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AMENDMENT NO. 4
dated as of March 2, 2009 (this “ Amendment
”) to the Credit, Security, Guaranty and Pledge Agreement,
dated as of January 12, 2006, as amended and restated as of
April 13, 2007, among RHI Entertainment, LLC (the “
Borrower ”), Parent, the Guarantors referred to
therein, the Lenders referred to therein and JPMorgan Chase Bank,
N.A., as Issuing Bank and as Administrative Agent for the Lenders
(the “ Administrative Agent ”) (as the same has
been amended, supplemented or otherwise modified from time to time
prior to this Amendment, the “ Credit Agreement
”).
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WHEREAS, the
Lenders have made available to the Borrower certain credit
facilities pursuant to the terms of the Credit
Agreement.
WHEREAS, the
Borrower deems it advisable to write down all or a substantial
portion of its goodwill as a result of Public Co.’s
publicly-traded common stock presently trading below a price
sufficient to support the Borrower carrying the full amount of such
goodwill as an asset on its consolidated balance sheet.
WHEREAS, the
Borrower, Parent, the Guarantors, the Required Lenders and the
Administrative Agent have agreed to amend the Credit Agreement, on
the terms and subject to the conditions hereinafter set
forth.
NOW THEREFORE, the
parties hereto hereby agree as follows:
SECTION
1. Defined Terms . Capitalized terms used herein and not
otherwise defined herein shall have the meaning given them in the
Credit Agreement (for the avoidance of doubt, as amended by this
Amendment).
SECTION
2. Amendments to the Credit Agreement Upon Amendment Effective
Date . Upon the occurrence of the Amendment Effective Date (as
set forth in Section 3 hereof), the following amendments are
hereby made to the Credit Agreement, with full force and effect as
of December 31, 2008:
(A) Section 1.1
of the Credit Agreement is hereby amended by:
(1) deleting
the definition of “Consolidated Net Income” appearing
therein and inserting in lieu thereof the following replacement
definition:
“
Consolidated Net Income ” shall mean, for any period
for which such amount is being determined, the consolidated net
income of such Person after taxes for such period in accordance
with GAAP; provided , however , that, without
duplication, (i) any net after-tax
income or loss
from discontinued operations and any net after-tax gain or loss on
disposal of discontinued operations shall be excluded,
(ii) any net after-tax gain or loss (less all fees and
expenses or charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary
course of business (as determined in good faith by the board of
directors of the Borrower) shall be excluded, (iii) any net
after-tax income or loss (less all fees and expenses or charges
relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded, (iv) any non-cash compensation
expense realized from or related to profit interest awards, grants
of stock appreciation or similar rights, stock options or other
rights to directors, officers and employees of the Borrower or any
of its Subsidiaries shall be excluded, (v) Consolidated Net
Income for such period shall not include the cumulative effect of a
change in accounting principles during such period,
(vi) solely for purposes of determining compliance with
Section 6.14 and the other provisions of the Credit Agreement
determined with reference to Section 6.14, Consolidated Net
Income for such period shall not include any impairment of goodwill
or any impairment or amortization of items included in the balance
sheet (in a manner not inconsistent with the Borrower’s
unaudited balance sheet as of December 31, 2008) as
“Intangible assets, net”, and (vii) Consolidated
Net Income shall not include any non-cash gains or non-cash losses
of the Borrower and its Subsidiaries relating to changes in fair
value of, and accounting related to, interest rate derivatives or
foreign exchange derivatives; provided , further, that for
purposes of determinations of Consolidated Net Income, it shall be
assumed that amounts actually paid or payable by the Borrower to
the Parent pursuant to Section 6.5(b)(i) were taxes expensed
by the Borrower.
(2) deleting
the definition of “Consolidated Net Worth” appearing
therein and inserting the following new definition in appropriate
alphabetical order:
“
Consolidated Tangible Net Worth ” shall mean: as at
any date of determination, the total member’s equity of the
Borrower and its consolidated Subsidiaries , less any
goodwill and any items included in the balance sheet (in a manner
not inconsistent with the Borrower’s unaudited balance sheet
as of December 31, 2008) as “Intangible assets,
net” of the Borrower and its consolidated Subsidiaries and
excluding the “Accumulated other comprehensive income
(loss)” component of member’s equity to the extent such
component is associated with non-cash gains or non-cash losses
relating to changes in fair value of, and accounting related to,
interest rate derivatives or foreign exchange derivatives, all as
determined in accordance with GAAP, provided , that Borrower
may (without duplication) add back to Consolidated Tangible Net
Worth the amount of any deductions therefrom relating to the fees,
premiums, penalties, costs and expenses arising out of refinancing
or repayment of the Facilities and the
2
Second Lien
Facility (including any applicable OID charges) from time to time
(including (x) such fees, premiums, penalties, costs and
expenses capitalized by the Borrower on or prior to
December 31, 2008 and being amortized over the term of the
Facilities or the Second Lien Facility, as applicable, and (y) the
retirement of all or a portion of the “Obligations” (as
defined in the Second Lien Agreement) in connection with the
Qualified IPO in June 2008 but not the fee paid to the Kelso
Group in exchange for terminating the Management
Agreement).
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