AMENDMENT NO. 2 TO FORBEARANCE AGREEMENT
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 2 TO FORBEARANCE AGREEMENT
AMENDMENT NO. 2, dated as of February 26, 2010 (this “Amendment”), among RHI
Entertainment, LLC (the “Borrower”), its subsidiaries party to the Credit Agreement
described below as Guarantors (the “Guarantors”, and together with the Borrower, the
“Credit Parties”), RHI Entertainment Holdings II, LLC (the “Parent”), the Lenders
signatory hereto and JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders (in such
capacity, the “Agent”) and as Issuing Bank to the FORBEARANCE AGREEMENT described below.
WHEREAS, the Borrower, the Guarantors, the Parent, the Lenders from time to time party thereto
(the “Lenders”) and the Agent are parties to a Credit, Security, Guaranty and Pledge
Agreement, dated as of January 12, 2006, as amended and restated on April 13, 2007 (as the same may
have been or may from time to time be further amended, restated, supplemented or modified from time
to time, the “Credit Agreement”).
WHEREAS, on December 23, 2009, the Borrower terminated certain specified Swap Agreements,
which constitute “Obligations” under the Credit Agreement, pursuant to arrangements with the
Lenders counter-party thereto (each, a “Lender Counterparty”).
WHEREAS, the Borrower, the Guarantors, the Parent, the Agent, the Lenders constituting the
Required Lenders under the Credit Agreement and the Lender Counterparties have entered into that
certain Forbearance Agreement dated as of December 23, 2009 (as amended, restated, supplemented or
modified from time to time, including via Amendment No. 1 to Forbearance Agreement dated as of
January 22, 2010 (“Amendment No. 1”) and (upon satisfaction of the conditions precedent set
forth herein) via this Amendment, the “Forbearance Agreement”).
WHEREAS, pursuant to the Forbearance Agreement (as modified by Amendment No. 1), among other
things, the Agent, the Required Lenders and the Lender Counterparties agreed to forbear from
exercising remedies with respect to, and to temporary waivers with respect to, certain “Specified
Defaults” through the end of a “Forbearance Period” with a stated expiration date which was
extended via Amendment No. 1 to 5:00 p.m. (New York City time) on February 26, 2010.
WHEREAS, pursuant to that certain Forbearance Agreement dated as of February 12, 2010 among
the Borrower, the Guarantors referred to therein, the Parent, the Second Lien Lenders and
Wilmington Trust FSB, as Second Lien Agent, among other things, the Second Lien Agent and the
“Required Lenders” (as such term is defined in the Second Lien Agreement) agreed to forbear from
exercising remedies with respect to, and to temporary waivers with respect to, certain “Specified
Defaults” under the Second Lien Agreement through the end of a “Forbearance Period” with a stated
expiration date of 5:00 p.m. (New York City time) on February 26, 2010.
WHEREAS, the Agent, the Required Lenders and the Lender Counterparties are willing to agree,
subject to the terms and conditions of this Amendment, to provide for an extension of
the scheduled termination of the forbearances and temporary waivers provided in the Forbearance Agreement.
WHEREAS, in order to induce the Agent, the Required Lenders and the Lender Counterparties to
agree to such extension, the Credit Parties have agreed to make certain acknowledgments and enter
into certain agreements as hereinafter set forth.
ACCORDINGLY, the parties hereby agree as follows:
1. Defined Terms. All capitalized terms not otherwise defined herein are used as
defined in the Forbearance Agreement or the Credit Agreement, as applicable.
2. Acknowledgment of Events of Default. The Credit Parties acknowledge and agree that
the following Events of Default exist under the Credit Agreement: (A) an Event of Default arising
under Sections 2.10(e) and 7(b) of the Credit Agreement as a result of a Borrowing Base
overadvance, (B) an Event of Default
under Section 7(c) of the Credit Agreement as a result of Borrower’s failure to pay the
Termination Amounts and interest thereon and (C) an Event of Default under Section 7(g) of the
Credit Agreement as a result of the failure of a Credit Party to make deferred purchase price
payments in excess of $15,000,000.
