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PANAVISION INC.,
AS BORROWER
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$10,000,000
AMENDED AND RESTATED
LINE OF CREDIT AGREEMENT
Dated as of August 13, 2003
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MACANDREWS & FORBES HOLDINGS INC.,
AS LENDER
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TABLE OF CONTENTS
Page
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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........................................5
2.3. Voluntary Termination or Reduction of the Commitment...........6
2.4. Repayment of Loans; Evidence of Debt...........................6
2.5. Use of Proceeds................................................6
SECTION 3. PROVISIONS RELATING TO THE LOANS.................................6
3.1. Optional Prepayments...........................................6
3.2. Mandatory Prepayments..........................................6
3.3. Interest Rate and Payment Dates................................7
3.4. Method of Payments.............................................7
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................8
4.1. Corporate Existence............................................8
4.2. Corporate Power................................................8
4.3. No Legal Bar to Loans..........................................8
SECTION 5. CONDITIONS PRECEDENT.............................................8
5.1. Conditions to Initial Loan.....................................8
5.2. Conditions to Each Loan........................................9
SECTION 6. EVENTS OF DEFAULT................................................9
6.1. Events of Default..............................................9
SECTION 7. MISCELLANEOUS...................................................11
7.1. Amendments and Waivers........................................11
7.2. Notices.......................................................11
7.3. No Waiver; Cumulative Remedies................................12
7.4. Survival of Representations and Warranties....................12
7.5. Payment of Expenses; General Indemnity........................12
7.6. Successors and Assigns........................................13
7.7. Counterparts..................................................13
7.8. Severability..................................................13
7.9. Integration...................................................13
7.10. GOVERNING LAW.................................................13
7.11. Submission To Jurisdiction; Waivers...........................13
7.12. WAIVERS OF JURY TRIAL.........................................14
Exhibit 4.13
AMENDED AND RESTATED
LINE OF CREDIT AGREEMENT
AMENDED AND RESTATED LINE OF CREDIT AGREEMENT, dated as of August 13, 2003,
between PANAVISION INC., a Delaware corporation (the "Borrower"), and MACANDREWS
& FORBES HOLDINGS INC., a Delaware corporation (the "Lender").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower and the Lender entered into the Line of Credit
Agreement, dated as of February 3, 2003, (as amended by the First Amendment,
dated as of March 27, 2003, the "Existing Agreement"), pursuant to which the
Lender agreed to extend credit on a senior 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 in an aggregate
principal amount at any time outstanding not to exceed $4,000,000;
WHEREAS, the Borrower has requested the Lender (i) to extend the Maturity
Date under the Existing Agreement to August 31, 2006 and (ii) to increase the
Commitment under the Existing Agreement to an aggregate principal amount at any
one time outstanding of up to $10,000,000;
WHEREAS, the Lender is willing to provide for an extension to the Maturity
Date and for an increase of the Commitment under the Existing Agreement as
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).
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"Agreement" shall mean this Amended and Restated 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 and (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.
"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 Commitment" means the Total Revolving Credit Commitments under (and
as such term is defined in) the Bank Credit Agreement.
"Bank Credit Agreement" means the Credit Agreement, dated as of May 28,
1998, by and among the Borrower, the several banks and other financial
institutions from time to time parties thereto, the Arranger named therein, the
Documentation Agent named therein, and JPMorgan Chase Bank, as Administrative
Agent, as amended, supplemented and otherwise modified through the date hereof
and as further amended, supplemented and otherwise modified from time to time.
"Bank Letter of Credit" means a letter of credit issued under the Bank
Credit Agreement.
"Bank Revolving Loan" means a Revolving Credit Loan made under (and as such
term is defined in) the Bank Credit Agreement.
"Bankruptcy Law" means Title 11 of the United States Code or any similar
Federal or state law for the relief of debtors.
"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
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to $10,000,000, as such obligation is reduced from time to time in accordance
with Section 2.3 hereof.
"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.
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"Existing Agreement" is defined in the recitals of this Agreement.
"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).
"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 August 31, 2006.
"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.
"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 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.
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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;
provided, that no Loan shall be made unless, as of the date it is made, the Bank
Commitment has been substantially drawn after giving effect to any Bank
Revolving Loans to be made, and any Bank Letters of Credit to be issued, under
the Bank Credit Agreement substantially concurrently with such Loan.
(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.
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 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
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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. Such use may include repaying Bank
Revolving Loans if the Bank Commitment continues to be substantially drawn after
giving effect to such repayment of Bank Revolving Loans, and to any Bank
Revolving Loans to be made, and to any Bank Letters of Credit to be issued,
under the Bank Credit Agreement substantially concurrently with such repayment.
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
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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.
(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.
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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.
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"):
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(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) Utilization of the Bank Credit Agreement. As of the Borrowing
Date, the Bank Commitment shall have been substantially drawn after giving
effect to any Bank Revolving Loans to be made, and any Bank Letters of Credit to
be issued, under the Bank Credit Agreement substantially concurrently with such
Loan.
(b) 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.
(c) 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.
(d) 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. MISCELLANEOUS
7.1. 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.
7.2. 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 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.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to: Panavision Inc.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
and General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Lender: MacAndrews & Forbes Holdings Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
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provided that any notice, request or demand to or upon the Lender pursuant to
Sections 2 and 3 shall not be effective until received.
7.3. 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.
7.4. 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.
7.5. 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
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 7.5 shall survive the
termination of the Commitment and the repayment of the Loans and all other
amounts payable hereunder.
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7.6. 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 7.6, 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.
7.7. Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.8. 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.
7.9. 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.
7.10. 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.
7.11. 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;
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(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 7.2 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 ▇▇▇ 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.
7.12. 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.
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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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
MACANDREWS & FORBES HOLDINGS INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER