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SUCCESSOR AGENT AGREEMENT AND SECOND AMENDMENT TO CREDIT, SECURITY, GUARANTY AND PLEDGE AGREEMENT

Agency Agreement

SUCCESSOR AGENT AGREEMENT AND SECOND AMENDMENT TO CREDIT, SECURITY, GUARANTY AND PLEDGE AGREEMENT | Document Parties: JPM MEZZANINE CAPITAL, LLC | JPMORGAN CHASE BANK, NA | Kelso AIV GP VII, LLC | KELSO INTERCO VII, LLC | KEP VI AIV, LLC | LIBRARY STORAGE, INC | RHI ENTERTAINMENT DISTRIBUTION, LLC | RHI Entertainment Holdings II, LLC | RHI ENTERTAINMENT PRODUCTIONS, LLC | RHI Entertainment, LLC | RHI INTERNATIONAL DISTRIBUTION, INC You are currently viewing:
This Agency Agreement involves

JPM MEZZANINE CAPITAL, LLC | JPMORGAN CHASE BANK, NA | Kelso AIV GP VII, LLC | KELSO INTERCO VII, LLC | KEP VI AIV, LLC | LIBRARY STORAGE, INC | RHI ENTERTAINMENT DISTRIBUTION, LLC | RHI Entertainment Holdings II, LLC | RHI ENTERTAINMENT PRODUCTIONS, LLC | RHI Entertainment, LLC | RHI INTERNATIONAL DISTRIBUTION, INC

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Title: SUCCESSOR AGENT AGREEMENT AND SECOND AMENDMENT TO CREDIT, SECURITY, GUARANTY AND PLEDGE AGREEMENT
Governing Law: New York     Date: 2/16/2010
Law Firm: Morgan Lewis;Milbank Tweed    

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Exhibit 10.1

Execution Version

SUCCESSOR AGENT AGREEMENT
AND
SECOND AMENDMENT TO CREDIT, SECURITY, GUARANTY AND PLEDGE AGREEMENT

     This SUCCESSOR AGENT AGREEMENT AND SECOND AMENDMENT TO CREDIT, SECURITY, GUARANTY, AND PLEDGE AGREEMENT (this “ Agreement ”) is dated as of February 12, 2010 (the “ Effective Date ”) by and among WILMINGTON TRUST FSB (“ Wilmington ” or the “ Successor Agent ”), JPMORGAN CHASE BANK, N.A. (“ JPMorgan Chase ”), in its capacity as Administrative Agent (as defined in the Credit Agreement described below) (in such capacity, the “ Existing Agent ”), RHI Entertainment, LLC, a Delaware limited liability company (the “ Borrower ”), RHI Entertainment Holdings II, LLC, a Delaware limited liability company (“ Parent ”), the subsidiaries of the Borrower party hereto (the “ Guarantors ”) and Lenders constituting the Required Lenders (as defined in the Credit Agreement described below) identified on the signature pages hereto.

     WHEREAS, the Borrower, Parent, the Guarantors, the financial institutions or entities from time to time parties thereto as lenders (collectively, the “ Lenders ”) and JPMorgan Chase, as the administrative agent, entered into that certain Credit, Security, Guaranty and Pledge Agreement, dated as of June 23, 2008 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “ Credit Agreement ”);

     WHEREAS, the Existing Agent resigned as Administrative Agent pursuant to that certain resignation letter dated December 9, 2009 in accordance with Section 12.11 of the Credit Agreement;

     WHEREAS, pursuant to Section 12.11 of the Credit Agreement, none of the Lenders wish to act as the successor Administrative Agent under the Credit Agreement and the other Fundamental Documents (as defined in the Credit Agreement);

     WHEREAS, pursuant to Section 12.11 of the Credit Agreement, the Required Lenders desire to appoint Wilmington to act as the successor Administrative Agent under the Credit Agreement and the other Fundamental Documents; and

     WHEREAS, the Borrower approves the Required Lenders’ appointment of Wilmington as the successor Administrative Agent under the Credit Agreement and the other Fundamental Documents;

     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereto, intending to be legally bound, hereby agree as follows:

     1.  Definitions . Capitalized terms not otherwise defined herein (including in the Recitals hereto) shall have the meanings ascribed to them in the Credit Agreement.

