AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT
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AMENDMENT NUMBER FIVE TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT (this "Amendment") dated February 28, 2002 (the "Fifth Amendment Date") and effective as of December 31, 2001 (the "Fifth Amendment Effective Date"), is made by and between FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), with a place of business located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, and IMAGE ENTERTAINMENT, INC., a California corporation ("Borrower"), with its chief executive office located at 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, with reference to the following facts:
WHEREAS, Borrower has requested that Foothill amend that certain Loan and Security Agreement dated as of December 28, 1998, as amended from time to time, between Foothill and Borrower (as amended, the "Agreement") as set forth herein; and
WHEREAS, Foothill is willing to so amend the Agreement in accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises contained herein, Foothill and Borrower hereby agree as follows:
SECTION 1. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
SECTION 2. AMENDMENTS TO THE AGREEMENT.
(a) Section 2.1(a)(i)(w) of the Agreement is hereby amended and restated in its entirety as follows:
(w) an amount equal to Borrower's collections with respect to Accounts for the immediately preceding seventy-five (75) day period; plus
SECTION 3. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to Foothill that (a) the execution, delivery, and performance of this Amendment and of the Agreement, as amended by this Amendment, are within its corporate powers, have been duly authorized by all necessary corporate action, and are not in contravention of any law, rule, or regulation, or any order, judgment, decree, writ, injunction, or award of any arbitrator, court, or governmental authority, or of the terms of its charter or bylaws, or of any contract or undertaking to which it is a party or by which any of its properties may be bound or affected, and (b) this Amendment and the Agreement, as amended by this Amendment, constitute Borrower's legal, valid, and binding obligation, enforceable against Borrower in accordance with its terms.
SECTION 4. CONDITIONS PRECEDENT TO AMENDMENT.
The satisfaction of each of the following, on or before the Fifth Amendment Date, unless waived or deferred by Foothill in its sole discretion, shall constitute conditions precedent to the effectiveness of this Amendment:
(a) The representations and warranties in this Amendment, the Agreement as amended by this Amendment, and the other Loan Documents shall be true and correct in all respects on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date);
(b) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have been issued and remain in force by any governmental authority against Borrower or Foothill;
(c) All other documents, agreements, instruments, 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 Foothill and its counsel;
(d) The due execution and delivery of this Amendment by each party hereto.
(e) Foothill shall have received an amendment fee of $18,500, which fee shall be charged directly to Borrower's Loan Account.
SECTION 5. FURTHER ASSURANCES.
Borrower shall execute and deliver all agreements, documents, and instruments, in form and substance satisfactory to Foothill, and take all actions as Foothill may reasonably request from time to time fully to consummate the transactions contemplated under this Amendment and the Agreement, as amended by this Amendment.
SECTION 6. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment, each reference in the Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like import referring to the Agreement shall mean and refer to the Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words of like import referring to the Agreement shall mean and refer to the Agreement as amended by this Amendment.
(c) This Amendment shall be governed by and construed in accordance with the laws of the State of California.
(d) This Amendment can only be amended by a writing signed by both Foothill and Borrower.
(e) This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile shall be equally as effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile also shall deliver an original executed counterpart of this Amendment but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.
(f) This Amendment reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.
| IMAGE ENTERTAINMENT, INC., a California corporation |
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| /s/ XXXX X. XXXXXX |
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| By: Xxxx X. Xxxxxx | ||
| Title: CFO | ||
| FOOTHILL CAPITAL CORPORATION, a California corporation |
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| /s/ XXXXX X. SMART |
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| By: Xxxxx X. Smart | ||
| Title: Vice President | ||
AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT
