AMENDMENT NO. 1 TO ALLOCATION OF ACCOUNTS RECEIVABLE AND INTERCREDITOR AGREEMENT
Exhibit 99.2
AMENDMENT
NO. 1 TO
ALLOCATION
OF ACCOUNTS RECEIVABLE AND INTERCREDITOR AGREEMENT
THIS
AMENDMENT NO. 1 TO ALLOCATION OF ACCOUNTS RECEIVABLE AND INTERCREDITOR AGREEMENT
(this “Amendment”), dated as of November 1, 2007, is entered into by
and between (1) GENIUS PRODUCTS, LLC, a Delaware limited liability company
(formerly known as The Xxxxxxxxx Company Funding LLC) (“Borrower”),
(2) THE XXXXXXXXX COMPANY LLC, a Delaware limited liability company (on
behalf of itself and all Licensor Controlled Affiliates (as defined in the
Xxxxxxxxx Distribution Agreement referred to below), in such capacity,
“TWC”) and (3) SOCIÉTÉ GÉNÉRALE, in its capacity as administrative
agent and in its capacity as collateral agent (in such capacities, the
“Administrative Agent”) for the lenders party from time to time to the
Credit Agreement (as defined in the Intercreditor Agreement referred to
below).
A. Borrower,
TWC and the Administrative Agent have previously entered into that certain
Allocation of Accounts Receivable and Intercreditor and Subordination Agreement,
dated as of August 10, 2007 (as the same may from time to time be
supplemented, modified, amended or restated, including by this Amendment,
the
“Intercreditor Agreement”). Capitalized terms are used in this
Amendment as defined in the Intercreditor Agreement, unless otherwise defined
herein.
B. Borrower,
TWC and the Administrative Agent desire to amend the Intercreditor Agreement
as
set forth below.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, Borrower, TWC and the Administrative Agent
hereto
hereby agree as follows:
1. Amendments.
(a) The
definition of “Blockbuster Revenue Sharing Payments” in Section 1(a) of the
Intercreditor Agreement is hereby renamed and amended and restated in its
entirety as follows:
“Blockbuster
Minimum Guarantee
Payments” shall mean payments from Blockbuster that are payments in respect
of minimum guarantee payments owing from Blockbuster in connection with one
or
more revenue sharing arrangements between the Borrower (or any Guarantor)
and
Blockbuster.
(b) Each
reference in the Intercreditor Agreement to “Blockbuster Revenue Sharing
Payment” and “Blockbuster Revenue Sharing Payments” is hereby replaced with
“Blockbuster Minimum Guarantee Payment” and “Blockbuster Minimum Guarantee
Payments,” respectively.
(c) The
definition of “Central Lockbox Disbursement Date” in Section 1(a) of the
Intercreditor Agreement is hereby amended and restated in its entirety as
follows:
“Central
Lockbox Disbursement Date” shall mean each Wednesday (or if a Wednesday is
not a Business Day, the first Business Day after such Wednesday) and the
Business Day immediately prior to the last Business Day of each calendar
month.
(d) The
definition of “Xxxxxxxxx Disbursement Date” in Section 1(a) of the
Intercreditor Agreement is hereby amended and restated in its entirety as
follows:
“Xxxxxxxxx
Disbursement Date”
shall mean each Wednesday (or if a Wednesday is not a Business Day, the
first
Business Day after such Wednesday) and the Business Day immediately prior
to the
last Business Day of each calendar month.
2. Continuing
Effect. Except as specifically amended by this Amendment, the
Intercreditor Agreement shall remain in full force and effect.
4. Governing
Law. This Amendment has been delivered and accepted at and shall
be deemed to have been made in the State of New York, and shall be interpreted,
and the rights and liabilities of the parties hereto determined, in accordance
with the internal laws (as opposed to conflicts of laws provisions) of the
State
of New York, except as otherwise required by mandatory provisions of law
and
except to the extent that remedies provided by the laws of any jurisdiction
other than the State of New York are governed by the laws of such
jurisdiction.
5. Successors
and Assigns. This Amendment shall be binding upon and shall inure
to the benefit of the parties’ respective successors and assigns, subject to
Section 11(k) of the Intercreditor Agreement.
6. Authority. Each
of the signatories hereto certifies that such party has all necessary authority
to execute this Amendment and this Amendment constitutes its legal, valid
and
binding obligation, enforceable against it in accordance with its terms,
except
as limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors’ rights generally and
general principles of equity.
7. Counterparts. This
Amendment may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but
all of
which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of
this Amendment by telecopy (by e-mail of a PDF or similar electronic image
file)
shall be effective as delivery of a manually executed counterpart of this
Amendment. This Amendment shall become effective when it shall have
been executed by each party hereto.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have
caused this Amendment to be duly executed and delivered as of the day and
year
first above written.
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THE
XXXXXXXXX COMPANY, LLC
By:/s/
Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: EVP
&
CFO
SOCIÉTÉ
GÉNÉRALE,
for
itself and as administrative agent and collateral agent for the
SG
Lenders
By:/s/
Xxxxxx
Xxx
Name:
Xxxxxx
Xxx
Title: Director
GENIUS
PRODUCTS, LLC
By: /s/
Xxxxxx
Xxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxx
Title: President
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