EXHIBIT 10.7
CROWN MEDIA HOLDINGS, INC.,
Obligor,
CROWN MEDIA TRUST,
HALLMARK CARDS INCORPORATED,
JPMORGAN CHASE BANK,
Indenture Trustee and Property Trustee
AND
CERTIFICATE HOLDERS NAMED HEREIN
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SUBORDINATION AND SUPPORT AGREEMENT
Dated as of December 17, 2001
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TABLE OF CONTENTS
PAGE
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1. Definitions....................................................................................2
2. Agreement to Subordinate.......................................................................5
3. Restrictions on Payment of the Subordinated Hallmark Obligations, Etc. ........................6
4. Additional Provisions Concerning Subordination.................................................7
5. Subrogation....................................................................................9
6. Obligation to Provide Subordinated Support and Assumed Obligations Support.....................9
7. Intercompany Payables.........................................................................11
8. Legend........................................................................................12
9. Negative Covenants of the Subordinated Creditors..............................................12
10. Obligations Unconditional.....................................................................12
11. Subordination to Senior Indebtedness..........................................................13
12. Representations and Warranties................................................................13
(b) No Conflicts.........................................................................13
(c) No Disposition of Shares.............................................................14
13. Further Assurances............................................................................14
14. Expenses......................................................................................14
15. Notice........................................................................................14
16. Service of Process............................................................................15
17. Miscellaneous.................................................................................16
EXHIBIT A: Form of PROMISSORY NOTE...................................................................A-1
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SUBORDINATION AND SUPPORT AGREEMENT
This
SUBORDINATION AND SUPPORT AGREEMENT, dated as of December
17, 2001, is executed and delivered by (i) CROWN MEDIA HOLDINGS, INC., a
Delaware corporation (the "Obligor"), (ii) the Subsidiaries of the Obligor that
are parties to the Subordinated Obligation Documents (as defined herein) from
time to time (the "Obligor Subsidiaries"), (iii) CROWN MEDIA TRUST, a
Delaware
statutory business trust (the "Trust"), (iv) HALLMARK CARDS, INCORPORATED, a
Missouri corporation "Hallmark Cards") (v) and JPMORGAN CHASE BANK, a New York
banking corporation in its capacities as indenture trustee under the Indenture
referred to herein (the "Indenture Trustee") and as property trustee under the
Amended and Restated Declaration of Trust of the Trust, dated as of December 17,
2001 (the "Property Trustee"), and (vi) the HOLDERS of Certificates (as defined
below) identified on the signature pages hereto.
WHEREAS, pursuant to the terms of an Indenture, dated as of
December 17, 2001, between the Obligor and the Indenture Trustee (such agreement
as hereinafter amended, supplemented or otherwise modified, from time to time
being referred to as the "Indenture"), the Obligor is authorized to issue up to
$273,196,000 in aggregate principal amount of its 6.75% Subordinated Debentures
due 2007 (the "Debentures");
WHEREAS, pursuant to the terms of a Securities Purchase
Agreement, dated as of December 17, 2001, among the Obligor, the Trust and the
investors named therein (the "Investors") (the "Purchase Agreement"), the Trust
and the Obligor have agreed to issue and sell, and the Investors have agreed to
purchase, units consisting of $265,000,000 in aggregate liquidation amount of
6.75% Trust Preferred Securities (the "Preferred Securities") of the Trust and
265,000 contingent appreciation certificates (the "Certificates") of the Obligor
issued under that certain Contingent Appreciation Certificate Agreement, dated
as of December 17, 2001, between the Obligor and the holders named therein (the
"Contingent Appreciation Certificate Agreement");
WHEREAS, pursuant to the terms of a Preferred Securities
Guarantee, dated as of December 17, 2001, between the Obligor and JPMorgan Chase
Bank, as preferred guarantee trustee (the "Guarantee"), the Obligor has agreed
to guarantee on a subordinated basis the obligations of the Trust under the
Preferred Securities and the Amended and Restated Declaration of Trust governing
such Preferred Securities to the extent of the assets of the Trust;
WHEREAS, the Obligor has assumed the payment of certain
obligations from Hallmark Entertainment Distribution, LLC, as set forth in
Schedule 4.29(a) to the Purchase Agreement in connection with the acquisition of
certain films and related rights and properties from Hallmark Entertainment
Distribution, LLC (the "Assumed Obligations");
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WHEREAS, the Obligor will use $140,000,000 of the proceeds
from the sale of the Units to repay certain obligations (the "Intercompany
Payables") owed to subsidiaries of Hallmark Cards under: (a) certain promissory
notes, dated November 19, 1999, February 23, 2000 (as amended on April 14, 2000)
and July 10, 2001, in favor of HC Crown Corporation; and (b) those certain
Amended and Restated Program License Agreements, each dated as of January 1,
2001, between Crown Media International, Inc. and Hallmark Entertainment
Distribution, LLC and between Crown Media United States, LLC and Hallmark
Entertainment Distribution, LLC (the "Program Agreements"), which Intercompany
Payables shall be equal to $60,229,275.72 following application of the offering
proceeds and which amount shall be permanently reduced in accordance with
Section 7 and for the avoidance of doubt, the parties hereto acknowledge and
agree that any amounts due, or obligations under, the Program Agreements (other
than such $60,229,275.72) that become due or arise after the Issue Date, shall
not constitute Intercompany Payables;
WHEREAS, in order to induce the Investors to enter into the
Purchase Agreement, Hallmark Cards has agreed, subject to the provisions of this
Agreement, that it will provide credit support to the Obligor, namely the
commitment to directly or indirectly advance the Obligor (a) $75,000,000,
subject to reduction pursuant to Section 6(c) hereof pursuant to a form of
promissory note substantially in the form of Exhibit A hereto, as such
promissory note may be amended from time to time, provided that such amendment
does not conflict with the terms of this Agreement (the "Subordinated Credit
Line"), and (b) amounts necessary to fund any payments of the Assumed
Obligations pursuant to Section 6(b) hereof at such time as any Assumed
Obligations become due and payable (the "Assumed Obligations Support" and,
together with the Subordinated Credit Line, the "Subordinated Support");
WHEREAS, the Subordinated Support and the balance of the
Obligor's obligations under the Intercompany Payables as of the Issue Date
remaining after application of the proceeds from the sale of Units, shall be
subordinated to the Senior Obligations (as defined herein) pursuant to the terms
of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, unless
otherwise defined herein, capitalized terms used herein shall have the
respective meanings given to such terms in the Indenture. For purposes of this
Agreement, the following terms shall have the respective meanings set forth in
this section.
"Assumed Obligations Support" shall have the meaning set forth
in the recitals to this Agreement.
"Assumed Obligations" shall have the meaning set forth in the
recitals to this Agreement.
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"Bank Subordination Agreement" means that certain
Subordination and Support Agreement dated as of August 31, 2001 among the
Obligor, its subsidiaries named therein, Hallmark Cards and the JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as such agreement may be
amended, extended, renewed, restated, supplemented or otherwise modified from
time to time.
"Business Day" means any day other than a day on which Federal
and State banking institutions in The Borough of Manhattan, the City of New York
are authorized or obligated by law, executive order or regulation to close.
