IMAX CORPORATION
EXHIBIT 10.27
THIS SECOND AMENDMENT TO THE LOAN AGREEMENT is made as of and with effect from
the 16th day of May, 2006.
BETWEEN:
IMAX CORPORATION
("BORROWER")
- and -
WACHOVIA CAPITAL FINANCE CORPORATION (CANADA)
(FORMERLY, CONGRESS FINANCIAL CORPORATION (CANADA))
("LENDER")
WHEREAS Borrower and Lender entered into a loan agreement dated February 6,
2004 as amended by a first amendment to the loan agreement made as of June 30,
2005 (collectively, the "LOAN AGREEMENT"), pursuant to which certain credit
facilities were established in favour of Borrower;
AND WHEREAS the parties hereto wish to extend the term of the Loan
Agreement to October 31, 2009, and amend certain other terms and conditions of
the Loan Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
covenants and agreements contained herein and for other good and valuable
consideration, the parties hereto agree to amend the Loan Agreement as provided
herein:
SECTION 1 GENERAL
In this Second Amendment to the Loan Agreement, unless otherwise
defined or the context otherwise requires, all capitalized terms shall have the
respective meanings specified in the Loan Agreement.
SECTION 2 TO BE READ WITH LOAN AGREEMENT
This Second Amendment to the Loan Agreement is an amendment to the
Loan Agreement and amends, restates and replaces in its entirety the Second
Amendment to the Loan Agreement made as of and executed on May 16, 2006. Unless
the context of this Second Amendment to the Loan Agreement otherwise requires,
the Loan Agreement and this Second Amendment to the Loan Agreement shall be read
together and shall have effect as if the provisions of the Loan Agreement and
this Second Amendment to the Loan Agreement were contained in one agreement. The
term "AGREEMENT" when used in the Loan Agreement means the Loan Agreement as
amended by this Second Amendment to the Loan Agreement, together with all
amendments, supplements, restatements and replacements thereto or therefor from
time to time.
-2-
SECTION 3 NO NOVATIONS
Nothing in this Second Amendment to the Loan Agreement, nor in the
Loan Agreement when read together with this Second Amendment to the Loan
Agreement, shall constitute a novation, payment, re-advance or reduction or
termination in respect of any Obligations of Borrower.
SECTION 4 AMENDMENTS TO THE LOAN AGREEMENT
(a) Schedule 1.11 to the Loan Agreement (FORM OF BORROWING BASE
CERTIFICATE), is deleted in its entirety and replaced with Schedule
1.11 attached hereto.
(b) A new Schedule 1.1(A) is added to the Loan Agreement called "CONTRACTS
IN BACKLOG/FINISHED GOODS INVENTORY" in the form attached to the
Disclosure Letter.
(c) A new Schedule 1.1(B) is added to the Loan Agreement called "LONG TERM
RECEIVABLES CONTRACTS", in the form attached to the Disclosure Letter.
(d) Schedule 8.4 to the Loan Agreement (EXISTING LIENS), is deleted in its
entirety and replaced with Schedule 8.4 attached hereto.
(e) A new Schedule 8.9(B) is added to the Loan Agreement called
"RESTRICTIONS ON ASSIGNABILITY WITHIN CONTRACTS IN BACKLOG AND LONG
TERM RECEIVABLES CONTRACTS" in the form attached to the Disclosure
Letter.
(f) Schedule 9.9 to the Loan Agreement (EXISTING INDEBTEDNESS), is deleted
in its entirety and replaced with Schedule 9.9 attached hereto.
(g) Schedule 9.10 to the Loan Agreement (EXISTING LOANS, ADVANCES AND
GUARANTEES), is deleted in its entirety and replaced with Schedule
9.10 attached hereto.
(h) Section 1 of the Loan Agreement (DEFINITIONS), is amended by adding
the following definitions (in their respective alphabetical order):
(A) ""AMENDMENT EFFECTIVE DATE" shall mean the date upon which all of
the conditions contained in the renewal and amending agreement
dated May 16, 2006, between Borrower and Lender, have been
satisfied in full (in the sole discretion of Lender) or have been
waived in writing (in whole or in part) by Lender, in its sole
discretion;
(B) "APPRAISAL" shall have the meaning attributed to it in Section
2.1(a)(v);
(C) "ASSIGNMENT OF CONTRACTS IN BACKLOG AND LONG TERM RECEIVABLES
CONTRACTS" shall mean the Assignment of Contracts in Backlog and
Long Term Receivables Contracts between Borrower, as assignor,
and Lender, as assignee, dated as of May 16, 2006, as the same
now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced;
-3-
(D) "CONTRACTS IN BACKLOG" shall mean, collectively, contracts
designated by the Borrower internally as "contracts in backlog"
as listed on Schedule 1.1(A), as may be amended, updated and/or
restated from time to time in accordance with the requirements
set out in Section 7.1(a) hereof;
(E) "CONTRACTS AND LEASES" shall mean, collectively, any one or all
of the Capital Leases, the Operating Leases, the Contracts in
Backlog and the Long Term Receivables Contracts;
(F) "DISCLOSURE LETTER" means the Disclosure Letter of even date
herewith executed by the Borrower and the Lender to which are
attached Schedule 1.1(A), Schedule 1.1(B) and Schedule 8.9(B).
