EXHIBIT 10.1
THIRD AMENDMENT
THIRD AMENDMENT, dated as of December 29, 2004 (this
"Amendment"), with respect to the Amended and Restated Credit Agreement, dated
as of May 28, 1998, as amended and restated as of January 16, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
unless otherwise defined herein, capitalized terms which are defined in the
Credit Agreement are used herein as defined therein), among Panavision Inc., a
Delaware corporation (the "Borrower"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders") and
JPMorgan Chase Bank, as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Borrower; and
WHEREAS, the Borrower has requested, and, upon this Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Amendment;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto hereby agree as follows:
SECTION I AMENDMENT
1.1. Amendments to Section 1.1. (a) The following defined terms are
hereby inserted in appropriate alphabetical order:
"Deluxe": Deluxe Laboratories, Inc.
"Deluxe Note": the promissory note, in the principal amount
of $5,000,000, payable by Deluxe to the Borrower or a Subsidiary
thereof.
"Panavision International": Panavision International, L.P., a
Delaware limited partnership.
(b) The definition of "Asset Sale" is hereby amended and
restated in its entirety to read as follows:
"Asset Sale": any Disposition of Property or series of
related Dispositions of Property (excluding any such Disposition
permitted by clause (a), (b) or (f) of Section 7.5).
(c) The definition of "Canadian Acquisition" is hereby
amended and restated in its entirety to read as follows:
"Canadian Acquisition": the purchase by Panavision (Canada)
Corporation and/or Panavision International of substantially all of
the camera assets of the Canadian company heretofore identified to the
Lenders.
(d) The definition of "Non-Core Assets" is hereby amended and
restated in its entirety to read as follows:
"Non-Core Assets": (a) the member interest in, or any assets
of, EFILM or (b) the Deluxe Note; provided, that the Deluxe Note shall
only be considered a Non-Core Asset to the extent it is sold to
Holdings or an affiliate thereof for the amount of no less than
$5,000,000; provided, that Holdings or such affiliate shall agree with
Panavision that it will pay to Panvision an amount equal to the unpaid
interest accrued on the Deluxe Note as of the date of the sale of the
Deluxe Note when Holdings or such affiliate receives payment of all
such interest.
(e) The definition of "Transaction Charges" is hereby amended
and restated by inserting the following language in clause (iv) thereof,
immediately after "First Amendment":
", Second Amendment, Third Amendment"
1.2. Amendment to Section 7.5. Section 7.5 of the Credit Agreement is
hereby amended by (a) deleting the term "and" at the end of subsection (d)
thereof; (b) deleting the "." at the end of subsection (e) thereof and
substituting in lieu thereof "; and"; and (c) inserting the following new
subsection (f) thereof in appropriate alphabetical order:
"(f) in the event that the Canadian Acquisition is not
consummated on or before December 31, 2004, the Disposition by
Panavision International to Panavision Canada of assets for no more
than CDN$1,500,000; provided, that such assets are not sold at a price
below fair market value in the reasonable determination of Panavision
International."
1.3. Amendments to Section 7.8. (a) Section 7.8(n) of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
"(n) investments by the Borrower and its Subsidiaries in
Panavision (Canada) Corporation (by way of capital contribution, loan
or otherwise) in an amount not to exceed CDN$1,500,000; provided, that
such Investment is (i) made solely from the proceeds of the sale of
Non-Core Assets, (ii) used by Panavision (Canada) Corporation to
consummate the Canadian Acquisition (which shall include the payment
of transaction costs and the assumption of Capital Lease obligations)
and (iii) not permitted in the event that a Disposition under Section
7.5(f) is consummated;"
(b) Section 7.8(p) of the Credit Agreement is hereby amended
by (a) deleting the dollar amount of "CDN$22,000,000" set forth in clause (i)
of the proviso therein and substituting in lieu thereof the dollar amount
"CDN$16,000,000"; and (b) deleting the date "October 31, 2004" set forth in
clause (vi) of the proviso therein and substituting in lieu thereof the date
"March 31, 2005".
1.4. Amendments to Section 7.9. Section 7.9 of the Credit Agreement is
hereby amended by inserting the following proviso at the end thereof,
immediately prior to the ".":
"; provided, that, notwithstanding anything contained in
clause (c) above to the contrary, the parties hereto hereby agree that
the supplemental indenture to the Senior Note Indenture referred to in
Section 2.1(c) of the Third Amendment shall be permitted."
1.5. Amendments to Section 7.10. Section 7.10 of the Credit Agreement
is hereby amended by (a) deleting the term "and" at the end of subsection
(viii) thereof, (b) deleting the "." at the end of subsection (ix) thereof and
substituting in lieu thereof an "," and (c) inserting the following subsections
at the end thereof:
"(x) the sale of the Deluxe Note to Holdings or an affiliate
thereof for an amount of no less than $5,000,000 and (xi) the
Disposition by Panavision International to Panavision Canada of assets
for no more than CDN$1,500,000."
SECTION II MISCELLANEOUS
2.1. Conditions to Effectiveness of Amendment. This Amendment shall
become effective as of the date first set forth above upon satisfaction of the
following conditions:
(a) the Administrative Agent shall have received counterparts of this
Amendment duly executed and delivered by the Borrower, the Guarantors, the
Administrative Agent and the Required Lenders.
(b) the Administrative Agent shall have received, for the account of
each Lender executing this Amendment on or prior to December 29, 2004 an
amendment fee equal to 0.10% of the sum of each such executing Lender's Term
Loans then outstanding (in respect of each such Lender, an "Amendment Fee");
and
(c) the amendment documentation to the Senior Note Indenture shall be
in form and substance reasonably satisfactory to the Administrative Agent.
2.2. Representations and Warranties. The Borrower represents and
warrants to each Lender that as of the effective date of this Amendment: (a)
this Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights
generally, by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and an implied covenant of good faith and fair
dealing; and (b) no Default or Event of Default shall have occurred and be
continuing as of the date hereof.
2.3. Counterparts. This Amendment may be executed by one or more of
the parties to this Amendment 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. A set of the copies of
this Amendment signed by all the parties shall be lodged with the Borrower and
the Administrative Agent. The execution and delivery of the Amendment by any
Lender shall be binding upon each of its successors and assigns (including
Transferees of its commitments and Loans in whole or in part prior to
effectiveness hereof) and binding in respect of all of its commitments and
Loans, including any acquired subsequent to its execution and delivery hereof
and prior to the effectiveness hereof.
2.4. Continuing Effect; No Other Amendments. Except to the extent the
Credit Agreement is expressly modified hereby, all of the terms and provisions
of the Credit Agreement and the other Loan Documents are and shall remain in
full force and effect. This Amendment shall constitute a Loan Document.
2.5. Payment of Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred to date in connection with this Amendment and the other Loan
Documents, including, without limitation, the reasonable fees and disbursements
of legal counsel to the Administrative Agent.
2.6. GOVERNING LAW. THIS AMENDMENT 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.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective 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
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
U.S. Bank National Association
Name of Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Canpartners Investments IV, LLC
Name of Lender
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
Canyon Capital CLO 2004-1, Ltd
Name of Lender
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
Canyon Capital CDO2 2002-1 LTD
Name of Lender
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
By:
Name:
Title:
Satellite Senior Income Fund, LLC
By: Satellite Asset Management, L.P.
Its Investement Manager
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: General Counsel
First Dominion Funding III
Name of Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
First Dominion Funding II
Name of Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
First Dominion Funding I
Name of Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
CSAM Funding III
Name of Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
CSAM Funding II
Name of Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
CSAM Funding I
Name of Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
NATEXIS BANQUES POPULAIRES
Name of Lender
By: /s/ Jordan X. Xxxx
------------------------------
Name: Jordan X. Xxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp
As Collateral Agent
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Executive Director
SEA PINES FUNDING LLC
Name of Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
General Electric Capital Corp
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Duly Authorized Signatory
KZH CYPRESSTREE-1 LLC
Name of Lender
By: /s/ Hi Hua
-----------------------------
Name: Hi Hua
Title: Authorized Agent
KZH SOLEIL LLC
Name of Lender
By: /s/ Hi Hua
-----------------------------
Name: Hi Hua
Title: Authorized Agent
KZH STERLING LLC
Name of Lender
By: /s/ Hi Hua
-----------------------------
Name: Hi Hua
Title: Authorized Agent
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO III, LTD
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO VI, LTD.
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXXXX & CO
-----------------------------
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
-----------------------------
By: TCW Asset Management Company
its Investment Manager
By: /s/ Xxxx X. Gold
-----------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
THE UNDERSIGNED GUARANTORS HEREBY CONSENT AND AGREE TO THE
FOREGOING AMENDMENT AS OF THE DATE HEREOF.
PANAVISION U.K. HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
LPPI, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
PANAVISION GP Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
PANAVISION INTERNATIONAL, L.P.
By: Panavision Inc., as General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
PANY Rental Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Assistant Secretary
Panavision Federal Systems, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
TFN Lighting Corp.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Assistant Secretary
PANAVISION REMOTE SYSTEMS, LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer