FOURTH AMENDMENT
Exhibit
10.53.4
FOURTH
AMENDMENT
FOURTH
AMENDMENT (the “Amendment”), dated as
of May 4, 2009 (the “Amendment Date”) and
effective as of March 31, 2009 (the “Effective Date”),
with respect to that certain Credit Agreement, dated as of August 1, 2006 (as
amended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”),
among Christie/AIX, Inc., a Delaware corporation (the “Borrower”), the Lenders
and General Electric Capital Corporation, a Delaware corporation (“GE Capital”),
as the administrative agent and collateral agent for the Lenders (in such
capacity, the “Administrative
Agent”).
W I T N E
S S E T H:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS,
the Borrower has requested that the Lenders agree to amend the Credit Agreement
to, among other things, (a) reduce the amount of the Interest Reserve and (b)
amend certain financial covenants;
WHEREAS,
the Lenders are willing to agree to the requested amendments on the terms and
conditions contained herein;
NOW
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. Definitions. Unless
otherwise defined herein, terms defined in the Credit Agreement shall have their
defined meanings when used herein.
2. Amendment to Credit
Agreement.
(a) As
of the Amendment Date, Section 1.1 of the Credit Agreement shall be amended to
add the following new definitions in the correct alphabetical
order:
“Fourth Amendment”
means that certain Fourth Amendment, dated as of May 4, 2009 and effective as of
March 31, 2009, among the Borrower, the Lenders party thereto and the
Administrative Agent.
“Fourth Amendment
Effective
Date” means May 4, 2009.
“Unrestricted Cash”
means the result of (a) value of cash on hand and Cash Equivalents available to
the Borrower which are not subject to any Lien or collateral or escrow
arrangements to or in favor of any Person other than the Administrative Agent
less (b) the
amount of the Interest Reserve.
-1-
(b) As
of the Amendment Date, the definition of “Applicable Margin” set forth in
Section 1.1 of the Credit Agreement shall be amended by deleting the table
contained therein in its entirety and substituting the following table in lieu
thereof:
|
LEVEL
|
TOTAL
EQUITY RATIO
|
BASE
RATE LOANS
|
EURODOLLAR
RATE LOANS
|
|
I
|
Less
than 40%
|
5.00%
|
6.00%
|
|
II
|
Less
than 50% and
equal to or greater than 40%
|
4.75%
|
5.75%
|
|
III
|
Less
than 60% and equal to or greater than 50%
|
4.50%
|
5.50%
|
|
IV
|
Equal
to or greater than 60%
|
4.25%
|
5.25%
|
(c) As
of the Amendment Date, the definition of “Base Rate” set forth in Section 1.1 of
the Credit Agreement shall be deleted in its entirety and the following
substituted in lieu thereof:
“Base Rate” means, at
any time, a rate per annum equal to the highest of(a) the rate last quoted by
The Wall Street Journal as the “base rate on corporate loans posted by at least
75% of the nation’s
largest banks” in the United States or, if The Wall Street Journal ceases to
quote such rate, the highest per annum interest rate published by the Federal
Reserve Board in Federal Reserve Statistical Release H. 15 (519) (Selected Interest
Rates) as the “bank prime loan” rate or, if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by the
Administrative Agent), (b) the sum of 3.0% per annum and the Federal Funds Rate
and (c) the sum of(x) Eurodollar Base Rate for an Interest Period of 3 months,
plus (y) the excess of the Applicable Margin for Eurodollar Rate Loans over the
Applicable Margin for Base Rate Loans, in each instance, as of such
day.
(d) As
of the Amendment Date, the definition of “Consolidated Cash Interest Expense”
set forth in Section
1.1 of the Credit Agreement shall be deleted in its entirety and the
following substituted in lieu thereof:
“Consolidated Cash Interest
Expense” means, with respect to any Person for any period, the
Consolidated Interest Expense of such Person for such period less the sum of, in
each case to the extent included in the definition of Consolidated Interest
Expense, (a) the amortized amount of debt discount and debt issuance costs, (b)
charges relating to write-ups or write-downs in the book or carrying value of
existing Consolidated Total Debt, (c) interest payable in evidences of
Indebtedness or by addition to the
-2-
principal
of the related Indebtedness, (d) other non-cash interest and (e) any’ amendment
fee paid by the Borrower in connection with the Fourth Amendment.
