EXHIBIT 4.10
FIFTH AMENDMENT
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FIFTH AMENDMENT, dated as of September 30, 2002 (this "Amendment"), with
respect 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"),
CREDIT SUISSE FIRST BOSTON, as documentation agent, and JPMORGAN CHASE 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 modified 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. Amendment to Section 1.1. The definition of "Applicable Margin" in
Section 1.1 of the Credit Agreement is hereby amended in its entirety, effective
from and after the date upon which the conditions to effectiveness set forth in
Section 2.1 of this Amendment are satisfied, 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 Rate Eurodollar
Loans Loans
----- -----
Revolving Credit Loans 3.00% 4.00%
Tranche A Term Loans 3.00% 4.00%
Tranche B Term Loans 3.25% 4.25%
1.2. Amendment to Section 6.1. Section 6.1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"6.1 Financial Statements. Furnish to each Lender, through the
Administrative Agent:
(a) as soon as available, but in any event within 105 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated
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statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young LLP
or other independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated and consolidating balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated and consolidating
statements of income and of cash flows for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth in each case
in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
(c) as soon as available, but in any event within 105 days after the
end of each fiscal year of the Borrower, a copy of the unaudited
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related unaudited
consolidating statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects; and
(d) as soon as available, but in any event not later than 30 days
after the end of each calendar month beginning with October 2002 in each
fiscal year of the Borrower, the preliminary unaudited consolidated and
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated and consolidating statements of income and of cash flows for
such month and the portion of the fiscal year through the end of such
month, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal quarterly and year-end audit and
other appropriate adjustments).
All such financial statements (other than those specified in subsection (d)
of this Section 6.1) shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein)."
1.3. Amendment to Section 6.2(b). Section 6.2(b) of the Credit Agreement is
hereby amended by moving the words "in the case of quarterly or annual financial
statements," from the beginning of clause (y) to immediately before the clause
reference "(x)".
1.4. Amendment to Section 7.1(c). Section 7.1(c) of the Credit Agreement is
hereby amended by changing the amount "$70,000,000" appearing opposite the date
September 30, 2002 to the amount "$65,000,000", provided that the amendment
described in this Section 1.4 shall automatically cease to have any force or
effect from and after 9:00 A.M., New York City time, on March 28, 2003. It is
understood that from and after such time an Event of Default shall be deemed to
have occurred and be continuing if Section 7.1(c) without giving effect to the
amendment described in this Section 1.4 shall not have been complied with for
the period ending September 30, 2002.
1.5. Amendment to Section VIII. Section VIII of the Credit Agreement is
hereby amended by (a) inserting the word "or" at the end of paragraph (o)
thereof and (b) adding the following new paragraphs (p) and (q) immediately
after paragraph (o):
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(p) the interest payment due on February 1, 2003 in respect of all
Senior Subordinated Notes held by any Affiliate of the Borrower shall not
be financed exclusively through an investment made in the Borrower by the
Equity Investor or an Affiliate thereof (other than the Borrower and its
Subsidiaries) in exchange for shares of newly issued common stock or
perpetual preferred stock of the Borrower; or
(q) one of the following shall not have occurred on or before March
28, 2003: (i) a refinancing of the Loans and other amounts outstanding
under this Agreement and the termination of the Commitments hereunder; (ii)
the reduction of the outstanding Indebtedness of the Borrower and its
Subsidiaries in such manner and amount as is acceptable to the Required
Lenders; or (iii) an investment by the Equity Investor or an Affiliate
thereof (other than the Borrower and its Subsidiaries) in the Borrower in
exchange for shares of newly issued common stock or perpetual preferred
stock of the Borrower in an amount equal to the amount of the interest
payment due on February 1, 2003 in respect of the Senior Subordinated Notes
other than the portion thereof referred to in subsection (p) of this
Section VIII.
1.6. Net Proceeds Events. The parties hereto agree that the equity
investments referred to in Section 1.5 of this Amendment shall not constitute
Net Proceeds Events.
SECTION II MISCELLANEOUS
2.1. Conditions to Effectiveness of Amendment. This Amendment shall become
effective as of the date first set forth above 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 on or prior to the earlier of (x)
November 12, 2002 and (y) any date prior to November 12, 2002 by which
the Administrative Agent shall have received counterparts of this
Amendment duly executed and delivered by the Required Lenders (the
"Earlier Date"), an amendment fee equal to 0.125% of the sum of each
such executing Lender's Revolving Credit Commitment and Term Loans
then outstanding (in respect of each such Lender, an "Amendment Fee").
The Borrower shall also pay an Amendment Fee to each Lender from which
the Administrative Agent receives a counterpart of the Amendment duly
executed and delivered by such Lender after the Earlier Date but on or
prior to November 12, 2002.
2.2. 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.
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2.3. 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.
2.4. Continuing Effect; No Other Amendments. Except to the extent the
Credit Agreement is expressly modified 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.
2.5. 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.
2.6. 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 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Counsel &
Executive Vice President
JPMORGAN CHASE BANK, as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as
Documentation Agent and as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
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Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Director
Archimedes Funding, LLC,
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Archimedes Funding III, Ltd.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Can Partners Investments IV, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
Crescent/Mach I Partners, L.P.,
By: TCW Asset Management Company
its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CSAM Funding I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Debt Strategies Fund, Inc.
By: /s/ SAVITRI ALEX
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Name: Savitri Alex
Title: Authorized Signatory
First Dominion Funding I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
First Dominion Funding II
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
First Dominion Funding III
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Galaxy CLO 1999-1 Ltd
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
General Electric Capital Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
General Electric Capital Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Sr. Risk Manager
ING Prime Rate Trust
By: ING Investments, LLC
as its Investment Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KZH Crescent - 2 LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Agent
KZH ING - 2 LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Agent
KZH Soleil LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Agent
Lloyds TSB Bank plc
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Credit
Services B-499
By: /s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Title: Assistant Director Credit
Services P-002
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund, Inc.
By: /s/ SAVITRI ALEX
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Name: Savitri Alex
Title: Authorized Signatory
ML CLO XV Pilgrim America (Cayman) Ltd,
By : ING Investments, LLC as its
investment manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Prime Income Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
Natexis Banques Populaires
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President & Group
Manager
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Pilgrim America High Income
Investments Ltd.
By: ING Investments, LLC
as its Investment Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Salomon Brothers Holding Company Inc
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Satellite Senior Income Fund, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Principal
Sequils - Pilgrim I, Ltd.
By: ING Investments, LLC
as its Investment Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ CLO I, Limited
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ Prime Rate Income Trust
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ Senior Floating Rate Fund
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
▇▇▇ ▇▇▇▇▇▇ Senior Income Trust
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE UNDERSIGNED GUARANTORS HEREBY CONSENT AND AGREE TO THE FOREGOING FOURTH
AMENDMENT AS OF THE DATE HEREOF.
PANAPAGE ONE LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Controller & Assistant Secretary
PANAPAGE TWO LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Controller & Assistant Secretary
PANAPAGE CO. LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Controller & Assistant Secretary
PANAVISION INTERNATIONAL, L.P.
By: Panavision Inc., its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Counsel & Executive
Vice President
PANAVISION U.K. HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Controller and Assistant Secretary
PANAVISION REMOTE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
LAS PALMAS PRODUCTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President & Secretary