3. Amendments to Forbearance Agreement.
(a) The definition of the following term appearing in the Forbearance Agreement is hereby
amended and restated in its entirety:
“Stated Expiration Date” shall mean 5:00 p.m. (New York City time) on March
31, 2010.
(b) Section 4(b) of the Forbearance Agreement is hereby replaced in its entirety with the
following:
“In addition, solely with respect to the Specified Defaults listed as Items 1, 2 and
8 appearing on Schedule 1 hereto, the Agent, the Lenders and the Lender
Counterparties signatory hereto agree to temporarily waive, solely during the
Forbearance Period, any Default or Event of Default resulting solely from any such
Specified Defaults. For the avoidance of doubt, the temporary waiver contained in
the preceding sentence shall terminate and be of no further force or effect upon any
expiration or termination of the Forbearance Period.”
(c) Section 6(c)(vii) of the Forbearance Agreement is hereby replaced in its entirety with the
following:
“(vii) that the Credit Parties will during the Forbearance Period limit their cash
disbursements to those that are materially consistent with the payments set forth on
the 13-week cash flow schedule the cover page of which is marked as “RHI
Entertainment, LLC 13 Week Cash Flow Forecast February 15, 2010 — May 14, 2010 as
of February 18, 2010” which was previously presented to the Agent (such cash flow
forecast, together with the back-up provided along therewith, the “Base
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Cash Flow Schedule”) and amounts required to be paid pursuant to Section 6(c)(iv)
hereof; in furtherance of the foregoing, the Credit Parties agree that during the
Forbearance Period they shall not, without the written consent of Lenders holding at
least 40% of the Total Commitments (a) make monetary payments that are not reflected
in the Base Cash Flow Schedule in an aggregate amount equal to or in excess of
$500,000 for the period commencing on the effectiveness of that certain Amendment
No. 2 dated as of February 26, 2010 to this Agreement and prior to the Stated
Expiration Date, (b) with respect to any line item or category which is reflected in
the Base Cash Flow Schedule (whether such line item or category is scheduled thereon
to receive payments prior or subsequent to the Stated Expiration Date (or both))
make payments that as of any date of determination are in excess of 110% of the
amount reflected on the Base Cash Flow Schedule as being payable with respect to
such line item or category through such date of determination, provided
that, subject always to the following clause (c): (1) this clause (b) shall
not limit the amount of payments of fees and expenses of the financial advisors and
counsel to the Agent, legal counsel to the Second Lien Agent and legal counsel to
the “Required Lenders” under the Second Lien Agreement during the Forbearance Period
or (so long as the payments are for services rendered rather than to be rendered)
payments of fees and expenses of legal counsel to the Credit Parties during the
Forbearance Period and (2) in the context of line items or categories reflected on
the Base Cash Flow Schedule of less than $50,000, the Credit Parties may pay amounts
in excess of the scheduled payments so long as (A) the total payment does not exceed
$50,000 and (B) the amounts paid with respect to such line item or category do not
exceed the total amounts reflected on the Base Cash Flow Schedule as payable with
respect thereto or (c) permit their aggregate payments as of any date of
determination to exceed 110% of the aggregate payments projected in the Base Cash
Flow Schedule to be made through such date of determination;”
(d) Section 6(c)(viii) of the Forbearance Agreement is hereby replaced in its entirety with
the following:
“(viii) that the Credit Parties shall not permit their aggregate minimum cash
balance at any time to be less than $10,000,000.”
