THIRD AMENDMENT AGREEMENT
Exhibit 4.1
THIRD AMENDMENT AGREEMENT
THIRD AMENDMENT AGREEMENT (this “Agreement”), dated as of December 11, 2009, by and among
Image Entertainment, Inc., a Delaware corporation, with headquarters located at 00000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000 (the ”Company”), and Portside Growth and
Opportunity Fund (the “Investor”).
WHEREAS:
A. The Company executed that certain Amended and Restated Senior Secured Convertible Note in
favor of the Investor, originally issued as of August 30, 2006 and as amended (i) as of July 30,
2009 pursuant to the terms of the Second Amendment and Exchange Agreement dated as of July 30, 2009
between the Company and the Investor (as amended by the Amendment Agreement dated as of October 28,
2009, the “Amendment and Exchange Agreement”), and (ii) as of November 15, 2009 pursuant to the
terms of the Second Amendment Agreement, in the principal amount of $15,700,972.60 (the “Amended
and Restated Note”).
B. The Investor delivered an Installment Notice (the “Installment Notice”), dated as of
December 9, 2009, to the Company for purposes of requesting payment of the full Installment Amount
on December 11, 2009 (the “Redemption Date”).
C. The Company and the Investor desire to enter into an amendment to the Amended and Restated
Note and the Installment Notice as set forth herein. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed to them in the Amended and
Restated Note, as amended hereby or in the Amendment and Exchange Agreement, as appropriate.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the Company and the Investor hereby agree as follows:
1. AMENDMENT TO AMENDED AND RESTATED NOTE.
(a) Effective as of the execution of this Agreement by the Company and the Investor, the
defined term “Contingent Installment Date,” as defined in Section (28)(j) of the Amended and
Restated Note, is hereby amended in its entirety to read as follows:
(j) “Contingent Installment Date” means December 14, 2009.
(b) Ratification. Except as otherwise expressly provided herein, the Securities
Purchase Agreement, the Amendment and Exchange Agreement and each other Transaction Document and
the Security Documents, is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects. For the avoidance of doubt, the Investor shall have the
right to deliver an Installment Notice for the payment due on the January 30, 2010 Installment
Date.
2. INSTALLMENT NOTICE; AMENDMENT.
(a) Notwithstanding the provisions of Section 1 of this Agreement, each of the Company and the
Investor acknowledge and agree that the Installment Notice, as amended hereby, remains in full
force and effect and shall not be deemed in any respect to have been rescinded on the date hereof.
Each reference to the Redemption Date in such Installment Notice shall mean and be a reference to
December 14, 2009 and such Installment Notice shall be deemed to be modified to reflect the
appropriate interest accrual as of December 14, 2009.
(b) Except as expressly set forth herein, this Agreement shall not in any way modify, amend,
limit or affect the rights of the Investor to receive payment of, or the obligations of the Company
to pay, the Principal, Interest, other payments, costs, fees and expenses of the Investor as set
forth in the Amended and Restated Note, Securities Purchase Agreement, the Amendment and Exchange
Agreement and each other Transaction Document and Security Document, as applicable.
3. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Investor and the Company hereby represents and warrants to the other party, as
of the date hereof:
(i) Each of the Investor and the Company has the requisite corporate power and
authority to execute and deliver this Agreement, and to perform its obligations hereunder
and under the Amended and Restated Note (as amended or modified hereby). The execution,
delivery and performance by each of the Company and the Investor of this Agreement have been
duly approved by all necessary corporate action and no other corporate proceedings are
necessary to consummate such transactions.
(ii) This Agreement has been duly executed and delivered by each of the Company and the
Investor. This Agreement is the legal, valid and binding obligation of each of the Company
and the Investor, enforceable against each of them in accordance with its terms, except as
such enforceability may be limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors’ rights and
remedies, and is in full force and effect.
(b) The Company hereby represents and warrants to the Investor as of the date hereof:
(i) No Conflicts. The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions contemplated hereby and
thereby will not (i) result in a violation of any certificate of incorporation, certificate
of formation, any certificate of designations or other constituent documents of the Company
or any of its Subsidiaries, any capital stock of the Company or any of its Subsidiaries or
bylaws of the Company or any of its Subsidiaries or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a default) in
any respect under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or any of its
Subsidiaries is a party, or
(iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules and
regulations of the Principal Market applicable to the Company or any of its Subsidiaries or
by which any property or asset of the Company or any of its Subsidiaries is bound or
affected.
(ii) Consents. Neither the Company nor any of its Subsidiaries is required to
obtain any consent, authorization or order of, or make any filing or registration with, any
court, governmental agency or any regulatory or self-regulatory agency or any other Person
in order for it to execute, deliver or perform any of its obligations under or contemplated
by this Agreement, in each case in accordance with the terms hereof or thereof, other than
those which have been obtained.
4. MISCELLANEOUS.
(a) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile signature.
(b) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
(c) Severability. If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the
provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of
this Agreement so long as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes as close as possible to that of
the prohibited, invalid or unenforceable provision(s).
(d) Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under the Securities Purchase Agreement
and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.
(f) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
(g) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
(h) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns in accordance with the terms of
the Securities Purchase Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Investor and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above.
| COMPANY: IMAGE ENTERTAINMENT, INC. |
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| By: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President and CFO | |||
IN WITNESS WHEREOF, the Investor and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above.
| INVESTOR: PORTSIDE GROWTH AND OPPORTUNITY FUND |
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| By: | /s/ XXXXXXX X. XXXXX | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