     2.  Acknowledgement and Consent . Pursuant to Section 12.11 of the Credit Agreement, the Borrower and each Required Lender hereby acknowledges that Wilmington’s appointment as successor Administrative Agent under the Credit Agreement and the other Fundamental Documents is reasonably acceptable to such Borrower and Required Lender. Furthermore, pursuant to Section 12.11 of the Credit Agreement, each Required Lender hereby consents to Wilmington’s appointment as successor Administrative Agent under the Credit Agreement and the other Fundamental Documents.

     3.  Resignation and Appointment of Agent . Pursuant to Section 12.11 of the Credit Agreement (a) the Existing Agent’s resignation as the Administrative Agent is hereby effective and the Required Lenders hereby accept the resignation of JPMorgan Chase as Administrative Agent under the

 


 

Credit Agreement and the other Fundamental Documents and (b) the Required Lenders hereby appoint Wilmington to act as the successor Administrative Agent under the Credit Agreement and the other Fundamental Documents, in each case, effective as of the Effective Date. As of the Effective Date, the Successor Agent hereby accepts, and the Borrower approves, the appointment to act as the Administrative Agent under the Credit Agreement and the other Fundamental Documents. The Required Lenders and the Borrower waive any inconsistency or conflict with the provisions in Section 12.11 of the Credit Agreement with respect to the resignation of JPMorgan Chase as Administrative Agent and the appointment of Wilmington as the Administrative Agent. Each of the parties hereto agrees to execute all documents necessary to evidence the appointment of Wilmington as the successor Administrative Agent.

     4.  Rights, Duties and Obligations . Notwithstanding anything to the contrary in the Credit Agreement or the other Fundamental Documents, as of the Effective Date (a) the Successor Agent is hereby vested with all the rights, powers, discretion and privileges of the Existing Agent, as described in the Fundamental Documents, and the Successor Agent assumes from and after the Effective Date the obligations, all of the responsibilities and duties of the Existing Agent, in accordance with the terms of the Fundamental Documents and (b) the Existing Agent is discharged from all of its duties and obligations as the Administrative Agent under the Fundamental Documents. Nothing in this Agreement shall be deemed a termination of the provisions of any Fundamental Document (including, without limitation, Articles 12 and 13 of the Credit Agreement) that survive the Existing Agent’s resignation pertaining to JPMorgan Chase in its capacity as Administrative Agent. The Borrower and the Required Lenders expressly agree and acknowledge that the Successor Agent is not assuming any liability (i) under or related to the Fundamental Documents prior to the Effective Date and (ii) for any and all claims under or related to the Fundamental Documents that may have arisen or accrued prior to the Effective Date. Each of the Borrower and the Required Lenders, with respect to their applicable indemnification obligations under the Fundamental Documents, expressly agrees and confirms that the Successor Agent’s right to indemnification, as set forth in the Fundamental Documents, shall apply with respect to any and all losses, claims, costs and expenses that the Successor Agent suffers, incurs or is threatened with relating to actions taken or omitted by any of the Parties to this Agreement prior to the Effective Date. The parties hereto agree that nothing herein shall be deemed to constitute a transfer by JPMorgan Chase of any of its rights or obligations as First Lien Agent under any of the Fundamental Documents (as defined in the First Lien Agreement), or impose on First Lien Agent any obligations to share any information received by JPMorgan Chase in its capacity as First Lien Agent or to take any other action in its capacity as First Lien Agent.