(e) Section 6(c)(xii) of the Forbearance Agreement is hereby replaced in its entirety with the
following:
“(xii) that the Credit Parties will by no later than 5:00 p.m. (New York City
time) on March 26, 2010 provide the Agent with (A) the unaudited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of,
and the related unaudited consolidated statements of income, stockholders’ equity
and cash flows for, the month ending February 28, 2010, and for the portion of the
fiscal year through the end of such month, together with a certificate signed by
an Authorized Officer of the Borrower to the effect that such financial
statements, while not examined by independent public accountants, reflect, in the
opinion of the Borrower, all adjustments necessary to
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present fairly in all
material respects the financial position of the Borrower and its Consolidated
Subsidiaries as of the end of such month and the results of operations for such
month and year-to-date period then ended in conformity with GAAP, subject to
normal year-end audit adjustments and the absence of footnotes, (B) a
reconciliation between the foregoing and the GAAP accounts receivable aging as of
February 28, 2010, (C) a detail of aggregate accounts receivable (both GAAP and
off-balance sheet, i.e., all contracted amounts) as of February 28, 2010 which
includes RHI’s detailed contracted accounts receivable as of February 28, 2010,
including customer, title, due-date and identification of each item of accounts
receivable as book or non-book, (D) a reconciliation from RHI’s February 28, 2010
book accounts receivable to RHI’s February 28, 2010 balance sheet accounts
receivable and (E) a roll-forward of aggregate accounts receivable from January
31, 2009 to February 28, 2010, which shall consist of the total of (1) the
beginning accounts receivable plus (2) receivables generated from sales
consummated during such month, minus (3) cash collections minus
(4) receivables write-offs during such month (with the materials described in the
foregoing clauses (B) through (E) to be in form and substance satisfactory to the
Agent and FTI).”
(f) Section 6(c)(xx) of the Forbearance Agreement is amended by deleting the phrase “the
deposit account numbered 000-00000-0 maintained by the Borrower with American Express;”, and any
failure by the Credit Parties to use their best efforts to deliver an Account Control Agreement
with respect to such account prior to February 25, 2010 is hereby waived.
(g) Section 6(c)(xix) of the Forbearance Agreement is amended by deleting the word “and”
appearing after the semi-colon at the end thereof, Section 6(c)(xx) of the Forbearance Agreement is
amended by deleting the period at the end thereof and inserting in lieu of such period a
semi-colon, and the following Sections 6(c)(xxi) — (xxv) are hereby added at the end of Section
6(c) of the Forbearance Agreement:
“(xxi) that the Credit Parties will deliver to the Agent by no later than 6:00 p.m.
(New York City time) every other Thursday commencing with Thursday, March 4, 2010
biweekly sales tracking reports for each title to be released in the 2010 slate, in
the format of the “Greenlighting Status Reports” previously delivered by the
Borrower to the Agent;
(xxii) that the Credit Parties shall, by no later than March 31, 2010, provide the
Agent with the audited consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at the end of, and the related consolidated statements of income,
stockholders’ equity and cash flows for, the fiscal year ending December 31, 2009,
accompanied by a report and opinion of KPMG LLP or such other independent public
accountants of nationally recognized standing as shall be retained by the Borrower,
which report and opinion shall be unqualified (other than a “going concern”
qualification in accordance with SAS 59) and shall be prepared in accordance with
generally accepted auditing standards relating to reporting and which report and
opinion shall contain no material exceptions or qualifications except as aforesaid
and for qualifications relating to accounting
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changes (with which such independent
public accountants concur) in response to FASB releases or other authoritative
pronouncements, together with a certificate signed by an Authorized Officer of the
Borrower, to the effect that such financial statements fairly present the
financial position of the Borrower and its Consolidated Subsidiaries as at the dates
indicated and the results of their operations for the periods indicated in
conformity with GAAP, and stating whether any change in GAAP or in the application
thereof has occurred since the date of the most recent audited financial statements
delivered to the Administrative Agent and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such
certificate;