"Certificates" shall have the meaning set forth in the
recitals to this Agreement.
"Contingent Appreciation Certificate Agreement" shall have the
meaning set forth in the recitals to this Agreement.
"Credit Agreement" means the Credit, Security, Guaranty and
Pledge Agreement, dated as of August 31, 2001 among the Obligor, the Guarantors
that are parties thereto from time to time, the Lender parties thereto from time
to time and the Agent named therein, as such Credit Agreement may be amended,
extended, renewed, restated, supplemented or otherwise modified from time to
time.
"Debentures" shall have the meaning set forth in the recitals
to this Agreement.
"Equity Proceeds" means (i) 100% of the aggregate Net Cash
Proceeds received by the Obligor from the issuance or sale of its Capital Stock
(other than Disqualified Stock) subsequent to the date of this Agreement (other
than an issuance or sale to a Subsidiary of the Obligor and other than an
issuance or sale to an employee stock ownership plan or to a trust established
by the Obligor or any of its Subsidiaries for the benefit of their employees)
and 100% of any cash capital contribution received by the Obligor from its
shareholders subsequent to the date of this Agreement, plus (ii) the amount by
which Indebtedness of the Obligor is reduced upon the conversion or exchange
(other than by a Subsidiary of the Obligor), including as a result of an
exercise of the right to receive shares of Class A Common Stock of the Obligor
under the Certificates, subsequent to the date of this Agreement of any
Indebtedness of the Obligor convertible or exchangeable for Capital Stock (other
than Disqualified Stock) of the Obligor (less the amount of any cash, or the
fair value of any other property, distributed by the Obligor upon such
conversion or exchange).
"Event of Default" means an "Event of Default" (as defined in
the Indenture) has occurred and is continuing in respect of the Debentures or an
"Event of Default" (as defined in the Contingent Appreciation Certificate
Agreement) has occurred and is continuing in respect of the Certificates.
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"Free Cash Flow" means 50% of the Consolidated Net Income
accrued on a cumulative basis during the period (treated as one accounting
period) from the beginning of the fiscal quarter immediately following the
fiscal quarter during which this Agreement is dated to the end of the most
recent fiscal quarter ending at least 45 days prior to the date a payment is due
and payable with respect to Assumed Obligations (or, (a) in case such
Consolidated Net Income shall be a deficit, 100% of the Consolidated Adjusted
Net Loss or (b), to the extent such Consolidated Adjusted Net Loss shall not be
a deficit, zero).
"Guarantee" shall have the meaning set forth in the recitals
to this Agreement.
"Hallmark Cards" shall have the meaning set forth in the
recitals to this Agreement.
"Indenture Trustee" shall have the meaning set forth in the
recitals to this Agreement.
"Indenture" shall have the meaning set forth in the recitals
to this Agreement.
"Intercompany Payables" shall have the meaning set forth in
the recitals to this Agreement.
"Investors" shall have the meaning set forth in the recitals
to this Agreement.
"Issue Date" means December 17, 2001.
"Obligor Subsidiaries" shall have the meaning set forth in the
recitals to this Agreement.
"Obligor" shall have the meaning set forth in the recitals to
this Agreement.
"Preferred Securities" shall have the meaning set forth in the
recitals to this Agreement.
"Purchase Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Senior Obligation Documents" means the Indenture, the
Debentures, the Contingent Appreciation Certificate Agreement, the Certificates,
the Guarantee and the other documents, instruments and agreements contemplated
thereby as they may be amended, supplemented or otherwise modified, renewed,
replaced or extended from time to time.
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"Senior Obligations" means all obligations of the Obligor
under the Senior Obligation Documents, whether outstanding at the date hereof or
hereafter incurred or created, including, without limitation, all obligations to
pay principal, premium, if any, interest (including, without limitation,
interest accruing after the commencement of any bankruptcy, insolvency,
reorganization or similar proceedings with respect to the Obligor whether or not
determined to be an allowed claim in any such proceeding), payments, charges,
costs, expenses and fees including, without limitation, all renewals,
extensions, restructurings, refinancings or refunding of any indebtedness or
obligation under the Senior Obligation Documents in the nature of a "workout" or
otherwise.
"Subordinated Credit Line" shall have the meaning set forth in
the recitals to this Agreement.
"Subordinated Creditors" means Hallmark Cards and those of its
Subsidiaries that provide Subordinated Support pursuant to this Agreement.
"Subordinated Hallmark Obligations" means any and all
obligations of the Obligor and the Obligor Subsidiaries (i) to repay the
principal amount of loans or other extensions of credit owed by the Obligor to
Hallmark Cards or its subsidiaries in connection with the Subordinated Support
and the remaining balance owed under the Intercompany Payables on the Issue
Date, which amount shall be $60,229,275.72 as of the Issue Date following
application of the offering proceeds and shall be permanently reduced in
accordance with Section 7 hereof and (ii) arising pursuant to an obligation of
Hallmark Cards or any of its subsidiaries under Section 6 of the Bank
Subordination Agreement.
"Subordinated Obligations Documents" has the meaning set forth
in Section 3(a).
"Subordinated Support" shall have the meaning set forth in the
recitals to this Agreement.
"Trust" shall have the meaning set forth in the recitals to
this Agreement.
2. Agreement to Subordinate. The Subordinated Creditors agree
that the Subordinated Hallmark Obligations are and shall be subordinated and
subject in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full of the Senior Obligations. The Subordinated
Creditors further agree that any and all amounts paid by or recovered from the
Obligor or its Subsidiaries and paid to or recovered by the Subordinated
Creditors pursuant to any guarantees, security interests, mortgages and other
liens securing payment of any Subordinated Hallmark Obligations shall be
subordinate, to the fullest extent permitted by law and as hereinafter set
forth, to the payment in full of the Senior Obligations, and such amounts shall
be paid over to the holders of the Senior Obligations in accordance with Section
4(c) hereof. This Agreement may be enforced by (1) the Indenture Trustee upon
direction from the holders of at least 25% of the aggregate principal amount of
Debentures outstanding; (2) if the
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Indenture Trustee fails to promptly act as directed in accordance with the
foregoing clause, the Property Trustee of the Trust, upon direction by the
holders of at least 25% of the outstanding Preferred Securities; and (3) if the
Property Trustee fails to promptly act as directed in accordance with the
foregoing clause, by the holders of at least 25% of the Preferred Securities
outstanding.
The expressions "prior payment in full," "payment in full,"
"paid in full" or any other similar term(s) or phrase(s) when used herein with
respect to the Bank Obligations and the Senior Obligations shall mean the
indefeasible payment in full, in cash, of all of the Bank Obligations and Senior
Obligations. Any reference to a party hereto shall include the successors and
permitted assigns of such party.
3. Restrictions on Payment of the Subordinated Hallmark
Obligations, Etc.
(a) Except in connection with any dissolution, winding up,
liquidation or reorganization of the Obligor or any Subsidiary of the Obligor
(whether voluntary or involuntary and whether in bankruptcy, insolvency or
receivership proceedings, or upon an assignment for the benefit of creditors or
proceedings for voluntary or involuntary liquidation, dissolution or other
winding up of the Obligor or any Subsidiary of the Obligor, whether or not
involving insolvency or bankruptcy, or any other marshalling of the assets and
liabilities of the Obligor or any Subsidiary of the Obligor or otherwise) or as
otherwise set forth herein (including, without limitation, Section 3(b)), the
Subordinated Creditors will not ask, demand, ▇▇▇ for, take or receive, directly
or indirectly, from the Obligor or any Subsidiaries of the Obligor, in cash or
other property, by set-off, by realizing upon collateral, foreclosing on any
lien or otherwise, exercise of any remedies or rights under any documents
evidencing Subordinated Hallmark Obligations ("Subordinated Obligations
Documents") or by executions, garnishments, levies, attachments or by any other
action relating to Subordinated Hallmark Obligations, or in any other manner,
payment of, or additional security for, all or any part of the Subordinated
Hallmark Obligations unless and until the Senior Obligations shall have been
paid in full; provided, however, that any and all amounts paid by or recovered
from the Obligor and its Subsidiaries in violation of the foregoing pursuant to
any guarantees, security interests, mortgages and other liens securing payment
of the Subordinated Hallmark Obligations shall be subordinate, to the fullest
extent permitted by law and as hereinafter set forth, to the payment in full of
the Senior Obligations and shall be paid over to the Indenture Trustee for the
benefit of the holders of the Senior Obligations in accordance with Section 4(c)
hereof. The Obligor shall not, and shall not permit any of its Subsidiaries to,
make any payment on any of the Subordinated Hallmark Obligations, or take any
other action, in contravention of the provisions of this Agreement.
(b) Subject to Section 6 hereof, so long as none of the events
contemplated by Section 4(a) hereof shall have occurred, the Obligor may make
payments on the Subordinated Hallmark Obligations to the extent (but only to the
extent) permitted by and in accordance with Section 6(c) of this Agreement.
Nothing in this Agreement shall prohibit the Obligor from making any payments,
including with respect
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to the Subordinated Hallmark Obligations, in the form of Capital Stock (other
than Disqualified Stock) of the Obligor.
(c) Hallmark Cards further acknowledges and agrees that,
except in connection with any dissolution, winding up, liquidation or
reorganization of the Obligor or any Subsidiary of the Obligor (whether
voluntary or involuntary and whether in bankruptcy, insolvency or receivership
proceedings, or upon an assignment for the benefit of creditors or proceedings
for voluntary or involuntary liquidation, dissolution or other winding up of the
Obligor or any Subsidiary of the Obligor, whether or not involving insolvency or
bankruptcy, or any other marshalling of the assets and liabilities of the
Obligor or any Subsidiary of the Obligor or otherwise) or as otherwise set forth
herein, the Subordinated Creditors will not accept any security for the
Subordinated Hallmark Obligations unless and until the Senior Obligations have
been paid in full; provided, however, that any and all amounts paid by or
recovered from the Obligor and its Subsidiaries in violation of the foregoing
pursuant to any guarantees, security interests, mortgages and other liens
securing payment of the Subordinated Hallmark Obligations shall be subordinate,
to the fullest extent permitted by law and as hereinafter set forth, to the
payment in full of the Senior Obligations and shall be paid over to the
Indenture Trustee for the benefit of the holders of the Senior Obligations in
accordance with Section 4(c) hereof.
4. Additional Provisions Concerning Subordination. Hallmark
Cards and the Obligor agree as follows:
(a) in the event of (i) any dissolution, winding up,
liquidation or reorganization of the Obligor or any Subsidiary of the Obligor
(whether voluntary or involuntary and whether in bankruptcy, insolvency or
receivership proceedings, or upon an assignment for the benefit of creditors or
proceedings for voluntary or involuntary liquidation, dissolution or other
winding up of the Obligor or any Subsidiary of the Obligor, whether or not
involving insolvency or bankruptcy, or any other marshalling of the assets and
liabilities of the Obligor or any Subsidiary of the Obligor or otherwise); or
(ii) any Event of Default or an event which with notice and/or passage of time
would constitute an Event of Default, any default under the Certificates, the
Contingent Appreciation Certificate Agreement or the Guarantee, or any default,
demand for payment or acceleration of maturity regarding the Subordinated
Hallmark Obligations:
(i) all Senior Obligations shall be paid first to the
Indenture Trustee for the benefit of the holders of the Senior Obligations, in
full before any payment or distribution is made upon the principal of or
interest on or any fees, costs, charges or expenses in connection with the
Subordinated Hallmark Obligations, and before any other action described in
Section 3 or 8 hereof is taken by the Subordinated Creditors; and
(ii) any payment or distribution of assets of the
Obligor or any Obligor Subsidiary, whether in cash, property or securities, to
which any of the Subordinated Creditors would be entitled except for the
provisions hereof, shall be paid
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or delivered by the Obligor or any Subsidiary of the Obligor, or any receiver,
trustee in bankruptcy, liquidating trustee, disbursing agent, agent or other
Person making such payment or distribution, to the Indenture Trustee, for the
benefit of the holders of Senior Obligations, in each case to the extent
necessary to pay in full all Senior Obligations remaining unpaid, after giving
effect to any concurrent payment or distribution to the Indenture Trustee for
the benefit of the holders of the Senior Obligations before any payment or
distribution is made to the Subordinated Creditors.
(b) In any proceeding referred to or resulting from any event
referred to in subsection (a) of this Section 4 commenced by or against the
Obligor or any Obligor Subsidiary:
(i) The following Persons are hereby irrevocably
authorized and empowered (in their own names or in the name of the appropriate
Subordinated Creditors or otherwise) to, (i) demand, ▇▇▇ for, collect and
receive every payment or distribution referred to in subsection (a) of this
Section 4 and give acquittance therefor, (ii) file claims and proofs of claim in
respect of the Subordinated Hallmark Obligations and (iii) take such other
action as such party may deem necessary or advisable for the exercise or
enforcement of any of the rights or interests hereunder:
(1) the Indenture Trustee, upon direction by the
holders of at least 25% of the aggregate principal amount of Debentures
outstanding;
(2) if the Indenture Trustee fails to promptly act
as directed in accordance with the foregoing clause, the Property Trustee of the
Trust, upon direction by the holders of at least 25% of the outstanding
Preferred Securities; and
(3) if the Property Trustee fails to promptly act
as directed in accordance with the foregoing clause, by the holders of at least
25% of the Preferred Securities outstanding.
Any of the above Persons shall provide Hallmark Cards with
prior written notice, to the extent reasonably possible, in the event any such
Person waives or compromises any claim in respect of the Subordinated Hallmark
Obligations; and
(ii) The Subordinated Creditors will duly and promptly
take such action as the Indenture Trustee may reasonably request to collect the
Subordinated Hallmark Obligations for the account of the Indenture Trustee for
the benefit of the holders of the Senior Obligations and to file appropriate
claims or proofs of claim with respect thereto, to execute and deliver to the
Indenture Trustee such powers of attorney, assignments or other instruments as
the Indenture Trustee may request in order to enable it to enforce any and all
claims with respect to the Subordinated Hallmark Obligations, and to collect and
receive any and all payments or distributions which may be payable or
deliverable upon or with respect to the Subordinated Hallmark Obligations.