     5.  Certification . The Existing Agent hereby certifies the following as of the Effective Date:

          (a)  Current Lenders . The accuracy of the list of the Lenders and the outstanding principal amount of the Loans owing to each such Lender under the Credit Agreement delivered by the Existing Agent to the Successor Agent.

          (b)  Loan Status . Schedule I sets forth (i) the outstanding principal amount of, and accrued interest payable on, the Loans as of February 12, 2010 and (ii) any other fees, charges and expenses due and payable to the Existing Agent or the Lenders as of February 12, 2010.

          (c)  Fundamental Documents . Schedule II is a list of the Fundamental Documents delivered to the Successor Agent on or prior to the date hereof, and as of the date hereof there have been no amendments, supplements or consents to such Fundamental Documents, to which the Existing Agent has knowledge or is a party, except as set forth in Schedule II or Schedule III .

          (d)  Defaults, Waivers, Reservation of Rights . Except as set forth on Schedule IV , the Existing Agent has not (i) received any notice of Default under Section 5.4 of the Credit Agreement,

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(ii) executed any waiver of any Default under the Credit Agreement or the other Fundamental Documents or (iii) sent any letters or notices to the Borrower purporting to reserve any of its rights under the Credit Agreement or the other Fundamental Documents.

     6.  Covenants of Existing Agent . The Existing Agent covenants and agrees that it will, in each case at the Borrower’s expense: (a) deliver, or cause to be delivered, promptly to the Successor Agent execution versions of the Credit Agreement and the other Fundamental Documents listed on Schedule II and Schedule III , provided that the Existing Agent will deliver executed originals of such documents if such documents are readily available to the Existing Agent and the Successor Agent reasonably deems it is necessary to have such an executed original in its possession, (b) use commercially reasonable efforts to deliver, or cause to be delivered, promptly to the Successor Agent, copies of any written notices, financial statements and other written requests delivered by the Borrower, in accordance with the notice provisions in Section 13.1 of the Credit Agreement, to the Existing Agent under Sections 5.1 (other than clauses (f), (g), (j), (k) and (l) thereof), 5.4(a), 5.7, 5.17, 5.19, and 5.26 of the Credit Agreement received by the Existing Agent, in each case, to the extent such notices, statements or requests have not already been delivered to the Lenders, (c) execute all documents as may be reasonably requested by the Successor Agent to transfer and/or assign the rights and privileges of the Existing Agent under the Fundamental Documents to the Successor Agent and (d) take all actions reasonably requested by the Successor Agent or its representatives to facilitate the transfer of information to the Successor Agent in connection with the Fundamental Documents. The Borrower hereby consents to all actions taken by the Existing Agent and the Successor Agent pursuant to this Agreement, including the immediately preceding sentence, and acknowledges that any action taken by the Existing Agent in connection herewith shall be subject to the provisions of Section 13.5 of the Credit Agreement. The Successor Agent acknowledges that the Existing Agent has, as of the Effective Date, caused to be delivered to the Successor Agent execution versions of the Fundamental Documents listed on Schedule II and Schedule III to satisfy clause (a) of this Section 6. It is the intention and understanding of the Existing Agent and the Successor Agent that any exchange of information under this Section 6 that is otherwise protected against disclosure by privilege, doctrine or rule of confidentiality (such information, “ Privileged Information ”) (i) will not waive any applicable privilege, doctrine or rule of protection from disclosure, (ii) will not diminish the confidentiality of the Privileged Information and (iii) will not be asserted as a waiver of any such privilege, doctrine or rule by the Existing Agent or the Successor Agent.

