EXHIBIT
10.18
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AMENDMENT NO. 2 TO REVOLVING
CREDIT LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO REVOLVING CREDIT LOAN AND SECURITY AGREEMENT
(this "Amendment") is entered into as of March 16, 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 the Bank to extend the Final Repayment
Date and increase the amount of the Commitment.
C. The Bank is willing to agree to the foregoing subject to the terms
and conditions contained herein.
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 May 2, 1999."
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
Thirteen Million Dollars ($13,000,000) (the 'Commitment') from
time to time during the period (the 'Availability Period')
commencing on the execution date hereof and expiring on May 2,
1999; PROVIDED, HOWEVER, that 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 under the
Facility exceed the lesser of (i) the Commitment, or (ii) the
then current amount of the Borrowing Base; PROVIDED, FURTHER,
HOWEVER, that
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the aggregate sum of all undrawn amounts under Standby Letters of
Credit shall not at any time exceed the Standby Letters of Credit
Sublimit. Subject to the terms and conditions of this Agreement,
the Borrowers may borrow, repay and reborrow amounts constituting
the Commitment. Notwithstanding anything herein to the contrary,
no Letter of Credit shall remain outstanding after the Final
Repayment Date."
1.3 AMENDMENT OF SECTION 2.6. The first sentence of Section 2.6
of the Loan Agreement is hereby amended and restated to read in its entirety as
follows:
"The Principal (and Interest thereon) owing to the Bank under
the Facility shall be evidenced by a Second Amended and
Restated Promissory Note (hereinafter the 'Note') executed by
the Borrowers and payable to the Bank in the face amount of
the Commitment."
1.4 RETURN OF NOTE. As soon as practicable following the
Borrowers' compliance with each of the conditions precedent set forth in Section
3 hereof, the Bank shall return to the Borrowers the existing $10,000,000
Amended and Restated Promissory Note dated March 25, 1998, previously executed
by the Borrowers in favor of the Bank.
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;
2.1.3 Each of the Borrowers is duly authorized to enter into
this Amendment, the Note (i.e. the Amended and Restated Promissory Note to be
executed by the Borrowers pursuant to Section 3.1.1 hereof) and consummate the
transactions herein contemplated and has the requisite power, authority and
legal right to execute, deliver and perform this Amendment, such Note and the
other documents and transactions contemplated herein, and has taken all
necessary action to authorize it's execution, delivery and performance of this
Amendment, such Note and such other documents and transactions as contemplated
herein; and
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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 it 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, the Note 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 the Note duly executed by each
Borrower in the form of Exhibit 1 attached hereto;
3.1.2 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, including, but not limited to,
the Second Amended and Restated Note);
3.1.3 The Borrowers shall have complied and then be in
compliance with all terms, covenants and conditions of the Loan Agreement.
4. MISCELLANEOUS.
4.1 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
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Amendment and/or shall include the Note to be executed by the Borrowers pursuant
to Section 3.1.1 hereof, as the case may be.
4.2 Except as expressly modified, amended or restated by this
Amendment and the Amended and Restated Note, 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.
4.3 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.
4.4 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.
4.5 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:
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Its:
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UNAPIX ENTERTAINMENT, INC.,
a Delaware corporation
By:
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Its:
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MIRAMAR IMAGES, INC.,
a Washington corporation
By:
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Its:
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EXHIBIT 1
[FORM OF SECOND AMENDED AND RESTATED NOTE]
