Exhibit 10.4
FIRST AMENDMENT
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FIRST AMENDMENT, dated as of October 28, 2002 (this "Amendment"), to
the AMENDED AND RESTATED CREDIT AGREEMENT (the "Credit Agreement"), dated as of
April 17, 2001, among FLAVORS HOLDINGS INC., a Delaware corporation, PNEUMO ABEX
CORPORATION, a Delaware corporation (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties thereto (the
"Lenders"), BNP PARIBAS, as documentation agent, and JPMORGAN CHASE BANK, as
paying agent (in such capacity, the "Paying Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders agree to amend or
waive certain provisions of the Loan Documents; and
WHEREAS, the Lenders are willing to amend or waive such provisions on
and subject to the terms and conditions herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Definitions. Unless otherwise defined herein, terms defined
in the Credit Agreement shall have those meanings when used herein.
Section 2. Amendment to Section 1.1 of the Credit Agreement.
(a) The definition of "Applicable Margin" contained in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"Applicable Margin": (a) 3.00% in the case of ABR Loans and (b) 4.00%
in the case of Eurodollar Loans.
Accordingly, the Pricing Grid is hereby deleted from the Credit Agreement.
(b) Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new defined terms in appropriate alphabetical order:
"Panavision Notes": the 9-5/8% Senior Subordinated Discount Notes due
2006 issued by Panavision and owned by the Borrower in an aggregate
principal amount of $11,420,000.
"Panavision Notes Disposition": the sale by the Borrower to Mafco
Holdings, Inc. or any Subsidiary thereof (other than Holdings and its
Subsidiaries) of the Panavision Notes for an aggregate amount in cash of not
less than $4,363,300 plus accrued interest.
"Panavision Shares Disposition": the sale by PVI Acquisition of the
Panavision Shares to Mafco Holdings, Inc. or any Subsidiary thereof (other
than Holdings and its Subsidiaries) in accordance with the Stipulation of
Settlement filed on July 26, 2002 with the Court of Chancery for the State
of Delaware in and for New Castle County.
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Section 3. Amendment to Section 2.15(b) of the Credit Agreement.
Section 2.15(b) of the Credit Agreement is hereby amended by adding the
following proviso to the end of the second sentence thereof:
"provided, that the mandatory prepayment resulting from the Panavision
Notes Disposition shall be applied to the remaining installments of the
Term Loans in inverse order of maturity"
Section 4. Amendment to Sections 7.5(e) and 7.6(f) of the Credit
Agreement. (a) Section 7.5(e) of the Credit Agreement is hereby amended by
replacing the text thereof with the reference "[INTENTIONALLY OMITTED]" and (b)
Section 7.6(f) of the Credit Agreement is hereby amended by deleting the words
"and the Botanical Sale".
Section 5. Amendment to Section 8 of the Credit Agreement. Section 8 of
the Credit Agreement is hereby amended by deleting paragraph (m) thereof.
Section 6. Waivers, etc.. (a) The provisions of the Guarantee and
Collateral Agreement and any other relevant Loan Document are hereby waived to
the extent necessary to permit the Panavision Shares Disposition. The provisions
of Section 7.9 of the Credit Agreement are hereby waived to the extent necessary
to permit the Panavision Notes Disposition.
(b) For the avoidance of doubt, the parties hereto hereby acknowledge
and agree that no mandatory prepayment shall result from the Panavision Shares
Disposition.
Section 7. PVI Acquisition. Effective on the date of the Panavision
Shares Disposition, all provisions of the Loan Documents relating to PVI
Acquisition are hereby deleted, including, without limitation, clauses (iii) and
(iv) of the definition of "Change of Control" contained in Section 1.1 of the
Credit Agreement, the reference to PVI Acquisition in the definition of "Group
Members" contained in Section 1.1 of the Credit Agreement, clause (ii) of
Section 8(k) of the Credit Agreement and the references to PVI Acquisition in
Section 8(l) of the Credit Agreement.