(e) As
of the Amendment Date, the definition of “Eurodollar Base Rate” set forth in
Section 1.1 of
the Credit Agreement shall be deleted in its entirety and the following
substituted in lieu thereof:
“Eurodollar Base Rate”
means, with respect to any Interest Period for any Eurodollar Rate Loan, the
rate determined by the Administrative Agent to be the offered rate for deposits
in Dollars for the applicable Interest Period appearing on the Dow Xxxxx Markets
Telerate Page 3750 as of 11:00 am. (London time) on the 2nd full Business Day
preceding the first day of each Interest Period. In the event that such rate
does not appear on the Dow Xxxxx Markets Telerate Page 3750 (or otherwise on the
Dow Xxxxx Markets screen) at such time, the “Eurodollar Base Rate” shall be
determined (a) in the case of Secured Hedging Reimbursement Obligations, by such
other method to determine the cost of funds of the applicable Secured Hedging
Counterparty as may be selected by such Secured Hedging Counterparty in its sole
discretion, and (b) otherwise, by reference to such other comparable service for
displaying the offered rate for deposit in Dollars in the London interbank
market as may be selected by the Administrative Agent; provided that in no event
shall the Eurodollar Base Rate be less than 2.5% per annum.
(f) As
of the Amendment Date, the definition of “Interest Reserve” set forth in Section 1.1 of the
Credit Agreement shall be deleted in its entirety and the following substituted
in lieu thereof:
“Interest Reserve”
means an amount equal to $6,900,000.
(g) As
of the Effective Date, Section 5.1 of the Credit Agreement shall be deleted in
its entirety and the following shall be substituted in lieu
thereof:
Section
5.1 Maximum Leverage
Ratios.
(a) Maximum Consolidated
Leverage Ratio. The Borrower shall not have, during any Fiscal Quarter
set forth below, a Consolidated Leverage Ratio greater than the maximum ratio
set forth opposite the applicable Fiscal Quarter:
|
Fiscal
Quarter Ending
|
Maximum
Consolidated Leverage
Ratio
|
|
|
June
30, 2007
|
14.0
to 1
|
|
|
September
30, 2007
|
9.5 to
I
|
-3-
|
Fiscal
Quarter Ending
|
Maximum
Consolidated Leverage
Ratio
|
|
|
December
31, 2007
|
7.75
to 1
|
|
|
March
31, 2008
|
6.5
to 1
|
|
|
June
30, 2008
|
5.25
to l
|
|
|
September
30, 2008
|
4.75
to 1
|
|
|
December
31, 2008
|
4.25
to 1
|
|
|
March
31, 2009
|
4.5
to 1
|
|
|
June
30, 2009
|
4.5
to 1
|
|
|
September
30, 2009
|
4.5
to 1
|
|
|
December
31, 2009
|
4.5
to 1
|
|
|
March
31, 2010
|
4.5
to I
|
|
|
June
30, 2010
|
4.25
to I
|
|
|
September
30, 2010
|
4.25
to 1
|
|
|
December
31, 2010
|
4.0
to 1
|
|
|
March
31, 2011
|
3.75
to 1
|
|
|
June
30, 2011
|
3.5
to 1
|
|
|
September
30, 2011
|
3.25
to 1
|
|
|
December
31, 2011
|
3.0
to 1
|
|
|
March
31, 2012
|
2.75
to1
|
|
|
June
30, 2012
|
2.5
to l
|
|
|
September
30, 2012
|
2.25
to 1
|
|
|
December
31, 2012
|
2.0
to 1
|
|
|
March
3l, 2013
|
l.75
to 1
|
|
|
June
30, 2013
|
1.75
to 1
|
(b) Maximum Consolidated Senior
Leverage Ratio. The Borrower shall not have, during any Fiscal
Quarter set forth below, a Consolidated Senior Leverage Ratio greater than the
maximum ratio set forth opposite the applicable Fiscal Quarter:
|
Fiscal
Quarter Ending
|
Maximum
Consolidated Senior
Leverage
Ratio
|
|
|
June
30, 2007
|
10.5
to l
|
|
|
September
30,2007
|
9.0
to 1
|
|
|
December
31, 2007
|
7.5
to l
|
-4-
|
Fiscal
Quarter Ending
|
Maximum
Consolidated Senior
