Exhibit 4.14
SENIOR SUBORDINATED LINE OF CREDIT AGREEMENT
SENIOR SUBORDINATED LINE OF CREDIT AGREEMENT, dated as of
November 12, 2003, between PANAVISION INC., a Delaware corporation (the
"Borrower"), and MACANDREWS & FORBES HOLDINGS INC., a Delaware corporation (the
"Lender").
W I T N E S S E T H :
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WHEREAS, the Borrower has requested the Lender to extend
credit on a subordinated unsecured basis in order to enable the Borrower,
subject to the terms and conditions of this Agreement, to borrow, on a revolving
basis, at any time and from time to time in an aggregate principal amount at any
time outstanding not to exceed $10,000,000;
WHEREAS, the Lender is willing to make such loans to the
Borrower only on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following
terms shall have the following respective meanings (such definitions to be
equally applicable to the singular and plural forms thereof):
"Affiliate" of any Person means any Person that directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including with its correlative
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person (whether through ownership
of securities or partnership or other ownership interests, by contract or
otherwise).
"Agreement" shall mean this Senior Subordinated Line of Credit
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Applicable Rate" means the sum of (i) the three-month London
Interbank Offered Rate published in the Wall Street Journal on the day of the
relevant borrowing, provided that if the Wall Street Journal is not published on
such day, the Lender shall designate in good faith an alternative source for
determining the three-month London Interbank Offered Rate on such day, (ii) the
Applicable Margin for Revolving Credit Loans bearing interest at the rate for
Eurodollar Loans under (and as each such term is defined in) the Bank Credit
Agreement and (iii) 0.5%.
"Available Commitment" means, at any time, an amount equal to
the excess, if any, of (a) the Commitment over (b) the aggregate principal
amount of all Loans then outstanding.
"Bank Commitment" means the Total Revolving Credit Commitments
under (and as such term is defined in) the Bank Credit Agreement.
"Bank Credit Agreement" means the Credit Agreement, dated as
of May 28, 1998, by and among the Borrower, the several banks and other
financial institutions from time to time parties thereto, the Arranger named
therein, the Documentation Agent named therein, and JPMorgan Chase Bank, as
Administrative Agent, as amended, supplemented and otherwise modified through
the date hereof and as further amended, supplemented, modified, replaced or
refinanced, in whole or in part, from time to time.
"Bank Letter of Credit" means a letter of credit issued under
the Bank Credit Agreement.
"Bank Revolving Loan" means a Revolving Credit Loan made under
(and as such term is defined in) the Bank Credit Agreement.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar Federal or state law for the relief of debtors.
"Blocking Period" is defined in Section 7.4 hereof.
"Borrower" is defined in the introductory paragraph of this
Agreement.
"Borrower's Bank Account" is defined in Section 2.2(a) hereof.
"Borrowing Amount", "Borrowing Date" and "Borrowing Notice"
are each defined in Section 2.2(a) hereof.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required by law to close.
"Commitment" means the obligation of the Lender to make Loans
to the Borrower hereunder in an aggregate principal amount at any one time
outstanding of up to $10,000,000, as such obligation is reduced from time to
time in accordance with Section 2.3 hereof.
"Commitment Period" means the period from and including the
Effective Date to the Business Day immediately preceding the Termination Date.
"Contractual Obligation" means, with respect to any Person,
any provision of any material debt security or of any material preferred stock
or other equity interest issued by such Person or of any material indenture,
mortgage, agreement, guarantee,
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instrument or undertaking to which such Person is a party or by which it or any
of its material property is bound.