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(c) All recoveries, payments or distributions upon or with
respect to the Subordinated Hallmark Obligations which are received by the
Subordinated Creditors prior to the payment in full of the Senior Obligations or
otherwise contrary to the provisions of this Agreement shall be deemed to be the
property of the holders of the Senior Obligations, shall be received in trust
for the benefit of the holders of the Senior Obligations, shall be segregated
from other funds and property held by the Subordinated Creditors and shall be
forthwith paid over to the holders of the Senior Obligations in the same form as
so received (with any necessary endorsement) to be applied to the payment or
prepayment of the Senior Obligations until the Senior Obligations shall have
been paid in full.
(d) The Subordinated Creditors shall not take any action to
impair or otherwise adversely affect the foreclosure of, or other realization of
the rights of the holders of the Senior Obligations.
(e) (1) the Indenture Trustee, upon direction by the holders
of at least 25% of the aggregate principal amount of Debentures outstanding; (2)
if the Indenture Trustee fails to promptly act as directed in accordance with
the foregoing clause, the Property Trustee of the Trust, upon direction by the
holders of at least 25% of the outstanding Preferred Securities; and (3) if the
Property Trustee fails to promptly act as directed in accordance with the
foregoing clause, by the holders of at least 25% of the Preferred Securities
outstanding, are each authorized to demand specific performance of this
Agreement at any time when the Subordinated Creditors shall have failed to
comply with any of the provisions of this Agreement, and the Subordinated
Creditors hereby irrevocably waive any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of specific performance.
5. Subrogation. The Subordinated Creditors agree that no
payment or distribution to the Indenture Trustee for the benefit of the holders
of Senior Obligations pursuant to the provisions of this Agreement shall entitle
the Subordinated Creditors to exercise any rights of subrogation in respect
thereof until the Senior Obligations shall have been paid in full.
6. Obligation to Provide Subordinated Support and Assumed
Obligations Support.
(a) Until the Senior Obligations are paid in full, Hallmark
Cards covenants and agrees to directly or indirectly loan the Obligor
$75,000,000 in such increments as requested hereunder pursuant to the
Subordinated Credit Line. If an Event of Default occurs and is continuing, the
following parties may make a demand on Hallmark Cards to loan to the Obligor an
amount equal to the undrawn Subordinated Credit Line, if any: (i) the Indenture
Trustee, upon direction by the holders of at least 25% of the aggregate
principal amount of Debentures outstanding, or (ii) if the Indenture Trustee
fails to promptly act as directed in accordance with clause (i), the Property
Trustee of the Trust, upon direction by the holders of at least 25% of the
outstanding Preferred Securities or (iii) if the Property Trustee fails to
promptly act as directed in
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accordance with clause (ii), by the holders of at least 25% of the Preferred
Securities outstanding. The Subordinated Credit Line may not be reduced except
as provided in this Section 6(a) or Section 6(c). Loans in respect of the
Assumed Obligations Support shall not reduce the Subordinated Credit Line. Any
amounts the Company receives under any letter of credit or pursuant to any
guarantee or similar arrangement in respect of Subordinated Hallmark
Obligations, in either case where such letter of credit, guarantee or
arrangement is provided in connection with the Credit Agreement, shall be deemed
to constitute loans made by Hallmark Cards pursuant to the Subordinated Credit
Line under this Section 6(a).
(b) (i) Subject to reduction pursuant to Section 6(c)(i)
hereof and subject to Section 6(b)(ii) hereof, until the earlier of the
termination of this Agreement and such time as the Senior Obligations are paid
in full, Hallmark Cards covenants and agrees to directly or indirectly loan the
Obligor the Assumed Obligations Support in an amount necessary to pay, when due,
the Assumed Obligations. Obligor agrees that it will utilize only (A) such loan
proceeds received from Hallmark Cards pursuant to this Section 6(b)(i), (B) Free
Cash Flow, (C) Equity Proceeds, (D) Subordinated Obligations (as defined in the
Indenture), or (E) unless a Default or Event of Default has occurred and is
continuing, sources other than as set forth in the foregoing clauses (A), (B),
(C) or (D) in an amount up to $40,000,000 in the aggregate to pay such Assumed
Obligations. The Obligor agrees to make payments on such Assumed Obligations
only when they become due and payable. Drawings under the Subordinated Credit
Line shall not be applied to repay, and shall not reduce, Hallmark Cards'
obligations with respect to the Assumed Obligations Support.
(ii) Hallmark Cards shall not, directly or indirectly be
obligated to loan or advance the amount of such Assumed Obligations to the
extent Obligor pays Assumed Obligations from the sources set forth in clauses
(B) through (E) of paragraph (b)(i) above. In the event that the Obligor makes a
payment on the Assumed Obligations other than from the sources set forth in
clauses (A) through (E) of paragraph (b)(i) above, the following parties may
make a demand on Hallmark Cards to loan to the Obligor an amount equal to such
payment, under the Assumed Obligations Support: (A) the Indenture Trustee, upon
direction by the holders of at least 25% of the aggregate principal amount of
Debentures outstanding, or (B) if the Indenture Trustee fails to promptly act as
directed in accordance with clause (A), the Property Trustee of the Trust, upon
direction by the holders of at least 25% of the outstanding Preferred Securities
or (C) if the Property Trustee fails to promptly act as directed in accordance
with clause (B), by the holders of at least 25% of the Preferred Securities
outstanding.
(c) (i) Hallmark Cards' obligations to provide the Assumed
Obligations Support shall be reduced, including with respect to the termination
of Hallmark Cards' commitment to advance or loan amounts under the Assumed
Obligations Support, to the extent the Obligor (A) utilizes Free Cash Flow to
pay Assumed Obligations, (B) utilizes Equity Proceeds to pay Assumed
Obligations, (C) refinances all or a portion of the Assumed Obligations with
"Subordinated Obligations" (as defined in the Indenture) or (D) utilizes up to
$40,000,000 in the aggregate from
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sources other than as set forth in the foregoing clauses (A), (B) or (C) (and
other than proceeds from the Subordinated Credit Line) to pay Assumed
Obligations and, in the case of clause (A) or (B), respectively, excludes (x)
such Free Cash Flow or Equity Proceeds from the calculation of amounts available
to make Restricted Payments pursuant to Section 4.05 of the Indenture and (y)
amounts used to reduce Hallmark Cards' obligations to provide the Subordinated
Support under Section 6(c)(ii) below or to reduce the Intercompany Payables
under Section 7.
(ii) Hallmark Cards' obligations to provide the
Subordinated Credit Line shall be reduced, including with respect to the
termination of Hallmark Cards' commitment to advance or loan amounts under the
Subordinated Credit Line, to the extent the Obligor (A) utilizes Free Cash Flow
to repay amounts drawn under, or reduce commitments under, the Subordinated
Credit Line, (B) utilizes Equity Proceeds to repay amounts drawn under, or
reduce commitments under, the Subordinated Credit Line or (C) refinances all or
a portion of the Subordinated Credit Line with "Subordinated Obligations" (as
defined in the Indenture) and, in the case of clause (A) or (B), respectively,
excludes (x) such Free Cash Flow or Equity Proceeds from the calculation of
amounts available to make Restricted Payments pursuant to Section 4.05 of the
Indenture and (y) amounts used to reduce Hallmark Cards' obligations to provide
Assumed Obligations Support pursuant to Section 6(c)(i) above or to reduce the
Intercompany Payables pursuant to Section 7.
(iii) To the extent Hallmark Cards' commitment to
provide Subordinated Support is reduced pursuant to this Section 6(c), such
commitment shall thereafter be permanently terminated
(d) Hallmark Cards shall be obligated to directly or
indirectly loan the Subordinated Support in accordance with this Section 6
whether or not an Event of Default shall have occurred.
(e) The release of any of the Subordinated Creditors from the
obligations set forth in this Section 6 shall not affect the other provisions of
this Agreement including but not limited to the subordination provisions
contained herein.
7. Intercompany Payables. The Obligor shall not repay, and
each party to the Intercompany Payables agrees that it will not accept any
payment with respect to, any outstanding amounts under the Intercompany Payables
to the extent such amounts constitute Subordinated Hallmark Obligations from any
source other than (A) Free Cash Flow, (B) Equity Proceeds or (C) Subordinated
Obligations (as defined in the Indenture), to the extent, in the case of clause
(A) or (B) respectively, such Free Cash Flow or Equity Proceeds are (x) excluded
from the calculation of amounts available to make Restricted Payments pursuant
to Section 4.05 of the Indenture and (y) not used to reduce Hallmark Cards'
obligations to provide the Subordinated Support under Sections 6(c)(i) or
6(c)(ii) above.
11
8. Legend. The Subordinated Creditors and the Obligor will
cause each promissory note or other instrument evidencing any of the
Subordinated Hallmark Obligations, any replacement thereof and any mortgage or
security document relating thereto to include or have endorsed thereon the
following provision, in addition to any other similar provision thereon:
"The indebtedness evidenced by this instrument is subordinated
to other indebtedness pursuant to, and to the extent provided
in, and is otherwise subject to the terms of, the
Subordination and Support Agreement, dated as of December 17,
2001, as amended or supplemented by and among Crown Media
Holdings, Inc., various of its Subsidiaries, Crown Media
Trust, Hallmark Cards Incorporation, JPMorgan Chase Bank, as
Indenture Trustee and the holders of the Certificates named
therein."
9. Negative Covenants of the Subordinated Creditors. So long
as any of the Senior Obligations shall remain outstanding, the Subordinated
Creditors will not, without the prior written consent of the Indenture Trustee:
(a) sell, assign, pledge, encumber or otherwise dispose of any
instrument evidencing the Subordinated Hallmark Obligations or any collateral
securing the Subordinated Hallmark Obligations unless such sale, assignment,
pledge, encumbrance or other disposition is made expressly subject to this
Agreement and the other party to such sale, assignment, pledge, encumbrance or
other disposition consents in writing to be bound by the terms hereof;
(b) permit the terms of the Subordinated Obligation Documents
or collateral securing any Subordinated Hallmark Obligations to be changed in
any way which would limit or impair these subordination provisions, or accept
any collateral;
(c) declare all or any portion of the Subordinated Hallmark
Obligations due and payable prior to the date fixed therefor or realize upon, or
otherwise exercise any remedies with respect to, any collateral securing the
Subordinated Hallmark Obligations or take any other action described in Section
2 hereof; or
(d) commence, or join with any entity other than the holders
of Senior Obligations or lenders under the Credit Agreement in commencing, any
proceeding referred to in subsection (a) of Section 4 hereof.
10. Obligations Unconditional. All rights and interests of the
holders of Senior Obligations hereunder, and all agreements and obligations of
the Subordinated Creditors, the Obligor and the Obligor Subsidiaries hereunder,
shall remain in full force and effect irrespective of:
12
(a) any lack of validity or enforceability of any Senior
Obligation Document or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Obligations, or any other
amendment or waiver of or any consent to departure from any document evidencing
Senior Obligations;
(c) any exchange, release or nonperfection of any collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Senior Obligations; or
(d) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, either the Obligor or any Subsidiary of
the Obligor in respect of the Senior Obligations or of the Subordinated
Creditors, the Obligor or any Subsidiary of the Obligor in respect of this
Agreement other than the payment in full of the Senior Obligations.
11. Subordination to Senior Indebtedness. All payments by the
Obligor or any Subordinated Creditor (a) to the Indenture Trustee for the
benefit of the holders of Senior Indebtedness or to other holders of Senior
Obligations pursuant to this Agreement shall be subordinated and junior in right
of payment to the prior payment in full of all "Senior Indebtedness" (as defined
in the Indenture) of the Obligor, whether outstanding on the date hereof or
thereafter incurred, to the extent and in the manner set forth in Article XIII
of the Indenture with respect to the Debentures issued pursuant thereto, and (b)
to the holders of Certificates pursuant to this Agreement shall be subordinated
in right of payment to the same extent as set forth in Article XII of the
Contingent Appreciation Certificate Agreement.
12. Representations and Warranties. Hallmark Cards represents
and warrants as follows:
(a) Enforceability. This Agreement has been duly and validly
authorized by Hallmark Cards and, when duly executed and delivered by each of
Hallmark Cards and the other parties thereto, will be the valid and binding
obligation of Hallmark Cards, enforceable against Hallmark Cards in accordance
with its terms, except (i) as may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or
similar laws affecting creditors' rights and remedies generally and (ii) as to
general principles of equity, regardless of whether the same is sought in a
proceeding at law or in equity.
(b) No Conflicts. The execution, delivery and performance of
this Agreement by Hallmark Cards and its subsidiaries, the compliance by
Hallmark Cards and its subsidiaries with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as have been obtained or made
by Hallmark Cards), (ii) conflict with or constitute a
13
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Hallmark Cards of any of its Significant Subsidiaries (as defined
in Regulation S-X); or (iii) any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which Hallmark Cards or any of its Subsidiaries
is a party or by which Hallmark Cards or any of its subsidiaries or their
respective property is bound; except in the case of clauses (i) through (iii),
as would not have a material adverse effect on the business, prospects,
financial condition or results of operations of Hallmark Cards and its
subsidiaries taken as a whole or on the ability of Hallmark Cards to perform its
obligations under this Agreement.
(c) No Disposition of Shares. Except as disclosed on Schedule
12(c) hereto, during the 30 consecutive Business Days immediately preceding the
date hereof, neither Hallmark Cards nor any affiliate thereof has purchased,
acquired, sold, transferred, conveyed, mortgaged or otherwise disposed of, or
undertaken, agreed or promised (whether orally or in writing) to acquire,
purchase, sell, transfer, convey, mortgage or otherwise dispose of (i) any
shares of Class A Common Stock, par value $0.01 (the "Common Stock"), of the
Obligor, (ii) any option, warrant, convertible or derivative security or
instrument, exercisable to, convertible into, or exchangeable for, Common Stock
or (iii) any other right in respect of any Common Stock.