     7.  Fees and Expenses . All fees and expenses incurred by the Existing Agent prior to the date hereof have been paid in full by the Borrower. Commencing on the Effective Date, (a) the Successor Agent shall be entitled to receive its agency fees and expenses set forth in that certain fee letter, dated as of February 12, 2010, between the Borrower and the Successor Agent and (b) the Existing Agent shall cease to be entitled to receive the administrative agent fees provided by the Credit Agreement, provided that the Existing Agent shall remain entitled to receive any accrued and unpaid administrative agent fees and expenses owed to it pursuant to the Fundamental Documents. All other provisions of the Credit Agreement providing for the payment of fees and expenses of, and providing indemnities for the benefit of, the Existing Agent shall remain in full force and effect for the benefit of the Successor Agent. In addition, the Borrower agrees to pay all out-of-pocket costs and expenses of the Successor Agent (including, without limitation, any legal fees) reasonably incurred by it in connection with the negotiation, preparation, execution and delivery of this Agreement and any related documents. Notwithstanding anything herein to the contrary, JPMorgan Chase agrees to pay to the Successor Agent $17, 945.03 within two (2) Business Days of the Effective Date, which amount will consist of all fees that have been paid to the Existing Agent by the Borrower for services to be provided by the Existing Agent under the Fundamental Documents for time periods that have yet to accrue. Notwithstanding anything to the contrary herein, the Borrower will pay on demand all fees and reasonable and documented out-of-pocket expenses of the Existing Agent and the reasonable fees and disbursements of Morgan Lewis & Bockius,

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LLP, counsel for the Existing Agent (and, to the extent necessary, one local counsel per jurisdiction), in negotiation, preparing and executing this Agreement and implementing it.

     8.  Amendments to Fundamental Documents .

          (a)  General . The parties hereby agree and acknowledge that, from and after the Effective Date, Wilmington shall be, and shall be deemed to be, the Administrative Agent under the Credit Agreement and the other Fundamental Documents. In furtherance of the foregoing, from and after the Effective Date all defined terms referencing JPMorgan Chase as the Administrative Agent in the Credit Agreement and the other Fundamental Documents (in each case as such references relate to the Credit Agreement) are hereby amended to reference Wilmington (as successor to JPMorgan Chase) as the Administrative Agent thereunder.

          (b)  Amendment to Section 1.1 of the Credit Agreement . The parties hereby agree that the following definition is hereby amended and restated to read as follows:

          “‘ Administrative Agent ’ shall mean Wilmington Trust FSB (as successor to JPMorgan Chase Bank, N.A.), together with its branches and affiliates, in its capacity as the administrative agent for the Lenders under this Credit Agreement and the other Fundamental Documents, together with any successor administrative agent as may be appointed pursuant to Section 12.11 hereof.”

          (c)  Amendment to Section 5.22 of the Credit Agreement . The parties agree that Section 5.22 of the Credit Agreement is restated in its entirety to read as follows:

          “SECTION 5.22 JPMorgan Chase Control Agreements . The Credit Parties shall cause Account Control Agreements to be delivered to the Administrative Agent with respect to each deposit account of any Credit Party with JPMorgan Chase, as depository institution, that has a balance equal to or greater than $25,000, provided, however, the Credit Parties’ obligation to comply with this covenant shall commence on February 25, 2010 and continue thereafter.”

          (d)  Amendment to Section 13.1 of the Credit Agreement . The parties agree that Section 13.1(ii) of the Credit Agreement is amended by deleting such Section 13.1(ii) in its entirety and substituting in lieu thereof the following:

     “(ii) if to Administrative Agent or to Wilmington Trust FSB, to Wilmington Trust FSB, 50 South Sixth Street, Suite 1290, Minneapolis, MN 55402, Attention: Renee Kuhl, Telephone No. (612) 217-5635 Facsimile: (612) 217-5651, email: rkuhl@wilmingtontrust.com, with a copy to Milbank, Tweed, Hadley & McCloy, LLP, 601 South Figueroa Street, 30 th Floor, Los Angeles, CA 90017, Attention: Melainie Mansfield, Telephone No. (213) 892-4611, Facsimile: (213) 892-4711, email: mmansfield@milbank.com; and”

          (e)  Amendment to Secti


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