**EXHIBIT 10.33(k)**

 

**AMENDMENTNUMBER ELEVEN TOLOAN AND SECURITY AGREEMENT**

 

**THIS AMENDMENT NUMBER ELEVEN TO LOANAND SECURITY AGREEMENT** (this “Amendment”), is effective as ofMarch 31, 2004, between **WELLS FARGO****FOOTHILL,INC.,** a California corporation (“Foothill”), formerly known asFoothill Capital Corporation, with a place of business located at 2450 ColoradoAvenue, Suite 3000 West, Santa Monica, California 90404, and **IMAGEENTERTAINMENT, INC.**, a California corporation (“Borrower”), with itschief executive office located at 9333 Oso Avenue, Chatsworth, California91311, with reference to the following facts:

 

**WHEREAS,**Borrowerhas requested that Foothill amend that certain Loan and Security Agreementdated as of December 28, 1998 (as amended, restated, supplemented orotherwise modified from time to time, the “Agreement”), between Foothill andBorrower as set forth herein; and

 

**WHEREAS**, subject tothe satisfaction of the conditions set forth herein, Foothill is willing to soamend the Agreement in accordance with the terms and conditions hereof.

 

**NOW, THEREFORE**, inconsideration of the above recitals and the mutual promises contained herein,Foothill and Borrower hereby agree as follows:

 

# **SECTION 1.**                            DEFINED TERMS.

# ** **

Capitalized termsused herein and not otherwise defined herein shall have the meanings ascribedto them in the Agreement.

 

# **SECTION 2.**                            AMENDMENTS TOTHE AGREEMENT.

# ** **

## (a)                                  Section 1of the Agreement is hereby amended by adding the following definition inalphabetical order:

##  

## “Eleventh Amendment Fee” has the meaning setforth in Section 2.10(j).

 

## (b)                                 Section 2.10of the Agreement is hereby amended by deleting the word “and” at the end ofclause (h), by deleting the period at the end of clause (i) and replacing itwith “, and”, and by adding the following new clause (j):

##  

## “(j)                               **EleventhAmendment Fee. **An amendmentfee in the amount of $5,000 (the “Eleventh Amendment Fee”), whichamendment 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 eachfiscal period set forth below, of not less than the amount indicated belowopposite such fiscal period:

 

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| 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.**                            REPRESENTATIONSAND WARRANTIES.  

 

Borrowerhereby represents and warrants to Foothill that (a) the execution, delivery,and performance of this Amendment and of the Agreement, as amended by thisAmendment, are within its corporate powers, have been duly authorized by allnecessary corporate action, and are not in contravention of any law, rule, orregulation, or any order, judgment, decree, writ, injunction, or award of anyarbitrator, court, or governmental authority, or of the terms of its charter orbylaws, or of any contract or undertaking to which it is a party or by whichany of its properties may be bound or affected, and (b) this Amendment and theAgreement, as amended by this Amendment, constitute Borrower’s legal, valid,and binding obligation, enforceable against Borrower in accordance with itsterms.

 

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# **SECTION 4.**                            CONDITIONSPRECEDENT TO AMENDMENT.  

 

Thesatisfaction of each of the following, unless waived or deferred by Foothill inits sole discretion, shall constitute conditions precedent to the effectivenessof this Amendment:

 

## (a)                                  Therepresentations and warranties in this Amendment, the Agreement as amended bythis Amendment, and the other Loan Documents shall be true and correct in allrespects on and as of the date hereof, as though made on such date (except tothe extent that such representations and warranties relate solely to an earlierdate);

##  

## (b)                                 NoDefault, Event of Default, or event which with the giving of notice or passageof time would constitute an Event of Default shall have occurred and becontinuing on the date hereof, nor shall result from the consummation of thetransactions contemplated herein; 

##  

## (c)                                  Noinjunction, writ, restraining order, or other order of any nature prohibiting,directly or indirectly, the consummation of the transactions contemplatedherein shall have been issued and remain in force by any governmental authorityagainst Borrower or Foothill;

##  

## (d)                                 Allother documents, agreements, instruments, and legal matters in connection withthe transactions contemplated by this Amendment shall have been delivered orexecuted or recorded and shall be in form and substance satisfactory toFoothill and its counsel; and

##  

## (e)                                  Foothillshall have received the Eleventh Amendment Fee in full in immediately availablefunds, which Eleventh Amendment Fee shall be paid by Borrower to Foothill bybeing charged to Borrower’s Loan Account as of the date hereof.

##  

# **SECTION 5.**                            FURTHERASSURANCES.  

 

Borrowershall execute and deliver all agreements, documents, and instruments, in formand substance satisfactory to Foothill, and take all actions as Foothill mayreasonably request from time to time fully to consummate the transactionscontemplated under this Amendment and the Agreement, as amended by thisAmendment.

 

# **SECTION 6.**                            MISCELLANEOUS.

 

## (a)                                  Uponthe effectiveness of this Amendment, each reference in the Agreement to “thisAgreement”, “hereunder”, “herein”, “hereof” or words of like import referring tothe Agreement shall mean and refer to the Agreement as amended by thisAmendment.

##  

## (b)                                 Uponthe effectiveness of this Amendment, each reference in the Loan Documents tothe “Loan Agreement”, “thereunder”, “therein”, “thereof” or words of likeimport referring to the Agreement shall mean and refer to the Agreement asamended by this Amendment.

 

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## (c)                                  ThisAmendment shall be governed by and construed in accordance with the laws of theState of California.

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## (d)                                 ThisAmendment can only be amended by a writing signed by both Foothill andBorrower.

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## (e)                                  ThisAmendment may be executed in any number of counterparts and by differentparties on separate counterparts, each of which, when executed and delivered,shall be deemed to be an original, and all of which, when taken together, shallconstitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimileshall be equally as effective as delivery of an original executed counterpartof this Amendment.  Any party deliveringan executed counterpart of this Amendment by telefacsimile also shall deliveran original executed counterpart of this Amendment but the failure to deliveran original executed counterpart shall not affect the validity, enforceability,and binding effect of this Amendment.

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## (f)                                    ThisAmendment reflects the entire understanding of the parties with respect to thetransactions contemplated hereby and shall not be contradicted or qualified byany other agreement, oral or written, before the date hereof.

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[Signature Page Follows]

 

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IN WITNESSWHEREOF, the parties hereto have caused this Amendment to be duly executed asof the date first written above.

 

 
|   | **IMAGE ENTERTAINMENT, INC.,**a California corporation                                                   |
|--------|----------------------------------------------------------------------------------------------------------|
|   |                                                                                                     |
|   |                                                                                                     |
|   | By                                                                                                       | /s/ Jeff M. Framer |   |
|   | Title:                                                                                                   | Chief Financial Officer |   |
|   |                                                                                                     |
|   |                                                                                                     |
|   | **WELLS FARGO FOOTHILL, INC.,**a California corporation, formerly known as Foothill  Capital Corporation |
|   |                                                                                                     |
|   |                                                                                                     |
|   | By                                                                                                       | /s/ Trent Smart |   |
|   | Title:                                                                                                   | Vice President |   |
|        |                                                                                                          |  |  |  |

 

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