Leverage
Ratio
|
|
|
March
31, 2008
|
6.25
to 1
|
|
|
June
30, 2008
|
5.0
to 1
|
|
|
September
30, 2008
|
4.5
to 1
|
|
|
December
31, 2008
|
4.25
to 1
|
|
|
March
31, 2009
|
4.25
to 1
|
|
|
June
30, 2009
|
4.25
to 1
|
|
|
September
30, 2009
|
4.25
to 1
|
|
|
December
31, 2009
|
4.25
to 1
|
|
|
March
31, 2010
|
4.0
to 1
|
|
|
June
30, 2010
|
4.0
to 1
|
|
|
September
30, 2010
|
3.75
to 1
|
|
|
December
31, 2010
|
3.75
to 1
|
|
|
March
31, 2011
|
3.5
to 1
|
|
|
June
30, 2011
|
3.25
to 1
|
|
|
September
30, 2011
|
3.0
to 1
|
|
|
December
31, 2011
|
2.75
to 1
|
|
|
March
31, 2012
|
2.5
to 1
|
|
|
June
30, 2012
|
2.25
to 1
|
|
|
September
30, 2012
|
2.0
to 1
|
|
|
December
31, 2012
|
1,75
to 1
|
|
|
March
31, 2013
|
1.5
to 1
|
|
|
June
30, 2013
|
1.5
to 1
|
(h) As
of the Effective Date, Section 5.2 of the
Credit Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
Section
5.2 Minimum Consolidated Fixed
Charge Coverage Ratio. The Borrower shall not have, on the last day of
any Fiscal Quarter set forth below, a Consolidated Fixed Charge Coverage Ratio
less than the minimum ratio set forth opposite the applicable Fiscal
Quarter:
-5-
|
Fiscal
Quarter Ending
|
Minimum
Consolidated Fixed Charge Coverage Ratio
|
|
|
June
30, 2007
|
1.25
to 1
|
|
|
September
30, 2007
|
1.25
to 1
|
|
|
December
31, 2007
|
1.25
to 1
|
|
|
March
31, 2008
|
1.25
to 1
|
|
|
June
30, 2008
|
1.25
to 1
|
|
|
September
30, 2008
|
1.25
to 1
|
|
|
December
31, 2008
|
1.25
to 1
|
|
|
March
31, 2009
|
1.25
to 1
|
|
|
June
30, 2009
|
1.15
to 1
|
|
|
September
30, 2009
|
1.05
to 1
|
|
|
December
31, 2009
|
1.03
to 1
|
|
|
March
31, 2010
|
1.0
to 1
|
|
|
June
30, 2010
|
1.0
to 1
|
|
|
September
30, 2010
|
1.0
to 1
|
|
|
December
31,2010
|
1.0
to 1
|
|
|
March
31, 2011
|
1.0
to 1
|
|
|
June
30, 2011
|
1.0
to 1
|
|
|
September
30, 2011
|
1.0
to 1
|
|
|
December
31, 2011
|
1.0
to 1
|
|
|
March
31, 2012
|
1.0
to 1
|
|
|
June
30, 2012
|
1.0
to 1
|
|
|
September
30, 2012
|
1.0
to 1
|
|
|
December
31, 2012
|
1.0
to 1
|
|
|
March
31, 2013
|
1.0
to 1
|
|
|
June
30, 2013
|
1.0
to 1
|
(i) As
of the Amendment Date, the Credit Agreement shall be amended to add the
following new Section 5.5 immediately following Section 5.4:
Section 5.5 Minimum Unrestricted
Cash. The Borrower shall at all times maintain Unrestricted Cash of not
less than $2,000,000.
(j) As
of the Amendment Date, Section 6.1 of the Credit Agreement shall be amended to
add the following new clause (n) immediately following clause (m)
thereof:
-6-
(n) Unutilized Digital
Systems. Together with each delivery of any Compliance Certificate
pursuant to clause
(d) above, a summary listing all Digital Systems that have been installed
but are no longer being utilized and discussing the location of all such
unutilized Digital Systems and the reason such Digital Systems are no longer
being utilized.
(k) As
of the Amendment Date, Section 7.13 of the Credit Agreement shall be amended to
add the following new clause (k) immediately following clause (j)
thereof:
(k) Not
later than ninety (90) days after the Fourth Amendment Effective Date (or such
later date as the Administrative Agent may agree in writing), the Borrower shall
enter into an agreement with Access IT relating to corporate overhead and other
services provided by Access IT to the Borrower, which agreement shall be in form
and substance reasonably satisfactory to Access IT and the Required
Lenders.
(1) As
of the Amendment Date, Section 8.5(d) of the Credit Agreement
shall be deleted in its entirety and the following shall be substituted in lieu
thereof:
(d) in
the event the Borrower shall have entered into a Digital Cinema Deployment
Agreement with Paramount after the Closing Date but on or before March 31, 2007,
the Borrower may make Restricted Payments to Holdings not otherwise permitted
hereby in the form of a redemption or repurchase of its Stock in an aggregate
amount not to exceed $13,200,000; provided that (x) no Default or Event of
Default shall have occurred and be continuing or would result therefrom and (y)
no Restricted Payments may be made by the Borrower under this Section 8.5(d) on
or after the Fourth Amendment Effective Date;
(m) As
of the Amendment Date, Section 8.5 of the Credit Agreement shall be amended to
(i) delete the word “and” at the end of clause (e) thereof, (ii) to replace the
period at the end of clause (f) thereof with the phrase “; and” and (iii) to
insert the following new clause (g) immediately succeeding clause (1)
thereof:
(g) within
30 days after the Fourth Amendment Effective Date, the Borrower may make a
one-time Restricted Payment to Holdings in an amount equal (i) to the difference
between (x) the amount equal to the “Interest Reserve” in effect immediately
prior to the Fourth Amendment Effective Date and (y) the amount equal to the
Interest Reserve calculated on the Fourth Amendment Effective Date less (ii) the
amendment fee paid by the Borrower in connection with the Fourth Amendment;
provided that (x) in no event shall the aggregate amount of such Restricted
Payment
-7-
exceed
$2,600,000 and (y) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
3. Representations and
Warranties. In order to induce the Administrative Agent and the Lenders
to enter into this Amendment, the Loan Parties hereby represent and warrant to
the Administrative Agent and the Lenders that (a) the representations and
warranties of the Loan Parties contained in the Credit Agreement and the other
Loan Documents are true and correct in all material respects on and as of the
date hereof (after giving effect hereto), except where such representations and
warranties expressly relate to an earlier date in which case such
representations and warranties were true and correct in all material respects as
of such earlier date and (b) no Default or Event of Default has occurred and is
continuing.
4. Conditions to
Effectiveness. This Amendment shall be effective on the date when the
following conditions shall have occurred:
(a) the
Administrative Agent shall have executed this Amendment and shall have received
counterparts hereof, duly executed and delivered by the Borrower, Holdings and
the Required Lenders;
(b) no
Default of Event of Default shall have occurred and be continuing;
(c) the
Borrower shall have paid to the Administrative Agent, for the ratable benefit of
the Lenders executing this Amendment on or prior to 5:00 p.m. Eastern time on
May 1, 2009, an amount equal to 0.50% of the aggregate
principal amount of the Commitments of such Lenders;
(d) the
Borrower shall have paid to the Administrative Agent, for the benefit of the
Administrative Agent, a work fee in an amount equal to $100,000;
and
(e) the
Borrower shall have paid all fees and expenses of Administrative Agent’s
counsel, Fulbright & Xxxxxxxx L.L.P., owing to date.
5. Reference to Credit
Agreement. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to “this Agreement,” “hereunder,” or words of like or
similar import shall mean and be a reference to the Credit Agreement, as
modified and amended by this Amendment.
6. Governing Law and
Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7. Expenses. The
Borrower agrees to pay and reimburse the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the preparation and
delivery of this Amendment, including, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent.
-8-
8. Headings. Section
headings in the Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
9. Counterparts. This
Amendment may be executed by the parties hereto in any number of separate
counterparts (including by facsimile transmission) and all of such counterparts
taken together shall be deemed to constitute one and the same
instrument.
10. Successors and Assigns. This
Amendment shall be binding upon and inure to the benefit of the Borrower,
Holdings and their respective successors and assigns, and upon the
Administrative Agent and the Lenders and their respective successors and
assigns.
11. Continuing Effect.
Except as expressly amended hereby, the Credit Agreement, as amended by this
Amendment, shall continue to be and shall remain in full force and effect in
accordance with its terms. This Amendment shall not constitute an amendment or
waiver of any provision of the Credit Agreement not expressly referred to herein
and shall not be construed as an amendment, waiver or consent to any action on
the part of the Borrower that would require an amendment, waiver or consent of
the Administrative Agent or the Lenders except as expressly stated herein. Any
reference to the “Credit Agreement” in the Loan Documents or any related
documents shall be deemed to be a reference to the Credit Agreement as amended
by this Amendment. The Amendment constitutes a Loan Document.