(G) "ELIGIBLE CONTRACTS IN BACKLOG" shall mean Contracts in Backlog,
from time to time, which are and continue to be acceptable to
Lender based on the general criteria set forth below which
Lender, in good faith, may revise from time to time. In general,
a Contract in Backlog shall be an Eligible Contract in Backlog
if:
(i) it is with a Client deemed creditworthy at all times by
Lender, as determined by Lender in good faith;
(ii) it is with a Client that has not asserted a bona fide
counterclaim, defence or dispute (other than as to a de
minimus amount) under the applicable Contract in Backlog and
if so, the value of such Contract in Backlog Inventory shall
be reduced by the amount of such counterclaim, defense or
dispute;
(iii) it is with a Client that does not have, and does not engage
in transactions which may give rise to, any right of set-off
against the Contract in Backlog Inventory; provided that the
existence of any such right of set-off shall not by itself
cause such Contract in Backlog Inventory to cease to
continue to be Eligible Contract in Backlog Inventory but
its appraised value, for purposes of Section 2.1 hereof,
will be reduced by Lender by an amount determined by Lender
in good faith;
(iv) there are no facts, events or occurrences which would impair
the validity, enforceability or collectability of the
Contract in Backlog or materially reduce the amount payable
or delay payment thereunder, including without limitation,
any event of default or event which would, with notice or
the passage of time, constitute an event of default under
the Contract in Backlog;
(v) it is subject to the first priority, valid and perfected
security interest of Lender and is not subject to any prior
ranking liens or other liens except Permitted Encumbrances;
-4-
(vi) it is with a Client which is not itself, nor any officer or
employee thereof, an officer, employee or agent of or
affiliated with Borrower, directly or indirectly, by virtue
of family membership, ownership, control, management or
otherwise;
(vii) there are no proceedings or actions which are threatened or
pending against the Client which could reasonably be
expected to result in any material adverse change in such
Client's financial condition;
(viii) unless otherwise permitted by Lender, it is not with a
Client which, together with its affiliates, constitutes,
without duplication, more than ten (10%) percent of all
otherwise Eligible Contracts, Leases and Inventory (but the
portion of the Finished Goods Inventory not in excess of
such applicable percentage continues to be Eligible Finished
Goods Inventory); and
(ix) notwithstanding that there are restrictions on assignability
in respect of such Contracts in Backlog.
Any Contract in Backlog Inventory which is not considered to be
Eligible Contract in Backlog Inventory in accordance with the
foregoing requirements, is nevertheless considered to form part
of the Collateral;
(H) "ELIGIBLE CONTRACTS, LEASES AND INVENTORY" shall mean,
collectively, any one of or all of the Eligible Capital Leases,
Eligible Operating Leases, Eligible Finished Goods Inventory and
Eligible Long Term Receivables Contracts;
(I) "ELIGIBLE FINISHED GOODS INVENTORY" means Finished Goods
Inventory that has been assigned by the Borrower to Eligible
Contracts in Backlog;
(J) "ELIGIBLE LONG TERM RECEIVABLES CONTRACTS" shall mean those
contracts of the Borrower, from time to time, which are and
continue to be acceptable to Lender based on the general criteria
set forth below which Lender, in good faith, may revise from time
to time. In general, a Long Term Receivables Contract shall be an
Eligible Long Term Receivables Contract if:
(i) it is with a Client deemed creditworthy at all times by
Lender, as determined by Lender in good faith;
(ii) it is with a Client that has not asserted a bona fide
counterclaim, defence or dispute (other than as to a de
minimus amount) under the applicable Long Term Receivables
Contract and if so, the value of such Long Term Receivables
Contract shall be reduced by the amount of such
counterclaim, defense or dispute;
(iii) it is with a Client that does not have, and does not engage
in transactions which may give rise to, any right of set-off
against the Long Term Receivables Contract; provided that
the existence of any
-5-
such right of set-off shall not by itself cause such Long
Term Receivables Contract to cease to continue to be an
Eligible Long Term Receivables Contract but its appraised
value, for purposes of Section 2.1 hereof, will be reduced
by Lender by an amount determined by Lender in good faith;
(iv) there are no facts, events or occurrences which would impair
the validity, enforceability or collectability of the Long
Term Receivables Contract or materially reduce the amount
payable or delay payment thereunder, including without
limitation, any event of default or event which would, with
notice or the passage of time, constitute an event of
default under the Long Term Receivables Contract;
(v) it is subject to the first priority, valid and perfected
security interest of Lender and is not subject to any prior
ranking liens or other liens except Permitted Encumbrances;
(vi) it is with a Client which is not itself, nor any officer or
employee thereof, an officer, employee or agent of or
affiliated with Borrower, directly or indirectly, by virtue
of family membership, ownership, control, management or
otherwise;
(vii) there are no proceedings or actions which are threatened or
pending against the Client which could reasonably be
expected to result in any material adverse change in such
Client's financial condition;
(viii) unless otherwise permitted by Lender, it is not with a
Client which, together with its affiliates, constitutes more
than ten (10%) percent of all otherwise Eligible Contracts,
Leases and Inventory (but the portion of the Long Term
Receivables Contracts not in excess of such applicable
percentage continue to be Eligible Long Term Receivables
Contracts); and
(ix) notwithstanding that there are restrictions on the
assignability in respect of such Long Term Receivables
Contracts.
