AMENDMENT NO. 1
dated as of August 7, 2008 (this
“ Amendment ”) to the Credit, Security, Guaranty
and Pledge
Agreement, dated as of June 23, 2008, among RHI Entertainment,
LLC
(the “ Borrower ”), the Guarantors referred to
therein, the
Lenders referred to therein and JPMorgan Chase Bank, N.A., as
Administrative Agent for the Lenders (in such capacity, the
“ Administrative Agent ”) (as the same has been
amended,
supplemented or otherwise modified from time to time prior to
this
Amendment, the “ Credit Agreement ”).
WHEREAS, the
Lenders have made available to the Borrower a term loan credit
facility pursuant to the terms of the Credit Agreement, and under
which $55,000,000 of Loans have heretofore been
extended.
WHEREAS, JPMorgan
Chase Bank, N.A.(in such capacity, the “ Incremental
Lender ”) has agreed to extend an Incremental Loan of
$20,000,000 to the Borrower as contemplated by Section 2.16 of
the Credit Agreement (referred to herein as the “
August 2008 Incremental Loans ”).
WHEREAS, the
Incremental Lender has requested that certain modifications be made
to the Credit Agreement beyond those authorized to be made by only
the Administrative Agent and the Borrower under an Incremental
Amendment in accordance with the extension of the August 2008
Incremental Loan.
WHEREAS, the
Borrower, the Agent, the Incremental Lender and each of the other
Lenders 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 . Subject to the satisfaction of the conditions precedent
set forth in Section 4 hereof:
(A) The
Introductory Statement to the Credit Agreement is hereby amended by
inserting the following new paragraph after the third paragraph
thereof:
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“Pursuant to
Amendment No. 1 (as defined herein), the Commitments under the
Facility have been increased from $55,000,000 to $75,000,000 in
connection with the contemplated extension of the August 2008
Incremental Loans (as defined herein).”
(B) Section 1.1
of the Credit Agreement is hereby amended by inserting the
following definitions in appropriate alphabetical order:
“
August 2008 Incremental Lender ” shall mean
JPMorgan Chase Bank, N.A., as the Lender which initially provided
the $20,000,000 of Commitments with respect to the August 2008
Incremental Loans.
“
August 2008 Incremental Loans ” shall mean the
Incremental Loans in the principal amount of $20,000,000
contemplated to be borrowed pursuant to Amendment
No. 1.
“
Amendment No. 1 ” shall have the meaning given to
such term in the Introductory Statement.
“
Named Kelso Entity ” or “ Named Kelso
Entities ” shall mean, individually or collectively as
appropriate, Kelso AIV VII, L.P., KEP VI AIV, LLC, Kelso Investment
Associates VII, L.P. and KEP VI, LLC
(C) Section 1.1
of the Credit Agreement is hereby further amended by deleting the
definitions of “Commitment” and “Eligible
Assignee” in their entirety and inserting the following
definitions in lieu thereof:
“
Commitment ” shall mean the commitment of each Lender
to make a Loan to Borrower on the Closing Date, and the commitment
of the August 2008 Incremental Lender to make a Loan to the
Borrower on the Extension Date (as defined in Amendment
No. 1), in the amount set forth opposite its name under column
entitled “Second Lien Loan Commitment” in Schedule of
Commitments appearing in Schedule I.”
“
Eligible Assignee ” shall mean (i) a commercial
bank organized under the laws of the United States of America, or
any State thereof, and having total assets in excess of
$1,000,000,000, (ii) a savings and loan association or savings
bank organized under the laws of the United States of America, or
any State thereof, and having a net worth of at least $100,000,000,
calculated in accordance with GAAP, (iii) a commercial bank
organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development
(“OECD”), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000;
provided, that such bank is acting through a branch, subsidiary or
agency located in the country in which it is organized or another
country which is also a member of the OECD, (iv) the central
bank of any country which is a
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member of the
OECD, (v) a financial institution, insurance company or fund
which regularly engages in making, purchasing or otherwise
investing in commercial loans, (vi) a “Qualified
Institutional Buyer”, as defined in Rule 144A under the
Securities Act of 1933, (vii) an Approved Fund,
(viii) any other Person consented to by the Borrower (which
consent shall not be unreasonably withheld or delayed and which
consent shall not be required if an Event of Default shall have
occurred and be continuing) and the Administrative Agent or
(ix) with respect to assignments by the August 2008
Incremental Lender of the August 2008 Incremental Loans, any
Named Kelso Entity.”
(D) Section 2.10(a)
of the Credit Agreement is hereby amended by inserting the
following language immediately prior to the period at the end of
the penultimate sentence thereof:
“
provided , that such prepayment premium shall not be payable
in connection with any voluntary prepayment allocable to the
August 2008 Incremental Loans while such Loans are held by the
August 2008 Incremental Lender (but a prepayment premium shall
be payable to any other Lender which from time to time holds any of
the August 2008 Loans with respect to any prepayment of all or
any portion of the Loans prior to the first anniversary of the
Closing Date allocable on a pro rata basis to the August 2008
Incremental Loans”
(E) Section 2.13
of the Credit Agreement is hereby amended by inserting the
following language immediately prior to the period appearing at the
end of the first sentence thereof:
“
provided , payments of principal shall (so long as no Event
of Default has occurred and is continuing, at which times this
proviso shall have no force or effect) be applied, to the extent
that the August 2008 Incremental Lender (or any Named Kelso
Entity) continues to hold any August 2008 Incremental Loans, first
to the repayment of the August 2008 Incremental Loans held by
the August 2008 Incremental Lender or by a Named Kelso Entity
(but not to any other Lender holding the August 2008
Incremental Loans) until they have been reduced to
zero”
(F) Section 5.18
of the Credit Agreement is hereby amended by inserting the
following sentence at the end thereof:
“Use the proceeds of the
August 2008 Incremental Loans for the Borrower’s general
working capital purposes (including to repay borrowings under the
First Lein Agreement) and to pay fees, commissions and expenses
incurred in connection with the transactions contemplated by
Amendment No. 1.”
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(G) Section 13.3(b)
of the Credit Agreement is hereby amended by inserting the
following language immediately prior to the end of the first
parenthetical appearing therein:
“and, solely in the case of
assignments contemplated to be consummated by the August 2008
Incremental Lender (other than assignments by the August 2008
Incremental Lender to any Named Kelso Entity) or by a Named Kelso
Entity of any or all of the August 2008 Incremental Loans, JPM
Mezzanine Capital shall (in its sole discretion), so long as it is
a Lender, have the right to approve the identity of any assignees;
provided , that, notwithstanding anything to the contrary
contained in this Section 13.3, neither the consent or the
Borrower nor the Administrative Agent shall be required to any
contemplated assignment by the August 2008 Incremental Lender
of some or all of the August 2008 Incremental Loans to any
Named Kelso Entity ”
(H) Schedule 1
to the Credit Agreement is hereby replaced in its entirety with
Schedule 1 attached to this Amendment.
SECTION 3.
Terms Applicable to August 2008 Incremental Loan . By
its execution hereof, (a) the Incremental Lender, the Credit
Parties and the Administrative Agent hereby acknowledge and agree
that the August 2008 Incremental Loan shall be an Incremental
Loan under the Credit Agreement, which shall (except to the extent
otherwise set forth in this Amendment) be governed by the same
terms and conditions as are applicable to the previously extended
Loans under the Credit Agreement, including without limitation that
the interest rates (including the Applicable Margin) for and the
maturity of such Incremental Loans shall be the same as the
interest rates (including the Applicable Margin) for and the
maturity of the previously extended Loans under the Credit
Agreement and (b) Borrower acknowledg
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