FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.25(a)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of
April 28, 2008, 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 HOME VISION ENTERTAINMENT, INC., a Delaware corporation (“HVE” and together
with Egami and Image (UK), collectively, “Guarantors”).
RECITALS
A. Borrower, Guarantors and Lender have previously entered into that certain Loan and Security
Agreement dated May 4, 2007 (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.
AGREEMENT
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) The definition of “Applicable Margin” in Section 1.7 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
“1.7 ‘Applicable Margin’ shall mean, at any time, with respect to any
Prime Rate Loan or Eurodollar Rate Loan, the applicable rate per annum set
forth below under the caption “Prime Spread” or “Eurodollar Spread”, as the
case may be, based upon the EBITDA of Parent and its Subsidiaries during the
twelve (12) months ending on the most recent determination date:
| Prime | Eurodollar | |||
| EBITDA | Spread | Spread | ||
| Category 1 ³ $2,000,000 |
0.5% | 2.25% | ||
| Category 2 < $2,000,000 but ³ $1,000,000 |
0.5% | 2.50% | ||
| Category 3 < $1,000,000 |
0.75% | 2.75% |
For purposes of the foregoing, (a) the Applicable Margin shall be
determined as of the end of each fiscal quarter of Parent based upon the
annual or monthly financial statements (for periods ending on the last day
of a fiscal quarter or year) delivered pursuant to Section 9.6(a), and (b)
each change in the Applicable Margin resulting from the EBITDA of Parent and
its Subsidiaries shall be effective during the period commencing on and
including the first day of the month immediately following the date of
delivery to the Agent of such financial statements indicating such change
and ending on the date immediately preceding the effective date of the next
such change, provided that the EBITDA shall be deemed to be
in Category 3 at the option of the Agent or at the request of the Required
Lenders if the Parent fails to deliver the annual or monthly financial
statements required to be delivered by it pursuant to Section 9.6(a) hereof,
during the period from the expiration of the time for delivery thereof until
such financial statements are delivered. If any such financial statements
overstate the EBITDA, and if as a result of such overstatement, the interest
and fees charged hereunder are less than what would have been charged had
such financial statements accurately stated the EBITDA, then Borrowers shall
be responsible for the difference between the interest and fees charged as
result of such overstatement and what would have been charged had such
financial statements accurately stated the EBITDA, and shall pay the amount
of such difference to the Agent upon its demand therefor.”
(b) The definition of “Revolving Loan Limit” in Section 1.7 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
“1.92 ‘Revolving Loan Limit’ shall mean, as to each Borrower, at any time,
the amount equal to $20,000,000 minus the then outstanding principal amount
of the Revolving Loans and Letters of Credit provided to the other
Borrowers.”
(c) Section 9.17 of the Loan Agreement is hereby amended and restated to read in its entirety
as follows:
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“9.17 Fixed Charge Coverage Ratio. During each of the periods set
forth below, Borrowers shall maintain a Fixed Charge Coverage Ratio of no
less than the ratio set forth opposite such period; provided that if
(a) such required ratio is less than 1.00 to one and Borrowers had Excess
Availability hereunder equal to or greater than $3,500,000 at all times
during the thirty (30) days preceding the date on which the financial
statements for the last day of such period are furnished to Agent pursuant
to Section 9.6(a)(i) hereof, or (b) such required ratio is equal to or
greater than 1.00 to one and Borrowers had Excess Availability hereunder
equal to or greater than $2,500,000 at all times during those thirty (30)
days, then the foregoing covenant will not be tested for the applicable
period:
| Periods | Ratios | |
Each 3 month period ending on or after March 31, 2008 but on
or before August 30, 2008
|
0.00 to one | |
Each 3 month period ending on or after September 30, 2008 but
on or before November 30, 2008
|
0.50 to one | |
Each 3 month period ending on or after December 31, 2008 but
on or before February 28, 2009
|
1.00 to one | |
Each 6 month period ending on or after March 31, 2009 but on
or before May 31, 2009
|
1.00 to one | |
Each 6 month period ending on or after June 30, 2009
|
1.10 to one” |
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) Representations and Warranties. The representations and warranties set forth
herein and in the Loan Agreement must be true and correct.
