SCHEDULE to the 2002 Master Agreement dated as of July 20, 2010 between HSBC BANK USA, NATIONAL ASSOCIATION (Party A) and CINEDIGM DIGITAL FUNDING I LLC (Party B) Part 1 Termination Provisions

(a)

 

Section 5(a)(v),

None Specified

 

Section 5(a)(vi),

None Specified

 

Section 5(a)(vii),

None Specified

 

Section 5(b)(v),

None Specified

 

and in relation to Party B for the purpose of:

 

Section 5(a)(v),

None Specified

 

Section 5(a)(vi),

None Specified

 

Section 5(a)(vii),

None Specified

 

Section 5(b)(v),

None Specified

(b)

“Specified Transaction” will have the meaning specified in Section 14 of this Agreement.

(c)

The “Cross Default” provisions of Section 5(a)(vi) will not apply to Party A and will not apply to Party B.

(d)

The “Credit Event Upon Merger” provisions of Section 5(b)(v) will not apply to Party A and will not apply to Party B.

(e)

The “Automatic Early Termination” provision of Section 6(a) will not apply to Party A and will apply to Party B.

(f)

“Termination Currency” means United States Dollars.

(g)

Additional Termination Events.  Each of the following will constitute an Additional Termination Event:

 

(i)

Either (x) Party A has assigned its obligations hereunder to General Electric Capital Corporation (“GE Capital”), or (y) Party A receives a written request from GE Capital to assign its rights and obligations hereunder to GE Capital (and such Additional Termination Event will not be discharged by assignment by Party A).  For the purposes of the foregoing Additional Termination Events the Affected Party will be Party B.

 

(ii)

At any time prior to an assignment to GE Capital, the rating issued by Standard & Poor’s Rating Services, a division of The McGraw Hill Companies, Inc. (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”) with respect to the long-term unsecured, unsubordinated debt securities and the short-term unsecured debt securities (together “Debt Securities”) of Party A, or, with respect to Party B, GE Capital (in which case the applicable party, as between Party A or Party B, will be the Affected Party) is below “A-” and “A-1,” in the case of S&P, or is bel ow “A3” and “P-1”, in the case of Moody’s, or ceases to be rated by Moody’s or S&P (a “Ratings Event”), then Party B, where Party A is the Affected Party, or Party A, where the Party B is the Affected Party (such party, as the case may be, the Non-Affected Party), will have the right, (A) by written notice, to request that the Affected Party transfer all its rights and obligations under all Affected Transactions within 30 days after the date of effectiveness of such notice to a third party acceptable to the Non-Affected Party, the Debt Securities of which third party are rated “AA-” and “A-1” or above in the case of S&P and “Aa3” and “P-1” or above in the case of Moody’s, (B) to give notice of an Early Termination Date in respect of all Affected Transactions or (C) to take neither of the actions specified in clauses (A) and (B) of this paragraph, in which case such failure or delay on the part of the Non-Affected Party in exercising any of such rights) shall not operate as a waiver thereof nor preclude any further exercise of such rights.  The Affected Party will pay all reasonable costs (including all legal fees) incurred by the Non-Affected Party in connection with any transfer effected pursuant to Part 1(g)(ii)(A) above.  In the event a transfer as requested by the Non-Affected Party pursuant to clause (A) of this paragraph has not been effected with respect to all Affected Transactions within 30 days after the date of effectiveness of the notice described therein, then the Non-Affected Party may , provided the Ratings Event is still continuing, designate a day not earlier than the day such notice is effective under this Agreement as an Early Termination Date in respect of all Affected Transactions.

(a)

Payer Tax Representations.  For the purpose of Section 3(e) of this Agreement, Party A and Party B each make the following representation:

 

(i)

the accuracy of any representations made by the other party pursuant to Section 3(f) of this Agreement;

 

(ii)

the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement; and

 

(iii)

the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement,

(b)

Payee Tax Representations.  For the purpose of Section 3(f) of this Agreement, Party A and Party B each make the following representations, as applicable:

 

(i)

Party A makes the following representations:

 

(ii)

Party B makes the following representation:

(a)

Party A

A correct, complete and duly executed United States Internal Revenue Service Form W-9 (or successor thereto); provided, that in the event Party A shall have assigned this Agreement and the Transaction(s) to GE Capital, GE Capital shall deliver Form W-9 (or successor thereto)

(i) Upon execution of the Agreement, (ii) promptly upon learning that any Form W-9(or any successor thereto) has become obsolete or incorrect and (iii) upon reasonable request of Party B

Party B

A correct, complete and duly executed United States Internal Revenue Service Form W-9 (or successor thereto)

(i) Upon execution of the Agreement, (ii) promptly upon learning that any Form W-9 (or any successor thereto) has become obsolete or incorrect and (iii) upon reasonable request of Party A

(b)

In addition, Party A and Party B each agree to deliver or cause to be delivered as soon as practicable after execution of this Agreement, the following documents which shall each be covered by the Section 3(d) representation:

 

(i)

A certificate of an authorized officer for such party or other writing reasonably satisfactory to the other party evidencing the position, names and true signatures of the person or persons authorized to sign this Agreement.

