SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
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.
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 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:
(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.
2
(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.
(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.
3
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.
[Remainder of Page Left Intentionally Blank]
4
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| IMAGE ENTERTAINMENT, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| EGAMI MEDIA, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| IMAGE ENTERTAINMENT (UK), INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| WACHOVIA CAPITAL FINANCE | ||||
| CORPORATION (WESTERN), | ||||
| as Agent and Lender | ||||
| By: | /s/ XXXX XXXXXXXX | |||
| Xxxx Xxxxxxxx, Director | ||||
5