EXHIBIT
2.1
EXECUTION
COPY
AMENDMENT
AND WAIVER
AMENDMENT
AND WAIVER (this “Amendment”), dated as
of November 4, 2009, to the Securities Purchase Agreement, dated as of August
11, 2009 (the “Securities Purchase
Agreement”), among Cinedigm Digital Cinema Corp., f/k/a Access Integrated
Technologies, Inc. (the “Company”), each of
the Subsidiary Note Parties party hereto, Sageview Capital Master, L.P., as
collateral agent (in such capacity, the “Collateral Agent”),
and the purchasers referred to therein.
W I T N E S S E T
H:
WHEREAS,
the Company has requested that Schedule 3.1(jj) to the Securities Purchase
Agreement and Schedule 9 to the Guarantee and Collateral Agreement be amended as
set forth herein;
WHEREAS,
the Company has requested a waiver and extension with respect to Section 4.25 of
the Securities Purchase Agreement and certain other matters in connection with
specified deposit accounts; and
WHEREAS,
the Majority Holders are willing to agree to such amendments and waivers on the
terms set forth herein;
NOW
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the undersigned hereby agree as follows:
I. Defined
Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Securities Purchase
Agreement.
II. Amendments to Schedule
3.1(jj). Schedule 3.1(jj) of the Securities Purchase Agreement is hereby
amended to include under the heading “Liens” deposit accounts
Nos. 9421 and 6671 (collectively, the “JPM Collateral
Accounts”) held by JPMorgan Chase Bank, N.A. (“JPMorgan”) in the
name of the Company, which JPM Collateral Accounts are pledged to JPMorgan to
cash collateralize obligations of the Company or a Subsidiary thereof with
respect to the Letter of Credit dated November 18, 2005 issued by JPMorgan on
behalf of the Company or a Subsidiary thereof in favor of USA Sunset Media, LLC
(the “Landlord”) required
under that certain Lease Agreement, dated September 12, 2005, as amended, by and
between the Landlord and Hollywood Software, Inc. (the “Lease
Agreement”). The Liens in favor of JPMorgan with respect to
the JPM Collateral Accounts shall be deemed to be “Permitted Liens” for all
purposes of the Transaction Documents.
III.
Amendments to Schedule
9. Schedule 9 of the Guarantee and Collateral Agreement is hereby amended
to change each reference to “Hollywood Software, Inc.” set forth therein to read
“Company”.
IV. Waiver to Section 4.25
(Control Agreements). The Majority Holders hereby (a) waive
the requirement that a control agreement be executed with respect to the JPM
Collateral Accounts until (i) January 10, 2011 or (ii) if the Lease Agreement is
extended pursuant to its terms, January 10, 2014; provided that in each
case, from and after the date of this Amendment, the Company may not deposit
additional funds into the JPM Collateral Accounts without the Majority Holders’
consent and (b) extend the period of time for execution of a control agreement
with respect to Account No. 7710 held by Marshall & Isley Bank in the name
of UniqueScreen Media, Inc. (the “M&I Account”)
until November 13, 2009; provided that from
and after the date of this Amendment, the Company may only deposit funds in, or
disburse or withdraw funds from, such account in the ordinary course of business
and consistent with prior usage of such account. The waivers and
extension set forth in this Paragraph IV may be
revoked
by written notice from the Collateral Agent to the Company at any time if the
Company fails to comply with the conditions stated herein.
V.
Other Waivers and
Agreements. The Majority Holders hereby (a) waive any Default or Event of
Default (as each such term is defined in the Notes) relating to or arising from
the failure to list as of the Closing Date the Liens in favor of JPMorgan in the
JPM Collateral Accounts as Liens on Schedule 3.1(jj) of the Securities
Purchase Agreement, (b) waive any Default or Event of Default relating to or
arising from the identification as of the Closing Date of “Hollywood Software,
Inc.” instead of “Company” in Schedule 9 of the Guarantee and Collateral
Agreement, (c) waive any Default or Event of Default relating to or arising from
the failure for a control agreement to be executed with respect to the JPM
Collateral Accounts in accordance with Section 4.25 of the Securities
Purchase Agreement and Section 5.4(c)(ii) of the Guarantee and Collateral
Agreement, (d) waive until November 13, 2009 any Default or Event of Default
relating to or arising from the failure of a control agreement to be executed
with respect to the M&I Account in accordance with Section 4.25 of the
Securities Purchase Agreement and Section 5.4(c)(ii) of the Guarantee and
Collateral Agreement (e) waive any right to charge interest at the Default Rate
(as defined in the Notes) with respect to the matters set forth in this
Paragraph V; provided that such waiver shall only extend until November 13,
2009 with respect to clause (d) of this paragraph V and (f) confirm that,
notwithstanding that the Collateral Agent does not have “control” with respect
to the JPMorgan Accounts and the M&I Account, the amounts on deposit in the
JPM Collateral Accounts and, until November 13, 2009, amounts on deposit in the
M&I Account, shall not be applied against or considered in determining
compliance with the $100,000 and $250,000 thresholds set forth in
Section 5.4(c)(ii) of the Guarantee and Collateral
Agreement. The waivers and confirmations set forth in this
Paragraph V may be revoked by written notice from the Collateral Agent to
the Company at any time if the Company fails to comply with the conditions set
forth in Paragraph IV hereof.
VI.
Effectiveness of
Amendment. This Amendment shall become effective as of the
date first written above upon receipt by the Purchasers of duly executed
counterparts to this Amendment from the Company and the Majority
Holders.
VII. No
Default. The Company hereby represents and warrants that after
giving effect to this Amendment, no Default or Event of Default shall have
occurred and be continuing.
VIII. No Other Amendments;
Confirmation. Except as expressly amended hereby, the
provisions of the Securities Purchase Agreement, as hereby amended, are and
shall remain in full force and effect.
IX.
Governing
Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York (including Section 5-1401 of the New
York General Obligations Law).
X.
Counterparts. This
Amendment may be executed in one or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that all parties need not sign the same
counterpart. In the event that any signature is delivered
electronically, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such electronically delivered signature page were an
original thereof.
[signature
pages follow]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be executed and
delivered by their duly authorized officers as of the date first above
written.
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CINEDIGM
DIGITAL CINEMA CORP.
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Title: Chief Executive
Officer |
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Title: Chief Executive
Officer |
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CORE
TECHNOLOGY SERVICES, INC.
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Title: Chief Executive
Officer |
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FIBERSAT
GLOBAL SERVICES, INC.
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Title: Chief Executive
Officer |
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Title: Chief Executive
Officer |
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Title: Chief Executive
Officer |
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VISTACHIARA
PRODUCTIONS, INC.
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Title: Chief Executive
Officer |
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SAGEVIEW
CAPITAL MASTER, L.P.,
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By:
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Sageview Capital GenPar, Ltd., its
general partner |
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By:
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/s/ Barbara E.
Parker |