"Cross Default" of any Person means (a) default in the payment
of any amount when due (whether at maturity or by acceleration) on any of its
Indebtedness (other than any such default in respect of the Loans) or in the
payment of any matured Guarantee Obligation in respect of any Indebtedness of
any other Person (except for any such payments on account of any such
Indebtedness and Guarantee Obligations in an aggregate principal amount at any
one time outstanding of up to $5,000,000) or (b) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness (except for any such Indebtedness and Guarantee Obligations in an
aggregate principal amount at any one time outstanding of up to $5,000,000) or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, such Indebtedness
(except for any such Indebtedness in an aggregate principal amount at any one
time outstanding of up to $5,000,000) to become due or to be required to be
redeemed or repurchased prior to its stated maturity. For purposes of this
definition, the terms "Indebtedness" and "Guarantee Obligation" shall have the
meanings given to them in the Bank Credit Agreement.
"Default" means any of the events specified in Section 6.1
hereof, whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition specifically set forth therein, has been
satisfied.
"Dollars" and "$" mean dollars in lawful currency of the
United States of America.
"Effective Date" is defined in Section 5.1 hereof.
"Eurodollar Loans" has the meaning set forth in the Bank
Credit Agreement.
"Event of Default" means any of the events specified in
Section 6.1 hereof, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition specifically set forth therein,
has been satisfied.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government (including, without limitation, any governmental
department, commission, board, bureau, agency or instrumentality, or other court
or arbitrator, in each case whether of the United States of America or foreign).
"Interest Payment Date" means, as to any Loan, the Termination
Date and the date of any prepayment made in respect thereof.
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"Lender" is defined in the introductory paragraph of this
Agreement.
"Loans" is defined in Section 2.1(a) hereof.
"Maturity Date" means April 15, 2004.
"Obligations" is defined in Section 7.2 hereof.
"Person" means an individual, a partnership, a corporation, a
business trust, a joint stock company, a limited liability company, a trust, an
unincorporated association, a joint venture, a Governmental Authority or any
other entity of any nature whatsoever.
"Refinancing Condition" means (x) the termination or
refinancing of the Facilities (as defined in the Bank Credit Agreement) or (y)
the reduction of the outstanding Indebtedness (as defined in the Bank Credit
Agreement) of the Borrower and its Subsidiaries in amount and in such a manner
satisfactory to the Required Lenders (as defined in the Bank Credit Agreement).
"Requirement of Law" means, for any Person, the certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property or to which such
Person or any of its material property is subject.
"Senior Debt" is defined in Section 7.2 hereof.
"Subsidiary" of any Person means a corporation or other
entity of which shares of capital stock or other ownership interests having
ordinary voting power (other than stock or other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the directors of such corporation, or other Persons performing similar functions
for such entity, are owned, directly or indirectly, by such Person; provided
that, (a) unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower and (b) unless otherwise qualified, all references to a
"wholly-owned Subsidiary" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower of which the Borrower directly or indirectly owns
all of the capital stock or other ownership interests (other than directors'
qualifying shares).
"Termination Date" means the Maturity Date or, if earlier, the
date upon which the Commitment shall terminate in accordance with the terms
hereof.
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1.2. Other Definition Provisions.
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(a) All terms defined in this Agreement shall have such
defined meanings when used in any certificate or other document made or
delivered pursuant hereto or thereto unless otherwise defined therein.
(b) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, subsection, Schedule and Exhibit references contained in this Agreement
are references to Sections, subsections, Schedules and Exhibits in or to this
Agreement, unless otherwise specified.
SECTION 2. AMOUNT AND TERMS OF COMMITMENT
2.1. The Commitment.
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(a) Subject to the terms and conditions hereof, the
Lender agrees to make revolving loans ("Loans") in Dollars to the Borrower from
time to time during the Commitment Period with an aggregate amount of principal
outstanding at any one time not to exceed the amount of the Commitment then in
effect; provided, that no Loan shall be made (except a Loan requested pursuant
to Section 3.5 hereof) unless, as of the date it is made, the Bank Commitment
has been substantially drawn after giving effect to any Bank Revolving Loans to
be made, and any Bank Letters of Credit to be issued, under the Bank Credit
Agreement substantially concurrently with such Loan.
(b) During the Commitment Period, the Borrower may use
the Commitment by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
2.2. Procedure for Borrowing.
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(a) The Borrower may borrow under the Commitment during
the Commitment Period on any Business Day; provided, that the Borrower shall
deliver to the Lender a written notice (a "Borrowing Notice") which must (i)
specify the date on which such borrowing is to be made (the "Borrowing Date"),
the amount to be borrowed from the Lender on such Borrowing Date (the "Borrowing
Amount"), and the bank account and other pertinent wire transfer instructions of
the Borrower to which such borrowing is to be deposited by the Lender (the
"Borrower's Bank Account"), (ii) certify that all applicable conditions to such
borrowing hereunder have been satisfied and (iii) be received by the Lender
prior to 1:00 P.M., New York City time, one Business Day prior to such Borrowing
Date or, in the case of a Loan to be made on the Effective Date, on or before
the Borrowing Date.
(b) On each Borrowing Date set forth in a Borrowing
Notice, the Lender will make a Loan to the Borrower in an amount equal to the
lesser of (i) the Borrowing Amount set forth in such Borrowing Notice and (ii)
the Available Commitment by making the proceeds thereof available to the
Borrower in immediately
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available funds in Dollars not later than 4:00 p.m., New York City time, on such
Borrowing Date to the Borrower's Bank Account.
2.3. Voluntary Termination or Reduction of the Commitment. The
Borrower shall have the right, in its sole discretion, to terminate the
Commitment or, from time to time, to permanently reduce the Commitment during
the Commitment Period by delivering to the Lender a written notice specifying
such termination or the amount of such reduction. Any termination of or
permanent reduction in the Commitment pursuant to this Section 2.3 shall take
effect on the date specified in such written notice.
2.4. Repayment of Loans; Evidence of Debt.
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(a) The Borrower hereby unconditionally promises to pay
to the Lender the then unpaid principal amount of each Loan on the Termination
Date. The Borrower hereby further agrees to pay to the Lender interest on the
unpaid principal amount of each Loan from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum and in the manner
set forth in Section 3.3 hereof.
(b) The Lender shall maintain an account evidencing the
indebtedness of the Borrower to the Lender resulting from the Loans, including
the outstanding principal amount of each Loan, accrued and unpaid interest
outstanding in respect thereof and the amount of any sum received by the Lender
hereunder from the Borrower in respect of the Loans and the manner in which it
was applied. The entries made in such account of the Lender shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of the Lender to maintain any such account, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
(with applicable interest) the Loans in accordance with the terms of this
Agreement.
2.5. Use of Proceeds. The Borrower shall use the proceeds of
the Loans hereunder to provide working capital for the Borrower and its
Subsidiaries and for other general corporate purposes. Such use may include
repaying Bank Revolving Loans if the Bank Commitment continues to be
substantially drawn after giving effect to such repayment of Bank Revolving
Loans, and to any Bank Revolving Loans to be made, and to any Bank Letters of
Credit to be issued, under the Bank Credit Agreement substantially concurrently
with such repayment.
SECTION 3. PROVISIONS RELATING TO THE LOANS
3.1. Optional Prepayments. The Borrower may prepay the Loans,
in whole or in part, at any time without premium or penalty, provided that any
Loan made pursuant to Section 3.5 hereof may not be repaid prior to April 15,
2004. Each such optional prepayment shall be applied first to accrued and unpaid
interest on the Loans, and then to the outstanding principal amount of the Loans
on a pro rata basis.
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3.2. Mandatory Prepayments. (a) If, at any time, the aggregate
outstanding principal amount of the Loans exceeds the Commitment then in effect,
the Borrower shall immediately repay the principal amount of the Loans in an
amount equal to such excess.
(b) Upon the effective date of any reduction in the
Commitment pursuant to Section 2.3 hereof, the Borrower shall prepay on such
date the principal amount of the Loans then outstanding in excess of the
Commitment after giving effect to such reduction.