 

(ii)

Certified copies of documents (including any board of director approvals) evidencing each action taken by Party B to authorize its execution of this Agreement and the performance of its obligations hereunder.

 

(iii)

Upon request, annual audited financial statements from Party B prepared in accordance with generally accepted accounting principles in the country in which the entity to which they relate is organized.

(a)

Notices.  For the purpose of Section 12(a) of this Agreement:

Party A:

Address:

 

 

Attention:

 

Telephone:

 

HSBC Bank USA, National Association

452 Fifth Avenue

New York, NY  10018

Legal Department

 

212 ###-###-####

 

Party A:

Address:

 

 

Attention:

 

Telephone:

 

Cinedigm Digital Funding I LLC

55 Madison Avenue, Suite 300

Morristown, NJ  07960

Adam Mizel

 

646 ###-###-####

 

And copies to:

Address:

 

 

 

Attention:

 

Telephone:

Facsimile:

General Electric Capital Corporation

201 High Ridge Road

Stamford, CT 06840

 

Joseph Louis - Senior Analyst, Operations (IRM Program)

 

(203) 357 4000

(203) 357 6609

 

And a copy to:

Address:

 

 

 

Attention:

 

Telephone:

Facsimile:

General Electric Capital Corporation

201 High Ridge Road

Stamford, CT 06927

 

General Counsel - Treasury

 

(203) 961-5077

(203) 357-3490

 

And a copy to:

Address:

 

 

 

Attention:

 

Telephone:

Facsimile:

 

GE Corporate Financial Services

One Beacon Street, 4th Floor

Boston, MA  02108-3107

 

Thomas Corcoran

 

(617) 973-4076

(617) 378-6599

(b)

Process Agent.  For the purpose of Section 13(c) of this Agreement:

 

(i)

Party A does not appoint a Process Agent.

 

(ii)

Party B does not appoint a Process Agent.

(c)

Offices.  The provisions of Section 10(a) of this Agreement shall apply to this Agreement.

(d)

 

(i)

Party A is not a Multibranch Party.

 

(ii)

Party B is not a Multibranch Party.

(e)

Calculation Agent.  The Calculation Agent shall be Party A.

(f)

Credit Support Document.  Details of any Credit Support Document:

 

(i)

With respect to Party A, Not Applicable.

 

(ii)

With respect to Party B, the Master Assignment Agreement between GE Capital and Party A.

(g)

 

(i)

With respect to Party A, Not Applicable

 

(ii)

With respect to Party B, GE Capital.

(h)

Governing Law.  This Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine.

(i)

Netting of Payments.  “Multiple Transaction Payment Netting” will apply for the purpose of Section 2(c) of this Agreement to all Transactions (in each case starting from the date of this Agreement).

(j)

“Affiliate” will have the meaning specified in Section 14 of this Agreement.

(k)

Absence of Litigation.  For the purpose of Section 3(c).

(l)

No Agency.  The provisions of Section 3(g) will apply.

(m)

Additional Representations.  Additional Representations will apply. For the purpose of Section 3 of this Agreement, each of the following will constitute an Additional Representation:

 

(i)

Relationship Between Parties.  Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between

 

Non-Reliance.  It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary.  It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction will not be considered investment advice or a recommendation to enter into that Transaction.  No confirmation (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of that Transaction.

 

Assessment and Understanding.  It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction, including the potential incurrence of breakage costs in the event of a voluntary early termination of that Transaction.  It is also capable of assuming, and assumes, the financial and other risks of that Transaction.

 

Status of Parties.  The other party is not acting as a fiduciary for or an advisor to it in respect of the Transaction.

 

(ii)

Eligible Contract Participant. Each party represents to the other party on the date on which it enters into a Transaction that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act.

 

(iii)

Party B Additional Representation.  Party B represents on the date on which it enters into a Transaction that it is entering into the Transaction for the purposes of managing its borrowings or investments, hedging its underlying assets or liabilities or in connection with its business and not for purposes of speculation.

(n)

Recording of Conversations.  Each party (i) consents to the recording of telephone conversations between the trading, marketing and other relevant personnel of the parties in connection with this Agreement or any potential Transaction, and (ii) agrees to obtain any necessary consent of, and give notice of such recording to, its relevant personnel and (iii) agrees, to the extent permitted by applicable law, that recordings may be submitted in evidence in any Proceedings.

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

Transactions under this Agreement; Amendment.  No transaction shall be deemed a Transaction under or governed by this Agreement without the express written acknowledgment of GE Capital, which acknowledgment shall be set forth in the applicable Confirmation.  In addition to the provisions of Section 9(b) and except as provided in Part 5(i) below, no amendment, transfer or assignment of this Agreement or any Transaction hereunder shall be effective without the prior written acknowledgment of GE Capital.

(i)

(j)

 

 

 

 

 

 

By:

By:

Name:

Name:

Title:

Title:

Date:

Date: