AMENDMENT NO. 3 dated as of November 11, 2008 (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...
Exhibit 10.8(c)
“1st Lien Amendment”
| AMENDMENT NO. 3 dated as of November 11, 2008 (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 and 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”). |
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 3 hereof:
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting the final sentence
appearing in clause “C.” of the definition of “Eligible Receivables” and inserting in lieu thereof
the following language:
“For the purposes hereof, “Spot Rate” shall mean the exchange rate of the
applicable foreign currency quoted in Dollars as of the end of the Business Day
(either New York closing price or late New York trading price) immediately
preceding the relevant date of determination (1) as published by The Wall Street
Journal in print or online or (2) if, as of the relevant date of determination, The
Wall Street Journal does not publish such rate, by reference to a print or online
publication of exchange rates reasonably satisfactory to the Administrative Agent
and the Borrower, and in any such case determined without reference to any forward
rate.”
(b) Section 2.16(a) of the Credit Agreement is hereby amended by: (i) deleting the word “and”
appearing after clause “(A)” of the first proviso appearing in Section 2.16(a) and (ii) inserting
the following language immediately prior to period appearing at the end of Section 2.16(a):
”, and (C) the Borrower shall not request that any Letter of Credit be issued if,
after giving effect thereto, the then current L/C Exposure would exceed
$10,000,000”
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions (the date on which such conditions have been
satisfied referred to herein as the “Amendment Effective Date”):
(a) the receipt by the Administrative Agent of counterparts of this Amendment which, when
taken together, bear the signatures of the Borrower, the Parent, the Guarantors (and any entity
required to join the Credit Agreement as a Guarantor pursuant to Section 5.21 of the Credit
Agreement), the Required Lenders and the Administrative Agent;
(b) after giving effect to this Amendment, no Event of Default or Default shall have occurred
and be continuing; and
(c) the representations and warranties contained in Section 4 hereof being true and correct.
SECTION 4. Representations and Warranties. Each Credit Party represents and warrants that
before and after giving effect to this Amendment, the representations and warranties contained in
the Credit Agreement are true and correct in all material respects on and as of the date hereof as
if such representations and warranties had been made on and as of the date hereof (except to the
extent that any such representations and warranties specifically relate to an earlier date).
SECTION 5. Further Assurances. At any time and from time to time, upon the Administrative
Agent’s request and at the sole expense of the Credit Parties, each Credit Party will promptly and
duly execute and deliver any and all further instruments and documents and take such further action
as the Administrative Agent reasonably deems necessary to effect the purposes of this Amendment.
SECTION 6. Fundamental Documents. This Amendment shall constitute a Fundamental Document.
SECTION 7. Full Force and Effect. Except as expressly set forth herein, this Amendment
does not constitute a waiver or a modification of any provision of the Credit Agreement or a waiver
of any Event of Default under the Credit Agreement. The Credit Agreement and the other Fundamental
Documents shall continue in full force and effect in accordance with the provisions thereof on the
date hereof and are hereby ratified and affirmed. As used in the Credit Agreement, the terms
“Agreement”, “this Agreement”, “herein”, “hereafter”, “hereto”, “hereof”, and words of similar
import, shall, unless the context otherwise requires, mean the Credit Agreement as amended by this
Amendment.
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SECTION 8. References. This Amendment shall be limited precisely as written and shall not
be deemed (a) to be a consent granted pursuant to, or a waiver or modification of, any other term
or condition of the Credit Agreement or any of the instruments or agreements referred to therein or
(b) to prejudice any right or rights which the Administrative Agent or the Lenders may now have or
have in the future under or in connection with the Credit Agreement or any of the instruments or
agreements referred to therein. Whenever the Credit Agreement is referred to in the Credit
Agreement or any of the instruments, agreements or other documents or papers executed or delivered
in connection therewith, such reference shall be deemed to mean the Credit Agreement as modified by
this Amendment.
SECTION 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Counterparts. This Amendment may be executed in two or more counterparts, each
of which shall constitute an original, but all of which when taken together shall constitute but
one instrument. Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission or electronic photocopy (i.e., “.pdf”) shall be effective as delivery of a
manually executed counterpart hereof.
SECTION 11. Expenses. The Borrower agrees to pay all out-of-pocket expenses incurred by
the Administrative Agent in connection with the preparation, execution and delivery of this
Amendment, including, but not limited to, the reasonable fees and disbursements of counsel for the
Administrative Agent.
SECTION 12. Headings. The headings of this Amendment are for the purposes of reference
only and shall not affect the construction of or be taken into consideration in interpreting this
Amendment.
[Signature Pages Follow]
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| BORROWER: RHI ENTERTAINMENT, LLC |
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| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | EVP, General Counsel & Secretary | |||
| PARENT: RHI ENTERTAINMENT HOLDINGS II, LLC |
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| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | EVP, General Counsel & Secretary | |||
| GUARANTORS: RHI ENTERTAINMENT DISTRIBUTION, LLC |
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| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | EVP, General Counsel & Secretary | |||
| RHI ENTERTAINMENT PRODUCTIONS, LLC |
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| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | EVP, General Counsel & Secretary | |||
[Signature Page to Amendment No. 3 to the Amended and Restated Credit Agreement]
| RHI INTERNATIONAL DISTRIBUTION, INC. |
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| By | /s/ Xxxxx XxXxxxxx | |||
| Name: | Xxxxx XxXxxxxx | |||
| Title: | VP & Secretary | |||
| LIBRARY STORAGE, INC. |
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| By | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | President | |||
[Signature Page to Amendment No. 3 to the Amended and Restated Credit Agreement]
| JPMORGAN CHASE BANK, N.A., as Administrative Agent and Issuing Bank |
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| By | /s/ Xxxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Amendment No. 3 to the Amended and Restated Credit Agreement]
| LENDER: Bank of America, N.A. |
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| By | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| LENDER: THE ROYAL BANK OF SCOTLAND PLC |
||||
| By: | /s/ Xxxxx X. XxXxxxxx | |||
| Name: | Xxxxx X. XxXxxxxx | |||
| Title: | Director | |||
| LENDER: UNION BANK OF CALIFORNIA, N.A. |
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| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Assistant Vice President | |||
| LENDER: ALLIANCE & LEICESTER COMMERCIAL FINANCE PLC |
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| By: | /s/ G.A. Xxxxxxxx | |||
| Name: | G.A. Xxxxxxxx | |||
| Title: | Head of Structured Finance | |||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxx | |||
| Title: | Senior Manager | |||
| LENDER: BNP PARIBAS |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | Director | |||
| LENDER: BAYERISCHE HYPO- UND VEREINSBANK AG |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Schwab SVP | |||
| LENDER: ISRAEL DISCOUNT BANK OF NEW YORK |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
| LENDER: CALIFORNIA BANK & TRUST |
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| By: | /s/ Xxxxxx XxXxx | |||
| Name: | Xxxxxx XxXxx | |||
| Title: | Vice President | |||
| LENDER: BANK LEUMI USA |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | FVP | |||
| LENDER: [THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND] |
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| By: | /s/ G.A. Xxxxxxxx | |||
| Name: | G.A. Xxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ X.X. Xxxxxxx | |||
| Name: | X.X. Xxxxxxx | |||
| Title: | Manager | |||
| LENDER: MANUFACTURERS BANK |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
| LENDER: CIT LENDING SERVICES CORPORATION |
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| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Amendment No. 3 to the Amended and Restated Credit Agreement]