(c) On the Termination Date, the Commitment shall
terminate and the Borrower shall cause all outstanding Loans, together with any
interest accrued thereon, to be paid in full.
3.3. Interest Rate and Payment Dates.
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(a) All Loans shall bear interest on the unpaid principal
amount thereof at a rate per annum equal to the Applicable Rate.
(b) If all or a portion of any Loan, any interest payable
thereon or any other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration, as a result of an event
requiring a mandatory prepayment or otherwise), then, for so long as such amount
remains unpaid, such overdue amount shall bear interest at a rate per annum
equal to the Applicable Rate plus 2%.
(c) Interest on the outstanding principal amount of each
Loan from time to time shall accrue and be payable in arrears in cash on each
Interest Payment Date, provided that interest accruing pursuant to paragraph (b)
of this Section shall be payable from time to time on demand.
(d) Interest shall be calculated on the basis of a 365
(or 366, as the case may be) day year for the actual days elapsed.
3.4. Method of Payments.
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(a) All payments (including prepayments) to be made by
the Borrower on account of principal, interest, costs and expenses shall be made
without set-off, counterclaim, deduction or withholding and shall be made to the
Lender at such location or to such account as the Lender may specify to the
Borrower, on or prior to 1:00 P.M., New York City time, on the due date thereof,
in Dollars and in immediately available funds.
(b) If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension.
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3.5. Refinancing Condition. If the Refinancing Condition has
not been satisfied on or before January 30, 2004, the Borrower shall, on such
date, request a Loan in an amount equal to the aggregate amount of interest due
and payable on February 1, 2004 on the Senior Subordinated Notes (as defined in
the Bank Credit Agreement) and the Borrower shall use the proceeds thereof to
make such payment of interest on February 1, 2004 on the Senior Subordinated
Notes (as defined in the Bank Credit Agreement).
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and
to make the Loans hereunder, the Borrower hereby represents and warrants to the
Lender that:
4.1. Corporate Existence. The Borrower is duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
4.2. Corporate Power.
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(a) The Borrower has the corporate power, authority and
legal right to execute, deliver and perform this Agreement and to borrow
hereunder, and it has taken as of the Effective Date all necessary corporate
action to authorize its borrowings on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this Agreement.
(b) No consent of any other Person (including, without
limitation, stockholders or creditors of the Borrower or of any parent entity of
the Borrower), and no consent, license, permit, approval or authorization of,
exemption by, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement by or against the Borrower, except
for any consents, licenses, permits, approvals or authorizations, exemptions,
registrations, filings or declarations that have already been obtained and
remain in full force and effect.
(c) This Agreement has been executed and delivered by a
duly authorized officer of the Borrower and constitutes the legal, valid and
binding obligation of the Borrower, enforceable against it in accordance with
its terms except as enforceability may be limited by Bankruptcy Laws or other
similar laws affecting creditors' rights generally and except as enforceability
may be limited by general principles of equity.
4.3. No Legal Bar to Loans. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, will not violate any Contractual Obligation or material
Requirement of Law to which the Borrower or any of its Subsidiaries is a party,
or by which the Borrower or any of its Subsidiaries or any of their respective
material properties or assets may be bound, and will not result in the creation
or imposition of any lien on any of their respective material properties or
assets pursuant to the provisions of any such Contractual Obligation.
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SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to Initial Loan. The obligation of the Lender
to make the initial Loan requested to be made by it shall be subject to the
satisfaction or waiver by the Lender of the following conditions precedent (the
date on which said conditions are satisfied or waived being herein called the
"Effective Date"):
(a) Agreement. The Lender shall have received this
Agreement, executed and delivered by a duly authorized officer of the Borrower.
(b) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Lender, and the conditions
set forth in Section 5.2 hereof shall have been satisfied or waived by the
Lender.