12. NO ORAL AGREEMENTS.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT OF THE
PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE
SUBJECT MATTER THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
13. General Waiver and
Release. IN ADDITION, TO
INDUCE ADMINISTRATIVE AGENT AND
LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT, THE LOAN PARTIES (BY THEIR
EXECUTION BELOW) REPRESENT AND WARRANT THAT AS OF THE DATE OF THEIR EXECUTION OF
THIS AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR
COUNTERCLAIMS TO THEIR RESPECTIVE OBLIGATIONS UNDER THE CREDIT AGREEMENT, THIS
AMENDMENT OR THE OTHER LOAN DOCUMENTS.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THERE EXIST ANY SUCH CLAIMS OR
OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS, THE LOAN PARTIES (BY THEIR
EXECUTION BELOW) HEREBY:
(A) FOREVER
GENERALLY WAIVE ANY AND ALL CLAIMS, OFFSETS, DEFENSES AND/OR COUNTERCLAIMS,
WHETHER KNOWN OR UNKNOWN, ARISING ON OR PRIOR TO THE DATE OF THEIR EXECUTION OF
THIS AMENDMENT; AND
(B) FOREVER
RELEASE, ACQUIT AND DISCHARGE THE RELEASED PARTIES FROM ANY AND ALL OBLIGATIONS,
INDEBTEDNESS, LIABILITIES,
-9-
CLAIMS,
RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH ANY LOAN PARTY EVER HAD, NOW
HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING ON OR PRIOR
TO THE DATE HEREOF AND FROM OR IN CONNECTION WITH THE CREDIT AGREEMENT, THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY
AND HEREIN.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-10-
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their respective duly authorized officers as of the day and year
first above written.
|
CHRISTIE/AIX,
INC.,
as
a Borrower
|
||
|
By
|
/s/
Xxxx X. Xxxxxxxx
|
|
|
Name
|
Xxxx
X. Xxxxxxxx
|
|
|
Title
|
Vice
President
|
|
|
ACCESS
DIGITAL MEDIA, inc>
|
||
|
By
|
/s/
Xxxx X. Xxxxxxxx
|
|
|
Name
|
Xxxx
X. Xxxxxxxx
|
|
|
Title
|
Senior
Vice President
|
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
|
GENERAL
ELECTRIC CAPITAL CORPORATION
as
the Administrative Agent and Lender
|
||
|
By
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name
|
Xxxxx
X. Xxxxxx
|
|
|
Title
|
Duly
Authorized Signatory
|
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
|
CIT
LENDING SERVICES CORPORATION, as a Lender
|
||
|
By
|
/s/
Xxxxxxx XxXxxx
|
|
|
Name
|
Xxxxxxx
XxXxxx
|
|
|
Title
|
Managing
Director
|
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
|
TD
BANK, N.A.,
as
a Lender
|
||
|
By
|
/s/
Xxxxx X. Xxxxx
|
|
|
Name
|
Xxxxx
X. Xxxxx
|
|
|
Title
|
Senior
Vice President
|
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
|
SOCIETE
GENERALE,
as
a Lender
|
||
|
By
|
/s/
Xxxxxx Xxxxxx
|
|
|
Name
|
Xxxxxx
Xxxxxx
|
|
|
Title
|
Managing
Director
|
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
|
AIB
DEBT MANAGEMENT LTD.
as
a Lender
|
||
|
By
|
/s/
Xxxxxxx Xxxxx
|
|
|
Name
|
Xxxxxxx
Xxxxx
|
|
|
Title
|
Senior
Vice President
|
|
|
/s/ Des Xxxxxxx
Des
Xxxxxxx
Assistant
Vice President
Investment
Advisor to
AIB
Debt Management, Limited
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
|
CIFC
FUNDING 2006-I, LTD,
as
a Lender
|
||
|
By
|
/s/
Xxxxx Xxxxxxx
|
|
|
Name
|
Xxxxx
Xxxxxxx
|
|
|
Title
|
Co-Chief
Investment Officer
|
|
[SIGNATURE
PAGE TO FOURTH AMENDMENT]