Section 8. Consent to Release of Liens and Guarantee. The parties
hereto hereby agree to (a) release all Liens in favor of the Paying Agent on the
Panavision Shares and the Panavision Notes, in each case effective on the date
of the Panavision Shares Disposition and the Panavision Notes Disposition,
respectively, and (b) release PVI Acquisition from all of its obligations and
liabilities under the Guarantee and Collateral Agreement, effective on the date
of the Panavision Shares Disposition.
Section 9. Representations and Warranties. The representations and
warranties made by the Borrower in Section 4 of the Credit Agreement, after
giving effect to this Amendment and the transactions contemplated hereby, shall
be true and correct in all material respects, except where such representations
and warranties relate to an earlier date in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date. The Borrower represents and warrants that, after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
Section 10. Effectiveness. This Amendment shall be effective on and as
of the date (the "Effective Date") on which (a) this Amendment shall have been
executed and delivered by the Borrower, Holdings and each Lender; (b) the
Borrower shall have reduced the Total Revolving Commitments to no greater than
$10,000,000 pursuant to Section 2.7 of the Credit Agreement, with any
requirement for advance notice thereof being hereby waived; (c) the Borrower
shall have prepaid the Term Loans pursuant to Section 2.9(b) of the Credit
Agreement in the amount of at least $4,363,300 with
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the proceeds of the Panavision Notes Disposition, with such prepayment being
applied as described in Section 3 of this Amendment; and (d) the Paying Agent
shall have received, for the account of each Lender that has delivered an
executed counterpart hereof to the Paying Agent prior to 5:00 P.M., New York
City time, on October 28, 2002, an amendment fee equal to 0.50% of each such
Lender's Term Loan and Revolving Commitment (determined after giving effect to
the reduction described in clause (b) above and the prepayment described in
clause (c) above).
Section 11. Continuing Effect of Loan Documents. This Amendment shall
not constitute a waiver, amendment or modification of any other provision of the
Loan Documents not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of the Borrower.
Except as expressly amended or modified herein, the provisions of the Loan
Documents are and shall remain in full force and effect.
Section 12. Counterparts; Binding Effect. (a) 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.
(b) The execution and delivery of this 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 the effectiveness hereof) and
binding in respect of all of its commitments and Loans, including any
commitments or Loans acquired subsequent to its execution and delivery hereof
and prior to the effectiveness hereof.
Section 13. Payment of Expenses. The Borrower agrees to pay or
reimburse the Paying Agent for all of its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of this Amendment and any other documents prepared in connection herewith, and
the consummation and administration of the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Paying Agent.
Section 14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the day and year first above written.
FLAVORS HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Title: Senior Vice President
PNEUMO ABEX CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Title: Senior Vice President
JPMORGAN CHASE BANK, as Paying Agent
and as a Lender
By: /s/ Xxxx X. Xxxxxx
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Title: Managing Director
BNP PARIBAS, as Documentation Agent
and as a Lender
By: /s/ XX xx Xxxxxxxx
------------------------------------
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Title: Director Merchant
Banking Group
ARCHIMEDES FUNDING III, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Managing Director
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Managing Director
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BALANCED HIGH YIELD FUND II, LTD.
BY: ING Capital Advisors LLC,
as Asset Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Managing Director
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxx Xxxxx
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Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------
Title: Associate
ING PRIME RATE TRUST
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
LONG LANE MASTER TRUST IV
BY: FLEET NATIONAL BANK AS TRUST
ADMINISTRATOR
By: /s/ Xxxxx Xxxxxx
------------------------------------
Title: Managing Director
ML CLO XII PILGRIM AMERICA (CAYMAN)
LTD.
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
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ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
MOUNTAIN CAPITAL CLO I LTD.
By: /s/ C. Xxxxxx Xxxxxx
---------------------------------------
Title: Director
MOUNTAIN CAPITAL CLO II LTD.
By: /s/ C. Xxxxxx Xxxxxx
---------------------------------------
Title: Director
ORIX FINANCIAL SERVICES INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
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PILGRIM CLO 1999-1 LTD.
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
SEQUILS - PILGRIM I, LTD.
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxx Xxxxx
---------------------------------------
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxx Xxxxx
---------------------------------------
Title: Vice President
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxx Xxxxx
---------------------------------------
Title: Vice President