5.2. Conditions to Each Loan. The obligation of the Lender to
make any Loan requested to be made on any Borrowing Date (including, without
limitation, the initial Loan) shall be subject to the satisfaction or waiver by
the Lender of the following conditions precedent (provided that Section 5.2(a)
hereof shall not apply to any Loan requested pursuant to Section 3.5 hereof):
(a) Utilization of the Bank Credit Agreement. As of the
Borrowing Date, the Bank Commitment shall have been substantially drawn after
giving effect to any Bank Revolving Loans to be made, and any Bank Letters of
Credit to be issued, under the Bank Credit Agreement substantially concurrently
with such Loan.
(b) Credit Availability. The amount of the Loan requested
to be made on such Borrowing Date shall not exceed the amount that the Lender is
obligated to make in accordance with Section 2.1(a) hereof.
(c) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to this
Agreement shall be true and correct in all material respects on and as of such
Borrowing Date as if made on and as of such date, both before and after giving
effect to such Loan and the use of the proceeds thereof.
(d) No Event of Default. No Event of Default shall have
occurred and be continuing on such Borrowing Date, both before and after giving
effect to the Loan requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the Borrowing Date thereof that the conditions
contained in this Section 5.2 have been satisfied.
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SECTION 6. EVENTS OF DEFAULT
6.1. Events of Default. An "Event of Default" occurs if:
(a) The Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms hereof; or the Borrower shall fail to
pay any interest on any Loan, or any other amount payable hereunder, within
three days after any such interest or other amount becomes due in accordance
with the terms hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower herein or in connection with this Agreement shall prove to have
been inaccurate in any material respect on or as of the date made or deemed
made; or
(c) The Borrower or any of its Subsidiaries shall Cross
Default; or
(d) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under the Bankruptcy Law or
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
If an Event of Default shall have occurred, (A) if such event
is an Event of Default specified in paragraph (d) of this Section 6.1 with
respect to the Borrower,
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automatically the Commitment shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this Agreement
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) the
Lender may by notice to the Borrower declare the Commitment to be terminated
forthwith, whereupon such Commitment shall immediately terminate; and (ii) the
Lender may by notice to the Borrower declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing by the Borrower under this
Agreement to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section 6.1,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 7. SUBORDINATION
7.1. General. The Borrower and the Lender agree that the
payment of the principal amount of Loans, together with accrued and unpaid
interest thereon and any other amount whatsoever from time to time owing
hereunder by the Borrower, is subordinated, to the extent and in the manner
provided in this Section 7, to the prior payment in full of all Senior Debt (as
defined below).
The terms and conditions of this Section 7 shall constitute a
continuing offer to all persons who, in reliance upon such provisions, become
holders of, or continue to hold, Senior Debt, and such provisions are made for
the benefit of the holders of Senior Debt, and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
7.2. Senior Debt. For purposes hereof, "Senior Debt" shall
mean all Obligations (as defined below) of or owing by the Borrower or any of
its subsidiaries under the Bank Credit Agreement or any guaranty, security
agreement, note or other financing document referred to in or delivered pursuant
to or in connection with the Bank Credit Agreement unless such document,
instrument or agreement under which such Obligation arises expressly provides
that such Obligation is not senior or superior in right of payment to amounts
due in respect of this Agreement. For purposes hereof, "Obligations" shall mean
loans, advances, debts, liabilities, obligations, covenants and duties of any
kind or nature, present or future, whether absolute or contingent, whether due
or to become due, and shall include, without limitation, all principal, interest
(including interest which, but for the filing of a petition in bankruptcy with
respect to any obligor thereon, would accrue on such obligation), fees, charges,
expenses, attorneys fees and expenses, indemnities and any other sum chargeable
to or payable under the Bank Credit Agreement or any guaranty, security
agreement, note or other financing document or referred to in or delivered
pursuant to or in connection with the Bank Credit Agreement.
