EXHIBIT 4.4
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PANAVISION INC.,
AS BORROWER
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$4,000,000
LINE OF CREDIT AGREEMENT
Dated as of February 3, 2003
MACANDREWS & FORBES HOLDINGS INC.,
AS LENDER
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms.............................................1
1.2 Other Definition Provisions...............................4
SECTION 2. AMOUNT AND TERMS OF COMMITMENT...................................4
2.1 The Commitment............................................4
2.2 Procedure for Borrowing...................................4
2.3 Voluntary Termination or Reduction of the Commitment......5
2.4 Repayment of Loans; Evidence of Debt......................5
2.5 Use of Proceeds...........................................5
SECTION 3. PROVISIONS RELATING TO THE LOANS.................................5
3.1 Optional Prepayments......................................5
3.2 Mandatory Prepayments.....................................5
3.3 Interest Rate and Payment Dates...........................6
3.4 Method of Payments........................................6
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................6
4.1 Corporate Existence.......................................6
4.2 Corporate Power...........................................6
4.3 No Legal Bar to Loans.....................................7
SECTION 5. CONDITIONS PRECEDENT.............................................7
5.1 Conditions to Initial Loan................................7
5.2 Conditions to Each Loan...................................7
SECTION 6. EVENTS OF DEFAULT................................................8
6.1 Events of Default.........................................8
SECTION 7. MISCELLANEOUS....................................................9
7.1 Amendments and Waivers....................................9
7.2 Notices...................................................9
7.3 No Waiver; Cumulative Remedies............................9
7.4 Survival of Representations and Warranties...............10
7.5 Payment of Expenses; General Indemnity...................10
7.6 Successors and Assigns...................................10
7.7 Counterparts.............................................10
7.8 Severability.............................................11
7.9 Integration..............................................11
7.10 GOVERNING LAW............................................11
7.11 Submission To Jurisdiction; Waivers......................11
7.12 WAIVERS OF JURY TRIAL....................................11
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LINE OF CREDIT AGREEMENT
LINE OF CREDIT AGREEMENT, dated as of February 3, 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 :
- - - - - - - - - -
WHEREAS, the Borrower has requested the Lender to extend
credit on a senior 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 prior to the Termination Date in an aggregate
principal amount at any time outstanding not to exceed $4,000,000;
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
ollowing 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 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
and (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.
"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.
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"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 and otherwise modified 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.
"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 $4,000,000, 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, 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 $5,000,000) to become due or to be required to be
redeemed or repurchased prior to its stated maturity. For purposes of this
definition, the terms "Indebtedness" and "Guarantee Obligation" shall have the
meanings given to them in the Bank Credit Agreement.
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"Default" means any of the events specified in Section 6.1
hereof, whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition specifically set forth therein, has been
satisfied.
"Dollars" and "$" 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.
"Lender" is defined in the introductory paragraph of this
Agreement.
"Loans" is defined in Section 2.1(a) hereof.
"Maturity Date" means March 28, 2003.
"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.
"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.
"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).
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"Termination Date" means the Maturity Date or, if earlier,
the date upon which the Commitment shall terminate in accordance with the terms
hereof.
1.2 Other Definition Provisions.
(a) All terms defined in this Agreement
shall have such defined meanings when used in any certificate or other document
make of 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.
(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 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.
(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 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.
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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.
(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. 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.
3.2 Mandatory Prepayments. 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.
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3.3 Interest Rate and Payment Dates.
(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.
(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.
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.
(a) The Borrower is duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
4.2 Corporate Power.
(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.
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(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.
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:
(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, 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.
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SECTION 7. MISCELLANEOUS
7.1 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 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.
7.2 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.
7.3 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, powers and
privileges herein provided are cumulative and not exclusive
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of any rights, remedies, powers and privileges provided by law.
7.4 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.
7.5 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 7.5 shall survive the termination of the
Commitment and the repayment of the Loans and all other amounts payable
hereunder.
7.6 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 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
7.6, 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.
7.7 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.
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7.8 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.
7.9 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.
7.10 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.
7.11 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 forth in Section 7.2 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.
7.12 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.
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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/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
Title: Controller and Assistant
Secretary
MACANDREWS & FORBES HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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