without definition shall have the
meanings ascribed to them in the Loan Agreement.
B. Borrower, Guarantors and Lender now wish
to amend the Loan Agreement on the terms and conditions set forth
herein.
C. Borrower and Guarantors are entering
into this Amendment with the understanding and agreement that,
except as specifically provided herein, none of Lender’s
rights or remedies as set forth in the Loan Agreement is being
waived or modified by the terms of this Amendment.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1.
Amendments to Loan Agreement .
(a) Section 9.6(a)(ii) of the Loan
Agreement is hereby amended and restated to read in its entirety as
follows:
“(ii)
within ninety (90) days after the end of each fiscal year,
audited consolidated financial statements and unaudited
consolidating financial statements of Parent and its Subsidiaries
(including in each case balance sheets, statements of income and
loss, statements of cash flow, and statements of
shareholders’ equity), and the accompanying notes thereto,
all in reasonable detail, fairly presenting in all material
respects the financial position and the results of the operations
of Parent and its Subsidiaries as of the end of and for such fiscal
year, together with (other than for the fiscal year of Parent
ending March 31, 2009) the unqualified opinion of independent
certified public accountants with respect to the audited
consolidated financial statements, which accountants shall be an
independent accounting firm selected by Administrative Borrower and
acceptable to Agent, that such audited consolidated financial
statements have been prepared in accordance with GAAP, and present
fairly in all material respects the results of operations and
financial condition of Parent and its Subsidiaries as of the end of
and for the fiscal year then ended, and”
2. Effectiveness of this Amendment
. Lender must have received the following items before this
Amendment is effective.
(a) Amendment . This Amendment,
fully executed in a sufficient number of counterparts for
distribution to all parties.
(b) Amendment Fee . An amendment
fee in the amount of $50,000 which shall be due and payable by
Borrower, and fully earned by Lender, on the date of this
Amendment.
(c) Representations and Warranties
. The representations and warranties set forth herein and in the
Loan Agreement must be true and correct.
(d) Other Required Documentation.
All other documents and legal matters in connection with the
transactions contemplated by this Amendme
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