THIS FIRST SUPPLEMENTAL INDENTURE AND WAIVER (this "Supplemental
Indenture") is dated as of August 11, 2004, among Panavision Inc., a Delaware
corporation (the "Issuer"), the Subsidiary Guarantors, Wilmington Trust Company,
as trustee (the "Trustee") and Wilmington Trust Company, as collateral trustee
(the "Collateral Trustee"). Capitalized terms used herein and not otherwise
defined shall have the respective meaning ascribed to such terms in the
Indenture (as defined below).
WHEREAS, the Issuer, the Subsidiary Guarantors, the Trustee and the
Collateral Trustee entered into an Indenture (the "Indenture") dated as of
January 16, 2004, to provide for the issuance of the Issuer's 12.50% Senior
Secured Notes due January 2009;
WHEREAS, the Issuer, the Subsidiary Guarantors and the Collateral
Trustee are party to the Collateral Agreement;
WHEREAS, the Issuer has requested, and the Subsidiary Guarantors, the
Trustee and the Collateral Trustee have agreed, that certain provisions of the
Indenture and the Collateral Agreement be amended and/or waived in the manner
provided herein;
WHEREAS, Section 10.2 of the Indenture generally permits the Indenture
and the Collateral Agreement to be amended or supplemented with the written
consent of the Majority Holders;
WHEREAS, the Issuer has received the written consent of the Majority
Holders as of August 11, 2004 to the amendments and waivers contemplated by this
Supplemental Indenture; and
WHEREAS, the Issuer, the Subsidiary Guarantors, the Trustee and the
Collateral Trustee are authorized to enter into this Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained in this Supplemental Indenture and for other good and
valuable consideration, the receipt and sufficiency of which are herein
acknowledged, the Issuer, the Subsidiary Guarantors, the Trustee and the
Collateral Trustee hereby agree for the equal and the ratable benefit of all
Holders of the Notes as follows:
ARTICLE ONE
1.1 Amendments. (a) Section 1.01 of the Indenture is hereby
amended by inserting the following new definitions in the appropriate
alphabetic order:
"Alga" means Panavision Alga Paris SARL, a company
organized under the laws of France.
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"Canadian Acquisition" means the purchase by Panavision
Canada Corp of substantially all of the camera assets of the Canadian company
heretofore identified to the Trustee.
"Canadian Seller Note" means a promissory note payable by
Panavision Canada Corp to the seller in the Canadian Acquisition in an aggregate
principal amount of not more than CDN$11,000,000.
"Capital Expenditures" means for any period, all amounts
(whether paid in cash or accrued as liabilities), that would in accordance with
GAAP, be set forth as "capital expenditures" on the consolidated statement of
cash flows of the Borrower and its Subsidiaries for such period. It is hereby
understood and agreed that principal payments under the Canadian Seller Note
shall not constitute Capital Expenditures.
"CDN$" means freely transferable lawful currency of Canada
(expressed in dollars).
"(euro)" means the single currency of participating member
states of the European Union.
"First Supplemental Indenture" means the First
Supplemental Indenture and Waiver, dated as of August 11, 2004, among the
Issuer, the Subsidiary Guarantors, Wilmington Trust Company, as indenture
trustee and as collateral trustee.
"Panavision Canada Corp" means Panavision Canada Corp., a
Canadian Corporation.
"Panavision Canada Sale" means the sale by Panavision
Canada Corp of its lighting assets for total consideration of approximately
$3,750,000.
"Technovision" means Technovision, France S.A.S., a
corporation organized under the laws of France.
"Technovision Acquisition" means the purchase by Alga of
100% of the Capital Stock of Technovision.
(b) The definition of "Non-Core Assets" is hereby amended and
restated in its entirety to read as follows: "Non-Core Assets" means
the member interest in, or any assets of, EFILM."