7.3. Bankruptcy, Insolvency and Liquidation, Etc.
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(a) In the event of any distribution of assets to
creditors in any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation,
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reorganization or other similar case or proceeding in connection therewith,
relative to the Borrower or its creditors, as such, or to its assets, or in the
event of any voluntary or involuntary liquidation, dissolution or other
winding-up of the Borrower, whether or not involving insolvency or bankruptcy or
any assignment for the benefit of creditors or any other marshalling of assets
or liabilities of the Borrower, then and in any such event all principal,
premium, if any, and interest to the date of payment on, and all other amounts
due in respect of, all Senior Debt (including any post-petition interest) shall
first be paid in full in cash before any payment or distribution of assets of
any kind or character is made, whether in cash, property or securities, on
account of principal or interest or any other amount due in respect of this
Agreement, and any payment or distribution of any kind or character, whether in
cash or property or securities, which but for this Section 7.3 would be payable
or deliverable in respect of this Agreement, shall be paid or delivered directly
to the holders of such Senior Debt for application in payment thereof, unless
and until all principal, premium and interest to the date of payment on and all
other amounts due in respect of all such Senior Debt shall have been paid and
satisfied in full in cash (including post-petition interest); provided, however,
that nothing contained in this paragraph (a) shall contravene any final order of
a court of competent jurisdiction in a reorganization proceeding to the extent
that such order expressly considers the subordination provisions contained in
this paragraph (a) and determines the relative rights of the Lender and the
holders of Senior Debt with respect to the payment or delivery of cash,
securities or other property of the Borrower.
(b) In the event that the Lender shall have received any
payment or distribution of any assets of any kind or character, whether in cash
or property or securities, prohibited by the provisions of this Section 7, then
and in any such event, such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets for application to the payment in full in cash of all Senior Debt
remaining unpaid to the extent necessary to pay all Senior Debt in full.
(c) Upon the maturity of any Senior Debt by lapse of
time, acceleration or otherwise, all principal thereof and interest thereon then
due, and all other amounts then due in respect thereof, shall first be paid in
full in cash before any payment is made on account of principal of and interest
on Loans under, or any other amount due in respect of, this Agreement.
(d) In the event that any Loan shall become due and
payable before its expressed maturity for any reason (and the provisions of the
foregoing paragraph (a) or the following paragraph (e) of this Section 7.3 are
not applicable), the Lender shall not be entitled to, and the Borrower shall not
make, any such payment or prepayment of such Loan unless and until there shall
first have been paid in full, including interest to the date of payment, in
cash, all Senior Debt due and payable at such time (whether or not an event of
default has occurred under the Senior Debt or the maturity of such Senior Debt
has been declared due and payable prior to the date on which it otherwise would
have become due and payable) and the Lender agrees not to seek payment of the
Loans by any remedy allowed at law or at equity so long as any Senior Debt
remains due and payable.
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(e) In the event that, notwithstanding the foregoing, the
Borrower shall make any payment to the Lender prohibited by the foregoing
provisions, then and in such event such payment shall be paid over and delivered
forthwith to the holders of Senior Debt to the extent necessary to pay the
amounts then due and payable (if any) on the Senior Debt.
7.4. Senior Debt Default. In the event that any default shall
occur and be continuing with respect to any Senior Debt that permits (or with
notice or lapse of time or both, would permit) the holders of such Senior Debt
to declare such Senior Debt due and payable prior to the date on which it
otherwise would be due and payable, unless payment in full shall have first been
made on all principal of, premium, if any, and interest on, and all other
amounts due and payable in respect of the Senior Debt, the Borrower shall not
make any payment on or with respect to Loans under this Agreement during any
period:
(i) in which a default exists with respect to the
payment of any interest, premium or principal due
on or with respect to any Senior Debt; or
(ii) of 90 days after written notice shall have been
given to the Borrower of any such default during
which there has been no acceleration of the Senior
Debt (a "Blocking Period"), provided that only one
such Blocking Period shall occur pursuant to this
Section 7 in any consecutive 12 months;
provided that upon the cure or waiver of the default or, in the case of clause
(ii) above, upon expiration of the Blocking Period, the Lender shall be entitled
to receive payment of all payments due under this Agreement which had been
suspended during such period if this Section 7 otherwise permits payment at that
time.
In the event that, notwithstanding the foregoing, the Borrower
shall make any payment to the Lender under this Agreement prohibited by the
foregoing provisions, then and in such event such payment shall be paid over and
delivered forthwith to the holders of Senior Debt to the extent necessary to pay
the amounts then due and payable (if any) on the Senior Debt.
7.5. Senior Subordinated Notes. All amounts due in respect of
this Agreement shall rank pari passu in right of payment with the Senior
Subordinated Notes (as defined in the Bank Credit Agreement).
SECTION 8. MISCELLANEOUS
8.1. Amendments and Waivers. This Agreement shall not be
amended, supplemented or otherwise modified, except by written instrument which
has been duly executed and delivered by each party hereto. In the case of any
waiver of the terms
13
hereof, the parties to this Agreement shall be restored to their former
positions and rights hereunder, and any Default or any Event of Default waived
shall, to the extent provided in such waiver, be deemed to be cured and not
continuing; but, no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
8.2. Notices. All notices, consents, requests and demands to
or upon the respective parties hereto to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three Business Days after being
deposited in the mail, certified mail, return receipt requested, postage
prepaid, or, in the case of telecopy or electronic mail notice, when sent and
receipt has been confirmed, addressed as follows (or to such other address as
may be hereafter notified by any of the respective parties hereto):
Borrower: Panavision Inc.
0000 XxXxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Executive Vice President and
Chief Financial Officer
Telecopy: (000) 000-0000
E-mail: xxxxx_xxxxxxx@xxxxxxxxxx.xxx
With a copy to: Panavision Inc.
0000 XxXxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxx
Executive Vice President
and General Counsel
Telecopy: (000) 000-0000
E-mail: xxxx_xxxxxx@xxxxxxxxxx.xxx
Lender: MacAndrews & Forbes Holdings Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Email: xxxxxxxxx@xxxxxx.xxx
provided that any notice, request or demand to or upon the Lender pursuant to
Sections 2 and 3 shall not be effective until received.
8.3. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Lender, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies,
14
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
8.4. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
8.5. Payment of Expenses; General Indemnity. The Borrower
agrees (a) to pay or reimburse the Lender for all of its reasonable
out-of-pocket attorneys' fees and expenses incurred in connection with the
preparation, execution and delivery of, and any amendment, supplement or
modification to, this Agreement and any other documents prepared in connection
herewith, and the consummation of the transactions contemplated hereby and
thereby, (b) to pay or reimburse the Lender for all its reasonable out-of-pocket
costs and expenses (including, without limitation, reasonable attorneys' fees
and expenses) incurred in connection with the enforcement or preservation of any
rights under this Agreement and any such other documents, (c) to pay, indemnify,
and to hold the Lender harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay caused by
the Borrower in paying, stamp, excise and other similar taxes, if any, if legal,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement and any such other documents,
and (d) to pay, indemnify, and hold harmless the Lender from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable attorneys' fees and
expenses) with respect to the execution, delivery, consummation, enforcement,
performance and administration of this Agreement and any such other documents
(all of the foregoing, collectively, the "indemnified liabilities"); provided
that the Borrower shall have no obligation hereunder with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of the
Lender, (ii) legal proceedings commenced against the Lender by any security
holder or creditor thereof arising out of and based upon rights afforded any
such security holder or creditor solely in its capacity as such or (iii) amounts
of the types referred to in clauses (a) through (c) above except as provided
therein. The agreements in this Section 8.5 shall survive the termination of the
Commitment and the repayment of the Loans and all other amounts payable
hereunder.
8.6. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lender and their respective
successors and permitted assigns and, except as set forth below, neither the
Borrower nor the Lender may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the other party. This
Agreement, or the Lender's obligations hereunder, may be assigned, delegated or
transferred, in whole or in part, by the Lender to any Affiliate of the Lender
over which the Lender or its Affiliates exercises investment authority,
including, without limitation, with respect to voting and dispositive rights
15
provided any such assignee assumes the obligations of the Lender hereunder and
agrees in writing to be bound by the terms of this Agreement in the same manner
as the Lender. Notwithstanding the foregoing, no such assignment shall relieve
the Lender of its obligations hereunder if such assignee fails to perform such
obligations. Without complying with the provisions of this Section 8.6, the
Lender may satisfy its obligations under Sections 2.1 or 2.2 hereof by causing
an Affiliate of the Lender to satisfy its obligations under such Sections.
8.7. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
8.8. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9. Integration. This Agreement represents the agreement of
the Borrower and the Lender with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by the Lender for
the benefit of the Borrower relative to the subject matter hereof not expressly
set forth or referred to herein.
8.10. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.11. Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set
16
forth in Section 8.2 or at such other address of which the Lender shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or consequential
damages.
8.12. WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
Remainder of page intentionally left blank.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PANAVISION INC.
By: /S/XXXXX X. XXXXXXX
--------------------
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
MACANDREWS & FORBES HOLDINGS INC.
By: /S/XXXX X. XXXXXXX
-------------------
Name: XXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
:
18
===============================================================================
PANAVISION INC.,
AS BORROWER
------------------------
$10,000,000
SENIOR SUBORDINATED LINE OF CREDIT AGREEMENT
Dated as of November 12, 2003
--------------------------
MACANDREWS & FORBES HOLDINGS INC.,
AS LENDER
===============================================================================
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. DEFINITIONS...................................................................................1
1.1. Defined Terms........................................................................1
1.2. Other Definition Provisions..........................................................5
SECTION 2. AMOUNT AND TERMS OF COMMITMENT................................................................5
2.1. The Commitment.......................................................................5
2.2. Procedure for Borrowing..............................................................5
2.3. Voluntary Termination or Reduction of the Commitment.................................6
2.4. Repayment of Loans; Evidence of Debt.................................................6
2.5. Use of Proceeds......................................................................6
SECTION 3. PROVISIONS RELATING TO THE LOANS..............................................................6
3.1. Optional Prepayments.................................................................6
3.2. Mandatory Prepayments................................................................7
3.3. Interest Rate and Payment Dates......................................................7
3.4. Method of Payments...................................................................7
3.5. Refinancing Condition................................................................8
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................................8
4.1. Corporate Existence..................................................................8
4.2. Corporate Power......................................................................8
4.3. No Legal Bar to Loans................................................................8
SECTION 5. CONDITIONS PRECEDENT..........................................................................9
5.1. Conditions to Initial Loan...........................................................9
5.2. Conditions to Each Loan..............................................................9
SECTION 6. EVENTS OF DEFAULT............................................................................10
6.1. Events of Default...................................................................10
SECTION 7. SUBORDINATION................................................................................11
7.1. General.............................................................................11
7.2. Senior Debt.........................................................................11
7.3. Bankruptcy, Insolvency and Liquidation, Etc.........................................11
7.4. Senior Debt Default.................................................................13
7.5. Senior Subordinated Notes...........................................................13
SECTION 8. MISCELLANEOUS................................................................................13
8.1. Amendments and Waivers..............................................................13
8.2. Notices.............................................................................14
8.3. No Waiver; Cumulative Remedies......................................................14
8.4. Survival of Representations and Warranties..........................................15
8.5. Payment of Expenses; General Indemnity..............................................15
i
Page
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8.6. Successors and Assigns..............................................................15
8.7. Counterparts........................................................................16
8.8. Severability........................................................................16
8.9. Integration.........................................................................16
8.10. GOVERNING LAW.......................................................................16
8.11. Submission To Jurisdiction; Waivers.................................................16
8.12. WAIVERS OF JURY TRIAL...............................................................17
ii