Any Long Term Receivables Contract, which is not considered to be
an Eligible Long Term Receivables Contract in accordance with the
foregoing requirements, is nevertheless considered to form part
of the Collateral;
(K) "ELIGIBLE REAL PROPERTY" shall mean the Real Property and any
other real property of Borrower that has been deemed to be
acceptable as Eligible Real Property by Lender;
(L) "FINISHED GOODS INVENTORY" means the finished goods Inventory of
the Borrower that has been designated by the Borrower as a
Contract in Backlog;
-6-
(M) "FINISHED GOODS INVENTORY LENDING FORMULA" shall have the meaning
set forth in Section 2.1(a) hereof;
(N) "LONG TERM RECEIVABLES CONTRACTS" shall mean, collectively, all
of the contracts listed on Schedule 1.1(B), as may be amended,
updated and/or restated from time to time in accordance with the
requirements set out in Section 7.1(a) hereof, each of which are
contracts that relate to the sale of theatre equipment by the
Borrower;
(O) "LONG TERM RECEIVABLES CONTRACTS LENDING FORMULA" shall have the
meaning set forth in Section 2.1(a) hereof;
(P) "ORDERLY LIQUIDATION VALUE" shall mean the amount, expressed in
terms of currency in US Dollars, it is estimated would be
realized from any orderly liquidation of the Finished Goods
Inventory and Long Term Receivables Contracts, as applicable, net
of the amount of deductions for all commissions, taxes and other
Liquidation Expenses, which, as of the Amendment Effective Date,
is the orderly liquidation value attributed to Finished Goods
Inventory and Long Term Receivables Contracts in the Hilco
Appraisal and at any future date will be the estimated amount
similarly calculated as of the date of calculation attributed to
the Finished Goods Inventory and Long Term Receivables Contracts
by the Appraiser;
(Q) "REAL PROPERTY" means the property of Borrower municipally known
as 2525 Speakman Drive, Mississauga, Ontario L5K 1B1; and
(R) "REAL PROPERTY LENDING FORMULA" shall have the meaning set forth
in Section 2.1(a)(v) hereof."
(i) Section 1.1 of the Loan Agreement, being the definition of "ACCOUNTS",
is hereby amended by deleting the reference to "Capital Leases and/or
Operating Leases" in the third line thereof and replacing it with a
reference to "Contracts and Leases".
(j) Section 1.19 of the Loan Agreement, being the definition of "CASH
DOMINION EVENT", is hereby amended by deleting the reference to
"$7,500,000" in the second line thereof and replacing it with a
reference to "$5,000,000".
(k) Section 1.23 of the Loan Agreement, being the definition of "CLIENT",
is hereby deleted in its entirety and replaced with the following:
""CLIENT" shall mean any Person, other than Borrower, who is now or
hereafter a party to a Capital Lease, Operating Lease, Contract in
Backlog and/or a Long Term Receivables Contract, as applicable, and
"Clients" means all such Persons."
(l) Section 1.24 of the Loan Agreement, being the definition of
"COLLATERAL", is hereby amended by inserting ", collectively, the Real
Property and" immediately before the words "Collateral as such term"
in the first line thereof.
-7-
(m) Each of Section 1.28 and 1.29 of the Loan Agreement, being the
definition of "ELIGIBLE CAPITAL LEASES" and "ELIGIBLE OPERATING
LEASES", respectively, is hereby amended by deleting subparagraph (g)
thereof.
(n) Section 1.36 of the Loan Agreement, being the definition of "FINANCING
AGREEMENTS", is hereby amended by inserting "Assignment of Contracts
in Backlog and Long Term Receivables Contracts," following the words
"Assignment of Capital Leases and Operating Leases," in the second
line thereof.
(o) Section 1.38 of the Loan Agreement, being the definition of "GENERAL
SECURITY AGREEMENT", is hereby amended by inserting "as the same now
exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced" immediately following "the Obligations"
in the third line thereof.
(p) Section 1.40 of the Loan Agreement, being the definition of "HILCO
APPRAISAL", is hereby deleted in its entirety and replaced with the
following:
""HILCO APPRAISAL" shall mean the most recently dated appraisal
conducted by the Appraiser that has been delivered to Lender, as may
be amended, updated or supplemented from time to time."
(q) Subsection (b) of Section 1.42 of the Loan Agreement, being the
definition of "INTEREST RATE", is hereby amended as follows:
(A) Subsection (i) is hereby amended by deleting the words "a rate of
one quarter of one (0.25%) percent per annum in excess of the
Applicable Prime Rate or a rate of two (2%)" in the first and
second lines thereof and replacing them with "the Applicable
Prime Rate or a rate of one and one quarter of one (1.25%)";
(B) Subsection (ii) is hereby amended by deleting the words "a rate
of one half of one (0.50%) percent per annum in excess of the
Applicable Prime Rate or a rate of two and one quarter (2.25%)"
in the first and second lines thereof and replacing them with "a
rate of one quarter of one (0.25%) percent per annum in excess of
the Applicable Prime Rate or a rate of one and one half of one
(1.5%)";
(C) Subsection (iii) is hereby amended by deleting the words "a rate
of three quarters of one (0.75%) percent per annum in excess of
the Applicable Prime Rate or a rate of two and one half (2.5%)"
in the first and second lines thereof and replacing them with "a
rate of one half of one (0.50%) percent per annum in excess of
the Applicable Prime Rate or a rate of two (2%)".
(r) Section 1.47 of the Loan Agreement, being the definition of "LENDING
FORMULAS", is hereby deleted in its entirety and replaced with the
following:
""LENDING FORMULAS" shall mean, collectively, the Operating Leases
Lending Formula, the Capital Leases Lending Formula, the Finished
Goods Inventory
-8-
Lending Formula, the Long Term Receivables Lending Formula and the
Real Property Lending Formula."