(xxiii) that the Credit Parties shall, (a) by no later than March 5, 2010, provide
the Agent with (i) a picture-by-picture summary of the status of any negotiations
with the producers of each of the “spillover” Items of Product regarding the payment
deferral or return with respect to such Items of Product and (ii) copies of any
documents in connection with any amendment, termination, reduction or assignment of
rights, delegation or postponement of obligations, settlements, assignments of
receivables from sub-licensees of Borrower or Borrower’s Subsidiaries, or similar
transaction relating to such “spillover” Items of Product (collectively,
“Restructuring Documents”) or the most recent draft thereof to the extent
finalized documents are not available as of such date, (b) thereafter, update the
summaries described in clause (a) within three (3) Business Days of a request by the
Agent and provide the Agent with any material drafts of any Restructuring Documents
as they become available and (c) in any case, provide the Agent with substantially
final drafts of any Restructuring Documents at least five (5) Business Days prior to
executing the same (and, in any case, shall cause all such Restructuring Documents
to be in compliance with the Fundamental Documents unless otherwise consented to by
the requisite Lenders under Section 13.10 of the Credit Agreement);
(xxiv) that the Credit Parties shall, (a) by no later than March 5, 2010, provide
the Agent with the most recent drafts of any term sheets and the most recent drafts
of any definitive documentation (or any such documentation that has been executed)
then in existence with respect to the financing or proposed financing of any Item of
Product contemplated to be greenlit as part of the Borrower’s 2010 slate (including
any Items of Product that were initially contemplated to be included in the
Borrower’s 2009 slate), (b) thereafter, provide the Agent with drafts of any such
term sheets as they become available and (c) in any case, provide the Agent with
substantially final drafts of any financing documentation with respect to any Item
of Product for the Borrower’s 2010 slate not previously executed at least five (5)
Business Days prior to executing the same; and
(xxv) that the Credit Parties shall provide the Agent with copies of any notices or
inquiries received (a) in connection with any of the “spillover” Items of Product
and/or (b) from an actors’, directors’ or screenwriters’ guild, within one (1)
Business Day of receipt thereof.”
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(h) Schedule 1 to the Forbearance Agreement, which reflects the “Specified Defaults”,
is hereby replaced in its entirety with Schedule 1 to this Amendment.
4. Incorporation of Terms. Upon the effectiveness of this Amendment, (a) the
forbearances contained in Section 4(a) the Forbearance Agreement (and, in the case of the Specified
Defaults listed as Items 1, 2 and 8 appearing on Schedule 1 to this Amendment, the
temporary waivers with respect thereto contained in Section 4(b) of the Forbearance Agreement (as
modified by this Amendment)) are hereby remade and extended with respect to the revised schedule of
Specified Defaults attached as Schedule 1 to this Amendment during the Forbearance Period
(as modified by the amendment to the “Stated Expiration Date” set forth in this Amendment), (b) the
reservation of rights contained in Section 5 of the Forbearance Agreement is hereby restated and
reaffirmed in all respects, and (c) each party hereto hereby ratifies and reaffirms the terms of
Sections 5(c), (d) and (e) of Amendment No. 1 in all respects.
5. Acknowledgements, Representations, Warranties, Confirmations, and Agreements.
(a) Each Credit Party hereby represents and warrants to Agent and each of the Lenders that:
(i) no Defaults or Events of Defaults other than the Specified Defaults listed on Schedule
1 hereto have occurred and are continuing as of the date hereof or, as of the date hereof, are
expected to occur prior to the Stated Expiration Date (as such term would be modified via this
Amendment);
(ii) Schedule 2 hereto identifies each of the Credit Parties’ and each of their
Subsidiaries’ deposit accounts, lists the balances in such deposit accounts as of February 19, 2010
and specifies whether or not an Account Control Agreement has been delivered with respect to such
deposit account;
(iii) as of February 19, 2010, the aggregate gross value of all of the assets of any
Subsidiaries which have not become a Credit Party because of the $250,000 threshold appearing in
Section 5.21 of the Credit Agreement, is approximately $85,000, and Schedule 3 hereto
identifies the gross asset value of such Subsidiaries on a per-Subsidiary basis.
(b) Each Credit Party hereby covenants and agrees to continue to comply with each of the
covenants and agreements contained in Section 6(c) of the Forbearance Agreement as the same is
being modified by this Amendment.
(c) Each Credit Party and the Parent hereby forever releases the Agent, each of the Lenders
and each of the Lender Counterparties from any and all liens, claims, interests and causes of
action of any kind or nature (each, a “Claim”) that any Credit Party now has or may
hereafter have against the Agent or any of the Lenders, and hereby agrees to indemnify and hold
harmless the Agent, each of the Lenders and each of the Lender Counterparties for all Claims that
any Person may bring against the Agent or any of the Lenders that (i) arise under or in connection
with the Credit Agreement or any other Fundamental Documents (and under any Specified Swap
Agreement, as applicable) based on facts existing on or before the date hereof or (ii) arise under
or in connection with the Forbearance Agreement (as modified by this
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Amendment); provided that the Credit Parties may bring claims or causes of action solely to enforce the provisions of
the Forbearance Agreement (as modified by this Amendment).
6. Conditions to Effectiveness. The provisions of this Amendment shall not become
effective unless and until each of the following conditions have been satisfied:
(a) the Agent shall have received counterparts of this Amendment executed by the Borrower,
each Guarantor (and any entity required to join the Credit Agreement as a Guarantor pursuant to
Section 5.21 of the Credit Agreement), the Parent, the Agent, each Lender Counterparty and the
Lenders constituting the Required Lenders;
(b) after giving effect to this Amendment, no Event of Default or Default (with the sole
exception of (i) the Specified Defaults or (ii) any Default or Event of Default arising solely from
the inaccuracy of any representation or warranty contained in the Credit Agreement to the extent
that any such inaccuracy exists solely because of the existence of any Specified Default) shall
have occurred and be continuing;
(c) the representations and warranties contained in Sections 5(a) and 7 hereof shall be true
and correct; and
(d) all legal matters related to this Amendment shall be satisfactory to Xxxxxx, Xxxxx &
Xxxxxxx, LLP, counsel to the Agent.
7. Representations and Warranties. Each Credit Party represents and warrants that
before and after giving effect to this Amendment the representations and warranties contained in
the Credit Agreement are true and correct in all material respects on and as of the date hereof as
if such representations and warranties had been made on and as of the date hereof (except to the
extent (a) that any such representations and warranties specifically relate to an earlier date and
(b) to the extent that any such representation or warranty would not be true and correct solely
because of the existence of any Specified Default described on Schedule 1 hereto).
8. Entire Agreement. This Amendment constitutes the entire agreement of the parties
concerning the subject matter hereof and supersedes any prior or contemporaneous representations or
agreements, either oral or written, not contained herein.
9. Further Assurances. At any time and from time to time, upon the Agent’s request
and at the sole expense of the Credit Parties, each Credit Party will promptly and duly execute and
deliver any and all further instruments and documents and take such further action as the Agent
reasonably deems necessary to effect the purposes of this Amendment.
10. Fundamental Documents. This Amendment shall constitute a Fundamental Document.
11. Full Force and Effect. Except as expressly set forth herein, this Amendment does
not constitute a waiver or a modification of any provision of the Forbearance Agreement or the
Credit Agreement or a waiver of any Event of Default under the Credit Agreement. The Forbearance
Agreement and the Credit Agreement and the other Fundamental Documents shall continue in full force
and effect in accordance with the provisions thereof on the date hereof and
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are hereby ratified and affirmed. As used in the Credit Agreement, the terms “Agreement”, “this Agreement”, “herein”,
“hereafter”, “hereto”, “hereof”, and words of similar import, shall, unless the context otherwise
requires, mean the Credit Agreement as modified by the Forbearance Agreement (including this
Amendment). As used in the Forbearance Agreement, the terms “Agreement”, “this Agreement”,
“herein”, “hereafter”, “hereto”, “hereof”, and words of similar import, shall, unless the context
otherwise requires, mean the Forbearance Agreement as modified by this Amendment.
12. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
13. Counterparts. This Amendment may be executed in two or more counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute but one
instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile
transmission or electronic photocopy (e.g., “.pdf”) shall be effective as delivery of a manually
executed counterpart hereof.
14. Headings. The headings of this Amendment are for the purposes of reference only
and shall not affect the construction of or be taken into consideration in interpreting this
Amendment.
