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PANAVISION INC.,
AS BORROWER
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AMENDED AND RESTATED
SENIOR SUBORDINATED LINE OF CREDIT AGREEMENT
Dated as of March 30, 2005
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MACANDREWS & FORBES INC.,
AS LENDER
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TABLE OF CONTENTS
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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...........................................6
2.3. Voluntary Termination or Reduction of the Commitment..............6
2.4. Repayment of Loans; Evidence of Debt..............................6
2.5. Use of Proceeds...................................................7
SECTION 3. PROVISIONS RELATING TO THE LOANS....................................7
3.1. Optional Prepayments..............................................7
3.2. Mandatory Prepayments.............................................7
3.3. Interest Rate and Payment Dates...................................7
3.4. Method of Payments................................................8
SECTION 4. REPRESENTATIONS AND WARRANTIES......................................8
4.1. Corporate Existence...............................................8
4.2. Corporate Power...................................................8
4.3. No Legal Bar to Loans.............................................9
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......................................................12
7.3. Bankruptcy, Insolvency and Liquidation, Etc......................12
7.4. Senior Debt Default..............................................13
7.5. Senior Subordinated Notes........................................14
SECTION 8. MISCELLANEOUS......................................................14
8.1. Amendments and Waivers...........................................14
8.2. Notices..........................................................14
8.3. No Waiver; Cumulative Remedies...................................15
8.4. Survival of Representations and Warranties.......................15
8.5. Payment of Expenses; General Indemnity...........................15
8.6. Successors and Assigns...........................................16
8.7. Counterparts.....................................................16
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8.8. Severability.....................................................17
8.9. Integration......................................................17
8.10. GOVERNING LAW....................................................17
8.11. Submission To Jurisdiction; Waivers..............................17
8.12. WAIVERS OF JURY TRIAL............................................18
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SECOND AMENDED AND RESTATED
SENIOR SUBORDINATED LINE OF CREDIT AGREEMENT
SECOND AMENDED AND RESTATED SENIOR SUBORDINATED LINE OF CREDIT
AGREEMENT, dated as of March 30, 2005, between PANAVISION INC., a Delaware
corporation (the "Borrower"), and MACANDREWS & FORBES INC., a Delaware
corporation (the "Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender are party to that certain Amended
and Restated Senior Subordinated Line of Credit Agreement, dated as of January
16, 2004 (the "Existing Agreement"), pursuant to which the Lender agreed to
extend credit on a subordinated unsecured basis in order to enable the Borrower,
subject to the terms and conditions of the Existing Agreement, to borrow, on a
revolving basis, at any time and from time to time an aggregate principal amount
at any time outstanding not to exceed $20,000,000;
WHEREAS, the Borrower has requested the Lender (i) to increase the
commitment under the Existing Agreement to an aggregate principal amount at any
one time outstanding of up to $32,000,000 and, under certain circumstances,
$40,000,000 and (ii) to make certain other changes;
WHEREAS, the Lender is willing to increase the commitment under the
Existing Agreement and to make the other changes requested by 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 to amend and restate
the Existing Agreement 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 Second Amended and Restated 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 Credit Agreement" means the Amended and Restated Credit
Agreement dated January 16, 2004, by and among the Borrower, the several banks
and other financial institutions from time to time parties thereto, the Arranger
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.
"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 (i) prior to the consummation of the UK Asset Purchase, $32,000,000 and
(ii) from and after the consummation of the UK Asset Purchase, an amount equal
to the sum of (x) $32,000,000 plus (y) the total purchase price (including
transaction costs) of the UK Asset Purchase, not exceeding $40,000,000, in each
case, as such obligation is reduced from time to time in accordance with Section
2.3 hereof.
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"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 $5,000,000) to become due or to be required to be
redeemed or repurchased prior to its stated maturity. For purposes of this
definition, the terms "Indebtedness" and "Guarantee Obligation" shall have the
meanings given to them in the Bank Credit Agreement.
"Default" means any of the events specified in Section 6.1 hereof,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition specifically set forth therein, has been satisfied.
"Dollars" and "$" 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.
"Existing Agreement" is defined in the recitals to this Agreement.
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"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).
"Indenture" means the Indenture dated as of January 16, 2004, by and
among the Borrower, the Subsidiary Guarantors named therein and Wilmington Trust
Company, as may be amended, supplemented, modified or replaced, in whole or in
part, from time to time.
"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 April 16, 2009.
"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.
"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
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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.
"UK Asset Purchase" means the purchase by the Borrower or any of its
Subsidiaries of camera, lighting and grip assets from VFG Hire Limited pursuant
to the terms of the UK Asset Purchase Agreement and the purchase of equipment
and other assets from lessors of VFG Hire Limited.
"UK Asset Purchase Agreement" means that certain purchase agreement,
to be dated on or about March 31, 2005, among VFG Hire Limited and the Borrower
or any Subsidiary of the Borrower.
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 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.
(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.
(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.
(c) The $13,654,102.38 aggregate principal amount outstanding as
of the date hereof under the Existing Agreement shall be deemed a Loan issued
and outstanding under this Agreement as of the date 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
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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.
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.
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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. (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.
(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.
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(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. 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.
(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:
(a) 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.
(b) 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.
(c) 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.
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
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(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
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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 the Indenture 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 or the Indenture, as
applicable, 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 the Indenture 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 or the Indenture.
7.3. Bankruptcy, Insolvency and Liquidation, Etc.
(a) In the event of any distribution of assets to creditors in
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, 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
11
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.
(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
12
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 applicable holders of Senior Debt, as provided in the Bank
Credit Agreement, the Indenture and the other Senior Debt documents, 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 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
13
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: Xxxxxx Xxxxxxxx
Vice President
Telecopy: (000) 000-0000
E-mail: Xxxxxx_Xxxxxxxx@xxxxxxxxxx.xxx
Lender: MacAndrews & Forbes 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, 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
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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
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
15
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 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.
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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.
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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/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Exec. Vice President and CFO
MACANDREWS & FORBES INC.
By: /S/ XXXX X. XXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