13. Further Assurances. The Subordinated Creditors, the
Obligor and any Subsidiaries of the Obligor that become subject to the
provisions of this Agreement will, at their own expense and at any time and from
time to time, promptly execute and deliver all further instruments and
documents, and take all further action that the Indenture Trustee or other
Persons authorized hereunder may reasonably request, in order to perfect or
otherwise protect any right or interest granted or purported to be granted
hereby or to enable the Indenture Trustee or such other Persons authorized
hereunder to exercise and enforce their rights and remedies hereunder.
14. Expenses. The Obligor agrees to pay to the Indenture
Trustee or such other Persons authorized to enforce rights or interests
hereunder, the amount of any and all reasonable expenses of counsel, one lead
counsel and any requisite local counsel, which it may incur in connection with
the exercise or enforcement of any of its rights or interests hereunder,
provided that, notwithstanding the foregoing, the Obligor shall only be
obligated to pay the expenses of one lead counsel and any requisite local
counsel.
15. Notice. All demands, notices and other communications
which any party hereto may desire or may be required to give to any other party
hereunder shall be in writing (including telegraphic communication) and shall be
mailed, telecopied, telegraphed or delivered to such other party at its address
as follows:
14
(a) to the Obligor at:
Crown Media Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) to the Subordinated Creditors at:
Hallmark Cards Incorporated
2501 ▇▇▇▇▇, P.O. 419126, Mail Drop # 339
Kansas City, MO 64108
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) To the Trust at:
Crown Media Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(d) To the Indenture Trustee or the Property Trustee at:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Institutional Trust Services
or to the holders of Certificates at the corresponding address set forth with
their respective names on the signature pages hereto and any such party at such
other address as shall be designated by such party in a written notice to each
other party, complying as to delivery with the terms of this Section 13. All
such demands, notices, and other communications shall be effective when received
or five business days after mailing, whichever is earlier.
16. Service of Process. THE SUBORDINATED CREDITORS (A) HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW
YORK AND THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT
BY THE AGENT OR ITS SUCCESSORS OR ASSIGNS AND (B) HEREBY WAIVE AND AGREE NOT TO
15
ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION
OR PROCEEDING, ANY CLAIM THAT THEY ARE NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT THEIR PROPERTY IS EXEMPT OR IMMUNE
FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED
IN OR BY SUCH COURT, AND (C) HEREBY WAIVE IN ANY SUCH ACTION, SUIT OR PROCEEDING
ANY OFFSETS OR COUNTERCLAIMS (EXCEPT FOR COMPULSORY COUNTERCLAIMS). THE
SUBORDINATED CREDITORS AND THE OBLIGOR AND ANY SUBSIDIARIES OF THE OBLIGOR THAT
BECOME SUBJECT TO THE TERMS OF THIS AGREEMENT HEREBY CONSENT TO SERVICE OF
PROCESS BY REGISTERED MAIL AT THE ADDRESS TO WHICH NOTICES ARE TO BE GIVEN. THE
SUBORDINATED CREDITORS AGREE THAT SUBMISSION TO JURISDICTION AND CONSENT TO
SERVICE OF PROCESSES BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE HOLDERS OF
SENIOR OBLIGATIONS. FINAL JUDGMENT AGAINST THE SUBORDINATED CREDITORS IN ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A CERTIFIED OR
TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF
ANY INDEBTEDNESS OR LIABILITY OF THE SUBORDINATED CREDITORS THEREIN DESCRIBED,
OR (B) IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH OTHER
JURISDICTION; PROVIDED, HOWEVER, THAT THE HOLDERS OF SENIOR OBLIGATIONS MAY AT
THEIR OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS, AGAINST THE
SUBORDINATED CREDITORS OR ANY OF THEIR ASSETS IN ANY ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR OF ANY COUNTRY OR PLACE WHERE THE SUBORDINATED CREDITORS OR
THEIR ASSETS MAY BE FOUND.
17. Miscellaneous.
(a) No amendment of any provision of this Agreement shall be
effective unless it is in writing and signed by the Subordinated Creditors, the
Obligor, the Indenture Trustee and the holders of at least a majority of the
Certificates then outstanding, and no waiver of any provision of this Agreement,
and no consent to any departure therefrom, shall be effective unless it is in
writing and signed by the Indenture Trustee and the holders of at least a
majority of the Certificates then outstanding, and any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
16
(b) No failure on the part of the holders of Senior
Obligations to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or invalidity without invalidating
the remaining portions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(d) This Agreement shall be binding on the Subordinated
Creditors, the Obligor and the Subsidiaries of the Obligor, and their respective
successors and assigns including without limitation any holders of the
instruments evidencing the Subordinated Hallmark Obligations.
(e) This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts to be
fully performed within the State of New York.
(g) Hallmark Cards agrees that it shall take whatever action
is necessary to bind each of the Subordinated Creditors to the terms of this
Agreement including, but not limited to, obtaining the agreement of such other
Subordinated Creditors to the Submission to Jurisdiction provisions contained in
Section 14 hereof. Hallmark Cards agrees to be responsible to the holders of the
Senior Obligations for the performance by the other Subordinated Creditors of
their obligations hereunder.
(h) The Obligor agrees that it shall take whatever action is
necessary to bind each of its Subsidiaries that become obligated under any of
the Subordinated Hallmark Obligations to the terms of this Agreement including,
but not limited to, obtaining the agreement of such Subsidiaries to the
Submission to Jurisdiction provisions contained in Section 14 hereof. The
Obligor agrees to be responsible to the holders of the Senior Obligations for
the performance by its Subsidiaries of their obligations hereunder.
(i) This Agreement is intended for the sole benefit of the
holders of the Senior Obligations, including the Indenture Trustee, the Trust,
any other holders of the Debentures, the holders of the Preferred Securities and
the holders of the Certificates, and their respective successors and assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other Person, any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. Nothing in this Agreement shall
require or permit any action to be taken or power to be held that is
inconsistent with the status of the Trust as a "grantor trust" for United States
federal income tax purposes.
17
IN WITNESS WHEREOF, the Company, the Trust, Hallmark Cards,
the Indenture Trustee, the Property Trustee and each Investor have executed this
Subordination and Support Agreement as of the day and year first above written.
CROWN MEDIA HOLDINGS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CROWN MEDIA TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Regular Trustee
HALLMARK CARDS, INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President - General Counsel
JPMORGAN CHASE BANK, as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇▇
Title: Vice President
18
JPMORGAN CHASE BANK, as Property Trustee
By: /s/ ▇▇▇▇▇ ▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇▇
Title: Vice President
19
INVESTORS
FARALLON CAPITAL PARTNERS, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS II, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
20
FARALLON CAPITAL INSTITUTIONAL PARTNERS III, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
RR CAPITAL PARTNERS, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
21
DLJ INVESTMENT PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Principal
DLJ INVESTMENT PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Principal
DLJIP II Holdings, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Principal
22
TORONTO DOMINION INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
23
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
SIGNATURE 5 L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
24
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director - Private Placement
25
NEW YORK LIFE INSURANCE COMPANY
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Investment Vice President
26
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Signatories
27
MAGNETITE ASSET INVESTORS III L.L.C.