15. Public/Private Information. Each of the Lenders acknowledges that information
furnished to it pursuant to this Amendment may include material non-public information concerning
the Borrower and its related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such material non-public information in accordance with those procedures and applicable
law, including federal and state securities laws. All such information, including requests for
waivers and amendments, furnished by the Borrower pursuant to, or in the course of administering,
this Amendment, will be syndicate-level information, which may contain material non-public
information about the Borrower and its related parties or their respective securities.
Accordingly, each Lender represents to the Borrower and the Agent that it has identified in its
“Administrative Questionnaire” a credit contact who may receive information that may contain
material non-public Information in accordance with its compliance procedures and applicable law.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
duly authorized officers, all as of the date and year first above written.
| BORROWER: RHI ENTERTAINMENT, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| PARENT: RHI ENTERTAINMENT HOLDINGS II, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| GUARANTORS: RHI ENTERTAINMENT DISTRIBUTION, LLC |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Exec VP, General Counsel and Secretary | |||
| RHI ENTERTAINMENT PRODUCTIONS, LLC |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Exec VP, General Counsel and Secretary | |||
| LIBRARY STORAGE, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | President and Secretary | |||
| RHI INTERNATIONAL DISTRIBUTION, INC. |
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| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Vice President and Secretary | |||
| RHI ENTERTAINMENT LTD. |
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| By: | /s/ Xxxxx von Gal | |||
| Name: | Xxxxx von Gal | |||
| Title: | Director | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| LENDERS: JPMORGAN CHASE BANK, N.A., individually and as Agent |
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| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| Bank of America, N.A., as Lender |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| The Royal Bank of Scotland plc, as Lender |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| ISRAEL DISCOUNT BANK as Lender |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| California Bank & Trust [NAME OF FIRST LIEN LENDER], as Lender |
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| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | VP | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| BANK LEUMI USA. [NAME OF FIRST LEIN LENDER], as Lender |
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| By: | /s/ X. XXXXXXX | |||
| Name: | X. XXXXXXX | |||
| Title: | F V P | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| SOCIETE GENERALE, as Lender |
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| By: | /s/ Xxxxxxx XXXXXX | |||
| Name: | Xxxxxxx XXXXXX | |||
| Title: | Global Head Leveraged & Media Telecom Finance |
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Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| Manufacturers Bank as Lender |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| JPMorgan Chase Bank, N.A., as Lender Counterparty |
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| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| BANK OF AMERICA, N.A., as Lender Counterparty |
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| By: | /s/ Xxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxx | |||
| Title: | Principal | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
| The Royal Bank of Scotland plc, as Lender Counterparty |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Amendment No. 2 to RHI Forbearance Agreement
SCHEDULE 1
Specified Defaults
| 1. | Any Default or Event of Default arising under Section 2.10(e) of the Credit Agreement. [Borrowing Base non-compliance] | |