(s) Section 1.54 of the Loan Agreement, being the definition of "MAXIMUM
CREDIT" is hereby amended by deleting the reference to "$20,000,000"
therein and replacing it with a reference to "$40,000,000".
(t) Section 1.71 of the Loan Agreement, being the definition of "RENEWAL
DATE", is deleted in its entirety.
(u) Section 2.1 of the Loan Agreement (REVOLVING LOANS), is hereby amended
as follows:
(A) Subparagraph (a)(ii)(A) is hereby amended by deleting the
reference to "thirty-four (34%)" in the first line thereof and
replacing it with "forty-nine (49%)";
(B) Subparagraph (a)(ii)(B) is hereby amended by deleting the "." at
the end of this Subsection and replacing it with ", plus";
(C) the following new Paragraph (a)(iii) is added:
"(iii) the lesser of:
(A) thirty-one (31%) percent of the aggregate net book
value of Eligible Finished Goods Inventory; or
(B) eighty-five (85%) percent of the appraised value of
such Eligible Finished Goods Inventory expressed as a
percentage of cost value, net of estimated Liquidation
Expenses, with appraisals conducted on an Orderly
Liquidation Value basis at the expense of Borrower by
the Appraiser (the "FINISHED GOODS INVENTORY LENDING
FORMULA"), plus";
(D) the following new Paragraph (a)(iv) is added:
"(iv) the lesser of:
(A) forty (40%) percent of the aggregate net book value of
Eligible Long Term Receivables Contracts; or
(B) eighty-five (85%) percent of the appraised value of
such Eligible Long Term Receivables Contracts expressed
as a percentage of cost value, net of estimated
Liquidation Expenses, with appraisals conducted on an
Orderly Liquidation Value basis at the expense of
Borrower by the Appraiser (the "LONG TERM RECEIVABLES
CONTRACTS LENDING FORMULA"), plus";
-9-
(E) the following new Paragraph (a)(v) is added:
"(v) the lesser of:
(A) $10,000,000; or
(B) Y-[(Y / 120) x N]
(the "REAL PROPERTY LENDING FORMULA").
For purposes of this Subsection 2.1(a)(v) "Y" means FMV
multiplied by 65% and "N" means the number of months
(or any part thereof) elapsed since the most recent of
(i) the Amendment Effective Date; and (ii) the date of
the most recent Re-appraisal (as defined below) and
"FMV" means the fair market value of the Real Property
as indicated in the most recent of (i) the appraisal
(the "APPRAISAL") of Royal LePage Advisors Inc. dated
July 19, 2005; and (ii) the most recent Re-appraisal.
The Borrower will be entitled, not more than once in
any twelve month period, to have the Real Property
Lending Formula recalculated based on a new appraisal
(a "RE-APPRAISAL") of the Real Property, provided any
such appraisal shall be in form and scope that is in
accordance with typical commercial practice for the
determination of fair market value of real property at
the time and in the circumstances and conducted by an
appraiser satisfactory to the Lender, acting
reasonably;"
(F) Subsection (b) is hereby deleted in its entirety and replaced
with the following:
"(b) Lender may, in its discretion, from time to time reduce or
otherwise revise the Lending Formulas to the extent that
Lender, in good faith, determines that: (i) the general
creditworthiness of the Clients has declined; or (ii) the
liquidation value of any of the Eligible Contracts and
Leases or Eligible Real Property, or any category thereof,
has decreased; (iii) the nature and quality of the Eligible
Contracts and Leases and/or the Eligible Real Property has
deteriorated; or (iv) the fair market value of the Eligible
Real Property has decreased. In determining whether to
reduce or otherwise revise the Lending Formulas, Lender may
consider events, conditions, contingencies or risks which
are also considered in determining Eligible Contracts and
Leases or the Eligible Real Property or in establishing
Availability Reserves."
(v) Section 2.2 of the Loan Agreement (LETTER OF CREDIT ACCOMMODATIONS),
is amended as follows:
-10-
(A) Subsection (d) is hereby amended by deleting the reference to
"$12,000,000" and replacing it with "$20,000,000"; and
(B) Subsection (e) is hereby amended by deleting the words "or
non-renewal" in the last line thereof.
(w) Section 6.3(c) of the Loan Agreement (COLLECTION OF ACCOUNTS), is
hereby amended by deleting the words "or non-renewal" in the last line
thereof.
(x) Section 6.4 of the Loan Agreement (PAYMENTS), is hereby amended by
deleting the words "or non-renewal" in the last line thereof.
(y) The following new Section 7.5(B) is added to the Loan Agreement:
"7.5(B) REAL PROPERTY COVENANTS
With respect to the Real Property: (a) Borrower shall, at its expense,
at any time or times as Lender may request on or after an Event of
Default has occurred and is continuing, deliver or cause to be
delivered to Lender written reports or appraisals as to the Real
Property in form, scope and methodology acceptable to Lender and by an
appraiser acceptable to Lender; (b) Borrower shall keep the Real
Property in good order, repair and marketable condition (ordinary wear
and tear excepted); (c) Borrower shall use the Real Property in
accordance with applicable requirements of any insurance and in
conformity with all applicable laws, unless the failure to conform
would not reasonably be expected singly or when aggregated with any
other nonconformity to have a materially adverse effect on its
business or undertaking or its ability to fulfil its obligations
hereunder; (d) the Real Property is and shall be used in Borrower's
business and not for personal, family, household or farming use; (e)
Borrower shall defend its title to the Real Property against any
adverse claims unless the failure to defend would not reasonably be
expected, singly or when aggregated with any other failure to defend,
to have a materially adverse effect on its business or undertaking or
its ability to fulfil its obligations hereunder; (f) Borrower shall
not surrender, quit claim or grant any easement, right-of-way or other
right or servitude benefiting or burdening the Real Property without
the prior consent of Lender, such consent not to be unreasonably
withheld; and (g) Borrower assumes all responsibility and liability
arising from the use and occupation of the Real Property."