(c) Other Required Documentation. All other documents and legal matters in connection
with the transactions contemplated by this Amendment shall have been delivered or executed or
recorded and shall be in form and substance satisfactory to Lender.
3. Representations and Warranties. Borrower and Guarantors represent and warrant as
follows:
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(a) Authority. Each of Borrower and Guarantors has the requisite corporate power and
authority to execute and deliver this Amendment, and to perform its obligations hereunder and under
the Financing Agreements (as amended or modified hereby) to which it is a
party. The execution, delivery and performance by Borrower and Guarantors of this Amendment
have been duly approved by all necessary corporate action and no other corporate proceedings are
necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by Borrower
and Guarantors. This Amendment and each Financing Agreement (as amended or modified hereby) is the
legal, valid and binding obligation of Borrower and Guarantors, enforceable against them in
accordance with its terms, and is in full force and effect.
(c) Representations and Warranties. The representations and warranties contained in
each Financing Agreement (other than any such representations or warranties that, by their terms,
are specifically made as of a date other than the date hereof) are correct on and as of the date
hereof as though made on and as of the date hereof.
(d) Due Execution. The execution, delivery and performance of this Amendment are
within the power of Borrower and Guarantors, have been duly authorized by all necessary corporate
action, have received all necessary governmental approval, if any, and do not contravene any law or
any contractual restrictions binding on Borrower or any Guarantor.
(e) No Default. No event has occurred and is continuing that constitutes an Event of
Default.
4. Choice of Law. The validity of this Amendment, its construction, interpretation
and enforcement, the rights of the parties hereunder, shall be determined under, governed by, and
construed in accordance with the internal laws of the State of California governing contracts only
to be performed in that State.
5. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties and separate counterparts, each of which when so executed and delivered, shall be
deemed an original, and all of which, when taken together, shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Amendment by
telefacsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
6. Reference to and Effect on the Financing Agreements.
(a) Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement
to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement,
and each reference in the other Financing Agreements to “the Loan Agreement”, “thereof” or words of
like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as
modified and amended hereby.
(b) Except as specifically amended above, the Loan Agreement and all other Financing
Agreements, are and shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations
of Borrower and Guarantors to Lender.
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(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of Lender under any of the
Financing Agreements, nor constitute a waiver of any provision of any of the Financing Agreements.
(d) To the extent that any terms and conditions in any of the Financing Agreements shall
contradict or be in conflict with any terms or conditions of the Loan Agreement, after giving
effect to this Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Loan Agreement as modified or amended
hereby.
7. Estoppel. To induce Lender to enter into this Amendment and to continue to make
advances to Borrower under the Loan Agreement, Borrower and Guarantors hereby acknowledge and agree
that, as of the date hereof, there exists no right of offset, defense, counterclaim or objection in
favor of Borrower or any Guarantor as against Lender with respect to the Obligations.
8. Integration. This Amendment, together with the other Financing Agreements,
incorporates all negotiations of the parties hereto with respect to the subject matter hereof and
is the final expression and agreement of the parties hereto with respect to the subject matter
hereof.
9. Severability. In case any provision in this Amendment shall be invalid, illegal or
unenforceable, such provision shall be severable from the remainder of this Amendment and the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| IMAGE ENTERTAINMENT, INC. |
||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| EGAMI MEDIA, INC. |
||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| IMAGE ENTERTAINMENT (UK), INC. |
||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| HOME VISION ENTERTAINMENT, INC. |
||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN), as Agent and Lender |
||||
| By: | /s/ XXXX XXXXXXXX | |||
| Xxxx Xxxxxxxx, Director | ||||
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