EXHIBIT 4.4
THIRD AMENDMENT
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THIRD AMENDMENT, dated as of March 15, 2002 (this "Amendment"), to the
Credit Agreement, dated as of May 28, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"; unless otherwise
defined herein, capitalized terms which are defined in the Credit Agreement are
used herein as defined therein), among PANAVISION INC., a Delaware corporation
(the "Borrower"), the several banks and other financial institutions or entities
from time to time parties thereto (the "Lenders"), X.X. XXXXXX SECURITIES INC.
(formerly known as Chase Securities Inc.), as advisor and arranger, CREDIT
SUISSE FIRST BOSTON, as documentation agent, and JPMORGAN CHASE BANK (formerly
known as The Chase Manhattan Bank), as administrative agent (in such capacity,
the "Administrative Agent").
W I T N E S S E T H
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower; and
WHEREAS, the Borrower has requested, and, upon this Amendment becoming
effective, the Lenders have agreed, that certain provisions of the Credit
Agreement be amended in the manner provided for in this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and in consideration of the premises, the
parties hereto hereby agree as follows:
SECTION I AMENDMENTS
1.1. Amendments to Section 1.1.
(a) The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
Alternate Base Eurodollar
Rate Loans Loans
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Revolving Credit Loans 2.75% 3.75%
Tranche A Term Loans 2.75% 3.75%
Tranche B Term Loans 3.00% 4.00%
(a) The definition of "Commitment Fee Rate" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Commitment Fee Rate": 3/4 of 1% per annum.
(c) The definition of "Consolidated EBITDA" in Section 1.1 of the Credit
Agreement is hereby amended by deleting from clause (j) thereof the phrase "the
Second Amendment dated as of June 30, 1999" and substituting in lieu thereof the
phrase "the Third Amendment dated as of March 15, 2002".
1. Amendment to Section 2.7. Section 2.7 of the Credit Agreement is hereby
amended by adding the following new paragraph (d) at the end thereof:
(d) In the event that, during the period commencing on March 15, 2002
and ending on June 30, 2002, the Borrower does not make optional or
mandatory prepayments of Term Loans under Section 2.9 or 2.10(a), as
applicable, in an aggregate principal amount of at least $100,000,000, the
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee equal to 1% of the sum of each such Lender's Revolving Credit
Commitment and Term Loans outstanding on the last day of such period, which
fee shall be payable on July 1, 2002.
2. Amendment to Section 7.1. Section 7.1 of the Credit Agreement is hereby
amended in its entirety to read as follows:
7.1. Financial Condition Covenants.
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as at the last day of any fiscal quarter which day shall
occur during the following periods to exceed the following respective
ratios:
Consolidated Total
Period Leverage Ratio
October 1, 2001 to December 31, 2001 6.75 to 1.00
January 1, 2002 to June 30, 2002 8.50 to 1.00
July 1, 2002 to September 30, 2002 7.00 to 1.00
October 1, 2002 to December 31, 2002 6.00 to 1.00
January 1, 2003 and thereafter 5.00 to 1.00
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters
of the Borrower to be less than 2.00 to 1.00.
(c) Consolidated EBITDA. Permit Consolidated EBITDA for any period of
four consecutive fiscal quarters of the Borrower ending with any fiscal
quarter set forth below to be less than the amount set forth below opposite
such fiscal quarter:
Fiscal Quarter Amount
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March 31, 2002 $60,000,000
June 30, 2002 $55,000,000
September 30, 2002 $70,000,000
December 31, 2002 $80,000,000
3. Amendment to Section 7.7. The Credit Agreement is hereby amended by
deleting Section 7.7 in its entirety and substituting in lieu thereof the
following:
7.7. Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditure, except (a) Capital Expenditures of the Borrower and
its Subsidiaries in the ordinary course of business not exceeding
$30,000,000 for the 2001 fiscal year of the Borrower, $21,000,000 for the
2002 fiscal year of the Borrower and $25,000,000 in each fiscal year of the
Borrower thereafter; (b) Capital Expenditures made with the proceeds of any
event which would be a Recovery Event but for the second parenthetical
clause in the definition thereof; and (c) Capital Expenditures made with
the proceeds of any Dispositions of Property by the Borrower or its
Subsidiaries pursuant to Section 7.5(a)(i).
4. Amendment to Section VIII. Section VIII of the Credit Agreement is
hereby amended by (a) inserting the word "or" at the end of paragraph (l)
thereof and (b) adding the following new paragraphs (m) and (n) immediately
after paragraph (l):
(m) (i) the Borrower shall fail to receive from one or more Persons
(other than any Subsidiary of the Borrower) Senior Subordinated Notes in an
aggregate principal amount of $37,700,000 in exchange solely for shares of
newly issued common stock or perpetual preferred stock of the Borrower by
the earlier of (A) a date no more than two Business Days later than the
date of the approval by the Delaware Chancery Court of the proposed
settlement of the matter In re M&F Worldwide Corp. Shareholder Litigation,
Consolidated Civil Action No. 18502 NC and (B) June 30, 2002, or (ii) the
Borrower shall fail to cancel such Senior Subordinated Notes promptly after
receipt thereof; or
(n) (i) the Borrower shall fail to receive from one or more Persons
(other than any Subsidiary of the Borrower) by June 30, 2002 cash in an
aggregate amount equal to $10,000,000 in exchange solely for shares of
newly issued common stock or perpetual preferred stock of the Borrower or
(ii) the Borrower shall fail to apply such cash amount promptly after
receipt thereof as an optional prepayment of Revolving Credit Loans (it
being understood and agreed that such optional prepayment shall be made
without any permanent reduction of the Revolving Credit Commitments);
SECTION II WAIVER
The Lenders hereby waive compliance by the Borrower and its Subsidiaries
with the provisions of Section 2.10(a) of the Credit Agreement insofar as such
provisions would otherwise apply to the issuance by the Borrower of its Capital
Stock as contemplated by paragraph (n) of Section VIII of the Credit Agreement.
SECTION III MISCELLANEOUS
3.1. Conditions to Effectiveness of Amendment. This Amendment shall become
effective as of the date first set forth above (the "Third Amendment Effective
Date") upon satisfaction of the following conditions:
(a) The Administrative Agent shall have received counterparts of this
Amendment duly executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders; and
(b) The Administrative Agent shall have received, for the account of
each Lender executing this Amendment, an amendment fee equal to 1/4% of the
sum of each such Lender's Revolving Credit Commitment and Term Loans then
outstanding.
Interest that is payable after the Third Amendment Effective Date but that
accrued prior thereto shall be payable at the interest rates in effect
prior to this Amendment becoming effective.
3.2. Representations and Warranties. The Borrower represents and warrants
to each Lender that as of the effective date of this Amendment: (a) this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally, by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law) and an implied covenant of good faith and fair dealing; (b) the
representations and warranties made by the Loan Parties in the Loan Documents
are true and correct in all material respects on and as of the date hereof
(except to the extent that such representations and warranties are expressly
stated to relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date); and (c) no Default or Event of Default shall have
occurred and be continuing as of the date hereof.
3.3. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with the Borrower and the
Administrative Agent. The execution and delivery of the Amendment by any Lender
shall be binding upon each of its successors and assigns (including Transferees
of its commitments and Loans in whole or in part prior to effectiveness hereof)
and binding in respect of all of its commitments and Loans, including any
acquired subsequent to its execution and delivery hereof and prior to the
effectiveness hereof.
3.4 Continuing Effect; No Other Amendments. Except to the extent the Credit
Agreement is expressly amended hereby, all of the terms and provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect. This Amendment shall constitute a Loan Document.
3.5. Payment of Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred to date in connection with this Amendment and the other Loan Documents,
including, without limitation, the reasonable fees and disbursements of legal
counsel to the Administrative Agent.
3.6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
PANAVISION INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
JPMORGAN CHASE BANK, as
Administrative Agent and as a Lender
By: /s/ XXXXXX XXXXX XXXXX
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Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as
Documentation Agent and as a Lender
By: /s/ XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx
Title: Managing Director
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Associate
Archimedes Funding, LLC
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Credit Agricole Indosuez
By: /s/ XXX XXX XXXXXXX
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Name: Xxx xxx Xxxxxxx
Title: Authorized Signatory
By: /s/ XXXXXXXX X. XXXX
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Name: Xxxxxxxx X. Xxxx
Title: Authorized Signatory
Crescent/Mach I Partners, L.P.
By: TCW Asset Management Company,
its Investment Manager
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
CSAM Funding I
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
Debt Strategies Fund, Inc.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
Xxxxx Xxxxx CDO III, Ltd.
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
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Name: Payson X. Xxxxxxxxx
Title: Vice President
Xxxxx Xxxxx Institutional Senior Loan Fund
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
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Name: Payson X. Xxxxxxxxx
Title: Vice President
Xxxxx Xxxxx Senior Income Trust
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
--------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
First Dominion Funding I
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
First Dominion Funding II
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
First Dominion Funding III
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
Fleet National Bank
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The Fuji Bank, Ltd.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President and Manager
GE Capital
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Senior Risk Manager
General Electric Capital Corporation
(Acting through its Commercial
Finance Bank Loan Group)
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Title: Duly Authorized Signatory
Xxxxxxx & Co.
By: Boston Management & Research
as Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
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Name: Payson X. Xxxxxxxxx
Title: Vice President
ING Prime Rate Trust
By: ING Investments, LLC
as its Investment Manager
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Pilgrim America High Income Investments Ltd.
By: ING Investments, LLC
as its Investment Manager
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Sequils - Pilgrim I, Ltd.
By: ING Investments, LLC
as its Investment Manager
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
ML CLO XV Pilgrim America (Cayman) Ltd.
By: ING Investments, LLC
as its Investment Manager
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
KZH Crescent - 2 LLC
By: /s/ XXXXX XXX
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH ING - 2 LLC
By: /s/ XXXXX XXX
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH Soleil LLC
By: /s/ XXXXX XXX
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Name: Xxxxx Xxx
Title: Authorized Agent
Lloyds TSB Bank Plc.
By: /s/ XXXXXXXX X. XXXXX
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President Credit Services
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President Credit Services, USA
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
Xxxxxx Xxxxxxx Prime Income Trust
By: /s/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
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Natexis Banques Populaires
By: /s/ XXXXX X. XXXXXX, XX.
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By: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Associate
Oxford Strategic Income Fund
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
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Name: Payson X. Xxxxxxxxx
Title: Vice President
Satellite Senior Income Fund, LLC
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Principal
Senior Debt Portfolio
By: Boston Management & Research
as Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
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Name: Payson X. Xxxxxxxxx
Title: Vice President
U.S. Bank National Association
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Banking Officer
Xxx Xxxxxx CLO I, Limited
By: Xxx Xxxxxx Investment Advisory
Corp as Collateral Manager
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
THE UNDERSIGNED GUARANTORS HEREBY CONSENT AND AGREE TO THE FOREGOING THIRD
AMENDMENT AS OF THE DATE HEREOF.
PANAPAGE ONE LLC
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
PANAPAGE TWO LLC
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
PANAPAGE CO. LLC
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
PANAVISION INTERNATIONAL, L.P.
By: Panavision Inc., its General Partner
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
PANAVISION U.K. HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
PANAVISION REMOTE SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
