SIXTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "Sixth
Amendment") is made and dated as of the 24th day of March, 2000, by and among
SANWA BANK CALIFORNIA ("Sanwa") and IMPERIAL BANK, as the current Lenders under
the Credit Agreement referred to below (and as the term "Lenders" and
capitalized terms not otherwise defined herein are used in the Credit
Agreement), SANWA, in its capacity as Agent for the Lenders, and EQUITY
MARKETING, INC., a Delaware corporation (the "Company").
RECITALS
A. Pursuant to that certain Amended and Restated Credit Agreement
dated as of December 10, 1998, by and among the Agent, the Lenders and the
Company (as amended from time to time, the "Credit Agreement"), the Lenders
agreed to extend credit to the Company on the terms and subject to the
conditions set forth therein.
B. The Company, the Agent and the Lenders desire to modify the Credit
Agreement in certain respects as set forth more particularly below.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree that effective as of the Effective
Date (as that term is defined in Paragraph 9 below):
AGREEMENT
1. PAYMENT OF DIVIDENDS. To reflect the agreement of the parties
hereto to permit the Company to pay dividends on certain preferred stock of the
Company, Paragraph 8(e) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"8(e) PAYMENT OF DIVIDENDS. Declare or pay any
dividends upon its shares of stock now or hereafter outstanding or make
any distribution of assets to its stockholders as such, whether in cash,
property or securities, except (1) dividends payable in shares of capital
stock and cash in lieu of fractional shares or in options, warrants or
other rights to purchase shares of capital stock, and (2) dividends
payable from time to time on account of those certain 'Series A Senior
Cumulative Participating Convertible Preferred Stock', 'Series B Senior
Cumulative Participating Convertible Preferred Stock' and 'Series C
Senior Cumulative Participating Convertible Preferred Stock' of the
Company, in each case pursuant to the related Certificate of Designation
duly filed under the laws of the State of Delaware, a certified copy of
which has been provided to the Agent."
2. CONSENT. The Agent and the Lenders hereby consent to that certain
Consent to Sale and Assignment Agreement dated as of March 24, 2000, between the
Company and RSI, pursuant to which the audit period under Section 7 of the RSI
Sale and Assignment Agreement is extended from 60 days to 70 days.
3. REAFFIRMATION OF SECURITY AGREEMENT. The Company hereby affirms
and agrees that: (a) the execution and delivery by the Company of and the
performance of its obligations under this Sixth Amendment shall not in any way
amend, impair, invalidate or otherwise affect any of the obligations of the
Company or the rights of the Secured Parties under the Security Agreement or any
other document or instrument made or given by the Company in connection
therewith, (b) the term "Obligations" as used in the Security Agreement
includes, without limitation, the Obligations of the Company under the Credit
Agreement as amended hereby and (c) the Security Agreement remains in full force
and effect.
4. EFFECTIVE DATE. This Sixth Amendment shall be effective as of the
date (the "Effective Date") that the Agent receives the following:
(a) Duly executed signature pages for this Sixth Amendment from
each party hereto;
(b) A reaffirmation of guaranty and security agreement in form
and substance acceptable to the Agent and the Lenders, duly executed by each of
Corinthian Marketing, Inc. and Equity Marketing Hong Kong, Ltd.;
(c) A copy of corporate resolutions from the Company, certified
by a Secretary or an Assistant Secretary of the Company, authorizing the
execution, delivery and performance of this Sixth Amendment by the Company, and
an incumbency certificate identifying the officers of the Company authorized to
execute this Sixth Amendment on behalf of the Company; and
(d) Such other resolutions, incumbency certificates, good
standing certificates and other documents, instruments and agreements as the
Agent may reasonably request.
5. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Agent and the Lenders as follows:
(a) The Company has the corporate power and authority and the
legal right to execute, deliver and perform this Sixth Amendment and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Sixth Amendment. This Sixth Amendment has been duly
executed and delivered on behalf of the Company and constitutes the legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights of creditors generally and the effect of equitable principles whether
applied in an action at law or a suit in equity.
(b) At and as of the date of execution hereof and at and as of
the Effective Date of this Sixth Amendment and both prior to and after giving
effect hereto: (i) the representations and warranties of the Company contained
in the Credit Agreement and the other Loan Documents are accurate and complete
in all material respects (except for such representations and warranties as are
made as of a particular date, which the Company confirms were accurate and
complete in all material respects as of the date made), and (ii) there are no
existing Events of Default or Potential Defaults.
6. NO OTHER AMENDMENT. Except as expressly amended hereby, the Loan
Documents shall remain in full force and effect as written and amended to date.
7. COUNTERPARTS. This Sixth Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment
to be executed as of the day and year first above written.
EQUITY MARKETING, INC.,
a Delaware corporation
By /s/ Teresa Covington
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Name Teresa Covington
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Title Vice President, Finance
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SANWA BANK CALIFORNIA, as Agent and as a
Lender
By /s/ Judy Tu
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Name Judy Tu
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Title Commercial Banking Officer
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IMPERIAL BANK, as a Lender
By /s/ Jennifer Huang
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Jennifer Huang, Commercial Loan
Officer