| 2. | Any Default or Event of Default arising under 7(c) of the Credit Agreement [Failure to pay other non-principal monetary Obligations] as a result of a failure to pay any Termination Amount or failure to pay any interest on any such Termination Amount. | |
| 3. | Any Default or Event of Default arising under Section 6.18 of the Credit Agreement [Covenant against modifications to material contracts that are materially adverse to the Lenders] as a result of having caused certain receivables from Crown Media to become Post-12/31/09 Crown Receivables. | |
| 4. | Any Default or Event of Default arising solely as a result of the existence of the Base Cash Flow Schedule or any rolling 13-week update relating thereto or arising under Section 7(g) of the Credit Agreement as a result of the implementation thereof. | |
| 5. | Any Default or Event of Default arising under Section 6.14 of the Credit Agreement. [Minimum Consolidated Net Worth] | |
| 6. | Any Default or Event of Default arising under Section 6.21 of the Credit Agreement. [Coverage Ratio] | |
| 7. | Any Default or Event of Default arising under Section 5.1(c) of the Credit Agreement as a result of a failure to deliver a Borrowing Base Certificate at any time on or prior to the date of Amendment No. 1 through the date, if any, that the Agent reinstates the requirements of Section 5.1(c) of the Credit Agreement in accordance with Section 5(d) of Amendment No. 1. | |
| 8. | Any Default or Event of Default arising under Section 7(c) of the Credit Agreement as a result of a failure of the Borrower and the Guarantors to pay interest as and when due under the Credit Agreement. | |
| 9. | Any Default or Event of Default arising under Section 7(g) of the Credit Agreement as a result of a failure of the Borrower and the Guarantors to pay interest as and when due on the Second Lien Facility. | |
| 10. | Any Default or Event of Default arising under Section 7(g) of the Credit Agreement as a result of a failure of the Credit Parties to make deferred purchase price payments in excess of $15,000,000. | |
| 11. | Any Default or Event of Default arising under Section 7(g) of the Credit Agreement as a result of a failure to pay rent at the Borrower’s company headquarters. |
| 12. | Any Default or Event of Default arising under Section 6.19 of the Credit Agreement [No Negative Pledge] in connection with the pledge agreement, dated May 22, 2009, between the Borrower and American Express with respect to the deposit account numbered 000-00000-0 maintained by the Borrower with American Express. | |
| 13. | Any Default or Event of Default arising under Section 7(h) of the Credit Agreement as a result of any public filing by Public Co. with the U.S. Securities and Exchange Commission that admits an inability of Public Co., Parent, any Credit Party or any of their respective Subsidiaries, or any group of the foregoing taken as a whole, to pay its debts when due, and any subsequent republication thereof. | |
| 14. | Any Default or Event of Default arising under Section 6.7 of the Credit Agreement as a result of the notices of assignment or directions to pay that were inadvertently sent by the Credit Parties to Channel 5 in connection with the Items of Product currently entitled “National Tree” and “Fairfield Road” directing Channel 5 to make each of its £28,000 per film payments to Cypress Films directly in lieu of making these payments to the Credit Parties. |
2
SCHEDULE 2
Deposit Accounts
| Balance as of | Account Control | |||||||||||||||
| Depository | February 19, 2010 | Agreement (“yes” or | ||||||||||||||
| Institution | Account Name | Credit Party? | Account Number | (in $US) | Nature of Account | “no”) | ||||||||||
XX Xxxxxx Xxxxx
|
RHI Entertainment LLC | Yes | 304-671096 | 10,000 | Xxxxx Cash | Yes | ||||||||||
XX Xxxxxx Xxxxx
|
RHI International Distribution Inc. | Yes | 304-689211 | — | Collection Account | Yes | ||||||||||
XX Xxxxxx Chase
|
RHI International Distribution Inc. | Yes | 304-689254 | 256,171 | Operating Account | Yes | ||||||||||
XX Xxxxxx Xxxxx
|
RHI Entertainment LLC | Yes | 314-006591 | 25,662,131 | Operating Account | Yes | ||||||||||
XX Xxxxxx Chase
|