By: BLACKROCK FINANCIAL MANAGEMENT, INC.
As Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
MAGNETITE ASSET INVESTORS L.L.C.
By: BLACKROCK FINANCIAL MANAGEMENT, INC.
As Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUND, L.P.
By: MLIM DivPEP I, LLC, its
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
By: /s/ Piers ▇. ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: Piers ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC, its managing
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration &
Management Ltd., its general partner
By: /s/ Piers ▇. ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: Piers ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ FUND, L.P.
By: MLIM DivPEP I, LLC, its
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
By: /s/ Piers ▇. ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: Piers ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC, its managing
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
By: /s/ Piers ▇. ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: Piers ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
30
PASSAGE PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC, its managing
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
By: /s/ Piers ▇. ▇. ▇▇▇▇▇▇
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Name: Piers ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
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MONY LIFE INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Agent
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Acknowledged and Agreed to as of the date set forth above.
HC Crown Corporation
By:
-------------------------
Name:
Title:
HALLMARK ENTERTAINMENT DISTRIBUTION, LLC
By:
-------------------------
Name:
Title:
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EXHIBIT A:
Form of
PROMISSORY NOTE
Amount: $75,000,000 Date: As of December 17, 2001
Wilmington,
Delaware
SECTION 1. SUBORDINATION.
The indebtedness evidenced by this instrument is subordinated
to other indebtedness pursuant to, and to the extent provided in, and is
otherwise subject to the terms of each of (a) the
Subordination and Support
Agreement dated as of August 31, 2001, as amended or supplemented by and among
Crown Media Holdings, Inc., a
Delaware company (the "Company"), various of its
subsidiaries, JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank),
as Agent for various Lenders and the Issuing Bank, and Hallmark Cards,
Incorporated (the "Bank Subordination Agreement") and (b) the
Subordination and
Support Agreement dated as of December 11, 2001 by and among the Company,
various of its subsidiaries, Crown Media Trust, Hallmark Cards, Incorporated and
JPMorgan Chase Bank, as the trustee under the Indenture (defined below) and
other parties signatory thereto ("
Subordination and Support Agreement"). Even
though HC Crown Corp., a
Delaware corporation ("HC"), is not a signatory to the
Bank Subordination Agreement, it agrees to be bound by the terms thereof as if
it were a "Subordinated Creditor" as that term is defined in the Bank
Subordination Agreement and as if the obligations of the Company pursuant to
this Promissory Note were explicitly enumerated as being included in the
Subordinated Obligations as defined in the Bank Subordination Agreement.
SECTION 2. PROMISE TO PAY.
For value received, the Company and those Guarantors signatory
hereto ("Guarantors"), hereby promise to pay to the order of HC, at such place
as HC may, from time to time specify in writing, the principal amount
outstanding under this Note together with all fees and accrued interest no later
than the Maturity Date and in accordance with Section 6 hereof.
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SECTION 3. DEFINITIONS.
"Affiliate" means, with respect to any party, any entity which
directly or indirectly holds a controlling interest in, is controlled by or
under common control with such party.
"Applicable Interest Rate" means for any day with respect to
any LIBOR loan, the amount set forth in Section 5 hereof.
"Bank Facility" means that certain Credit, Security, Guaranty
and Pledge Agreement of the Company with JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank) as Agent, and certain Lenders identified therein dated
as of August 31, 2001 as amended or supplemented.
"Company" has the meaning specified in Section 1 hereof.
"Debentures" means the debentures authenticated and delivered
pursuant to the Indenture.
"Equity Proceeds" has the meaning specified in the
Subordination and Support Agreement.
"Free Cash Flow" has the meaning specified in the
Subordination and Support Agreement.
"HC" has the meaning specified in Section 1 hereof.
"Indebtedness" means all obligations of borrowed money
(including capital leases, notes payable and letters of credit) of the Company,
its subsidiaries, or of any acquired business (without duplication) including
contingent liabilities.
"Indenture" means that certain Indenture dated as of December
11, 2001 between the Company and JPMorgan Chase Bank as Trustee, whereby the
Company has issued its 6.75% Subordinated Debentures due 2007.
"LIBOR" means the three month rate published the first day of
each quarter in the Wall Street Journal.
"Limited Guarantee" has the meaning specified in the Bank
Facility.
"Maturity Date" means the earlier of (x) December 21, 2007,
(y) such time as the Maximum Amount has been reduced to zero and (z) six months
subsequent to the later of the date of the redemption of the Debentures and the
payment of Certificates and the termination of the commitments and all
obligations under the Bank Facility.
"Maximum Amount" means as of the time of any computation,
$75,000,000 less the sum of (i) any loan amounts previously advanced to the
Company and still outstanding under this Note, (ii) any amounts the Company
receives under the Replacement Hallmark Cards Letter of Credit and any amounts
advanced under the
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Limited Guarantee, (iii) Free Cash Flow applied in the manner permitted by
Section 6(c) of the Subordination and Support Agreement to reduce the commitment
hereunder, (iv) Equity Proceeds applied in the manner permitted by Section 6(c)
of the Subordination and Support Agreement to reduce the commitment hereunder
and (v) any portion of the Note refinanced with any indebtedness which is
subordinate or junior in right of payment to all obligations under the Bank
Facility and the Debentures and the Contingent Appreciation Certificates
(pursuant to a written agreement to that effect executed by the Person to whom
such indebtedness is owed). HC shall have no obligation to make loans under this
Note in an amount in excess of the Maximum Amount. To the extent that the
Maximum Amount decreases subsequent to the making of any loans hereunder, the
amount by which the outstanding principal amount of the loans exceeds the
Maximum Amount shall be subject to repayment to the extent allowed by the terms
of the Bank Subordination Agreement and the Subordination and Support Agreement.
"Replacement Hallmark Cards Letter of Credit" has the meaning
specified in the Bank Facility.
SECTION 4. USE OF PROCEEDS.
The proceeds of this Note shall be used: (i) to acquire,
distribute and market film and television related properties, and (ii) for
general corporate purposes.
SECTION 5. AVAILABILITY.
HC agrees to make the Maximum Amount available to the Company
in accordance with the terms hereof only at such time as the Company shall have
borrowed all amounts then available to it under the Bank Facility (giving effect
to all of the conditions precedent, restrictions and other terms of the Bank
Facility).
SECTION 6. INTEREST.
SECTION 6.1 Loans provided hereunder shall bear interest at a
rate equal to LIBOR plus three percent (3%). Interest shall be payable quarterly
as defined in Section 7.1. Upon the occurrence of an Event of Default, the
Applicable Interest Rate plus 2% per annum shall apply on all outstanding loans.
SECTION 6.2 All calculations of interest and fees shall be
made on the basis of actual number of days elapsed in a 360-day year.
SECTION 6.3 In the event the interest provisions of this Note
shall result, because of (a) the reduction of principal, or (b) any other reason
related or unrelated to such interest provisions at any time during the life of
the loan or any combination of (a) and (b), in an effective rate of interest
which, for any period of time, exceeds the limits of the usury laws or any other
law applicable to the loan evidenced hereby, all sums in excess of those
lawfully collectible as interest for the period in question shall, without
further agreement or notice between or by any party hereto, be applied to
principal
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immediately upon receipt of such monies by HC with the same force and effect as
though the Company had specifically designated such extra sums to be so applied
to principal and HC had agreed to accept such extra payment(s) as a premium-free
prepayment.
SECTION 7. REPAYMENT AND MANDATORY PREPAYMENT.
SECTION 7.1 The obligation evidenced by this Note shall be
repaid on the basis of interest only installments. Such payments shall accrue as
of the end of each calendar quarter occurring during the term hereof and shall
be paid on or before forty-five (45) days after the end of each such calendar
quarter. The Company shall pay to HC a single principal payment (together with
all accrued and unpaid interest) on the Maturity Date, if not previously paid.
SECTION 7.2 To the extent permitted by the Bank Facility and
the Subordination and Support Agreement, the Company shall have the obligation
within five (5) days of receipt thereof to apply any Free Cash Flow and Equity
Proceeds realized since the date hereof to (i) prepay any outstanding balance of
this Note or (ii) reduce the Maximum Amount hereunder by such amount by delivery
of a written notice to that effect. Such mandatory prepayment shall be without
premium or penalty and the Company shall not be entitled to reborrow such
amounts.
SECTION 7.3 The Company shall have the privilege at any time
and from time to time, to prepay this Note in whole or in part without premium
or penalty to the extent permitted by the Bank Subordination Agreement, the Bank
Facility and the Subordination and Support Agreement.
SECTION 8. FEES.
In consideration of the loans provided hereunder, the Company
agrees to pay to HC a commitment fee of one and one-half percent (1.5%) of the
initial Maximum Amount, which at the Company's option may be paid in common
stock of the Company which shall be valued at the average closing price of the
common stock for the fifteen trading days prior to the date the fee is due. The
fee shall be payable in arrears in four equal installments on the last business
day of each of March, June, September and December 2002.
SECTION 9. COVENANTS.
The Company shall deliver to HC not later than 45 days after
the end of each fiscal quarter and not later than 90 days in the event of the
fiscal year end:
(i) A consolidated balance sheet of the Company and its
subsidiaries as of the end of the most recently ended fiscal
year together with the consolidated statements of income,
shareholder's equity, and cashflows corresponding to the same;
and
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(ii) A balance sheet of the Company as of the end of the most
recently ended fiscal quarter (together with the consolidated
statements of income, shareholder's equity, and cashflows
corresponding to such period), and, if HC so requests, each
such statement shall be certified by the chief financial
officer or the chief accounting officer of the Company as to
fairness of presentation, generally accepted accounting
principles and consistency (subject only to normal year-end
adjustments).
SECTION 10. EVENTS OF DEFAULT.
Subject to the terms of the Subordination and Support
Agreement referred to in Section 1 above, each of the following shall constitute
an event of default hereunder (an "Event of Default"):
(i) The failure of the Company to make any payment of interest
hereunder when the same is due and payable or to pay the
principal balance in the lump sum or balloon payment when the
same is due and payable (except when such payment is
prohibited by the Bank Subordination Agreement, the Bank
Facility or the Subordination and Support Agreement), and such
failure to pay continues for a period of five (5) days or more
after written notice thereof from HC;
(ii) The Company shall be in default with respect to the Bank
Facility or the Indenture and such default could accelerate
the maturity of the indebtedness thereunder and such default
is not cured or waived within the grace period provided
therein.
SECTION 11. REMEDIES.
Subject to the terms of the Subordination and Support
Agreement, upon the occurrence of an Event of Default and at any time thereafter
during the continuance of such Event of Default hereunder, HC shall have the
right to declare the entire unpaid amount of principal and interest hereunder
immediately due and payable in full without presentation, demand or protest,
each of which is hereby waived by the Company and Guarantors.
SECTION 12. WAIVERS.
SECTION 12.1 The failure by HC to exercise any right or remedy
available hereunder in the Event of Default shall in no event be construed as a
waiver or release of the same. Likewise, HC shall not, by any act or omission or
commission, be deemed to waive any right hereunder unless such waiver is
evidenced in writing and signed by HC, and then only to the extent specifically
set forth in such writing. Moreover, a waiver with
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respect to any one event shall not be construed as continuing or as a bar to or
waiver of HC's rights or remedies with respect to any subsequent event.
SECTION 12.2 The Company and Guarantors expressly waive
presentment for payment, notice of dishonor, protest, notice of protest,
diligence of collection, and each other notice of any kind, and hereby consent
to any number of renewals or extensions of time for payment hereof, which
renewals and extensions shall not affect the liability of the Company.
SECTION 12.3 The Company and Guarantors hereby waive and
release all errors, defects and imperfections in any proceeding instituted by HC
under the terms hereof as well as all benefits that might accrue to the Company
or Guarantors by virtue of any present or future laws exempting any property,
real, personal or mixed, or any part of the proceeds arising from any sale of
such property, from attachment, levy or sale under execution, or providing for
any stay of execution, exemption from civil process, or extension of time for
payment; and the Company and Guarantors agree that any real estate that may be
levied upon pursuant to a judgment obtained by virtue hereof, or any writ of
execution issued thereon, may be sold upon any such writ in whole or in part or
in any other manner desired by HC.
SECTION 13. NOTICES.
Each notice required to be given to any party hereunder shall
be in writing and shall be deemed to have been sufficiently given for all
purposes when sent by certified or registered mail, return receipt requested, to
the party at its respective address as follows:
COMPANY: Crown Media Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
HC: HC Crown Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Controller
SECTION 14. ASSIGNABILITY.
This Agreement shall be binding upon and inure to the benefit
of the Company and HC and their respective successors and assigns; provided,
however, that this Agreement, or any portion thereof, may not be assigned by the
Company without the written consent of HC.
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SECTION 15. MODIFICATIONS.
This Note may be modified only in a writing signed by the
Company and HC. Any amendment, extension of time or any other modification shall
not affect Guarantors' obligations hereunder.
SECTION 16. GOVERNING LAW.
This Note shall be governed by and construed according to the
laws of the State of
Delaware without regard to the conflict of laws provisions
thereof.
SECTION 17. HEADINGS.
The heading preceding the text of each Section hereof is
inserted solely for convenience of reference and shall not constitute a part of
this Note, nor shall the same affect the meaning, construction of effect hereof.
SECTION 18. SEVERABILITY.
If any provision of this Note or the application thereof is
declared by a court of competent jurisdiction to be invalid or unenforceable,
the remaining provisions hereof shall be unaffected and remain valid and
enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned officers have executed
this Note as of the day and year first above written thereby legally binding
such party to the terms hereof.
HC CROWN CORP. CROWN MEDIA HOLDINGS, INC.
By By
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Name: Name:
------------------------ ---------------------------
Title: Title:
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CROWN MEDIA INTERNATIONAL, INC. CROWN MEDIA UNITED STATES, LLC
By By
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Name: Name:
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Title: Title:
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