EXHIBIT 10.35
FTC COMMERCIAL CORP.
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AMENDMENT NO. 2 TO INVENTORY LOAN FACILITY AGREEMENT
This Amendment No. 2 to Inventory Loan Facility Agreement (this
"Amendment") is entered into as of October 23, 2007 by and between FTC
COMMERCIAL CORP. ("FTC" , "we" or "us") and VERSATILE ENTERTAINMENT, INC., a
California limited liability company ("Client" or "you"), with reference to the
following:
A. FTC and Client are parties to an Inventory Loan Facility Agreement
dated September 1, 2006 (the "Inventory Agreement"), the provisions of which are
incorporated into this Amendment.
B. FTC and Client desire to amend the Inventory Agreement, as set forth
herein, effective as of the date of this Amendment.
NOW, THEREFORE, FTC and Client agree as follows:
1. The first paragraph which follows the definition of "Obligations" at
the top of page 2 of the Inventory Agreement is revised to read as follows:
This Agreement shall confirm our mutual understanding and
agreement that, subject to the terms and conditions of the Company
Agreements, and provided that no default or Event of Default under
any of the Company Agreements and no termination of the Factoring
Agreement has occurred, FTC may, in its sole and absolute
discretion, extend an inventory loan facility to the Company in an
aggregate principal amount outstanding at any time not to exceed
the lesser of (a) the Inventory Base or (b) up to $1,300,000 minus
the aggregate amount of then outstanding inventory loans made to
any subsidiaries of Xxxxx Xxxx, LLC, including Xxxxxxx Xxxx
Sourcing, LLC ("WRS"), a California limited liability company,
(collectively, the "BRL Subsidiaries") which enter into factoring
and inventory loan arrangements with FTC, including the Factoring
Agreement and the Inventory Loan Facility Agreement between FTC
and WRS, both dated October 1, 2006 and all of the other
agreements between FTC and WRS (collectively, the " BRL
Subsidiaries Agreements").
2. Except as amended hereby, the Inventory Agreement shall remain in
full force and effect and unmodified. Client hereby reaffirms each and every one
of its representations, warranties and covenants under the Inventory Agreement.
3. Any reference in the Inventory Agreement to "this Agreement",
"herein", "hereunder" or words of similar meaning shall mean the Inventory
Agreement as amended by this Amendment.
4. Client hereby represents and warrants to FTC that this Amendment has
been duly authorized by all necessary action on the part of Client and
constitutes a valid and legally binding obligation of Client, enforceable
against Client in accordance with its terms.
5. This Amendment shall be governed by the laws of the State of
California without regard to the conflicts of law principles thereof.
6. The Inventory Agreement, as amended by this Amendment, constitutes
the entire agreement between FTC and Client as to the subject matter hereof and
may not be altered or amended except by written agreement signed by FTC and
Client. No provision hereof may be waived by FTC except upon written waiver
executed by FTC.
7. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
THIS AMENDMENT MUST BE SIGNED BY CLIENT AND RETURNED TO FTC WITHIN SEVEN (7)
BUSINESS DAYS FROM THE DATE OF THIS AMENDMENT. IF BY THE END OF SUCH SEVEN (7)
DAY PERIOD FTC HAS NOT RECEIVED A COPY OF THIS AMENDMENT WHICH HAS BEEN EXECUTED
BY CLIENT, THIS AMENDMENT SHALL BE NULL AND VOID AND OF NO FORCE AN EFFECT.
Executed at Los Angeles, California, as of the date first set forth
above.
FTC COMMERCIAL CORP. VERSATILE ENTERTAINMENT, INC.
By: _________________________ By: __________________________
Name: _______________________ Name: ________________________
Title: ______________________ Title: _______________________
AGREEMENT AND REAFFIRMATION BY GUARANTORS
Each of the Undersigned has executed a Guaranty (collectively, the "Guaranties")
in connection with the Factoring Agreement between VERSATILE ENTERTAINMENT, INC.
(the "Company") and FTC COMMERCIAL CORP. ("FTC") dated as of October 14, 2004,
the Inventory Loan Facility Agreement between the Company and FTC dated
September 1, 2006 and various related instruments and documents (collectively,
the "Company Agreements"). The Undersigned agree that the Guaranties shall apply
to all obligations of the Company under the above Amendment and the Company
Agreements. The Undersigned hereby reaffirm the Guaranties and agree that no
provisions of the above Amendment shall in any way limit any of the terms or
provisions of the Guaranties or any other documents executed by the Undersigned
in favor of FTC, all of which are hereby ratified and affirmed and the same
shall continue in full force and effect in accordance with the provisions
hereof.
XXXXX XXXX, LLC
By: ________________________
Name: _______________________
Title: ______________________
XXXXXXX XXXX SOURCING, LLC
By: _________________________
Name: ________________________
Title: _______________________
PEOPLE'S LIBERATION, INC.
By: _________________________
Name: ________________________
Title: _______________________