RHI Entertainment LLC | Yes | 323-410537 | 80,189 | Insurance / FSA Account | Yes | ||||||||||
XX Xxxxxx Xxxxx
|
RHI Entertainment LLC | Yes | 323-047165 | 25,772 | Payroll Account | Yes | ||||||||||
XX Xxxxxx Chase
|
RHI Entertainment LLC | Yes | 324-330332 | — | Collection Account | Yes | ||||||||||
XX Xxxxxx Xxxxx
|
RHI Entertainment Distribution LLC | Yes | 304-959251 | — | Collection Account | No | ||||||||||
XX Xxxxxx Chase
|
RHI International Distribution Inc. | Yes | 601-893506 | — | Checking Account | Yes | ||||||||||
XX Xxxxxx Xxxxx
|
RHI Entertainment LLC | Yes | 615-536158 | — | Checking Account | Yes | ||||||||||
3
| Balance as of | Account Control | |||||||||||||||
| Depository | February 19, 2010 | Agreement (“yes” or | ||||||||||||||
| Institution | Account Name | Credit Party? | Account Number | (in $US) | Nature of Account | “no”) | ||||||||||
XX Xxxxxx Chase
|
RHI Entertainment Productions LLC | Yes | 758-683403 | — | Collection Account | No | ||||||||||
XX Xxxxxx Xxxxx
|
Library Storage Inc | Yes | 799-760657 | — | Checking Account | No | ||||||||||
XX Xxxxxx Chase
|
Library Storage Inc | Yes | 799-760632 | 13,410 | Operating Account | No | ||||||||||
American
Express
|
RHI Entertainment LLC | Yes | 000-000000-0 | 400,000 | CD Account | No | ||||||||||
Israel
Discount Bank
|
RHI Entertainment LLC | Yes | 03-49130 | 250,128 | Operating Account | Yes | ||||||||||
California
Bank & Trust
|
RHI Entertainment LLC | Yes | 324-0329751 | 9,227 | Operating Account | Yes | ||||||||||
Barclays Bank
|
RHI Entertainment Ltd | Yes | 30403261 | 63,191 | Operating Account | No | ||||||||||
Commonwealth
Bank of Australia
|
RHI Entertainment Australia Pty Ltd | No | 062-438-1009-6303 | 102,967 | Operating Account | No | ||||||||||
Barclays Bank
|
RHI Entertainment Ltd | Yes | 80374636 | 157 | Production Account | Yes1 | ||||||||||
HVB Hungarian
Bank
|
DTS Productions Ltd | No | 10918000000000 367110017 | — | Production Account | No | ||||||||||
HVB Hungarian
Bank
|
DTS Productions Ltd | No | 109180010000000 367110024 | — | Production Account | No | ||||||||||
Barclays Bank
|
SFR Ltd | No | 60655376 | — | Production Account | No | ||||||||||
Barclays Bank
|
SFR Ltd | No | 40047678 | 2,609 | Production Account | No | ||||||||||
Barclays Bank
|
SFR Ltd | No | 68372755 | — | Production Account | No | ||||||||||
Barclays Bank
|
SFR Ltd | No | 86918211 | 472 | Production Account | No | ||||||||||
HVB Hungarian
Bank
|
RHI Entertainment Kft | No | 1091 8001 00000003 68110027 | — | Production Account | No | ||||||||||
| 1 | By operation of the Debenture dated as of February 25, 2010 and the related Notice of Assignment of Account. |
4
| Balance as of | Account Control | |||||||||||||
| Depository | February 19, 2010 | Agreement (“yes” or | ||||||||||||
| Institution | Account Name | Credit Party? | Account Number | (in $US) | Nature of Account | “no”) | ||||||||
HVB Hungarian
Bank
|
RHI Entertainment Kft | No | 1091 8001 00000003 68110010 | — | Production Account | No | ||||||||
Royal Bank of
Scotland
|
RHI Entertainment LLC | Yes | 10154958 | — | Production Account | No | ||||||||
JPMorgan Chase
|
NGP Holding | No | 000-000-000 | — | Production Account | No | ||||||||
5
SCHEDULE 3
Per-Subsidiary Breakdown of Gross Asset Values of Non-Credit Party Subsidiaries
| Gross asset | ||||||||
| value as of | ||||||||
| February 19, | ||||||||
| Credit | 2010 (in $US) | |||||||
| Entity | Party? | (000’s) | ||||||
Metropolitan Productions, Inc |
No | — | ||||||
Don Quixote, Inc |
No | — | ||||||
HE PRO Tunes, Inc. |
No | — | ||||||
HEP Music, Inc. |
No | — | ||||||
HEP SS Music, Inc |
No | — | ||||||
SLB Productions, Inc |
No | — | ||||||
RHI Entertainment Australia Pty. Ltd. |
No | 82 | ||||||
Southern Whale Pty Ltd |
No | — | ||||||
Wayzgoose Concerts Services BV |
No | — | ||||||
RHI Entertainment Kft |
No | — | ||||||
NGP Holding Inc |
No | — | ||||||
HEGOA Inc. |
No | — | ||||||
Independent Projects, Inc. |
No | — | ||||||
HEDAUS Pty Limited |
No | — | ||||||
DTS Productions Limited |
No | — | ||||||
Thistle Management Ltd |
No | — | ||||||
SFR Limited |
No | 3 | ||||||
| Total Asset Value | $ | 85 | ||||||
6
