EXHIBIT 10.33(k)
AMENDMENT NUMBER ELEVEN TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ELEVEN TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
is effective as of March 31, 2004, between WELLS FARGO FOOTHILL, INC., a
California corporation ("Foothill"), formerly known as Foothill Capital
Corporation, with a place of business located at 2450 Colorado Avenue, Suite
3000 West, Santa Monica, California 90404, and IMAGE ENTERTAINMENT, INC., a
California corporation ("Borrower"), with its chief executive office located at
9333 Oso Avenue, Chatsworth, California 91311, with reference to the following
facts:
WHEREAS, Borrower has requested that Foothill amend that certain Loan and
Security Agreement dated as of December 28, 1998 (as amended, restated,
supplemented or otherwise modified from time to time, the "Agreement"), between
Foothill and Borrower as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth herein,
Foothill is willing to so amend the Agreement in accordance with the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises
contained herein, Foothill and Borrower hereby agree as follows:
SECTION 1.
DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
SECTION 2.
AMENDMENTS TO THE AGREEMENT.
(A)
SECTION 1 OF THE AGREEMENT IS HEREBY
AMENDED BY ADDING THE FOLLOWING DEFINITION IN ALPHABETICAL ORDER:
"ELEVENTH AMENDMENT FEE" HAS THE MEANING SET FORTH IN SECTION 2.10(J).
(B)
SECTION 2.10 OF THE AGREEMENT IS HEREBY
AMENDED BY DELETING THE WORD "AND" AT THE END OF CLAUSE (H), BY DELETING THE
PERIOD AT THE END OF CLAUSE (I) AND REPLACING IT WITH ", AND", AND BY ADDING THE
FOLLOWING NEW CLAUSE (J):
"(J)
ELEVENTH AMENDMENT FEE.
AN AMENDMENT FEE IN
THE AMOUNT OF $5,000 (THE "ELEVENTH AMENDMENT FEE"), WHICH AMENDMENT FEE SHALL
BE FULLY EARNED AND NON-REFUNDABLE AS OF THE DATE HEREOF, AND SHALL BE CHARGED
TO BORROWER'S LOAN ACCOUNT ON SUCH DATE."
(C)
SECTION 6.12(B) OF THE AGREEMENT IS HEREBY
AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
"(B)
EBITDA.
BORROWER SHALL MAINTAIN EBITDA, FOR EACH
FISCAL PERIOD SET FORTH BELOW, OF NOT LESS THAN THE AMOUNT INDICATED BELOW
OPPOSITE SUCH FISCAL PERIOD:
for the immediately preceding three-month period ending 03/31/04
$
1,105,000
for the immediately preceding six-month period ending 06/30/04
$
1,324,000
for the immediately preceding nine-month period ending 09/30/04
$
2,182,000
for the immediately preceding twelve-month period ending 12/31/04
$
3,552,000
for the immediately preceding twelve-month period ending 03/31/05
$
4,034,000
for the immediately preceding twelve-month period ending 06/30/05
$
4,218,000
for the immediately preceding twelve-month period ending 09/30/05
$
4,271,000
SECTION 3.
REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to Foothill that (a) the execution,
delivery, and performance of this Amendment and of the Agreement, as amended by
this Amendment, are within its corporate powers, have been duly authorized by
all necessary corporate action, and are not in contravention of any law, rule,
or regulation, or any order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or