(c) The definition of "Permitted Investment" is hereby amended
by (i)deleting the term "and" at the end of subsection (xi) thereof and
(ii)inserting the following subsection at the end of subsection (xii)
thereof:
"(xiii) Investments by the Issuer and the Restricted
Subsidiaries in Alga in an amount not to exceed
(euro)3,300,000; provided, that such Investments in Alga are
(i) made solely from the proceeds of the sale of Non-Core
Assets and (ii) used by Alga to consummate the
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Technovision Acquisition (including the payment of any
transaction costs); and (xiv) Investments by the Issuer and
the Restricted Subsidiaries in Panavision Canada Corp in an
amount not to exceed the difference between (x) CDN$22,000,000
and (y) the sum of (1) the principal amount of the Canadian
Seller Note and (2) any Indebtedness assumed in connection
with the Canadian Acquisition; provided, that such Investments
in Panavision Canada Corp are (i) made solely from the
proceeds of the sale of Non-Core Assets and (ii) used by
Panavision Canada Corp to consummate the Canadian Acquisition
(including the payment of transaction costs and the assumption
of Capital Lease Obligations)".
(d) The definition of "Permitted Liens" is hereby amended by
(i) deleting the term "and" at the end of subsection (w) thereof, (ii)
deleting the "." at the end of subsection (x) thereof and substituting
in lieu thereof an ";" and (iii) inserting the following subsection at
the end thereof:
"and (y) Liens on the assets purchased in the Canadian
Acquisition to secure Indebtedness of Panavision Canada Corp
permitted by Section 5.17(q)."
(e) The definition of "Specified Disposition" is hereby
amended and restated in its entirety to read as follows:
"Specified Disposition" means any sale of Non-Core Assets,
which meets the following conditions:
(a) the Issuer has delivered to the Trustee a written notice
executed by an Officer stating that no Event of Default has
occurred and is continuing and that the Issuer (directly or
indirectly through a Subsidiary) intends and expects to use
all or a specified portion of the Net Cash Proceeds from the
sale of Non-Core Assets to manufacture, repair or acquire Core
Assets (defined below) or repay the PANY Loan Agreement in
full,
(b) at least 80% of the consideration received is in the form
of cash or Temporary Cash Investments,
(c) the Net Cash Proceeds of such sale (if not used
substantially contemporaneously with the sale to manufacture,
repair or acquire Core Assets (as defined below), repay in
full the PANY Loan Agreement or permanently retire principal
outstanding under the Senior Credit Facility) are placed into
a cash collateral account in which the Collateral Trustee has
a perfected security interest, prior to all Liens other than
the Lien pursuant to the Senior Credit Facility, and
(d) (i) (A) the Issuer or a Restricted Subsidiary uses such
Net Cash Proceeds within 360 days of such sale for any one or
more of the following: (I) to acquire 100% of the Capital
Stock of one or more entities engaged in the business of
manufacturing, designing, renting and/or
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selling cameras, lenses, lighting, lighting grips, power
distribution, generation and related transportation equipment
and/or cranes and remote camera heads or components of or
equipment related to any of the foregoing, or to manufacture,
repair or acquire any such business or assets (including
through Capital Expenditure), whether or not such business or
assets are located within the United States (collectively,
together with any capital stock or assets acquired in the
Canadian Acquisition or the Technovision Acquisition, the
"Core Assets"), (II) to consummate the Canadian Acquisition
for a total purchase price not to exceed CDN$22,000,000
(including the payment of transaction costs, the assumption of
Capital Lease Obligations, the principal amount of the
Canadian Seller Note and any Indebtedness assumed in
connection with the Canadian Acquisition), (III) to consummate
the Technovision Acquisition for a total purchase price not to
exceed (euro)5,000,000 (including the payment of transaction
costs and any payments in respect of any existing Technovision
Indebtedness) or (IV) to repay the PANY Loan Agreement in
full, (B) the Person that owns such Core Assets shall have
become a "Restricted Subsidiary" hereunder, shall have become
a "Subsidiary Guarantor" hereunder and shall have taken all
action set forth in Section 11.6 with respect to future
Subsidiary Guarantors (provided, that this clause (B) shall
not apply in the case of the Canadian Acquisition or the
Technovision Acquisition), and (C) the Issuer or Restricted
Subsidiary that owns the Capital Stock issued by the Person
that owns such Core Assets shall have pledged the Capital
Stock held by the Issuer or Restricted Subsidiary, as
applicable (provided, that this clause (C) shall not apply in
the case of the Canadian Acquisition or the Technovision
Acquisition), or (ii) to the extent that such Net Cash
Proceeds are not used as described in clause (i) above by the
360th day of receipt or the Issuer shall have determined not
to acquire such Core Assets, such Net Cash Proceeds not so
used shall constitute "Excess Proceeds" and be used as set
forth in Section 5.19.
(f) The definition of "Transaction Charges" is hereby amended
by (i) deleting the term "and" immediately preceding subsection (c)
thereof and substituting in lieu thereof an "," and (ii) inserting the
following at the end thereof:
"and (d) nonrecurring charges related to or arising out of
fees and expenses incurred in connection with the First
Supplemental Indenture and an amendment of even date therewith
to the Senior Credit Agreement, and the execution and delivery
of the foregoing."
(g) Section 5.17 is hereby amended by
(i) restating in its entirety subsection (k) thereof as
follows: "Capital Lease Obligations and Purchase Money
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Indebtedness in an aggregate principal amount at any time
outstanding (A) not to exceed $12,000,000 or (B) if, for the
year ended December 31, 2004, the EBITDA of the Issuer and its
Subsidiaries shall exceed the value set forth on Schedule I
hereto, $14,000,000; provided, the maximum amount of
Indebtedness that may be created, incurred, assumed or
suffered to exist pursuant to this Section 5.17(k) will not be
deemed to be exceeded, with respect to any such outstanding
Indebtedness, due solely to the result of fluctuations in the
exchange rates of currencies; provided, further for the
purposes of determining compliance with this Section 5.17(k),
the U.S. dollar equivalent principal amount of any such
Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was created, incurred,
assumed or suffered to exist;" and
(ii) (A) deleting the term "and" at the end of subsection (n)
thereof, (B) deleting the "." at the end of subsection (o)
thereof and substituting in lieu thereof an ";" and (C)
inserting the following subsections at the end thereof:
"(p) Indebtedness of Panavision Canada Corp under the Canadian
Seller Note in an aggregate principal amount not to exceed
CDN$11,000,000 and unsecured Guarantees of the Borrower in
respect thereof; and
(q) Indebtedness of Alga or Panavision Canada Corp that is
owed to and held by the Issuer or a Restricted Subsidiary in
respect of any Investment by the Issuer or such Restricted
Subsidiary permitted by subsection (xiii) or (xiv), as
applicable, of the definition of Permitted Investments".
1.2 The Panavision Canada Sale. The Net Cash Proceeds received
from the Panavision Canada Sale shall be deemed to constitute Excess
Proceeds.
1.3 Waiver of Section 5.6 of the Collateral Agreement. The
Collateral Trustee hereby waives noncompliance of Las Palmas (and any
Default or Event of Default that may have resulted therefrom) with the
30-day written notice requirement set forth in Section 5.6 of the
Collateral Agreement in connection with Las Palmas' undertaking to
change its legal name from "Las Palmas Productions, Inc." to "LPPI,
LLC" and to convert from a California corporation to a California
limited liability company; provided, that the Collateral Trustee shall
have received written notice promptly (and, in any event within three
Business Days) after the consummation of such changes.
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1.4 Amendment to Schedule 4 to the Collateral Agreement.
Schedule 4 of the Collateral Agreement is hereby amended by deleting
such schedule in its entirety and substituting in lieu thereof the
schedule set forth in Annex A hereto.
1.5 Amendment to Deposit Account Control Agreement. The
Collateral Trustee is hereby authorized to enter into an amendment to
the Deposit Account Control Agreement, dated as of January 16, 2004,
among the Borrower, the Collateral Trustee and the other parties
thereto, to delete Exhibit C thereto in its entirety and substitute in
lieu thereof the Exhibit C as set forth in Annex B hereto.
ARTICLE TWO
Miscellaneous
2.1 Effect of the Supplemental Indenture. This Supplemental
Indenture supplements the Indenture and shall be a part and subject to
all the terms thereof. Except as supplemented hereby, the Indenture and
the Notes issued thereunder shall continue in full force and effect.
2.2 Effectiveness. This Supplemental Indenture shall become
effective as of the date hereof.
2.3 Counterparts. This Supplemental Indenture may be executed
in counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same instrument.
2.4 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
2.5 Recitals. The Trustee shall not be responsible for any
recital herein (other than the last recital as it applies to the
Trustee) as such recitals shall be taken as statements of the Issuer,
or the validity of the execution by the Issuer of this Supplemental
Indenture. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed on this 11th day of August, 2004.
PANAVISION INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
PANAPAGE ONE LLC, as a Subsidiary
Guarantor
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
PANAPAGE TWO LLC, as a Subsidiary
Guarantor
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
PANAPAGE CO. LLC, as a Subsidiary
Guarantor
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Xxxxxxxxx
0
XXXXXXXXXX X.X. HOLDINGS, INC., as a
Subsidiary Guarantor
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
PANAVISION REMOTE SYSTEMS, LLC, as a
Subsidiary Guarantor
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
LPPI, LLC, as a Subsidiary Guarantor
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
PANAVISION INTERNATIONAL, L.P., as a
Subsidiary Guarantor
By: Panapage Two LLC, as General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
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WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Financial Services Officer
WILMINGTON TRUST COMPANY, as Collateral
Trustee
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Financial Services Officer
Annex A
Schedule 4 to Collateral Agreement
LOCATION OF OFFICES AND
JURISDICTIONS OF INCORPORATION OR FORMATION
Attached hereto as Exhibit A is a listing of the locations at which
inventory of the Grantors is located.
----------------------------------------------------------------------------------------------------------------------
FEDERAL LOCATION LOCATION OF
TAXPAYER OF CHIEF BOOKS AND TRADE OR
TYPE OF ORGANIZATIONAL ID ID EXECUTIVE RECORD OF FICTITIOUS
NAME OF GRANTOR ENTITY NUMBER NUMBER OFFICE COLLATERAL NAME
----------------------------------------------------------------------------------------------------------------------
Panavision Inc. Delaware 2247211 00-0000000 6219 De 0000 Xx Xxxx Xxxxxx X/X
corporation Xxxx Xxxxxx Xxxxxxxx Xxxxx, XX
Xxxxxxxx 00000-0000
Xxxxx, XX
00000-0000
----------------------------------------------------------------------------------------------------------------------
Panavision Remote California 200314 210071 00-0000000 6219 De 0000 Xx Xxxx Xxxxxx X/X
Systems LLC limited Xxxx Avenue Woodland Hills, CA
liability Woodland 91367-2602
company Xxxxx, XX
00000-0000
----------------------------------------------------------------------------------------------------------------------
Panapage Co. LLC Delaware 3142740 00-0000000 6219 De 0000 Xx Xxxx Xxxxxx Panavision
limited Xxxx Avenue Woodland Hills, CA
liability Woodland 91367-2602
company Xxxxx, XX
00000-0000
----------------------------------------------------------------------------------------------------------------------
Panavision U.K. Delaware 2750335 00-0000000 6219 De 0000 Xx Xxxx Xxxxxx X/X
Holdings, Inc. corporation Xxxx Xxxxxx Xxxxxxxx Xxxxx, XX
Xxxxxxxx 00000-0000
Xxxxx, XX
00000-0000
----------------------------------------------------------------------------------------------------------------------
Panapage One LLC Delaware 3142737 N/A 6219 De 0000 Xx Xxxx Xxxxxx X/X
limited Xxxx Avenue Woodland Hills, CA
liability Woodland 91367-2602
company Xxxxx, XX
00000-0000
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
FEDERAL LOCATION LOCATION OF
TAXPAYER OF CHIEF BOOKS AND TRADE OR
TYPE OF ORGANIZATIONAL ID ID EXECUTIVE RECORD OF FICTITIOUS
NAME OF GRANTOR ENTITY NUMBER NUMBER OFFICE COLLATERAL NAME
----------------------------------------------------------------------------------------------------------------------
Panapage Two LLC Delaware 3142739 N/A 6219 De 0000 XX XXXX XXXXXX X/X
limited Xxxx Avenue WOODLAND HILLS, CA
liability Woodland 91367-2602
company Xxxxx, XX
00000-0000
----------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxxxxxx 0000000 00-0000000 6219 De 0000 XX XXXX XXXXXX Panavision
International, limited Xxxx Avenue WOODLAND HILLS, CA
L.P. partnership Woodland 91367-2602 Xxxxxxxxxx
Xxxxx, XX Xxxxxxxxx
00000-0000 0000 XXXXX XXXXXX
XXXXXXXXX, XX 00000
Panavision
2000 UNIVERSAL Xxxxxxx
XXXXXXX XXXXX
XXXXX 000 Xxxxxxxxxx
XXXXXXX, XX Xxxxxxxxxx
00000-0000
Xxx Filters
0000 XXXXX 00XX
XXXXXX Xxxxxxxxxx
XXXXXXXXXX, XX Xxxxxx
00000
0000 XXXXXXX XXXXX
XXXXXX, XX 00000
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
FEDERAL LOCATION LOCATION OF
TAXPAYER OF CHIEF BOOKS AND TRADE OR
TYPE OF ORGANIZATIONAL ID ID EXECUTIVE RECORD OF FICTITIOUS
NAME OF GRANTOR ENTITY NUMBER NUMBER OFFICE COLLATERAL NAME
----------------------------------------------------------------------------------------------------------------------
LPPI, LLC California C1070439 00-0000000 6219 De 0000 Xxxxx Xxx Xxx Xxxxxx
limited Xxxx Avenue Palmas Avenue Productions,
liability Woodland Los Angeles, CA Inc.
company Xxxxx, XX 00000
91367-2602 (000) 000-0000
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
EXHIBIT A
PANAVISION INTERNATIONAL, L.P.
0000 XX XXXX XXXXXX
XXXXXXXX XXXXX, XX 00000-0000
0000 XXXXX XXXXXX
XXXXXXXXX, XX 00000
0000 XXXXXXXXX XXXXXXX XXXXX
XXXXX 000
XXXXXXX, XX 00000-0000
0000 XXXXX 00XX XXXXXX
XXXXXXXXXX, XX 00000
0000 XXXXXXX XXXXX
XXXXXX, XX 00000
000 Xxxx 00xx Xxxxxx
XXX XXXX, XX 00000
Annex B
Exhibit C
[Letterhead of Company]
[Date]
[Name and Address of Bank]
Attention:
Re: Withdrawal Request
Ladies and Gentlemen:
Pursuant to Section 7(e) of the Deposit Account Control Agreement,
dated as of January 16, 2004 (the "Agreement", a copy of which is attached
hereto) between Panavision Inc., Wilmington Trust Company as collateral trustee
(the "Collateral Trustee"), JPMorgan Chase Bank, as administrative agent (the
"Administrative Agent") and you, we hereby give you notice of our request to
withdraw $[_________] from the Deposit Account on ______ __, 200_. Terms used
herein but not defined herein shall have the meanings assigned to such term in
the Credit Agreement referred to in the Agreement.
We hereby represent and warrant that, as of the date hereof, (i) no
Default or Event of Default has occurred and is continuing and (ii) we have
delivered a Reinvestment Notice to the Administrative Agent and, pursuant to
such Reinvestment Notice, intend to use these funds within the next ten Business
Days to fund (or, in the case of Capital Expenditures incurred on or after
August 11, 2004, to reimburse the Company for prior fundings of) the
reinvestment described in such Reinvestment Notice.
Very truly yours,
PANAVISION INC.
By:
------------------------
Title:
cc: JPMorgan Chase Bank, as administrative agent
Wilmington Trust Company, as collateral trustee
SCHEDULE I
EBITDA of the Issuer and its Subsidiaries: $61,600,000.
