EXHIBIT
10.24
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AMENDMENT NO. 3 TO REVOLVING
CREDIT LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 TO REVOLVING CREDIT LOAN AND SECURITY
AGREEMENT (this "Amendment") is entered into as of April 12, 1999, by and
between (i) UNAPIX ENTERTAINMENT, INC. ("Unapix"), and MIRAMAR IMAGES, INC.
("Miramar;" and together with Unapix, collectively the "Borrowers"), and (ii)
IMPERIAL BANK (the "Bank"), with respect to the following facts:
A. The Bank and the Borrowers entered into a Revolving Credit Loan
and Security Agreement dated as of April 16, 1997 (as modified, amended, and
supplemented to the date hereof, the "Loan Agreement"). Capitalized terms not
expressly defined herein shall have the respective meanings ascribed thereto
in the Loan Agreement.
B. The Borrowers have requested that the Bank amend the Loan
Agreement in certain respects.
C. The Bank is willing to amend the Loan Agreement subject to the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, the parties hereto hereby agree as follows:
1. AMENDMENTS
1.1 AMENDMENT OF "FINAL REPAYMENT DATE." The
definition of "Final Repayment Date," contained in Section 1 of the Loan
Agreement, is hereby amended and restated to read in its entirety as follows:
"FINAL REPAYMENT DATE' shall mean March 2, 2000."
1.2 AMENDMENT OF SECTION 2.1.1. Section 2.1.1 of
the Loan Agreement is hereby amended and restated to read in its entirety as
follows:
"2.1.1 COMMITMENT. To the Borrower, in the
form of Advances and Letters of Credit by way of a
revolving credit facility (the `Facility') in the
aggregate sum owing hereunder of up to (the
`Commitment') of (i) Thirteen Million Dollars
($13,000,000) prior to May 3, 1999, (ii) Twelve
Million Five Hundred Thousand Dollars
($12,500,000) on or after May 3, 1999 and prior to
June 3, 1999, (iii) Twelve Million Dollars
($12,000,000) on or after June 3, 1999 and prior
to July 3, 1999, (iv) Eleven Million Five Hundred
Thousand Dollars ($11,500,000) on or after July 3,
1999 and prior to August 3, 1999, (v) Eleven
Million Dollars ($11,000,000) on or after August
3, 1999 and prior
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to September 3, 1999, (vi) Ten Million Five
Hundred Thousand Dollars ($10,500,000) on or after
September 3, 1999 and prior to October 3, 1999 and
(vii) Ten Million Dollars ($10,000,000) thereafter
from time to time during the period, commencing on
the execution date hereof and expiring on the
Final Repayment Date. Subject to Section 2.1.2
hereof, at no time shall the sum of all Advances
and all undrawn amounts under all Letters of
Credit at any time outstanding exceed the lesser
of (i) the Commitment, or (ii) the Borrowing Base,
and PROVIDED, FURTHER, that at no time shall the
aggregate sum of all undrawn amounts under Standby
Letters of Credit at any time exceed the Standby
Letters of Credit Sublimit. Subject to the terms
and conditions of this Agreement and the foregoing
limitations, the Borrowers may borrow, repay and
reborrow Advances. Notwithstanding anything herein
to the contrary, no Letter of Credit shall remain
outstanding after the Final Repayment Date."
1.3 AMENDMENT OF SECTION 2.8.2.2. Section 2.8.2.2
of the Loan Agreement is hereby amended by replacing the language "Section
2.1.2" with "Sections 2.1.1 and 2.1.2."
1.4 AMENDMENT OF SECTION 5.1. The last sentence of
Section 5.1 of the Loan Agreement is hereby deleted and the following two
sentences are hereby added to the end of that section: "Subject to the
immediately succeeding sentence, at the end of each Business Day, the Bank
shall transfer an amount equal to the then credit balance in the Master
Collection Account to the Operating Account, provided that on such Business
Day no Event of Default or Potential Event of Default is then occurring. At
the end of each Business Day that the aggregate Obligations exceed the lesser
of the Commitment and the Borrowing Base, the Bank shall apply an amount
equal to the then credit balance in the Master Collection Account to the
repayment of the Obligations, in accordance with the provisions of Section
2.10 hereof, until such excess has been eliminated."
2. REPRESENTATIONS AND WARRANTIES.
2.1 REPRESENTATIONS AND WARRANTIES. The Borrowers
hereby jointly and severally represent and warrant to the Bank that as of the
date hereof (except to the extent that any such representation or warranty
expressly relates to an earlier date):
2.1.1 Each of the representations and
warranties of the Borrowers contained in the Loan Agreement and in any and
all other Loan Documents is or was (as the case may be) true and correct;
2.1.2 No Event of Default or Potential Event
of Default has occurred and is continuing;
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2.1.3 Each of the Borrowers is duly
authorized to enter into this Amendment and consummate the transactions
herein contemplated and has the requisite power, authority and legal right to
execute, deliver and perform this Amendment and the other documents and
transactions contemplated herein, and has taken all necessary action to
authorize its execution, delivery and performance of this Amendment and such
other documents and transactions as contemplated herein; and
2.1.4 The consummation of the transactions
herein contemplated and the fulfillment of the terms hereof and the
compliance by the Borrowers with all of the terms and conditions of this
Amendment and the other documents herein provided will not result in any
breach of any of the terms, conditions or provisions of, or constitute a
default under, or violate, any indenture, bank loan, credit agreement or
other agreement or instrument, or existing law or judgment, to which either
or both of the Borrowers is a party or by which they or any of their assets
is bound, nor will it result in the creation of any Encumbrance upon any of
their properties or assets pursuant to the provisions of any such indenture,
bank loan, credit agreement or other agreement or instrument, nor are any of
the Borrowers prohibited by their articles of incorporation, by-laws or any
indenture or other agreement, nor does it require any approval or consent of
any Person that has not otherwise been obtained as of the date hereof; and
that this Amendment and each additional instrument and document required
hereunder when executed and delivered by the Borrowers will constitute the
legal, valid and binding obligation of the Borrowers enforceable against them
in accordance with its terms.
2.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
warranties and representations herein shall survive the execution of this
Amendment and the consummation of the transactions contemplated herein.
3. CONDITIONS PRECEDENT.
3.1 The provisions of Section 1 hereof shall not
become effective until the Borrowers comply with each of the following
conditions precedent to the satisfaction of the Bank in its sole and absolute
discretion:
3.1.1 Delivery to the Bank of a certificate
of a senior executive officer of each Borrower acceptable to the Bank in
substance and form satisfactory to the Bank (including, without limitation,
certification by such officer of each Borrower that attached thereto is a
true and correct complete copy of resolutions of the Board of Directors or
the Executive Committee thereof (and if applicable, the shareholders) of such
Borrower approving and authorizing the execution, delivery and performance of
this Amendment and the other documents and transactions contemplated herein;
3.1.2 Delivery to the Bank of Amendment No.1
to the Second Amended and Restated Promissory Note in the form attached as
Exhibit "A";
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3.1.3 The Borrowers shall have complied and
then be in compliance with all terms, covenants and conditions of the Loan
Agreement.
4. LOAN FEE.
The Borrowers will pay a loan fee on May 16, 1999 equal to
$75,000 (the "Additional Loan Fee"); provided, however, in the event that the
Bank sells by May 15, 1999 to another bank or banks participation interests
in an amount and on terms satisfactory to the Bank, the Bank will waive the
Additional Loan Fee. In the event that the Bank, in its sole and absolute
discretion, increases the amount of the Commitment at any time after May 15,
1999, the Additional Loan Fee actually paid by the Borrowers to the Bank will
be credited against any additional fees charged by the Bank in connection
with such increased Commitment.
5. MISCELLANEOUS.
5.1 All references in the Loan Agreement and in
any other Loan Document to the "Loan Agreement," "this Agreement," the "Note"
and/or "Loan Documents" (or words of similar import) shall be deemed a
reference to the Loan Agreement as amended by this Amendment and/or shall
include the Amendment to the Note to be executed by the Borrowers pursuant to
Section 3.1.2 hereof, as the case may be.
5.2 Except as expressly modified, amended or
restated by this Amendment, all of the terms and conditions of the Loan
Agreement, as so modified or amended and the additional Loan Documents shall
remain in full force and effect.
5.3 This Amendment may be executed in one or more
counterparts, each of which shall constitute an original Amendment, but all
of which together shall constitute one and the same instrument.
5.4 This Amendment and the other documents
referred to herein are intended by the Borrowers and the Bank to be the
final, complete and exclusive expression of the agreement between them. This
Amendment supersedes any and all prior oral or written agreements relating to
the subject matter hereof.
5.5 Whether or not the transactions contemplated
herein shall be consummated, the Borrowers jointly and severally agree to pay
all costs incurred by or on behalf of the Bank in connection with the
transactions hereby contemplated (including, without limitation, the
performance of any due diligence by the Bank) and the preparation,
negotiation, execution, delivery, waiver, Modification and/or administration
of this Amendment, the Note and any other documentation contemplated hereby
or thereby, the making of additional Advances and/or the enforcement or
protection of the rights of the Bank in connection therewith, including,
without limitation, any internally allocated audit costs and the fees and
disbursements of Xxxxxxxx, Xxxxxxxxxx & Xxxxx LLP, counsel to the Bank.
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IN WITNESS WHEREOF the parties hereto have executed this
Amendment as of the date first above written.
IMPERIAL BANK,
a California banking corporation
By: /S/ XXXXXXX XXXX XXX
---------------------------------
Xxxxxxx Xxxx Xxx, Vice President
UNAPIX ENTERTAINMENT, INC.,
a Delaware corporation
By: /S/ XXXXXX X. XXXXXX
---------------------------------
Its: TREASURER
MIRAMAR IMAGES, INC.,
a Washington corporation
By: /S/ XXXXXX X. XXXXXX
---------------------------------
Its: TREASURER
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