(z) Section 7.6(a)(i) of the Loan Agreement (POWER OF ATTORNEY), is hereby
amended by deleting the reference to "Capital Leases, the Operating
Leases" and replacing it with a reference to "Contracts and Leases".
(aa) Section 8.7 of the Loan Agreement (COMPLIANCE WITH OTHER AGREEMENTS
AND APPLICABLE LAWS), is hereby amended by deleting the reference to
"Capital Leases and the Operating Leases" and replacing it with a
reference to "Contracts and Leases".
(bb) Section 8.9 of the Loan Agreement (ACCURACY AND COMPLETENESS OF
INFORMATION), is hereby amended by deleting the second sentence
thereof in its entirety and replacing it with the following:
-11-
"Borrower represents and warrants that none of the Contracts and
Leases include contractual provisions restricting the assignability
thereof to Lender or to an assignee of Lender upon exercise of any of
the Financing Agreements, with the exception of those restrictive
provisions set out on Schedules 8.9 and 8.9(B) hereof."
(cc) Section 9.3(e) of the Loan Agreement (COMPLIANCE WITH LAWS,
REGULATIONS, ETC.), is hereby amended by deleting the words "or
non-renewal" in the last line thereof.
(dd) Section 9.4 of the Loan Agreement (PAYMENT OF TAXES AND CLAIMS), is
hereby amended by deleting the words "or non-renewal" in the last line
thereof.
(ee) Section 9.21 of the Loan Agreement (COSTS AND EXPENSES), is hereby
amended by deleting the reference to "$750" in Subsection 9.21(g) and
replacing it with a reference to "$800".
(ff) Section 10.2 of the Loan Agreement (REMEDIES), is hereby amended as
follows:
(A) Subsection (b)(xi) is hereby amended by deleting the reference to
"Eligible Capital Leases and Eligible Operating Leases" and
replacing it with a reference to "Eligible Contracts and Leases";
and
(B) Subsection (c)(iii) is hereby amended by deleting the reference
to "Capital Leases and Operating Leases" and replacing it with a
reference to "Contracts and Leases".
(gg) Section 11.5 of the Loan Agreement (INDEMNIFICATION), is hereby
amended by deleting the words "or non-renewal" in the last line
thereof.
(hh) Section 12.1(a) of the Loan Agreement (TERM), is hereby amended by
deleting the following:
"the earlier of: (i) the date which is three (3) years from the date
hereof (the "RENEWAL DATE"), and from year to year thereafter, unless
sooner terminated pursuant to the terms hereof; provided, that, each
of Lender and Borrower may, provided mutually agreed, extend the
original Renewal Date to the date three hundred sixty-five (365) days
from the Renewal Date by giving the other party, as applicable, notice
at least sixty (60) days prior to the Renewal Date and in the event
such option to extend the original Renewal Date to the date three
hundred sixty-five (365) days from the original Renewal Date is
exercised by Lender or Borrower, Borrower shall pay to Lender, upon
the date such option is exercised, a fully earned additional
commitment fee in the amount of $50,000.00. Lender or Borrower may
terminate the Financing Agreements effective on the Renewal Date or on
the anniversary of the Renewal Date in any year by giving to the other
party at least sixty (60) days prior written notice; provided, that,
all Financing Agreements must be terminated simultaneously. Upon the
effective date of termination or non-renewal",
and replacing it with the following:
-12-
"October 31, 2009; provided that the Borrower may request that the
Lender extend the term to October 31, 2010 by giving the Lender notice
in writing at least sixty (60) days prior to October 31, 2009. If the
Lender agrees to such extension by notice in writing to the Borrower
on or before October 31, 2009, the term will thereby be extended to
October 31, 2010."
(ii) Section 12.1(c) of the Loan Agreement (TERM) is hereby amended by
deleting the following in its entirety:
"Amount Period
------- ------
(i) 1.5% of Maximum Credit - From the date hereof to and including the
first anniversary of the date hereof.
(ii) 1.0% of Maximum Credit - After the first anniversary of the date
hereof to and including the second
anniversary of the date hereof.
(iii) 0.5% of Maximum Credit - After the second anniversary of the date
hereof to and including the third
anniversary of the date hereof and if the
term of this Agreement is extended for an
additional year, then to and including the
end of the then current term."
and replacing it with the following:
"Amount Period
------- ------
(i) 1.5% of Maximum Credit - From the date hereof to and including
October 30, 2006.
(ii) 1.0% of Maximum Credit - From October 31, 2006 to and including
October 30, 2007.
(iii) 0.5% of Maximum Credit - From October 31, 2007 to and including
October 30, 2009 and if the term of this
Agreement is extended in accordance with the
terms hereof then to and including the end
of the then current term."
SECTION 5 REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Second Amendment to the
Loan Agreement, Borrower represents and warrants to Lender the following, which
representations and warranties shall survive the execution and delivery hereof:
(a) all necessary action, corporate or otherwise, has been taken to
authorize the execution, delivery and performance of this Second
Amendment to the Loan Agreement by Borrower;
(b) Borrower has duly executed and delivered this Second Amendment to the
Loan Agreement;
-13-
(c) this Second Amendment to the Loan Agreement is a legal, valid and
binding obligation of Borrower, enforceable against it by Lender in
accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization and other laws of general
application limiting the enforcement of creditor's rights generally
and the fact that the courts may deny the granting or enforcement of
equitable remedies;
(d) the representations and warranties set forth in Section 8 of the Loan
Agreement, as amended by this Second Amendment to the Loan Agreement,
continue to be true and correct as of the date hereof; and
(e) no Event of Default, or event which, with the passage of time or
giving of notice or both, would constitute an Event of Default,
exists.
SECTION 6 RENEWAL FEE
Borrower shall pay to Lender a one-time renewal fee in the amount of
USD $150,000, which shall be fully earned as of and payable upon the execution
of this Second Amendment to the Loan Agreement.
SECTION 7 EXPENSES
Borrower shall pay to Lender on demand all reasonable fees and
expenses, including, without limitation, legal fees, incurred by Lender in
connection with the preparation, negotiation, completion, execution, delivery
and review of this Second Amendment to the Loan Agreement and all other
documents, registrations and instruments arising therefrom and/or executed in
connection therewith.
SECTION 8 CONDITIONS PRECEDENT
This Second Amendment to the Loan Agreement shall not be effective
until the Amendment Effective Date and until each of the following conditions
has been satisfied, or has been waived in writing (in whole or in part) by
Lender in its sole discretion. The execution of this Second Amendment to the
Loan Agreement by Lender shall constitute evidence of the satisfaction and/or
waiver of each of the following conditions by Lender:
(a) Lender has received, in form and substance satisfactory to Lender, an
original copy of each of the following documents:
(i) this Second Amendment to the Loan Agreement duly executed and
delivered by Borrower;
(ii) a certificate of compliance issued by Industry Canada in respect
of Borrower;
(iii) an officer's certificate or certificates issued by an authorized
officer of Borrower relating to Borrower and, inter alia, matters
of corporate status, incumbency of officers and corporate power
and authority;
-14-
(iv) a certified copy of a resolution of the board of directors of
Borrower authorizing the execution, delivery and performance of
this Second Amendment to the Loan Agreement; and
(v) an updated Borrowing Base Certificate;
(b) Borrower has paid all fees and disbursements incurred by Lender in
accordance with Section 7 hereof and the renewal fee in the amount of
USD $150,000 payable to Lender in accordance with Section 8 hereof;
(c) Lender shall have received evidence from Borrower (including, without
limitation, any subordinations or releases of any other liens in the
Collateral required by Lender), in form and substance satisfactory to
Lender, that Lender has valid perfected and first priority liens upon
the Collateral, subject only to the liens permitted in the Financing
Agreements;
(d) Lender shall have received, in form and substance satisfactory to
Lender, an opinion letter of Borrower's counsel, McCarthy Tetrault
LLP, with respect to this Second Amendment to the Loan Agreement;
(e) all consents, waiver, acknowledgements and other agreements from third
persons which Lender may deem necessary or desirable in order to give
effect to the provisions or purposes of this Agreement and the other
Financing Agreements; and
(f) Lender and its counsel, acting reasonably, must be satisfied with the
form and content of all of the Contracts in Backlog and the Long Term
Receivables Contracts of Borrower and must be reasonably satisfied
that the benefits received by Borrower under each of the Contracts in
Backlog and the Long Term Receivables Contracts are assignable to
Lender and any future assignees without the consent of any of the
Clients.
SECTION 9 CONTINUANCE OF THE LOAN AGREEMENT AND SECURITY
The Loan Agreement, as changed, altered, amended or modified by this
Second Amendment to the Loan Agreement, shall be and continue in full force and
effect and is hereby confirmed and the rights and obligations of all parties
thereunder shall not be affected or prejudiced in any manner except as
specifically provided for herein. It is agreed and confirmed that after giving
effect to this Second Amendment to the Loan Agreement, all security delivered by
Borrower and/or any Obligor secures the payment of all of the Obligations
including, without limitation, the obligations arising under the Loan Agreement,
as amended by the terms of this Second Amendment to the Loan Agreement.
SECTION 10 COUNTERPARTS & FACSIMILE
This Second Amendment to the Loan Agreement may be executed in any
number of counterparts, by original or facsimile signature, each of which shall
be deemed an original and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
-15-
SECTION 11 GOVERNING LAW
The validity, interpretation and enforcement of this Second Amendment
to the Loan Agreement and any dispute arising out of the relationship between
the parties hereto, whether in contract, tort, equity or otherwise, shall be
governed by the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
IN WITNESS WHEREOF the parties hereto have executed this Second
Amendment to the Loan Agreement as of and with effect from the day and year
first above written.
LENDER BORROWER
WACHOVIA CAPITAL FINANCE CORPORATION IMAX CORPORATION
(CANADA)
By: "Carmela Massari" By: "G Mary Ruby" "Edward MacNeil"
--------------------------------- ------------------------------------
Title: First Vice President Title: Sr VP VP Finance,
Legal Affairs Special Projects
Address: Address of Chief Executive Office:
141 Adelaide Street West, Suite 1500 110 East 59th Street
Toronto, Ontario, M5H 3L5 New York, New York, 10022
Fax: (416) 364-6068 Fax: (212) 371-7584
Each of IMAX U.S.A. INC., IMAX II U.S.A. INC. and 1329507 ONTARIO INC.
(collectively, the "GUARANTORS" and each a "GUARANTOR") hereby acknowledges,
consents and confirms as follows:
For good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged by the Guarantors), each of the Guarantors hereby
acknowledges, confirms and consents that:
(a) it has reviewed and understands the terms of this Second Amendment to the
Loan Agreement and consents to the amendment of the Loan Agreement as
contemplated herein;
(b) its liability under the guarantee to which it is a party dated February 6,
2004 (each hereinafter referred to as a "GUARANTEE"), is affected by this
Second Amendment to the Loan Agreement;
(c) the "GUARANTEED OBLIGATIONS" (as respectively defined in each Guarantee, as
applicable) shall extend to and include all of the obligations of the
Borrower under the Loan Agreement as amended by this Second Amendment to
the Loan Agreement;
(d) each of the Guarantees shall continue in full force and effect, enforceable
against each of the Guarantors, as applicable, in accordance with its
terms; and
-16-
(e) each of the security documents or instruments creating a security interest,
assignment, hypothec, lien, pledge or other charge granted by the
Guarantors to Lender together with all amendments, supplements,
restatements or replacements thereto or therefore from time to time remains
in full force and effect as at the date hereof, in respect of each of the
Guarantors' obligations under the Loan Agreement, as amended by this Second
Amendment to the Loan Agreement.
DATED as of and with effect from the 16th day of May, 2006.
IMAX U.S.A. INC. IMAX II U.S.A. INC.
Per: "G Mary Ruby" Per: "G Mary Ruby"
-------------------------------- -----------------------------------
Name: G. Mary Ruby Name: G. Mary Ruby
Title: Secretary Title: Secretary
Per: "Edward MacNeil" Per: "Edward MacNeil"
-------------------------------- -----------------------------------
Name: Edward MacNeil Name: Edward MacNeil
Title: Vice President Title: Vice President
1329507 ONTARIO INC.
Per: "G Mary Ruby"
--------------------------------
Name: G. Mary Ruby
Title: Secretary
Per: "Edward MacNeil"
--------------------------------
Name: Edward MacNeil
Title: Vice President
SCHEDULE 1.11
FORM OF BORROWING BASE CERTIFICATE
TO: WACHOVIA CAPITAL FINANCE CORPORATION (CANADA) (formerly, CONGRESS FINANCIAL
CORPORATION (CANADA))(the "LENDER")
RE: Loan Agreement dated February 6, 2004, between the Lender and Imax
Corporation (the "BORROWER"), as amended, modified, supplemented, extended,
renewed, restated or replaced from time to time (the "LOAN AGREEMENT")
All capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Loan Agreement.
The undersigned ____________________ being the ____________________ and
____________________ being the ____________________ of the Borrower, each hereby
certifies, as of the date hereof, in that capacity and without personal
liability, as follows:
1. This certificate is being delivered to the Lender by the Borrower pursuant
to the terms of the Loan Agreement.
2. I have made, or caused to be made, such examinations or investigations as
are, in my belief, necessary to enable me to make the statements or give
the opinions contained or expressed in this certificate.
3. The availability of Eligible Operating Leases is $- (the "ELIGIBLE
OPERATING LEASES AVAILABILITY"), and has been determined as follows:
Value of Operating Leases as $-
set our in Exhibit 1 hereto
Less the Value of Operating -$-
Leases set out on Exhibit 1
which are not Eligible
Operating Leases
Value of Eligible Operating $-
Leases
Multiplied by the advance rate x 85%
on Eligible Operating Leases
Eligible Operating Leases $-
Availability
-2-
4. The availability of Eligible Capital Leases is $- (the "ELIGIBLE CAPITAL
LEASES AVAILABILITY"), and has been determined as follows:
Value of Capital Leases as set $-
out in Exhibit 2 hereto
Less the Value of Capital -$-
Leases set out on Exhibit 2
which are not Eligible Capital
Leases
Value of Eligible Capital $-
Leases
Multiplied by the advance rate [X 49% OR X 85%][NTD: DETERMINE IN ACCORDANCE
on Eligible Capital Leases WITH SECTION 2.1]
Eligible Capital Leases $-
Availability
5. The availability of Eligible Finished Goods Inventory is $- (the "ELIGIBLE
FINISHED GOODS INVENTORY"), and has been determined as follows:
Value of Finished Goods $-
Inventory as set out in
Exhibit 3 hereto
Less the Value of Finished -$-
Goods Inventory set out on
Exhibit 3 which are not
Eligible Finished Goods
Inventory
Value of Eligible Finished $-
Goods Inventory
Multiplied by the advance rate [X 31% OR X 85%][NTD: DETERMINE IN ACCORDANCE
on Eligible Finished Goods WITH SECTION 2.1]
Inventory
Eligible Finished Goods $-
Inventory Availability
-3-
6. The availability of Eligible Long Term Receivables Contracts is $- (the
"ELIGIBLE LONG TERM RECEIVABLES CONTRACTS AVAILABILITY"), and has been
determined as follows:
Value of Long Term Receivables $-
Contracts as set out in
Exhibit 4 hereto
Less the Value of Long Term -$-
Receivables Contracts set out
on Exhibit 4 which are not
Eligible Long Term Receivables
Contracts
Value of Eligible Long Term $-
Receivables Contracts
Multiplied by the advance rate [X 40% OR X 85%][NTD: DETERMINE IN ACCORDANCE
on Long Term Receivables WITH SECTION 2.1]
Contracts
Eligible Long Term Receivables $-
Contracts Availability
7. The availability of Eligible Real Property is $- (the "ELIGIBLE REAL
PROPERTY AVAILABILITY"), and has been determined as follows:
Fair Market Value of Real $- ("FMV")
Property based on most recent
of Appraisal or Re-Appraisal
FMV multiplied by 65% [-] ("Y")
Number of months (or part [-] ("N")
thereof) elapsed since the
most recent of (i) May 16,
2006, and (ii) the date of the
most recent Re-Appraisal
Application of Real Property [-] ("Formula Amount")
Lending Formula of Y-[(Y/120)
x N]
Eligible Real Property $-
Availability being the lesser
of $10,000,000 and the Formula
Amount
8. Attached hereto as Exhibit 5 is an analysis of residual values for the
Operating Leases.
9. Attached hereto as Exhibit 6 is an analysis of the Capital Leases reserves.
-4-
10. Based on the Lending Formulas, the aggregate amount of Revolving Loans and
Letter of Credit Accommodations available to the Borrower ("AVAILABLE
REVOLVING LOANS AND LETTER OF CREDIT ACCOMMODATIONS") is:
Eligible Operating Leases $-
Availability per Section 3
above
Plus Eligible Capital Leases +$-
Availability per Section 4
above
Plus Eligible Backlog +$-
Contracts Availability per
Section 5 above
Plus Eligible Long Term +$-
Receivables Contracts
Availability per Section 6
above
Plus Eligible Real Estate +$-
Availability per Section 7
above
Less the Availability Reserves -$-
set out in Exhibit 7 hereto
Total $-
11. The aggregate amount of Revolving Loans and Letter of Credit Accommodations
outstanding is $- ("OUTSTANDING LOANS"), and has been determined as
follows:
Principal amount of $-
outstanding Revolving Loans
and Letter of Credit
Accommodations indicated in
paragraph 11 of the Borrowing
Base Certificate delivered
prior to this Certificate (the
"PRIOR CERTIFICATE")
Less the net cash collections -$-
made by the Lender since the
date of the Prior Certificate,
as set out in Exhibit 8
hereto.
Plus the principal amount of +$-
Revolving Loans made by Lender
and other charges payable to
Lender (including adjustments
or returned cheques and other
remittances, fees, interest,
costs and expenses) made
and/or incurred since the date
of the Prior Certificate, as
set out in Exhibit 9 hereto.
-5-
Plus current undrawn amount of +$-
outstanding Letter of Credit
Accommodations, as set out in
Exhibit 10 hereto.
Aggregate amount of $-
Outstanding Loans
12. The Excess Availability is $-, and has been determined as follows:
The Lessor of: (a) Available $-
Loans; (b) Maximum Credit; and
(c) Trailing Cash Collections
as set out in Exhibit 11
hereto
Less Outstanding Loans -$-
Less the aggregate amount of -$-
due but unpaid tax obligations
(as set out in Exhibit 12
hereto) and trade payables
which are unpaid 90 days after
the original invoice date for
them (as set out in Exhibit 13
hereto)
Excess Availability $-
13. No Event of Default exists or has occurred and is continuing.
14. The representations and warranties of the Borrower contained in the Loan
Agreement are true and correct with the same effect as though such
representations and warranties had been made or given at and as of the date
hereof.
15. Nothing in this Certificate will limit the right of the Lender to establish
or revise criteria of eligibility or Availability Reserves or otherwise
limit, impair, or affect in any manner whatsoever the rights of Lender
under the Loan Agreement.
16. In the event of any conflict or inconsistency between the determination of
the Lender of the amount of Available Loans (as made in accordance with the
terms of the Loan Agreement) and the determination by the Borrower of the
amount of Available Loans, the determination of the Lender shall govern.
Dated this day of , .
--- ------------ -----
Name: -
----------------------------------
Title: -
---------------------------------
Name: -
----------------------------------
Title: -
---------------------------------
-6-
LIST OF EXHIBITS
Exhibit 1 - Operating Leases Schedule
Exhibit 2 - Capital Leases Schedule
Exhibit 3 - Backlog Contracts Schedule
Exhibit 4 - Long Term Receivables Contracts Schedule
Exhibit 5 - Analysis of Residual Values
Exhibit 6 - Analysis of Capital Leases Reserves
Exhibit 7 - Availability Reserves Schedule
Exhibit 8 - Listing of cash collections received by Borrower and remitted or
to be remitted to Lender since last certificate
Exhibit 9 - Listing of dollar amount of loans made by Lender and other
charges payable (including adjustments for returned cheques and
other remittances, fees, interest, costs and expenses) to Lender
since last Certificate.
Exhibit 10 - Listing of dollar amount of current undrawn amounts of
outstanding Letter of Credits Accommodations.
Exhibit 11 - Trailing Cash Collections
Exhibit 12 - Tax Obligations
Exhibit 13 - Accounts Payable Aging
SCHEDULE 8.4
EXISTING LIENS
SCHEDULE 9.9
EXISTING INDEBTEDNESS
1. 9 5/8% Senior Notes due December 1, 2010, as at January 30, 2004 amount
outstanding is $160,000,000;
2. Loan Agreement dated February 6, 2004 between Congress Financial Corporation
(Canada) as amended by a first amendment to the loan agreement made as of June
30, 2005 pursuant to which certain credit facilities were established in favour
of the Borrower.
SCHEDULE 9.10
EXISTING LOANS, ADVANCES AND GUARANTEES
None.